Perhaps being a Judge could be more fun than is generally credited. After all every now and again you get to preside over a case like this little gem from Australia, and at a stroke ensure your immortality in student law reports.
In PVYW –v- Comcare (No.2) reported this month, Ms W went on a business trip overnight, staying in a motel booked by her employer. The Judgment is a little coy about what happened next, save that later in the evening Ms W could be found having what seems to have been fairly exuberant sex in the motel room. While she was so engaged, a glass light fitting was wrenched from the wall and struck her on the head, causing her a number of injuries. Fifty Shades of Grey has a lot to answer for, in my view.
A lesser woman might have pretended to friends that she had tripped on a kerb, but not Ms W. She decided that someone had to be blamed, that it obviously could not be her or her un-named partner, and therefore that she would sue her employer.
This bold step required Ms W to show that while having sex on a business trip she was actually acting “in the course of her employment”. For the purposes of the relevant legislation this test would be satisfied if the injury was sustained while she was undertaking an activity associated with her employment, or at her employer’s direction or request. At first instance she was deemed (not unreasonably, one might think) to be engaged in a “recreational activity” which her employer had not induced, encouraged or countenanced.
On appeal, however, the Federal Court took the view that “countenanced” could mean “tolerated” or “permitted”. There was no evidence on which it could make a positive finding that the sexual activity was not “countenanced” (in that sense) by the employer. While the Court accepted that the employer had not actually encouraged Ms W to have sex on the trip, or not involving fixtures and fittings at any rate, it found also that this did not mean that it had disapproved of her doing so. Added to the fact that she was at the time in a motel room which her employer had booked, this was enough to establish a sufficient connection between the injuries and the employment. That the activity was sexual did not make any difference, said the Court, from if she had been playing cards or some other lawful activity. There is no clear indication, sadly, as to how some hideous card-related injury should be the employer’s responsibility either.
So, scarcely believably, Ms W’s legal action against her employer had a much happier outcome than her night in the motel room, and she won.
This points to a terrifyingly wide construction of “in the course of employment”. Commentators suggest that only comprehensive misconduct policies expressly disapproving of, well, more or less everything, will provide a defence. Hands up, all those willing to put pen to paper on a re-write of your company’s business travel policy?