Be careful what you “induce or encourage” an employee to do

The High Court last month found that Comcare was not liable, under the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation to a Commonwealth government employee who had alleged she was injured in the course and scope of her employment.  The employee was staying in a motel, paid for and arranged by her employer, during a two day working visit to a regional town.  Whilst engaging in sexual intercourse at the motel with an acquaintance, the employee was injured when a glass light fitting above the bed was pulled from its mount and struck the employee on her nose and mouth, causing her physical injuries and a subsequent psychological injury.    

The Full Bench of the Federal Court found that the injuries suffered by the employee had occurred in an “interval or interlude” during an overall period of work and therefore, absent any gross misconduct on the employee’s part, the injuries arose in the course of her employment.  The Full Bench thus found Comcare to be liable for the injuries suffered by the employee.  The Full Bench concluded that because the employer had induced or encouraged the employee to spend the night at the motel, the injuries sustained in the motel could be considered in the course of her employment. 

The High Court disagreed with the Full Bench.  It stated that there needed to be a connection or association to the employment and the activity taking place.  The High Court explained the position as follows:

In order for an injury occurring in an interval in a period of work to be in the course of employment, the activity must be connected to the inducement or encouragement of the employer.  An inducement or encouragement to be at a particular place does not provide the necessary connection to employment merely because an employee is injured whilst engaged in an activity at that place.

It was accepted that the employer had not encouraged or induced the employee to engage in sexual intercourse.  The High Court therefore found by majority, that the employer was not liable for the injuries suffered during the activity at the motel.  The High Court also stated that “…whilst the inducement or encouragement by the employer may give rise to liability to compensation, it also operates as a limit on liability for injury sustained in an overall period of work.”

Lavan Legal comment

The High Court’s decision in this case continues a long line of authority in workplace claims that in order for an employer to be liable for injuries suffered by an employee, there must be a connection between the cause of the injury and the work required to be undertaken by the employee.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.