PVYW v Comcare.


PVYW v Comcare.

For an injury to be compensable under WorkCover, you need to show that it arose out of or in the course of your employment. Usually, this requirement does not cause a lot of dispute. A recent case in the Federal Court of Australia however has caused quite a stir, mainly as a result of the unusual fact scenario.

The case of PVYW v Comcare is a matter arising under the federal workers’ compensation scheme, but the same broad principles regarding entitlement to compensation apply.

In this case, an employee had been sent to a regional NSW town for work and was required to stay at a motel overnight. The employer had booked and paid for her accomodation. That night she arranged to meet a male friend who lived in town and the pair had dinner together. They then proceeeded to the employee’s motel room where they had sex. Whilst enagaging in sexual intercourse, a glass fitting above the bed was pulled from its mount and fell on the employee, causing her injuries to her nose and mouth which required medical treatment.

The employee lodged a claim for compensation which was rejected. She applied to the Administrative Appeals tribunal which confirmed Comcare’s decision, having determined that the injury had not arisen in the course of the employee’s employment. In particular, the tribunal stated that “ the employer had not expressly or impiedly induced or encouraged the applicant’s sexual conduct that evening. Nor did the employer know or could reasonably know that such an activity was contemplated by her. The activity was not an ordinary incident of an overnight stay like showering, sleeping, eating, or returning to the place of residence from a social occasion elsewhere in the vicinity. Rather she was involved in a recreational activity which her employer had not induced, encouraged or countenanced. Accordingly, the applicant’s injuries were unrelated to her employment, took place during her leisure time, and were of a private nature”.

The employee appealed to the Federal Court which upheld the appeal and found that she was entitled to compensation. Justice John Nicholas considered that the Tribunal was wrong in requiring the employer to induce or encourage the activity in question, either expressly or impliedly. He stated that “ if the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation even though it could not be said that her employer induced or encouraged her to engage in such an activity. In the absence of any misconduct, or and intentionally self-inflicted injury, the fact that the applicant was enagaged in sexual activity rather than some other lawful recreational activity while in her motel room does not lead to any different result ”.

The full text of the decision can be found here:http://www.austlii.edu.au/au/cases/cth/FCA/2012/395.html

Comcare then appealed to the full bench of the Federal Court which on 13 December 2012 found on that there was no error in Justice Nicholas’ decision and upheld his findings. In particular the Court said that “ it is quite clear from his Honour’s remarks (…) that the concept of a ‘frolic of his own’ is one which applies to wrongful acts. That was not the case here and the notion has no application to the present case. No approval, express or implied of the respondent’s conduct was required in the present case. The views of the employer were irrelevant.”

The full text of the decision can be found here :http://www.austlii.edu.au/au/cases/cth/FCAFC/2012/181.html

On 14 January 2013 Comcare released the following media release :

“Comcare has lodged an application for special leave to appeal to the High Court of Australia in respect of the Full Court of the Federal Court’s decision in Comcare v PVYW handed down on 13 December 2012.

A Commonwealth employee is seeking workers’ compensation for injuries sustained after a light fitting was pulled from the wall of a motel during sex, on a business trip.

Comcare is taking this action to seek a High Court ruling on the boundaries between private and business activities when employees are traveling for work purposes. Workers need to be clear about their entitlements and employers should have an understanding of their responsibilities and how to support their staff.”

The saga continues and I will return to this issue once the application for leave to the High Court has been determined.

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