My Dad Fought the Law and the Law Won

So my father, Leo Grey, a barrister, just lost a case in the High Court of Australia in a 4-2 decision. The case involved a labor dispute where an employee suffered injury in a hotel during a work trip after a wall-mounted lighting fixture fell on her while she was engaging in sexual intercourse. The court held that the injury was not sustained "in the course of" her employment according to the meaning of the statute, and as a result she was not entitled to compensation.

Senator Abetz, the Minister for Employment, called the decision (which you can read here) a "victory for common sense."

On first glance, that seems like a reasonable conclusion. After all, how ridiculous is to expect to be reimbursed for hurting yourself while having sex, simply because you were on a work trip? Pretty fucking entitled, right?

Except no. That's not right at all.

It is well accepted Australian law that if you slip while in the shower of a hotel that your employer has put you in on a business trip, that employer is liable. Similarly, if you happen to be merely sleeping in the hotel bed and the lighting fixture falls on you, the employer is liable.

So why should an injury sustained during sex be different to sleeping or showering? The obvious answer is that it shouldn't be. Eating, shitting, fucking, washing and sleeping are all basic human activities, and it's entirely reasonable and foreseeable that an employee would engage in all of them them while the course of their employment happens to require them to temporarily reside in a hotel. More fundamentally, the law as understood prior to this decision didn't require an inquiry into the nature of the act, as long as it was not gross misconduct and it took place at a location that the employer had encouraged the employee to be. This point is made clearly in Justice Bell's dissent (paragraphs 99-100).

Comcare knew this, but they also "knew" that workers were becoming too "entitled" by current employer compensation laws, so were desperate to reduce the scope of employer liability by any means necessary, even if that meant attacking employee privacy and a basic sense of human dignity.

Unfortunately for them, the "employer-encouraged location + no gross negligence" test, which was established by a long-standing High Court case called Hatzimanolis, was pretty clear cut. So what could Comcare do? They had no hope in hell of defeating the test directly, because employees regularly slip in showers in hotels on business trips, and society and the courts are generally settled on the principle that it's fair to expect to be able to clean one's self while being put up in a hotel by one's employer.

Luckily, they realized, there was still plenty of stigma around one basic human activity that regularly occurs in hotel rooms - having sex. After all, asking for employer reimbursement for sex-related injuries? Ewwwww! It's enough to make you squirm just thinking about it, yet alone entertain seriously the idea that a court should uphold the claim (even if that's what the statute and precedent, read objectively, says should happen). If Hume is right, and reason is a slave to the passions, there is no need to worry about whether you're correct on the technicalities of the law when you have gut emotion and shock value on your side. Because what's next, employer liability for a bondage-related injury? Family compensation for death-by-autoerotic-asphyxiation? Anyone with basic common sense can see that the case must fail, right? Right?

Comcare knew that if a case arose where an employee claimed compensation for a sex-related injury in a hotel room, it would provide a rare opportunity to "liberate" employers from their "overly burdensome" duty of care to their employees with respect to injuries that occur during the course of employment but outside the regular work environment, such as in employer-sponsored accommodation. Sure enough, arise it did.

And boy, what a case! This was no middle-aged man, injured by a loose bedslat during mild anniversary sex with his churchgoing wife at an employee retreat in the Hunter Valley. No, the claimant was a young woman (who, let's face it, probably shouldn't be enjoying a healthy sex life at all), she had been in a hotel room (and we all know only illicit sex happens in hotel rooms!), her lover had been a male acquaintance who was very clearly NOT her husband, or even her boyfriend (that tawdry slut!), and the sex had been so so vigorous that it had dislodged a loose wall fitting (oh my, that's just not how respectable people do it!). For an entity looking to sway judicial minds through the clouding of reason with sheer incredulity, this case was a jackpot.

So when it fell into Comcare's lap, what did they do? The obvious and sensible thing - jump on it and ride it all the way to the High Court. The legal theory wasn't really too complicated: push the case upwards until you have a critical mass of socially prudish judges (which you're always going to find if you go up far enough), keep the moral messaging focused on the particular case at hand, subtly play up the shock value of the fact that the injury occurred during (gasp) sex, add in a sprinkling of media ridicule to legitimize the inevitable outcome, and voila! You've successfully narrowed Hatzimanolis and dealt a big blow to employee compensation law in a way that would not have been possible if the court had been presented with a more vanilla case. Note: they also needed to put forward a legal theory that logically tortured the existing case law into a new, seemingly-reasonable-but-ultimately-incoherent test to replace the straightforward one they were butchering (or, as lawyers like to call it, presenting a "reformulation of the principles underlying the original decision") but that was sufficiently secondary in importance as to be considered an afterthought to the actual strategy outlined above.

If you choose to read the case, you'll see an excellent example of how bullshit legalese can manufacture almost any desired outcome, provided that the opinion-writers are skillful and experienced enough in the opacity-manufacturing business to conceal exactly where the magic happens (which is basically a prerequisite to nomination to the High Court). If you're interested, the magic in this opinion occurs around paragraphs 38-39.

But don't be fooled. This case was about two things only: Comcare's longstanding anti-employee compensation agenda, and the emotionally distracting value of the sexual aspect of the facts of this case. Neither get a much of a mention in the majority's decision (that would be breaking the fourth wall, which is far more acceptable in regular theatre than judicial theare) - instead, it is mostly misdirection and linguistic castles in the air. But as with so much of law, it's what's going on in between the lines that's important.

And in this case, what's going on is that the Court has taken the bait, made the wrong call, and as a result, set the law in this area back considerably. As for the social impact of the decision, well, Justice Gageler's dissent says it better than I could:

"151. The approach reflected in the _Hatzimanolis principles accords with a contemporary understanding of the employment relationship, which respects the privacy and autonomy of an employee as consistent with continuation of employment. Gone is the artificial fragmentation of an interval or interlude in an overall period or episode of work spent by an employee at a particular place at the inducement or encouragement of an employer into yet shorter periods of time each of which is to be further separately accounted for and discretely related to the employment relationship. Gone also is the intrusive inquiry that such artificial fragmentation entails into personal choices made by an employee, hour-by-hour or minute-by-minute, during an interval or interlude. In its place, it is sufficient for an injury sustained by an employee during an interval or interlude in an overall period or episode of work to be in the course of the employee's employment that (to adapt Lord Loreburn's language) the employee is where the employee would not be but for his or her employment, and is doing what a man or woman so employed might do without gross impropriety.

152. The central submission of Comcare in the appeal – that an injury that an employee sustains at a place an employer has induced or encouraged the employee to be during an interval or interlude in an overall period or episode of work is not compensable "unless the injury came about through the very use of the 'place' at the 'time' and for the work-related purpose that the employer encouraged or required the employee to be there" – is to be rejected. Not only is a test for compensation stated in those terms inconsistent with the Hatzimanolis principles; it is a return to the outmoded, artificial and intrusive form of analysis that the Hatzimanolis principles were formulated to overcome."_

So commiserations, dad. You fought the good fight. Better luck next time.

-- RohanGrey - 31 Oct 2013

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