PVYW v Comcare

The relevant statutory provisions 10 The respondent, Comcare, is a body corporate established pursuant to s 68 of the Act. For the purposes of this appeal, s 14 of the Act is a key provision. It provides: (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. (2) Compensation is not payable in respect of an injury that is intentionally self-inflicted. (3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. 11 Section 4 of the Act states that "injury" has the meaning given by s 5A of the Act. Section 5A defines injury to include, relevantly, "an injury … suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment": see subs (1)(b). 12 Section 6 of the Act specifies various circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment. Importantly, it does so without limiting the circumstances in which an employee's injury might otherwise be taken to have arisen out of, or in the course of, his or her employment. 13 Section 6(1)(c) relevantly provides that an employee's injury may be treated as having arisen out of, or in the course of, his of her employment, if it was sustained while the employee was temporarily absent from the employee's place of work undertaking an activity associated with the employee's employment or at the direction or request of the Commonwealth.

THE TRIBUNAL'S REASONS 14 The Tribunal began its consideration of the relevant statutory provisions by reference to s 6(1)(c) of the Act, and concluded, first, that the activity in which the applicant was engaged was not "associated with [her] employment" and, second, that it was not engaged in "at the direction or request of her employer." 15 The Tribunal noted, correctly, that its conclusion with respect to s 6(1)(c) was not determinative because the ambit of the expression "arising out of, or in the course of, the employee's employment" as those words appear in s 5A(1)(b) of the Act also had to be considered by reference to relevant case law. 16 The Tribunal referred to the High Court's decision in Hatzimanolis v ANI Corporation Limited (1992) 173 CLR 473 which was concerned with s 9 of the Workers Compensation Act 1987 (NSW). The Tribunal considered that the language used in that provision was "sufficiently analogous for the same principles to apply" to the interpretation of s 5A of the Act. The words "in the course of employment", the Tribunal observed, "invoke a temporal relationship". 17 Referring to the "organising principle" developed in the joint judgment of Mason CJ, Deane, Dawson and McHugh JJ in Hatzimanolis, the Tribunal observed that the test for determining whether an injury was sustained "in the course of employment" follows a two step approach. The first involves characterising the period or periods of work, and the second involves a consideration of how the period or periods between actual performance of work were spent. 18 As to the first step, the Tribunal referred to key passages in the joint judgment in Hatzimanolis at pp 481-484. I shall refer to these passages, and others related to them, later in these reasons. The Tribunal found (at para [28]) that the applicant's injury occurred during an "interval or interlude" consisting of "the evening of the two days the applicant was away for work." It observed that the applicant's employer had expressly induced or encouraged her to spend the two days at the town, that it had programmed work for her on both days, and that it had booked the motel where she was to stay. The Tribunal found that although the applicant was not expected to work during the evening of 26 November 2007, it was to be regarded as an interval or interlude of the kind referred to in the cases. 19 Moving to the second step, the Tribunal observed that not all injuries that are suffered during an "interval or interlude" are compensable, and that injuries which arose out of "gross misconduct" were not compensable. However, the Tribunal also noted that it was not suggested that the applicant was involved in any misconduct. 20 The Tribunal referred to the "organising principle" developed in the joint judgment in Hatzimanolis (at 484) including the following statement, which the Tribunal regarded as an important "rider": In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen" [Danvers v. Commissioner for Railways (N.S.W.) (1969) 122 CLR 529 at 537]. 21 The Tribunal also referred to the judgment of Kiefel J in Comcare v Mather (1995) 56 FCR 456 and, in particular, two specific passages concerned with Hatzimanolis, the first of which (at 460) makes reference to the rider, and the second of which (at 461) is in the following terms: A test which is concerned only with whether the injury or death occurred in an interval in a whole period or episode of work, as here, where the employees are in a relatively remote location, and in circumstances which require their almost continuous presence was also considered, by itself insufficient, although as Toohey J remarked in a separate judgment, an employer is more likely to be held to have "required, expected or authorised a worker to do something relevant to the carrying out of his or her duties ..." in such a case. One can comprehend why standing alone that inquiry would be insufficient, for whilst conclusions as to periods of work and intervals within them may be seen as arising from and connected with the terms and conditions of the employment, the activity in the interval may be too remote from it, for example in Hatzimanolis' case if the employee had determined, without reference to or any form of encouragement by the employer, to fly to some other distant location, beyond areas which might be reached by vehicle, and then undertake mountain climbing or parachuting and was then injured. 