Kells the Lawyers

By David Potts

In July 2011 the Federal Court considered whether an employee was entitled to workers compensation. She was injured in unusual circumstances.


The worker was injured when she was having sex with an acquaintance in a hotel that was booked and paid for by her employer and was part of a work trip.

It appears that she was injured when a glass fitting above the bed was pulled from its mount by either the worker or her acquaintance and struck the worker on the nose and mouth.

The legal principles

For a worker to recover compensation it is necessary to show that his or her injuries arose out of or in the course of employment. This particular worker was employed by a federal government institution. Her rights were determined under the Safety Rehabilitation and Compensation Act.

She submitted a claim and liability was denied. She appealed to the Administrative Appeals Tribunal. The Administrative Appeals Tribunal reaffirmed the decision to deny her compensation. She has appealed to the Federal Court and the court heard argument about the claim in July.

Courts have for many years considered cases like these. Many of the cases involve employees staying at remote locations or in accommodation arranged and paid for by their employer.

The High Court reviewed many of the older cases in Hatzimanolis -v- ANA Corporation Ltd1.

Hatzimanolis involved a worker from the Illawarra who was working in Western Australia. His employer encouraged him and others to spend his work-free Sunday at Wittenoon Gorge. The employer organised the excursion, provided the vehicles and food and invited Mr Hatzimanolis to come to come along.

He was injured on the journey (he sustained quite serious injuries). The High Court held in those circumstances he was entitled to compensation. The court determined that:

“It should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way”.

Following Hatzimanolis there have been a number of cases that look at these issues. They include:

  • Inverell Shire Council -v-Lewis: a worker residing at a caravan park in order to attend practical training was entitled to compensation when he was shot and injured by a stranger.
  • McCurry -v- Lamb: a shearer was entitled to compensation who is in the bed of a fellow employee when he was shot and seriously injured by a deranged fellow employee.
  • Kennedy -v- Telstra Corporation: an employee who was injured returning to a hotel was entitled to compensation.
  • Watson -v- Qantas Ltd: a Qantas pilot in Los Angeles was injured returning to his hotel after visiting friends. It was held that he was entitled to compensation.

The result

The High Court has reserved its decision. The respondent has submitted that the injured worker is not entitled to compensation as the activity she was engaged in (sex) had not been authorised by her employer.

The Federal Court has reserved its decision and it is likely to hand its decision down in the next few months.

We will comment further on the decision when the result is available.


1 1992 (173CLR473)