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.

The issue might have been murkier had the male partner been a work colleague but ComCare reportedly noted the woman was having sex with "an acquaintance, who had no connection with her work". Thus it believed the resultant injuries could not be regarded as being sustained during the course of her employment.

ComCare believed the woman's sexual activity was "not obviously involved" in her employer's requirement for an overnight stay, was not of any benefit to the employer, was "a frolic of her own", and "took her outside the course of her employment by ... engaging in an activity unrelated to her employment and not positively supported by her employer".

The issue of employees being injured while socialising on work trips or conferences away from home and seeking compensation or WorkCover claims is worrying nervous employers.

Increasingly employers staging work retreats or staff weekends away or staff conferences are trying to get staff to sign waivers and releases to absolve the employer of responsibility if the employee is injured while away from home.

These waivers are not legally enforceable but it shows how concerned employers are becoming.

While employers might argue they cannot be held liable for injuries due to sex sessions in out of town motels, the issue of employer responsibility needs better clarification.

It's a question of what part of a trip away is deemed 'work' and what part is not connected with any work or work- organised event.

For example I had a case for a sales company that staged a national conference retreat on the Gold Coast. One night, after a work session ended, an out of town participant left the work group, went off on his own to a Surfers Paradise strip club where he became involved in a fight .

He was injured and spent time in hospital and later tried to claim WorkCover compensation saying it happened during a work-organised outing. The employer argued he had left the work-organised group and this was something he did in his own time.

Increasingly employers are looking for legal protection against such claims and one option is to call an end to work retreats and so on, and just organise get-togethers in the office or via teleconferencing where they have more control over any injury risks.

I agree an employer is responsible to ensure a staff member working out of town is accommodated in proper, safe accommodation.

If the boss puts you up in a dive where you are injured then they could be held liable.

However the sex injury compo claim from the public servant brings into sharper focus the issue of where an employer's responsibility for staff ends.

In general if an employer sends a staff member out of town for work then the employer's responsibility does not just end at the end of the business day. The employer has a responsibility to ensure the employee is accommodated somewhere safe.

However I think it's unfair to say the employer should somehow be responsible for injuries a staff member sustains outside defined working hours or away from any work- organised event.

At the risk of sounding unsympathetic to injured workers, there's no question some people are quick to pursue compensation actions against an employer rather than take responsibility for their actions.

Human nature, perhaps, but increasingly employers watching the bottom line fear out of control lawsuits and employees contemplating some compensation dollars should not be surprised when the boss calls in the lawyers to fight the claim.