22 The Tribunal went on to consider whether the activity in which the applicant was engaged was "sufficiently connected with her employment" to constitute an activity undertaken in the course of her employment. After referring to the judgment of the New South Wales Court of Appeal in Watson v Qantas Airways Limited [2009] NSWCA 322, (2009) 75 NSWLR 539 the Tribunal said: 33. Counsel for the applicant had argued that since the applicant was in a particular place for work-related purposes, in a motel booked by her employer, that was the only criteria which needed to be met. In other words, it was argued that simply being at a particular place (the motel) at the express or implied instigation and organisation of her employer, absent any gross misconduct, meant that the injuries she incurred were compensable. 34. To so argue is to ignore the general rider of the majority in Hatzimanolis, and is to fall into error [Watson v Qantas Airways Ltd [2009] NSWCA 322 at paras 82 and 100] That rider requires an assessment of the circumstances from which the injury arose, as well as the 'general nature, terms and circumstances of the employment'. The latter considerations require attention to the contract of employment, the terms and conditions of any relevant award and any lawful directions or instructions given by the employer [Watson v Qantas Airways Ltd [2009] NSWCA 322 at para 82]. 35. In summary, the Tribunal finds that it is insufficient for the employee simply to be at a particular location during an interval or interlude in an overall period or episode of work for liability for injury to arise. The activities engaged in during that interval which led to the employee's injury must be expressly or impliedly induced or encouraged by the employer. Although the connection need not be a close one, a nexus is essential before liability will be incurred. 36. Applying these principles to the circumstances of this case, the applicant was employed by a Commonwealth department in its human relations section. She was visiting a regional office of the department to observe a budget review and meet the local staff. The booking for her accommodation had been made by her employer. The conditions of the award under which she was employed are not known and it can be assumed that there were no special directions or instruction by her employer since none were referred to in the evidence provided. 37. In considering the circumstances of the employment, the cases have indicated that for an injury from activity on such an occasion to be compensable, the employer must in some way have sanctioned the activity. Thus in Hatzimanolis, although the applicant worked at Mt Newman, Western Australia and could claim that 'the course of employment' included 'working at the mine, travelling to and from the mine, eating and sleeping and even enjoying recreational activity at the camp', the majority indicated that it did not follow that the course of employment would extend to every kind of activity while in that location. 38. Rather, as the majority noted, it would only be those activities that were 'expressly or impliedly induced or encouraged' during that interval that would be included [Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 485]. As Sheller JA said in Inverell Shire Council v Lewis [Inverell Shire Council v Lewis (1992) 8 NSWCCR 562] '[t]he employer's attitude to how the worker spends his time during that time may be significant [at 570] and 'must be taken into account' [at 571]. 23 The Tribunal then referred to a number of other decisions of this Court, the New South Wales Court of Appeal and several other decisions of the Tribunal. One of these was a previous decision of the Tribunal in Re Crook and Comcare [2001] AATA 352 which was cited by the Tribunal in the present case in support of the proposition that "once an employee embarks upon a private activity, the interval is interrupted." The Tribunal's ultimate conclusion appears in the following paragraphs of its reasons: 50. Applying these principles to the applicant, although it is conceded that the nexus should not be interpreted in any narrow fashion, the requisite connection is absent. The employer had not expressly or impliedly induced or encouraged the applicant's sexual conduct that evening. Nor did the employer know or could reasonably expect that such an activity was contemplated by her. 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. Rather she was involved in a recreational activity which her employer had not induced, encouraged or countenanced. 51. Accordingly, the applicant's injuries were unrelated to her employment, took place during her leisure time, and were of a private nature. As a consequence, her activity did not take place during an interval or interlude and did not arise during the course of her employment. The Tribunal affirms the decision under review. 24 In summary, while the Tribunal considered the applicant's overnight stay at the motel was an interval in an overall period or episode of work, attracting the principles stated in Hatzimanolis, it nevertheless concluded that the interval was interrupted during the time that the applicant was engaged in sexual activity and that, consequently, it could not be said that she suffered her injuries in the course of her employment.

