The case raised in this posting has been in the newspapers quite a bit, and for good reason I suppose as it is to do with sex, and especially sex “on tour”. What sells newspapers better than stories of sex? It is reported as Comcare v PVYW and was decided by the High Court on 30 October 2013.
If you don’t know about it, the simple facts are that Miss X was employed by the Commonwealth government and was in regional NSW for work training. While there she took the time to have sex one evening with someone who we can glean must have been a new flame. During this ‘intercourse’ the glass light fitting above the bed was pulled from its mount by one of them and it struck Ms X in the nose and mouth. We glean that the other party must have been a new flame as, as we all know, this sort of intercourse only occurs between new flames.
Miss X was injured and so claimed against the Commonwealth government’s insurer. (How one would love to know what answer was given to the question in the claim form “Please describe, in detail, how the injury occurred. If possible, attach a diagram or photos that will assist in this explanation.”)
The insurer rejected the claim on the basis that the injury was not suffered by Miss X “in the course of employment”.
After three previous hearings (in the Administrative Appeals Tribunal, the Federal Court and the Full Federal Court), the case found its way to the High Court. In deciding on the matter, the High Court was divided, with 4 Judges saying that Comcare wasn’t liable to cover Miss X and 2 saying they were.
It has long been accepted that the “course of employment” extends beyond the work which a worker is employed to do to include things that are incidental to employment, such as having a lunch break and if required staying away from home for a period.
The central issue the High Court had to grapple with was how far should cover should be extended for employees injured while not specifically at work but while in an interlude between work duties. The High Court had already decided on this issue in 1992 in Hatzimanolis v ANI Corporation, so the Judges in this case had to decide how to apply Hatzimanolis’s to the facts of this case.
The Judges interpreted the test set out in Hatzimanolis’s case differently. The majority found that if an employee is injured while not actually engaged in work it must be asked what the employee was doing when injured. The Court found that in some cases, the injury will have occurred at and by reference to the place. But more commonly, it will have occurred while the employee was engaged in an activity. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
The minority did not like the application of 2 different tests by the majority. Their view was that this was not what Hatzimanolis’s case required. To them the case stated that an injury that an employee sustains at a place where an employer has induced or encouraged the employee to be during an interval or interlude in an overall period or episode of work is, without more, properly to be characterised as an injury in the course of the employee’s employment, unless the employee is engaged at the time of the injury in gross misconduct. They said further that it was not necessary that the employee, during that interval or interlude, also be undertaking a particular activity which the employer has expressly or impliedly induced or encouraged the employee to undertake. Nor, absent gross misconduct, is any inquiry into particular private activity of the employee relevant.
The minority found that it was not the business of an employer to concern itself with what an employee was up to in their private time. They stated that Hatzimanolis had established that:
“Gone is the artificial fragmentation of an interval or interlude in an overall period or episode of work spent by an employee at a particular place at the inducement or encouragement of an employer into yet shorter periods of time each of which is to be further separately accounted for and discretely related to the employment relationship. Gone also is the intrusive inquiry that such artificial fragmentation entails into personal choices made by an employee, hour-by-hour or minute-by-minute, during an interval or interlude.”
The standard nowadays was simply that “…it is sufficient for an injury sustained by an employee during an interval or interlude in an overall period or episode of work to be in the course of the employee’s employment that the employee is where the employee would not be but for his or her employment, and is doing what a man or woman so employed might do without gross impropriety.” The test applied by the majority was, in the words of Judge Gageler “… inconsistent with the Hatzimanolis principles; it is a return to the outmoded, artificial and intrusive form of analysis that the Hatzimanolis principles were formulated to overcome.”
So what do you think? Does the effect of the majority’s decision seem to be a bit strained?
It means that if you injure yourself in your hotel room by slipping and falling in the shower you are covered or even if you are asleep and the light fitting falls out and hits you in the head you are covered, but if you are engaged in a liaison in the same hotel room and you cause the light fitting to fall you are not. Is this a valid distinction? Should an employer concern itself with what an employee does in his or her spare time? Misconduct is not covered by insurance – is that not enough of a limit?
Certainly, it would seem that what happens on tour, stays on tour.