For more than two decades, the boundaries of an employer’s workers’ compensation liability during work-related travel were governed by a relatively generous legal principle. Under the classic High Court ruling in Hatzimanolis v ANI Corporation Ltd (1992), an injury occurring during an authorized interval in a remote or temporary work assignment was generally compensable, provided the employee was located where the employer expected them to be.
That boundary has now been dramatically pulled back. In Comcare v PVYW (2013), the High Court of Australia handed down a landmark decision that significantly narrows the application of the interval test, marking a profound shift in corporate liability for off-duty employees on business travel.
The Facts and the Controversy
The respondent, a Commonwealth public servant, was required to undertake an overnight stay in a regional motel booked by her employer. During that evening, she engaged in a private sexual encounter with an acquaintance, during which a glass light fitting above the bed detached from the wall, striking her face and causing significant physical and psychological injuries.
Comcare initially rejected her statutory compensation claim on the grounds that the injury did not arise out of, or in the course of, her employment. The Administrative Appeals Tribunal (AAT) upheld this rejection, but the decisions were overturned by both a single judge and a Full Bench of the Federal Court. They applied a broad reading of Hatzimanolis, ruling that because the employer had induced or encouraged the worker to spend the interval in that specific motel, the injury was compensable.
The High Court’s Reality Check
The High Court decisively rejected this expansive view, voting 5–2 to allow Comcare’s appeal. The majority judgment established that the mere fact that an employer provides accommodation or encourages an employee to be at a particular location is insufficient to create liability for any injury sustained during that period.
Instead, the court refocused the legal test on the specific activity being performed at the time of the injury. The refined four-step inquiry arising from this judgment structures the assessment cleanly:
- Step 1 (Identify the Injury): Did it occur during a work interval at an employer-mandated location?
- Step 2 (Identify the Activity): What was the employee actually doing when the injury occurred?
- Step 3 (Test of Encouragement): Did the employer induce, encourage, or permit that specific activity?
- Step 4 (Determine Liability): If the activity was not encouraged or induced, the injury did not occur in the course of employment.
The majority noted that unless an employer explicitly or implicitly encourages a specific activity, or if the injury is caused by an inherent defect in the premises themselves (such as a ceiling collapsing independently while the worker is asleep), the employer cannot be held responsible for private, personal actions undertaken during an interval. Sexual activity, while entirely lawful and private, was deemed outside the scope of what an employer induces or encourages an employee to do on a work trip.
Practical Implications for WHS Leaders
This judgment provides corporate executives with much-needed clarity regarding the financial limits of their workers’ compensation exposure. However, it does not absolve businesses of their primary duty of care under WHS law.
If an employee is injured while performing a routine, expected activity during a trip, such as eating dinner at the motel restaurant or using the designated bathroom facility, and the injury is caused by a failure of the premises, liability will still attach.
WHS professionals must continue to perform strict due diligence on third-party accommodation providers. The motel sex case provides a shield against liability for erratic or highly personal worker behavior, but it remains no excuse for sending staff into poorly maintained or inherently hazardous environments.
Source Material & Further Reading
- Primary Judgment: Comcare v PVYW [2013] HCA 41
- Precedent Jurisprudence: Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
