Workers' Compensation

Do That To Me One More Time……..Australian Sex Case Reversed As To Course and Scope

You just have to love that rare and special intersection where our law practice comes smack up against a little afternoon delight.  My posts of 4/23/12 (Kangaroo Court), 4/25/12 (A Roll in the Hay), and 4/27/12 (A Head-Banging Good Time) heralded the Australian work comp decision where a female employee was awarded benefits for a head injury sustained during rough sex with a paramour.  This week I heard from John Ellis at Heckler & Frabizzio to alert us that this ruling has been overturned.

“Hi Cassandra: I found an update to the Australian case you blogged about last year- the one where a court ruled that a woman was entitled to workers comp after being injured during sex on a work trip. The Australian High Court reversed 4-1 and held that workers must be “expressly or impliedly induced or encouraged by the employer” to undertake an activity which leads to injury. Since the light fixture apparently fell on her due to the sexual activity, the injury wasn’t work related. Common sense prevails!”

According to John’s partner, John Gilbert, this is the case of the “deviant deviation”  (that’s a great title for an upcoming post).  I agree that this is the only outcome that makes sense and that course and scope should always apply a litmus test of “is this activity a risk the employer should have to bear as part of the employment relationship?”

Under the recently-decided Delaware Supreme Court case of Mary Spellman v. Christiana Care Health Systems, No. 315, 2012 (Del.)(April 8, 2013), which I comment on in my post of 4/10/13 (On the Road Again), the Court instructs to look at whether the activity is in furtherance of some interest of the employer.  Unless you operate a brothel (and hey, as of 2008 there were 28 legal brothels in Nevada), I am thinking that sexual hijinks is an activity that is always going to fall short as an event that furthers the purpose of the employment.

And they say being a comp lawyer is boring?  I want to thank the two Johns (no pun intended) for alerting us the appellate reversal of this decision and arousing our interest in this topic once again.  I have a whole new respect for our neighbors in Australia….. in Nevada, well not so much.

Irreverently yours,

Cassandra Roberts

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