A COURT decision to approve workers’ compensation for a woman who happened to be having sex while staying at a motel while working away from home will inspire much public debate – but for the wrong reasons.
The mass appeal of this story is undoubtedly because she was having sex when injured. But there are wider issues at play.
Did she deserve the compensation? Yes. Absolutely. And this is why.
The woman was injured (while having sex) when a glass light fitting above her bed was pulled from its mount and fell on her, causing injuries to her nose and mouth. She was in a motel booked by her employer while away for work purposes. However the real question was whether the worker suffered an injury in the course of employment and therefore was entitled to compensation.
Many workers may not realise this, but you do not have to be injured at or during work to be entitled to workers’ compensation. The legal test is this: Did the injury arise out of, or in the course of, your employment. If it did, subject to some exceptions, you will be entitled to no-fault compensation.
With so many people now working from home it’s important that we understand under what circumstances people are covered for a workplace injury.
The injury does not need to occur during employment. If it occurred during an interval within an overall period of work, and the injury is sustained while the worker is at a particular place or engaging in an activity that was expressly or impliedly induced or encouraged by the employer, the injury will be compensable. In one case a man had left home to live and work at a mine. The case centred around whether he was covered by the compensation scheme after he was injured in a car accident that occurred on a non-work day but during a sightseeing trip arranged for him by his boss – and he was in a company car. In that case the High Court found that the worker was entitled to compensation as the employer had encouraged the worker to spend the day at a particular place or in a particular way.
In another case, a worker who slipped in the shower of a hotel room while she was staying there for a work conference was found to be entitled to compensation.
These are ordinary activities one would expect to see in a motel room. But is having sex the same as having a shower, sleeping or eating?
Yes. The fact that it was sexual activity, rather than some other lawful activity, made no difference to the overall result.
And that is how it should be. The worker was right to pursue her claim. She was sent away from home by her employer and was injured while in her hotel room. She wasn’t doing anything illegal when the injury occurred. Jokes aside, this case confirms the longstanding principle that workers are entitled to compensation for work injuries – and they should not be afraid to lodge a claim.
Liberty Sanger is director and a workers compensation lawyer at Maurice Blackburn