THE QUESTIONS OF LAW RAISED ON THE APPEAL 25 The applicant's notice of appeal postulates the following questions of law said to arise in the appeal: 2.1 On the correct construction of section 5A of the Act, is an injury suffered by an employee properly found to arise "in the course of the employee's employment" where the following three criteria are satisfied: (a) the injury occurs during the course of a business trip involving an overnight stay in a motel room which is properly described as "an interval or interlude within an overall period or episode of work"; (b) the activity giving rise to the injury suffered by the employee is not intentionally self-inflicted, and does not otherwise involve serious or wilful misconduct on the part of the employee; and (c) the employee is, at the time of the injury, spending time at "a particular place" (namely the motel room booked by the employer), at which the employee has been induced or encouraged by his or her employer to spend time during the interval or interlude? 2.2 If the three criteria in paragraph 2.1 are satisfied, is it also necessary that the employee should be engaged, at the precise time of the injury, in a specific activity which is - (a) related to the general nature, terms and circumstances of the employee's employment; or (b) expressly or impliedly induced or encouraged by the employer; or (c) known to, or reasonably expected by, the employer, and not objected to? 2.3 If satisfaction of the criteria in paragraph 2.1 is not sufficient in itself to enable finding that an injury arises "in the course of the employee's employment", but additional satisfaction of the criterion in paragraph 2.2(c) would properly result in a finding that an injury arises "in the course of the employee's employment", is it sufficient to satisfy the criterion in paragraph 2.2(c) if - (a) the employee was engaged at the time of the injury in an ordinary incident of life commonly undertaken in a motel room at night, namely lawful sexual activity; and (b) the employee had not been specifically warned beforehand by the employer that engaging in lawful sexual activity during the interval or interlude in the period of employment was not sanctioned by the employer? 26 The applicant made submissions to the effect that it was not open to the Tribunal on the facts of this case to find that the applicant did not suffer her injuries in the course of her employment. The applicant also challenged a number of factual findings made by the Tribunal on the basis that they were not open on the evidence. I shall refer to these in more detail shortly. The respondent did not accept any of the applicant's criticisms of the Tribunal's reasons for decision which were embraced by the respondent as correct in point of fact and law. It was the respondent's case that the Tribunal's decision was correct for the reasons stated.

