Sex compo claim: I was involved in 'normal behaviour'

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An Australian government employee injured while having sex during a work trip has taken her fight for worker's compensation to the Federal Court after having an initial claim turned down.

The woman, whose name has been suppressed, suffered injuries to her nose and mouth when a wall-mounted light fitting in the motel room she was staying in fell on her head during sex. She told a Federal Court hearing in Sydney yesterday that she also sustained a psychiatric injury because of the November 2007 incident.

She claims she was engaged in "normal behaviour" with a male acquaintance and should be entitled to worker's compensation - the compulsory scheme which covers workplace accidents.

Her claim is based on her assertion she suffered the injuries "during the course of her employment", because she was required to travel to the country town and to stay overnight to attend a budget review meeting early the next day.

The woman's barrister, Leo Grey, told the court having sex in such a situation was an "ordinary incident of life" and she was therefore entitled to compensation under workers' compensation laws.

The woman is appealing a decision by federal government safety body Comcare, and upheld by the Administrative Appeals Tribunal, that sex during an overnight stay was not an "ordinary activity".

But Mr Grey said the fact that his client was having sex had little to do with the case, according to a report in the Sydney Morning Herald newspaper.

"This case is as much about slipping in the shower, or being beaten by a gang of thugs or being shot by a jealous rival," he said.

He said that for the woman's employer to avoid paying compensation, it needed to have informed her that having sex while on a work trip was not appropriate behaviour, either by telling her explicitly or through a list of rules such as a code of conduct.

"Having sex is just one of those things (like eating or bathing)," he said.

"It's not the 1920s, after all."

However the counsel for Comcare, Andrew Berger, argued there was not a sufficient connection between the incident and what the woman was being employed to do.

"There's nothing about this that could have led the employer to reasonably conclude that this injury might occur," Mr Berger said.

"What if she was to hold a swingers' party? Is that something that could have been contemplated by the employer?"

Federal Court Justice John Nicholas is expected to deliver his ruling next month.

- NZPA