An employer induces or encourages an employee to be at a particular place in an overall period or episode of work, which is not the usual location for that work, and there is an interval or interlude during that overall period or episode of work, to what extent is the employee acting “in the course of employment”? That was a question that confronted Nicholas J in PVYW v Comcare (No 2) [2012] FCA 395 (19 April 2012).

The Facts
The Applicant was required by her employer to travel with a fellow employee to a town away from her normal employment location and residence. She stayed at a motel which was booked by her employer. The Applicant made arrangements to meet up with a male friend who lived in that town. She him at her motel, they went to a restaurant for a meal and then later that evening went back to the motel room of the Applicant, where they had sex. Whilst engaging in that sexual activity on the bed in the motel room the Applicant was injured. She was later taken to hospital for treatment.

The Applicant did not advise her employer how she intended to spend her time while she was at the motel or with whom, if anyone, she intended to associate while staying there.

There was no dispute that:
•    At the relevant time, the Applicant was an employee of the employer temporarily away from her usual workplace at the request of her employer.
•    The injuries suffered by the Applicant were both a physical and a psychological injury for the purposes of the Act, resulting in incapacity for work or an impairment.
•    There was no “gross impropriety” in the behaviour of the Applicant on the day she suffered her injury.

The Court Found
•    An employee who is at a particular place at which he or she is induced or encouraged to be by his or her employer during an interval or interlude in an overall period or episode of work will ordinarily be in the course of employment;
•    Absent serious and wilful misconduct or an intentionally self-inflicted injury.
•    The lawful sexual activity of the Applicant was not an interval or interlude that interrupted the relevant overall period or episode of work.
•    The relevant connection or nexus to employment continued while the Applicant was in the motel room in which her employer had induced or encouraged her to stay.
•    The injuries of the Applicant were suffered while she was in the motel room in which her employer had encouraged her to stay.
•    The injuries were suffered by the Applicant while she was at a particular place where her employer induced or encouraged her to be during an interval or interlude between an overall period or episode of work.

Ross Bowler LLB

The unique features of Family Law litigation have previously been discussed, as have the similarities to criminal law and civil law litigation, in terms of the role of the barrister.  Clients in Family Law litigation often talk of settling or compromising the matter at a much earlier stage than is the case in much of the criminal law and civil law litigation. That has an impact on how legal representatives are required to prepare that litigation.

We have already established from our previous discussions about criminal law, civil law and family law litigation that:
•    The client is entitled to be advised as to all the forms of mediation and alternative dispute resolution available in respect of the case.
•    Only when:
    •    Full instructions have been taken from the client in the subject case; and
    •    A conference is held with the barrister and solicitor and client discussing all aspects of the case;
    is the client in a position to make an informed decision as to:
    •    The merits of the case sought to be run; and
    •    What the client might wish to do in respect of that case.
•    The client is then optimally enabled to discuss:
    •    The extent to which mediation and alternative dispute resolution is appropriate in the case; and
    •    What the client may stand to gain or lose by compromising the matter.

In the circumstances any attempt to compromise family law litigation prior to that complete preparation being undertaken, including a comprehensive advice from and conference with the barrister, must:
•    Necessarily deny the client the opportunity to be fully informed about their matter; and
•    Colour any compromise accordingly.

It is even conceivable that in some circumstances the compromise might be able to be subsequently set aside by a Court as being one that was made without proper appreciation of the rights available to the client at the time.

Conclusion
Given the impact such a decision can have on your relationship with your children and/or your personal property, would you want to compromise your family law rights without being fully informed?

Ross Bowler LLB