CONSIDERATION 27 There are two closely related factual findings made by the Tribunal that were challenged by the applicant in her notice of appeal on the basis that they were not open on the evidence. It is convenient to consider the applicant's challenge to these findings before considering her main argument. 28 The first of the challenged findings (at para [50]) was that the recreational activity engaged in by the applicant during the evening in question was not countenanced by her employer. The word "countenance" in the present context means to "support or approve" but may also mean to "tolerate or permit". Either way, I do not think there was any evidence before the Tribunal (whether by way of agreed facts or otherwise) which enabled the Tribunal to make a positive finding that the recreational activity engaged in by the applicant was not countenanced by her employer. 29 The second of the challenged findings (at para [50]) was that sexual activity was not an ordinary incident of an overnight stay in a motel room on a business trip. It may be that it was open to the Tribunal to make this finding on the basis of what is sometimes referred to as its "knowledge of human affairs": see, for example, Cross on Evidence, 8th Aust ed (2010) at para [3200]. But if the Tribunal's finding is understood as meaning that an employer would have no reason to expect that an employee might engage in lawful sexual activity during the course of such a stay because it rarely occurs or is somehow "out of the ordinary" then I have real doubt as to whether such a finding was open to the Tribunal. I think the vice in the finding lies in its generality. In any event, I do not think it is necessary for me to resolve this particular issue for the purposes of deciding this appeal. 30 The starting point in the applicant's argument in support of the appeal is the joint judgment in Hatzimanolis. In that case, the appellant worked at Mount Newman, a remote location in Western Australia. Before he left to go there he was told by his employer (ANI) that he would be required to work Mondays to Fridays for 10 hours per day, with the possibility that he might also have to work on Sundays. The appellant's accommodation and living expenses were to be paid for by ANI which also provided vehicles for ground transportation. The appellant was told that he and his fellow employees might have the opportunity to make trips to surrounding areas. The appellant's supervisor organised one such trip to Wittenoom Gorge which he encouraged the appellant to go on. The appellant was injured when a vehicle supplied by the employer overturned during the course of the trip. 31 Mason CJ, Deane, Dawson and McHugh JJ referred to earlier High Court authority, including Whittingham v Commissioner of Railways (W.A.) (1931) 46 CLR 22, Henderson v Commissioner of Railways (W.A.) (1937) 58 CLR 281, Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, The Commonwealth v Oliver (1962) 107 CLR 353 and Danvers v Commissioner for Railways (N.S.W.) (1969) 122 CLR 529. For the purpose of determining whether an injury had been suffered by an employee in the course of employment, those cases applied what became know as the Henderson - Speechley test. Under that test, an employee suffered an injury in the course of employment if the injury was suffered in the course of doing something he or she was "reasonably required, expected or authorized to do in order to carry out his [or her] actual duties." (see Henderson at 294). 32 Their Honours explained (at 482) that there was a need for a reformulation of the principles used to determine whether an injury occurring between periods of actual work was within the course of employment. They then observed (also at 482) that in almost all cases in which an injury had been suffered between periods of actual work, the injury had been suffered in circumstances where the employer had authorized, encouraged or permitted the employee to spend the time during an interval between periods of actual work at a particular place or in a particular way. That observation is central to the reformulation of the relevant principles which subsequently emerges from the joint judgment. 33 Their Honours said (at 483): The distinction between an injury sustained by a railway worker as in Danvers and a non-compensable injury sustained by an ordinary employee after the day's work has ceased lies not so much in the employer's attitude to the way the interval between the periods of actual work was spent but in the characterization of the period or periods of work of those employees. For the purposes of workers' compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. On the other hand, there are cases where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work. Where, for example, as in Danvers, an employee is required to go to a remote place and live in accommodation provided by his or her employer for the limited time until a particular undertaking is completed, the correct conclusion is likely to be that the time spent in the new locality constitutes one overall period or episode of work rather than a series of discrete periods or episodes of work. An injury occurring during the interval between periods of actual work in such a case is more readily perceived as being within the current conception of the course of employment than an injury occurring after ordinary working hours to an employee who performs his or her work at a permanent location or in a permanent locality. 