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Is sex which results in injury on a work trip a compensable injury?

By Legal Eagle

Now, if this were me, I don’t think I could bear to bring the dispute to court… However, there is presently a case before the Federal Court in which a woman is suing for worker’s compensation after she was injured during vigorous sex with a man she’d met while on a workplace trip. She was staying in a hotel for the purposes of attending a meeting, and had a liaison with the man in her hotel room the night before the meeting. The man was not in any way connected with her work. The woman was injured after a light fitting came off the hotel wall while she was having sex, and the light fitting hit her in the nose, mouth and a tooth (owch!). She also says that she has developed a consequent psychiatric injury, namely an adjustment disorder.

Her barrister made the point that if she’d simply slipped in the hotel shower, she could have argued that the workplace should compensate her for her injuries, as she wouldn’t have been in a position to injure herself if they had not sent her to the motel for the purposes of the meeting. But does this principle extend to sexual intercourse? The Australian reports:

Mr Grey [counsel for the plaintiff] said “the lawful sexual activity” was considered reasonable behaviour for a motel room as “it’s not the 1920s.”

But Andrew Berger, counsel for Comcare, submitted that having sex was not a “necessary activity” for a motel room, in the same way that “showering, bathing or sleeping” is.

The government’s workplace safety body ComCare rejected her compensation claim, upheld by the Administrative Appeals Tribunal, finding the sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”.

In submissions filed to the court, the woman’s lawyers have argued that being injured while having sex “during an interval or interlude within an overall period or episode of work” was no different to being hurt doing other recreational activities.

“Serious drinking and socialising may be regarded as a recreational activity, yet injuries resulting from those activities … have been found to be compensable,” her lawyers argue.

Gives a whole new nuance to the expression ‘a frolic of one’s own’. I wonder what the judge will decide?

37 Comments

  1. Posted July 27, 2011 at 10:26 pm | Permalink

    I just love the bit where she is claiming psychiatric injury because she had a pretty wild root during a work trip.

  2. Posted July 27, 2011 at 11:21 pm | Permalink

    Steve@1 : It’s a time when a person can be /very/ impressionable/conditionable. I think (studying med a long time ago) there was something about sex with a migraine can even mean sometimes copping a migraine during the same kind of activity thereafter.

    To the post: It might conceivably make a difference if there had been a work-related drinkies beforehand, without appropriate management if the woman had been served drinks when she was already under the influence.

    I remember one work trip, about two dozen people gathered from offices around the country in a swishish hotel in Sydney. Little innocent me, a few weeks off the obligatory dole-after-uni, having a chat after dinner with a couple of colleagues in my room. Knock at door – it was a prostitute ordered to my room by the most senior manager at the conference. I was not happy, not happy at all. Not surprising I left the company within a year chucking a wobbly about professional ethics and what I was expected to do. Next job … up to Sydney for the first week after getting married the previous weekend … what do the managers do? Try to drag me off for an initiation with a hooker. Visits to Sydney were fine as long as I was there for a solo consult or teaching stint for a few days, the only one from the company in the hotel. This was 1980s though – hope business culture has changed since.

    Co-worker after drinkies? Problematic. Was there an overly generous discount on the bar fridge paid by the company, and the other person also set up at the same hotel? Lots of variables and specifics required, methinks.

  3. Posted July 28, 2011 at 5:13 am | Permalink

    This from the USA, not here, but I do have one friend who was the first female senior manager in a particular workplace. At some point she was taken aside and offered a choice between a male escort and a fur coat (the men got Dave’s first experience, whether they wanted it or not).

    She went for the escort, and was brought a ‘stud book’ from which to choose.

    To be fair, this was in Las Vegas, but still…

  4. derrida derider
    Posted July 28, 2011 at 8:35 am | Permalink

    The Churchill quote was better worded than that: “One can always rely on the Americans to do the right thing … after they have exhausted all the alternatives”.

  5. Posted July 28, 2011 at 10:59 am | Permalink

    Lots of variables and specifics required, methinks.

    I think this is the case. I don’t think the headline grabbing aspect of sex has a lot to do with the case. For me, it’d depend on how much the woman’s actions contributed to the injury (was it reckless or just virgorous conduct?).

