Clarkson and Comcare (Compensation) - [2025] ARTA 234

Clarkson and Comcare (Compensation) [2025] ARTA 234 (7 March 2025)
Applicant/s:  Tymon Clarkson
Respondent:  Comcare
Tribunal Number:                2024/2836

Tribunal:Senior Member S Webb
Place:Canberra
Date:7 March 2025

Decision:The Tribunal affirms the decision under review.

……………………………
Senior Member S Webb
WORKERS’ COMPENSATION – claim for injury during lunch break – intervention in dispute – assault – physical injury other than a disease – expanded meaning of ‘arising out of or in the course of the employment’ – ordinary recess – applicability of exclusion – voluntary and unreasonable submission to abnormal risk of harm – exclusion applies – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988, s 5A, 6, 14
Cases
Comcare v PVYW [2013] HCA 41
Linfox Pty Ltd v O’Loughlin [2018] FCAFC 173
Ralser and Comcare [2012] AATA 510
Re Grime and Telstra Corporation Ltd [1994] AATA 488
Re Kemp v K&S Freighters Pty Ltd [2011] AATA 312
Taylor v Stapley [1954] HCA 12
Statement of Reasons

Tymon Clarkson claimed compensation in respect of an injury to his left eye. The injury was sustained during a lunch break in his employment by the Department of Industry, Science and Resources (Department). Comcare decided to refuse the claim. Mr Clarkson lodged an application for review by the Tribunal.
Facts
There is little controversy over the relevant facts, which are of short compass.
On 8 November 2023, Mr Clarkson attended his usual place of employment, undertaking his usual duties as a Policy Officer.
He decided to take his lunch outside the building where he worked, as he often did.
At around 1.00pm, while seated in Petrie Plaza, he witnessed an altercation between a group of youths (3 males and 3 females). By his own account, one young female member of the group was subjected to verbal abuse by other members of the group, led by the other two young females. She was upset and in tears.
Mr Clarkson explained he decided he would not intervene, although he said he was primed to do so as he detests bullying. A small box of some kind was thrown by one of the youths. The reason for this and any intended target cannot be ascertained on the available evidence. Nevertheless, he alleges the thrown object narrowly missed an elderly woman and landed near his feet, while he was sitting eating his lunch.
At this point, Mr Clarkson decided to act. He explained he “stood up and shout[ed] at the group, castigated them for their churlish behaviour and reckless public endangerment”.[1] In his oral evidence he stated he shouted, “what the hell are you doing?”. The young female target of the original verbal abuse left the scene.
[1] Exhibit 2, Statement of the Applicant lodged on 29 July 2024.
Things did not go well from this point. The remaining members of the teenage group approached Mr Clarkson, who was standing in front of the public bench where he had been eating his lunch. He stated, “[t]he group quickly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clarkson and Comcare (Compensation)

Details

AGLC: Clarkson and Comcare (Compensation) [2025] ARTA 234
Case: [2025] ARTA 234
Decision Date: 7 March 2025

CaseChat Overview and Summary

The case of Clarkson and Comcare (Compensation) involved Mr Clarkson, who sought compensation from Comcare for an injury to his left eye sustained during his lunch break. The dispute centred around whether the injury was one arising out of or in the course of his employment, as required under the relevant legislation. The case was heard by the Administrative Appeals Tribunal of Australia.

The legal issues before the court included whether Mr Clarkson’s voluntary submission to an abnormal risk of injury during his lunch break was objectively unreasonable and whether his actions were related to his employment. Additionally, the court had to determine whether the exclusion in section 6(3) of the relevant Act applied to Mr Clarkson’s injury.

The court found that Mr Clarkson voluntarily submitted to an abnormal risk of injury during his lunch break, which was objectively unreasonable. His actions were not related to his employment, as they occurred in a public place unrelated to his Departmental duties. The court concluded that the exclusion in section 6(3) of the Act applied, and therefore, Mr Clarkson’s injury did not arise out of or in the course of his employment. Consequently, Mr Clarkson’s claim for compensation was refused, and the decision under review was affirmed.