34 The key passage in the joint judgment appears on the next page (at 484) where their Honours said: Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen" [Danvers v. Commissioner for Railways (N.S.W.) (1969) 122 CLR 529 at 537]. (Emphasis added) 35 The applicant's main criticism of the Tribunal's reasoning is that it fails to apply these statements in the joint judgment to the applicant's case. In particular, the applicant argues that where, as here, there is no suggestion that her injuries were intentionally self-inflicted (s 14(2) of the Act) or were caused by her misconduct (s 14(3) of the Act) then the fact that they were sustained in the motel room booked for her by her employer compelled the conclusion that her injuries were suffered in the course of her employment. 36 In support of her argument the applicant placed much emphasis upon the use of the disjunctive in the key passage of the joint judgment when it refers to the employer who "induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way." 37 While it was not suggested that the applicant was induced or encouraged by her employer to engage in sexual activity while at the motel, it is clear that her employer induced or encouraged her to spend the night there. That, according to the applicant, is sufficient to ensure that her injuries were compensable. 38 At the centre of the applicant's analysis of Hatzimanolis is the proposition that an interval or interlude spent by an employee at a particular place at which his or her employer has induced or encouraged him or her to spend such time will necessarily, except in cases involving serious misconduct or intentionally self-inflicted injury, be in the course of employment. It follows, according to the applicant, that an injury suffered by the employee during such a period will be compensable under the Act unless it was caused by serious and wilful misconduct or intentionally self-inflicted injury. 39 The joint judgment in Hatzimanolis expressly recognises that an interval or interlude might be interrupted if an employee engages in an activity that is not expressly or impliedly induced or encouraged by his or her employer. Their Honours said (at 485): Counsel for A.N.I. conceded that "when a person such as the appellant has been taken to a remote part of Australia and has there performed work and is housed and fed there for the duration of the employment the course of employment will go beyond the hours at which the appellant is engaged in his actual work". Consequently, he conceded that "the appellant would have been in the course of his employment while working at the mine, travelling to and from the mine, eating and sleeping and even enjoying recreational activity at the camp". But he contended that it did not follow that the appellant was in the course of his employment "during the whole of the time" that he spent in the Mt. Newman area. This contention is correct because the appellant would not necessarily be in the course of his employment while engaged in an activity during an interval or interlude in his overall period or episode of work if A.N.I. had not expressly or impliedly induced or encouraged him to engage in that activity during that interval. 40 Basten JA expanded on this point in Watson v Qantas Airways Ltd (2009) 75 NSWLR 539 where his Honour observed (at para [94]) that the reasoning in Hatzimanolis: …illustrates the proposition that an employee may take himself or herself outside the course of employment (which would otherwise be continuing) by engaging in an activity unrelated to the employment and not positively supported by the employer. 41 I doubt that the High Court intended in Hatzimanolis to establish an "organising principle" that is as absolute in its operation as the applicant's submissions imply. And I also doubt the reference to "gross misconduct" in the joint judgment in Hatzimanolis was intended to be exhaustive in defining the circumstances in which an interval or interlude in an overall period or episode of work might be interrupted in a situation where the employee had been induced or encouraged to spend the interval or interlude at the particular place where he or she was injured. 42 A particular difficulty with the applicant's argument is that in many cases an employee will be induced or encouraged by his or her employer to spend time at a particular place solely for the purpose of allowing the employee to engage in a specific activity or range of activities. In such cases it may not be sufficient to establish that the employee had suffered his or her injuries in the course of employment simply because he or she suffered them while at that particular place. 43 In the present case, it is not necessary to explore the outer limits of the organising principles developed in Hatzimanolis. I say this because I consider that, on the agreed facts, the applicant suffered her injuries in the course of her employment. 44 While it was to be inferred that the applicant was encouraged to use the motel room for obvious purposes, including relaxing, sleeping, bathing, eating and dressing, it was accepted by the applicant that her employer did not encourage her to engage in sexual activity while in the motel room. Of course, the fact that the applicant's employer did not encourage her to engage in sexual activity does not mean that it disapproved of her doing so. 45 There was nothing before the Tribunal to indicate whether the applicant's employer approved or disapproved of employees entertaining other people in their motel rooms with whom they might engage in lawful sexual activity during an overnight stay arranged by the employer. The agreed facts said only that the applicant did not advise her employer how she intended to spend her time while at the motel or who, if anyone, she would be associating with while there. 