  6. kvd
    Posted July 28, 2011 at 11:20 am | Permalink

    My sympathy is with the woman who got bonked. On the head or anywhere else for that matter.

    But LE, I’m intrigued like Steve@1 about the ‘adjustment disorder’. She has developed an aversion to lights without a dimmer switch?

  7. Posted July 28, 2011 at 11:46 am | Permalink

    She also says that she has developed a consequent psychiatric injury, namely an adjustment disorder.

    HAHAHAHAHAHA – okay! Is her mother nursing her thru this difficult time?

  8. Posted July 28, 2011 at 12:55 pm | Permalink

    For me, it’d depend on how much the woman’s actions contributed to the injury (was it reckless or just virgorous conduct?).

    Ten News reported that one of the couple, didn’t say which one, grabbed the light fitting during the sex and that’s what brought it down on her head. If that’s true then I’ve got no sympathy.

  9. kvd
    Posted July 28, 2011 at 1:07 pm | Permalink

    desipis@7, definitely virgorous conduct. As the man says “Mi know shame”.

  10. Posted July 28, 2011 at 2:38 pm | Permalink

    Grabbed the light during sex? Hmm, I suspect I agree with Comcare and the AAT then.

  11. Posted July 28, 2011 at 5:51 pm | Permalink

    it was a prostitute ordered to my room by the most senior manager at the conference. I was not happy, not happy at all. Not surprising I left the company within a year chucking a wobbly about professional ethics and what I was expected to do. Next job … up to Sydney for the first week after getting married the previous weekend … what do the managers do? Try to drag me off for an initiation with a hooker.

    Do you work in advertising? Maybe not. You didn’t mention cocaine.

  12. Posted July 28, 2011 at 6:04 pm | Permalink

    Derrida, I think you’ve landed on the wrong thread, and alas I have no idea how to put you on the right one. Gah.

  13. Posted July 28, 2011 at 6:05 pm | Permalink

    Cocaine is very dangerous. Not that I’ve tried it. :)

  14. Posted July 28, 2011 at 8:08 pm | Permalink

    Adrien@13 – no, not advertising. Biologist by training, some work using only biol, IT geek by pastime-(punchcard-days)-turned-professional, and most fun of all, using IT in a medical field (unless you include uni jobs like pub pianist, being Bernard Black, book-keeping in pen/pencil days…)

    As for cocaine – look at the molecular structure, and those in the amphetamine family, and go *shudder*, even before being diagnosed as epileptic.

    As to the lighting fitting … seriously folks, don’t trivialize what could actually be a real problem – a noxious stimulus at exactly the wrong moment could have significant effect (anything from being completely unable to get “in the mood” or vaginismus with a light fitting in the room, to going all loud and wobby every time she sees a light – which could be a huge problem whenever one goes into an office or a shop, especially if kids are around..). Her attribution of blame and intended source of compensation might be completely wrong-headed, but she could well have a real need for relatively expensive de-conditioning.

  15. Posted July 28, 2011 at 9:29 pm | Permalink

    Dave, you should get a job in Plaintiff Law ;)

  16. Posted July 28, 2011 at 9:55 pm | Permalink

    SL@19 – you should have been at some of my lectures – especially those detailing how easy it is to create a fetish – and, sometimes hard to extinguish, especially if the created fetish was slinky boots, and the experimental subject’s office staff KNEW it and wore particularly low-cut tight miniskirts and slinky boots ….(turns out the experimental subject was our lecturer … and with nominative determinism, called Horne). Now… the jollies versus the embarrassment? being unable to stand up and greet the vice chancellor walking into your office preceded by receptionist? sexual harassment? have fun with that one thinking about how many different actions could be taken and the possibilities for wordplay in court/judgements.

  17. Posted July 29, 2011 at 7:49 am | Permalink

    LE@21 – i agree with you wholeheartedly on all aspects – there were others who hadn’t grasped the possibility of a significant problem.

    This case, it was probably an accident – but as for most injuries from objects in the heat of the moment? Intentional … The rule we were told was “never be surprised by what people can put where, always be tactful asking how it got there, and half the time believe the story”

    Now, often, accidents lead to warning signs that give us all a laugh, the ones where you answer “who’d be so stupid?” with “well somebody was, or the sign wouldn’t be there” … But in this case, a hotel, presumably catering to non-english speakers and thus needing “don’t do this” silhouettes with big red lines through them … You could end up with rooms covered in images not suitable for kids.

