Clare McIlwraith, ‘Injuries and Workplace Misadventure: Comcare v PVYW‘ (8 September 2014).
A majority of the High Court has allowed an appeal against the decision of the Full Federal Court in a case concerning workers compensation. PVYW sustained injuries while having sex in a motel room that had been booked by her employer for a work trip. PVYW then lodged a claim for compensation with Comcare, which under the relevant statute pays compensation for injuries suffered by employees ‘arising out of, or in the course of, the employee’s employment’. Comcare’s eventual decision to reject PVYW’s claim was upheld by the AAT. The FCA allowed PVYW’s appeal against Comcare, and the Full Court upheld that decision, concluding that the injury was suffered in the course of employment. The High Court has the opportunity to reconsider the central test from Hatzimanolis v ANI Corp Ltd [1992] HCA 21 (and the Full Court’s application of that test):

… 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. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.

The majority held that a connection to an inducement or encouragement by the employer to perform the activity was required for the injury to be sustained in an interval or interlude during an overall period of work in the course of employment. An inducement or encouragement to be at a place was not relevant. As the employer had not induced or encouraged the respondent to have sex, she was not entitled to compensation. Bell J and Gageler J, in separate judgments, would have dismissed the appeal.