Sex and injury compo claims may spell doom for out of town work trips

Out of town work assignments or staff retreats and conferences could become casualties of a new trend for staff seeking compensation for injuries suffered while away.

An injury compensation claim against her Federal Government employer, brought by a public servant in New South Wales injured during a sex act while on a job out of town, illustrates a growing problem among employers.

Employers are becoming very wary of staging out of town work retreats or conferences because of a trend now for some staff to try and claim anything that happened to them while away was work-related.

The outcome of the latest case, of a Government employee on a work trip, holding her employer liable for injuries sustained while having sex during a work trip away, will be closely monitored by employers.

The claim naturally made national media headlines with its mix of sex and legal drama.

The female Federal Government staffer argued before The Federal Court that she was on a work trip, staying in a hotel booked and paid for by her employer, therefore a sex accident should count as being injured on work time.

The injury occurred in November 2007 when a glass light fitting reportedly came away from the wall above the bed as the woman was engaged in sex with a man. Media reports stated the light struck her in the face, leaving her with injuries to her nose, mouth and a tooth, as well as "a consequent psychiatric injury", subsequently described as an adjustment disorder.

She sought entitlement to compensation arguing her injuries were caused "during the course of her employment", as she had been sent out of town to stay the night ahead of a work-related meeting the next day.

Her lawyers argued she was entitled to compensation because, as prescribed under the relevant legislation, she was "at a particular place" at which her employer "induced or encouraged" her to spend the night.

The government's workplace safety body ComCare disagreed and rejected her compensation claim, and this was upheld by the Administrative Appeals Tribunal, which found the sexual activity "was not an ordinary incident of an overnight stay like showering, sleeping or eating".

Employers and their lawyers are keenly analysing this point because in many ways it's the crux of the issue- does private sexual activity out of accepted business hours and away from any acknowledged work environment in any way qualify as "work-related"?

The woman's lawyers argued that sexual activity was no different to other recognised recreational activities. Injury stemming from serious drinking and socialising although defined as recreational have been found to be compensable," the lawyers argued.