The decision underscores the importance of distinguishing between employment-related injuries and those occurring outside the scope of employment, particularly when an employee voluntarily submits to an abnormal risk. The court’s reasoning highlights the necessity for employees to exercise reasonable judgment when engaging in activities unrelated to their employment, even if those activities appear to be in the public interest.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering these matters and the relevant materials, on balance, I am satisfied Mr Clarkson sustained the injury to his left eye because he voluntarily and unreasonably submitted to an abnormal risk of injury while he was temporarily absent from his place of employment during an ordinary recess in the form of his lunch break. From this it follows the exclusion in s 6(3) applies in respect of his left eye injury.Conclusion and decision Without the expanded ambit s 6(1)(b) provides, I am satisfied Mr Clarkson’s left eye injury is not an ‘injury (other than a disease) arising out of or in the course of his employment’. Mr Clarkson sustained the injury while undertaking activities unrelated to his employment in a public place unconnected, directly or indirectly, with his Departmental employment. That being so, Mr Clarkson did not suffer an ‘injury’ on 8 November 2023 for which Comcare is liable to pay compensation under s 14 of the SRC Act. It follows that Mr Clarkson’s compensation claim is not made out and he is not entitled to compensation as result of his left eye injury. Consequently, Mr Clarkson’s compensation claim must be refused and the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

An ‘abnormal risk of injury’ is a risk of unusual degree, including one “which is ordinarily incidental to the performance of some act which is itself inherently dangerous”.[19] Voluntarily submitting to such a risk is an act of free choice in which the intention to act is informed by full appreciation of the risk of doing so.[20] Considering the conjunctive elements of the statutory exclusion, it is necessary to determine if such voluntary submission to abnormal risk of injury was objectively unreasonable in the circumstances.[21] [19] Taylor v Stapley [1954] HCA 12, per Dixon CJ and Taylor J, [4].[20] Re Kemp v K&S Freighters Pty Ltd [2011] AATA 312, [91]; Re Grime and Telstra Corporation Ltd [1994] AATA 488, [25].[21] Ralser and Comcare [2012] AATA 510, [46].Consideration Mr Clarkson asserts he understood there was some risk to him if he intervened in the altercation between members of the teenage group, but he considered there was a greater risk to the young female target of the verbal abuse, who was crying and upset, if he did not intervene. In his submission, he had little choice in the matter once an object was thrown which almost impacted an elderly woman and himself. He maintains it was this action which caused him to intervene verbally, standing up and shouting “what the hell do you think you are doing?” to the teenage group. Mr Clarkson argues acting in this way to protect a female child, an elderly woman and the general public was a reasonable response which aligns with the Australian Public Service (APS) values. In Mr Clarkson’s submission, from this point matters escalated quickly: he was surrounded and verbally abused by the teenage group (the young female having fled). He asserts he could not have predicted the extreme escalation and violence which followed him telling the group to “fuck off!”. He argues pursuing the young male who threw a chair at him, causing a large and painful contusion on his stomach, was a heightened emotional response which was an almost involuntary reaction to the outrage and pain he was experiencing. Once the pursuit came to an end, so the argument goes, he was confronted and attacked by two young male group members, and he responded defensively. From this altercation Mr Clarkson asserts escape was not possible, and he sustained the injury to his left eye and nose. Mr Clarkson contends his actions were not unreasonable in the circumstances, albeit that there was “an understandable, reactive, degradation” of his decision-making, and he did not voluntarily submit to an abnormal risk of injury. For this reason, he asserts the exclusion in s 6(3) of the SRC Act is not engaged and the Tribunal should accept he sustained an ‘injury’ for which Comcare is liable to pay him compensation. Mr Clarkson made some strident criticisms of Comcare and Comcare’s legal representatives in which he alleges Comcare “decided to vilify me for acting in the public’s best interest by throwing as much false and unsubstantiate dirt as possible, whilst blatantly ignoring all evidence to the contrary”.[22][22] Exhibit 2, 1.