My comment: “ONLY IN AUSTRALIA”
Margaret Scheikowski July 28, 2011
A public servant injured on a work trip while having sex with an acquaintance at a motel was entitled to compensation, a judge has been told.
The woman's barrister, Leo Grey, said sex was "an ordinary incident of life" commonly undertaken in a motel room at night, just like sleeping or showering.
The woman, who cannot be named, is challenging the rejection of her workers' compensation claim for facial and psychological injuries suffered when a glass light fitting came away from the wall above the bed as she was having sex in November 2007.
In his statement, the man said they were "going hard".
"I do not know if we bump the light or it just fell off," he said.
"I think she was on her back when it happened but I was not paying attention because we are rolling around".
In the Federal Court in Sydney yesterday, Mr Grey said the woman's employer had sent her to spend the night at a NSW rural motel ahead of a departmental meeting the next day.
He submitted errors of law were made by ComCare, the federal government workplace safety body, in rejecting her claim.
The barrister referred to previous cases, including when compensation was granted to a worker who slipped in the shower at a hotel.
But Andrew Berger, for ComCare, said the sex was not "an ordinary incident of an overnight stay like showering, sleeping or eating".
While sexual activity was an ordinary incident, it was not necessary, he added.
Describing the case as "by no means easy", Justice John Nicholas asked if the woman had been injured in a motel gym on an exercise bike, would that be compensable.
Mr Berger said it would depend on all the circumstances but it would "probably fall on the compensable side".
Mr Grey said there was no suggestion the woman had engaged in any misconduct and noted the absence of any rule that employees should not have anyone else in their room.
"This is not the 1920s after all," he said.
She was entitled to compensation because she was at "a particular place", as specified in the legislation.
The activities had not occurred "outside the place", such as in the bandstand in the local park, he said.
Mr Berger submitted the sexual activity was not a reasonably foreseeable part of an overnight stay, while Mr Grey argued it was not a "far fetched" scenario.
Mr Berger said there was not a sufficient nexus between the cause of the injury, sexual activity, and her employment.
The judge will deliver his finding on an unspecified date.
