Sad to report the passing of PVYW –v- Comcare which came to a rather limp end for the Claimant in the Australian High Court this week. In a gift to legal writers and speakers everywhere, almost regardless of its relevance to their actual subject, the Federal Court concluded last year that Ms W was entitled to compensation for injuries occasioned while having sex on a business trip. She suffered “psychological trauma and depression” and was apparently unable to continue working for Government insurer Comcare, though whether this was the product of her injuries or of the brazen effrontery of her claim is unclear.
Seen by fans of the compensation culture as one of Australia’s finest contributions to legal thinking, the original suggestion was that in not expressly prohibiting its staff from having sex on business trips, Comcare was effectively consenting to their doing so and so was liable for any injuries thus incurred. See our post of 17th September 2012.
Now the Australian High Court has decided the appeal 4-2 against Ms W, perhaps reeling under the sheer number and detail of things which business travel policies would otherwise have to tell employees not to do for fear of being seen to condone particular behaviours. After all, the injury to Ms W was strictly caused not by the sex, so you could possibly allow that, but by her partner’s decision to hang onto a glass light fitting at some vital moment, so – perhaps some provision about the use of such support would have to be made, and so on.
The High Court decided that an employer’s not banning something did not mean that it had necessarily condoned it. The relevant question was whether Comcare had “induced or encouraged” Ms W to have sex on the trip. Obviously that would have put a wholly different slant on the case, but mercifully (for a whole range of reasons) it had not done so. The earlier Court’s reading of “induce or encourage” as “countenance”, and then of “countenance” as “not taking active steps to stop it” was simply wrong. In any event, said the majority, it was impossible to regard copulation as a work activity for an insurance worker, even if it took place in a motel booked and paid for by the employer. More was needed to establish liability on the part of the employer than that it had induced or encouraged the employee to be at the place where the injury occurred – it also had to have induced or encouraged the activity in the course of which the injury was incurred.
Ms W has sadly now taken her claim as far as she can – to the faint but lasting regret of legal commentators everywhere, there is no further right of appeal.