  18. Henry2
    Posted July 29, 2011 at 10:31 am | Permalink

    One presumes that there were lights not far from the bedhead affixed to the wall for the purposes of reading. One also presummes that said lights may have been seen as a satisfctory stabilising anchor when doing pelvic floor exersizes on an unstable platform! One then presumes something happened with the strength of climax. :)

  19. Posted July 29, 2011 at 11:47 am | Permalink

    LE@23 : Best story, a guy got brownie points for not stuffing everyone about, not talking of constipation, by saying straight up what was where and how, and even more for cracking everyone up on the way to threatre by joking “on second thoughts, don’t take it out, just change the batteries”.

    Unfortunately, most people mess staff about, despite the inevitable (delayed) discovery of exactly what happened.

    Moral of the story: be honest, don’t mislead, and you be treated by people who aren’t annoyed at you (and probably able to sit down sooner after treatment).

    Consider this a public service announcement.

  20. kvd
    Posted July 29, 2011 at 2:22 pm | Permalink

    Looking at that Australian article (i.e. searching for extra ‘facts’) there’s a related earlier finding from December 2010, the last two pars of which say-

    While the AAT upheld Comcare’s original decision not to award compensation, it refused to publish its reasons.

    The material was suppressed because the tribunal “received concrete evidence that the applicant may act on suicidal tendencies if the reasons were made public”.

    - so it seems this person has some serious issues, definitely.

    Also, I guess this ties in with that other, similar case where the Public Servant conferencing at Crown Casino put the last of his change into the Club Keno pool, won the jackpot, and was forced to hand his winnings over to his department. I’m sure I read that somewhere.

  21. RipleyP
    Posted July 29, 2011 at 2:53 pm | Permalink

    It would be interesting to see if this is also going along the occupier liability or even product liability route.

    I have my doubts about the validity of the current claim based on the very sketchy information available.

    As much as I hate floodgates arguments another outcome from such activity could be the contraction of a disease from the activity and employers being liable. If the argument is that sex is a normal activity consequent to work do we consider all the foreseeable outcomes of such activity as referable to the employer?

    My apologies, too much employer law this week, I have become a broken record.

  22. Posted July 29, 2011 at 9:18 pm | Permalink

    I strongly suspect that the busted light fitting was used as an anchor point for, ahem, some kind of restraint. It would appear that modern hotel rooms are not equipped for BDSM.

  23. Patrick
    Posted July 30, 2011 at 6:28 am | Permalink

    Well, you can get quite nifty ones that hook over doors, etc…forethought!!

  24. Posted July 30, 2011 at 9:05 am | Permalink

    Now you all mention it given how hotels are apparently not infrequently used for “not your place, not mine”, or alpha males on business trips, a certain level of robustness should be in the design. Especially in places with the reputation of the Cross – remember being put there by an airline because we’d got stuck on tarmac after curfew, and kept awake all damn night by noises next door and showers every half hour or so – and I don’t think the guest in the next room had OCD. There might even be a point to having a “robustness/stability” certification for hotel beds and the like above the minimum safety requirements for general sales.
    My only vice as a 5-days a week in two non-home states was going for the second dessert from the trolley (or, two on the same plate – liquer berries and icecream or pav? No, both together!), but no furnishing danger as I never suffered sugar rush causing 3-yo-like trampolining on the beds and couches.

  25. Posted April 19, 2012 at 7:02 pm | Permalink

    And now

  26. kvd
    Posted December 17, 2012 at 12:02 pm | Permalink

    LE@32 quite possible, and now maybe those office photocopier pics of private parts will also have to carry an embedded disclaimer – maybe a watermark?

  27. Posted October 31, 2013 at 12:15 pm | Permalink

    LE Further update required …. High Court

  28. Posted October 31, 2013 at 4:37 pm | Permalink

    H2

    French CJ disappointing yet again (imho – I know you will be of a different view).

    Is it something about coming from WA? It’s a conservative place. That stuff creeps in by osmosis.

    You don’t get there without being a political being.

    OK, yes, I know the same applies to everyone else on the bench, but it was otherwise a predictable division.

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