46 Nor was there anything before the Tribunal to suggest that the applicant's sexual activity on the evening in question was in any respect incompatible with the nature or terms of her employment or that the applicant knew, or ought to have known, that it might somehow prevent her from performing her actual work as and when she was required to perform it. In this regard, I think it is fair to say that the Tribunal's reliance upon what it referred to as the "rider" in Hatzimanolis did not really lead anywhere in the circumstances of this case. 47 The Tribunal's reasoning recognised that if the applicant's conduct did not result in an interruption of the interval or interlude, then it necessarily followed that the applicant suffered her injuries in the course of her employment. It is therefore desirable to examine more closely the reasons why the Tribunal considered that the interval or interlude was interrupted. 48 First, as I have mentioned, the Tribunal considered (at para [51]) that the applicant was engaged in a private activity and that, "once an employee embarks upon a private activity, the interval is interrupted." The administrative decision referred to by the Tribunal in support of that proposition (Re Crook v Comcare [2001] AATA 352) was not one involving an interval or interlude in an overall period or episode of work. Nor did the Tribunal in that matter apply or endorse the general proposition attributed to it by the Tribunal in this case. 49 In considering the correctness of the proposition that an interval or interlude is interrupted when an employee embarks upon "a private activity" a question arises as to what that expression actually means. If it means no more than an activity "unrelated to employment" then it merely states a conclusion which can only be arrived at upon a consideration of all relevant factors. But if it was intended by the Tribunal to mean an activity usually undertaken in private then it does not provide any assistance in determining whether an interval or interlude in an overall period or episode of work involving an overnight stay at a motel has been interrupted. Many of the activities which an employee might be expected to engage in during such a stay are engaged in private: see, for example, Comcare v McCallum (1994) 49 FCR 199 (where an employee who slipped while showering in her hotel room was found to have been injured in the course of her employment). 50 Secondly, while it was common ground that the employer had not expressly or impliedly induced or encouraged the applicant's sexual activity during the evening in question, it does not follow that the interval or interlude was interrupted during the period in which it took place. The underlying question which the Tribunal was required to determine (assisted by the organising principles developed in Hatzimanolis) was whether there was a sufficient connection or nexus between the injuries suffered by the applicant and her employment. The relevant connection or nexus to employment was present in this case by virtue of the fact that the applicant's injuries were suffered while she was in the motel room in which her employer had encouraged her to stay. 51 Thirdly, the Tribunal found that the employer did not know or reasonably expect that the employee would engage in sexual activity at the motel and that, unlike showering, sleeping and eating, sexual activity was not an ordinary incident of an overnight stay in a motel room during a business trip. Again, I do not see why the fact that the applicant was, during the time that she was in her motel room, engaged in sexual activity that her employer might not have expected her to engage in should be seen as interrupting the interval or interlude. 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. 52 I return now to the questions of law said to arise in the appeal. While the applicant has raised a number of questions which I have previously set out, I think the question of law that arises may be expressed much more simply than it has been. The essential question is whether it was open to the Tribunal to hold that the applicant was not in the course of her employment at the time she suffered her injuries. 53 What is of critical importance under the organising principles developed in Hatzimanolis is the temporal relationship between the applicant's employment and the injuries suffered by her. Here the temporal relationship between the applicant's injuries and her employment is that they were suffered by her 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. 54 The joint judgment in Hatzimanolis implies, when read in the context of the specific provisions of the Act, that absent serious and wilful misconduct or an intentionally self-inflicted injury, 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. While it is true that in determining whether an injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the applicant's employment, there was nothing of that description in the present case which could justify a finding that the interval or interlude was interrupted by the applicant's lawful sexual activity. 55 In my opinion the Tribunal erred in holding (at para [35]) that for the applicant to succeed, it was necessary for her to show that the particular activity which led to her injury was one that had been expressly or impliedly induced or encouraged by her employer. If the applicant had been injured while playing a game of cards in her motel room she would be 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 an intentionally self-inflicted injury, the fact that the applicant was engaged in sexual activity rather than some other lawful recreational activity while in her motel room does not lead to any different result. 56 There will be an order that the Tribunal's decision be set aside. I shall also make a declaration that the injuries suffered by the applicant on 26 November 2007 were suffered by her in the course of her employment. The respondent must pay the applicant's costs of the appeal and her costs of the proceedings before the Tribunal. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.