01 May 2012
There were mixed fortunes for plaintiffs in the courts this week.
Wyong Shire Council succeeded in its appeal against a decision of the NSW District Court in May 2011 that it should pay damages to the relatives of a young girl who was mauled to death in a dog attack.
The District Court originally found the Council liable as although the Council had dealt with many complaints about the dogs and the Council knew they often escaped the neighbourhood, the Council had failed to declare the dogs dangerous.
The NSW Court of Appeal thought otherwise and decided that the Council could not have made a declaration that the dogs were dangerous on the basis that they, without provocation, had attacked or killed animals, mainly pigs.
The result of the Court of Appeal’s decision is that the relatives are not entitled to the damages award of $123,836 and they are liable to pay the Council’s legal costs.
Across at the Federal Court, a public servant was successful in her appeal against a decision of the Administrative Appeals Tribunal rejecting her compensation claim. The Federal Court found that the public servant was “in the course of her employment” when she was injured while having sex in a motel room while on a work trip.
The employee had travelled to a NSW country motel at the request of her employer to spend the night before a departmental meeting the following day.
The employee met a friend for dinner and then returned to the motel room and had sex. In the process, a light fitting was pulled from its mount and fell on her. It was unclear as to whether the light fitting was bumped or whether it simply fell off.
The AAT had originally found that “the activity was not an ordinary incident of an overnight stay like showering, sleeping, eating or returning to the place of residence from a social occasion elsewhere in the vicinity”. It decided that she was involved in a recreational activity which her employer had not induced, encouraged or countenanced”.
The Federal Court found that it did not matter whether the employer encouraged her. The fact it didn’t encourage her did not mean it disapproved. The Court said “If the applicant had been injured while playing a game of cards in her motel room she would have been entitled to compensation even though it could not be said that her employer induced or encouraged her to engage in such an activity. In the absence of any misconduct or intentionally self-inflected injury, the fact that the applicant was engaged in sexual activity rather than some other lawful recreational activity does not lead to a different result.”
Accordingly, the employee was successful in her claim which was made under the Commonwealth legislation, the Safety, Rehabilitation and Compensation Act. That Act provides that compensation is available for an injury that arises out of, or in the course of, an employee’s employment. As the Federal Court found, the public servant’s activities within the motel room on a work trip were in the course of her employment.