Is a man or woman injured while having sex in their hotel room on a work trip entitled to a workers' compensation payout?
The issue was decided last week in the Federal Court in Australia. The case involved a woman who was sent on a work assignment to a country town by her employer, the Human Relations Section of the Commonwealth Government agency. In the course of her work stay, she had a sexual encounter with a male friend who lived in the country town.
According to the male friend's statement, they had raucous sex together and were rolling around when a light in a glass fitting came away from the wall. He was unclear if they bumped the light or it happened to fall off.
The woman subsequently brought a workers' compensation claim for the facial and psychological injuries that she suffered. An administrative court denied the claim holding that the injured party had to demonstrate that she was injured while taking part in an activity that was ''induced or encouraged'' by her employer.
In Federal Court, Justice John Nicholas overturned the decision of the administrative court and ruled that the woman was properly entitled to compensation. As Justice Nicholas observed, ''if the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation.'' Her sexual activity in her motel room represented another form of lawful recreational activity.
Could a similar novel claim for workers' compensation be advanced in Canada?
The answer is that it is quite possible that it would be allowed. Each of the provinces has established worker compensation schemes. In Ontario, for example, to succeed with a workers' compensation claim, it must be shown that the conduct leading to the injury was in the course and scope of the worker's employment. Attending a movie theatre in the evening and falling down a set of stairs would clearly not qualify. An injury caused by sexual activity in a hotel or motel room where the worker is staying out of town is in a different category and might qualify for compensation.
The amount of damages, however, that can be successfully claimed under a workers' compensation scheme is quite limited. A lawsuit brought against the hotel or motel outside of Ontario for its negligence could potentially lead to a much higher monetary award of damages.
However, the injured worker would be required to choose whether to sue or bring a compensation claim.
In a case similar to the Australian woman injured in her motel having sex, she could choose to collect benefits or to sue the motel, but not both.
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