A workers’ compensation bid by a fly-in-fly-out worker who injured his elbow in a squash game on a company squash court has failed.

The bid failed on some of the same legal benchmarks applied in the successful claim last year by a Commonwealth public servant injured while having sex in a motel on a work trip.

Jason Fridd, a security guard at Santos’s Moomba gas field in the state’s far north, injured his elbow while playing squash between shifts. Fridd’s case was based on his submission that his employer, Spotless P&F Pty Ltd, had implied he had a responsibility to maintain his personal health and fitness, and to take active steps in this regard in order to be fit for work.

The security guard told the Workers Compensation Tribunal that “Santos encouraged and impliedly requested all workers at Moomba, including those employed by service providers such as Spotless, to use the recreational facilities for this purpose”.

He said he could not meet his responsibility to maintain his personal health and fitness if he did not exercise at Moomba, and that he was playing squash on the occasion when he was injured “as part of my responsibility to maintain my health and fitness for work”.

Judge Peter Hannon rejected the claim, and in his judgment earlier this month cited the now-infamous case of the public servant’s motel sex injury.

Hannon cited a range of cases that dealt with situations where “the worker was at a place where his or her presence was so consequential upon, or incidental to, or ancillary to, the employment that in being there the worker was doing something in pursuance of employment”.

Hannon observed that some of the interpretations of earlier case law “led to many situations being held to be compensable which were not contemplated when the test was first formulated”.

In his findings on the Santos squash court claim, the judge found “the sporting activity had no connection with the worker’s employment as a security officer, in the sense that it did not involve any act which was preparatory or incidental to or consequential upon the performance of the worker’s actual work”.

“It was not required by the employer or undertaken at its direction or request,” he added.

“It was a voluntary recreational activity undertaken out of the worker’s actual work hours, an activity in which the worker engaged on a desultory and irregular basis, without any structured plan aimed at enhancing his fitness by way of regular exercise.

“His relative degree of fitness or level of participation was not monitored, and the question of whether the worker engaged in the activity at all was of no concern to the employer.”

The motel sex case has taken a different path, although it remains under review, with the most recent decision upholding the woman’s claim being appealed to the High Court.

The public servant’s name has been suppressed, but the facts have been stated in each of the court hearings to date.

The Commonwealth public servant, in her late thirties, was required by her employer to travel with a fellow employee to a country town in New South Wales. The trip involved budget reviews and training.

The worker met up with a recent acquaintance, they went to a restaurant for a meal and then, at around 10 or 11pm, went back to the applicant’s motel room, where they had sex.

“At the time the applicant was injured, she was in the motel room having sex on the bed with her companion,” the Federal Court file states.

“The agreed facts suggest that the room was dark at the time. “While they were having sex, a glass light fitting located above the bed was pulled from its mount. “The light fitting fell on the applicant, causing injuries to her nose and mouth. She was later taken to hospital for treatment.

“The agreed facts did not specify whether it was the applicant or her companion who pulled the light fitting from the wall.”

The woman’s claim was initially accepted by Comcare in 2007, but was revoked in 2010 and reviewed by the Administrative Appeals Tribunal in New South Wales. The tribunal found sexual activity was ”not an ordinary incident of an overnight stay like showering, sleeping, eating”.

The woman, known in court documents as PVYX, appealed to the Federal Court and won in April last year. The court had found the injuries were suffered “in the course of her employment”.

The Federal Government’s workplace safety body, Comcare, was granted leave in May to seek a High Court ruling on the distinction between private and business activities when employees are travelling for work.

Comcare will be hoping for an outcome similar to the Fridd case, where the worker’s individual choices during breaks between periods of actual work are not necessarily linked to employment just because you are away from home.

“In the present case, I am not persuaded that the worker has established the requisite degree of connection to allow me to find that his involvement in the activity of playing squash on 7 December 2010 was part of his employment,” Judge Hannon said.

Depending on the final outcome of the motel sex claim, the lines between on-duty and off-duty still seem blurred.

The good news is, the squash player is back at work.

Case notation: Fridd v Employers Mutual Limited (SA)/WorkCover Corporation (Spotless P & F Pty Ltd) [2013] SAWCT 21