The Compensability Of Injuries During Sex

By Alfred Kempf
Categories: Blog, Personal Injury

Australia’s Federal Court of Appeal has allowed a claim for injuries suffered by a female worker caused during what must have been adventurous sex while on a business trip.

The woman met up with a friend and after dinner and drinks returned to her motel room (paid for by her employer) where one thing apparently led to another – namely sex.  The injury was caused by a light fixture over the bed being pulled from its mount and crashing on the woman’s head causing her facial injuries and eventually depression.

There is no real explanation as to how the light fixture was torn from its mount and it appears not to have been a relevant consideration by the Australian equivalent of WorksafeBC or the court:

At the time the applicant was injured, she was in the motel room having sex on the bed with her companion. The agreed facts suggest that the room was dark at the time. While they were having sex, a glass light fitting located above the bed was pulled from its mount. The light fitting fell on the applicant, causing injuries to her nose and mouth. She was later taken to hospital for treatment.

The agreed facts did not specify whether it was the applicant or her companion who pulled the light fitting from the wall. Whether this was done by the applicant or her companion was not something the Tribunal appears to have considered to be significant, nor was it suggested during the hearing of the appeal that it was relevant to, much less determinative of, any issue arising for decision….

 It was accepted by the respondent, in a concession which the Tribunal expressly endorsed, that there was no “gross impropriety” in the applicant’s behaviour on the day she suffered her injury.

Would the same result occur here?  The answer is not crystal clear.  Board policy suggests that it would depend in part on whether an employment connection exists and whether the introduction of a sex partner to the accommodation could be considered a “hazard”:

An employment connection generally exists continuously during a business trip, except where the worker makes a distinct departure of a personal nature.

This means that injuries or death that result from a hazard of the environment into which the worker has been put by the business trip, including hazards of any overnight accommodation itself, are generally considered to arise out of and in the course of the employment. However, injuries or death resulting from a hazard introduced to the premises by the worker for the worker’s personal benefit may not be considered to arise out of and in the course of the employment, if no other factors demonstrate an employment connection.

Personal activities associated with and incidental to business trips, such as traveling, eating in restaurants, staying in overnight accommodations (including sleeping, washing etc.) are normally regarded as within the scope of the employment where a worker is on a business trip. [note: sex is not included in this list]

On the other hand, when a worker makes a distinct departure of a personal nature while on a business trip, this may be regarded as outside the scope of the employment. There is an obvious intersection and overlap between employment and personal affairs while a worker is on a business trip. However, a “distinct departure” is more than a brief and incidental diversion. [would the brevity of a sexual encounter be relevant in BC?]

If a worker simply stops for a short refreshment break, this may be regarded as a brief and incidental diversion from the business trip and an employment connection may still be found. The employment connection may be broken where the injury or death occurs as a result of the worker’s involvement in social or recreational activities that are not incidental to the business trip. [ Aha -the answer!]

All lightheartedness aside, it would seem unlikely that this type of claim would be accepted on the language of the BC policy.  As bizarre as the facts of this case are, one cannot fault the logic of the Australian court when it considered that – if the worker would be covered if the injury was caused by a light fixture falling on her while playing cards why should it be different if she was having sex?

Who says law is dull?

Alf Kempf is the Chair of Pushor Mitchell’s Employment Law Group. He can be reached by phone at (250) 869-1215, or by email at kempf@pushormitchell.com.