Tuesday, April 24, 2012

Workers Comp: Aussie Rules

Industrialized and urbanized societies confront problems rare in agrarian societies; one of which is large scale workplace accidents. These countries craft compensation plans to compensate employees for workplace injuries incurred in the scope or course of employment.

We call it workers compensation.

Workers comp has several easy to remember rules: 1) When in doubt compensate the employee; 2) When in doubt, compensate the employee; and 3) When in doubt, compensate the employee.

Australia has taken these presumptions to a new level, or depth. An unnamed female employee, a public servant, was dispatched by the Human Resources Section of the Australia Commonwealth Government Agency to an assignment in a country town in New South Wales.

She had previously met a man two weeks earlier in the town, and joined him for dinner at a restaurant. They retired to her hotel room between 10 and 11PM to do the down and dirty down under.

The room was full of torrid passion. Their bodies tumbled and turned. At some point, one of their appendices knocked a glass light fixture off the wall. It fell on her face, injuring her nose, mouth, and a tooth, and causing “a consequent psychiatric injury” described as an adjustment disorder.

Her sex paramour was not exactly sure of how it happened. His words, worthy of a romance novel, are they were “going hard.” He said “I do not know if we bump the light or it just fell off.”

He further said “I think she was on her back when it happened but I was not paying attention because we are rolling around.”

She filed a claim for workers compensation.

The Administrative Appeals Tribunal rejected her claim, holding sex in a hotel room is not a “necessary activity” in the same way that showering, sleeping, or eating is.

She appealed.

Her barrister, Leo Gray, maintained that the case was not about sex, but rather an “ordinary incident of life.” It incurred in the course of employment as she had checked into the hotel, booked and paid by her employer, the day before a scheduled morning meeting. He argued “This is no different than slipping in the shower or being bashed by a gang of thugs after a dispute over a woman.”

An interesting perspective on sex, but proving that lawyers will make any argument to win a case.

Federal Court Judge John Nicholas accepted his arguments and reversed the tribunal.
He wrote “if the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation.” That she was engaged in sex rather than other form of recreational activity in the hotel room does not change the result.

An emeritus law professor at the University of Melbourne thought the result was perfectly natural. He remembered an earlier case in which a jealous shearer in a shearing shed shot the woman he was having an affair with, or shot her lover, perhaps the cook, during in flagente delicto. The victim recovered workers comp.

In Australia apparently, a worker’s romp can lead to workers comp.

Ironically, her agency inspects occupational health and safety. Addendum: The High Court in Australia by a 4:1 vote reversed her award in late October. The Court said the relevant question is "Did the employer induce or encourage the employee to engage in that activity?" The answer was a resounding NO

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