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 surrounded me, all yelling very hurtful insults about my appearance and/or parentage” [2] and they “swore and attempted to intimidate me-> Finally having had enough, I uttered the titular “fuck off!”[3] Mr Clarkson stated the following events then ensued:
Having finally had enough of this tomfoolery, I emphatically bid them a vulgar adieu. One, a small rodent-like fellow, was so enraged with this dismissal that he picked up a nearby chair (~20-30kgs, steel and wood) and threw it with surprising force from about two feet away. Momentarily astounded, both by the fact that Ratboy could even manage to lift this monstrous throne, let alone have the temerity to throw it, I watched it sail the intervening distance to collide with my stomach (causing a grapefruit sized contusion,[4] visible through to January 2024). Seemingly disappointed, and then increasingly concerned, by the lack of visible damage caused by his bench banzai, Ratboy took off, mullet flapping in the wind.
Recovering my composure and enraged at this seat assault, I pursued. However, whether due to his youth or some Samson-like speed imbued by his beaver paddle, I (fat, middle aged and bald?) soon lost sight of him. Calling off my righteous pursuit, I turned around, only to be immediately confronted by his two compatriots and was thrust into melee.
Having managed to push one of my attackers down, the tides of battle had just begun to turn, when Ratboy made his triumphant return, also for some reason taking off his shirt. While individually utterly ineffective, the chaos that Ratboy and his less memorable Kemosabe engaged in afforded their lanky (and presumably combat trained) comrade ample opportunity to land several blows to my face and body.
After some indeterminate time, the trio and their cheerleaders fled, and the police made their eventual appearance. After making my statement to the police and still covered in blood, I returned to work speaking to both my branch and section managers, before heading home. [5]
[2] Exhibit 2, Statement of the Applicant lodged on 29 July 2024.
[3] Ibid, Applicant’s email, 8 January 2025, p 2.
[4] Exhibit 3.
[5] Exhibit 2, Statement of the Applicant lodged on 29 July 2024.
The incident was not captured by security cameras in the area. The following description was reported by Constable Hucker, who subsequently attended with a colleague:
[Mr Clarkson] observed some juvenile females carrying on, and intervened, and told them to “fuck off”.
A juvenile male in the group then threw a chair at him. This male is described as shorter…
Mr CLARKSON chased this male off, before a second male appeared, striking him multiple time, one landing on his nose, causing him to profusely bleed.
This male is described as taller...[6]
[6] Exhibit 4, pp 6, 10.
Images of Mr Clarkson and two young males, one without a shirt and the other taller, were captured in a security photograph.[7]
[7] Exhibit 6.
Mr Clarkson and a number of witnesses were interviewed by police. Constable Hucker reported:
Multiple witnesses stated that Mr CLARKSON pinned one of the juveniles to the ground.
In body-cam audio-visual recordings of police interactions with witnesses, one witness stated Mr Clarkson “threw a kid to the ground” and another (who did not witness the entire sequence of events) stated Mr Clarkson “grabbed another child with his kinda elbow around his neck area and kinda threw him to the ground”.[8] Mr Clarkson contests this description and alleges he was assaulted by the two young males and he “grabbed one and pushed him down” and he “was in control” while he did so. Whichever description is correct, there is no dispute Mr Clarkson was punched in the nose and cheek by at least one of the young males.
[8] Exhibit 5, Witness Interviews, 13.05.18, 13.11.56.
On 9 November 2023, Mr Clarkson lodged a WHS Incident Notification Form with his supervisor.[9]
[9] Exhibit 1, T8A.
Aside from sustaining an injury to his nose which bled, it is probable Mr Clarkson’s left eye was affected. By his own account, he did not suffer loss of vision although he noticed a number of ‘floaters’ in his left eye. These gradually worsened and, in early January 2024, he lost part of the vision in his left eye.
On 9 January 2024, Mr Clarkson was consulted Dr Mahantesh Urolagin, a general practitioner, who noted “lost vision in left upper outer field” and referred him to ‘Specsaver’ for an eye examination by an optometrist.[10] In the result, retinal detachment of the left eye was diagnosed and Mr Clarkson was advised to attend the Sydney Eye Hospital.[11] He did so, and underwent “an emergency left macular on retinal detachment repair” performed by Professor Ivan Ho.[12]
[10] Ibid, T8C, T16.
[11] Ibid, T14.
[12] Ibid, T8B
On 15 January 2024, Mr Clarkson lodged a compensation claim form in respect of “Retinal detachment as a result of assault” in his “Left eye”.[13]
[13] Ibid, T5, 20.
On 1 February 2024, Comcare determined to refuse the claim.[14] On 5 February 2024, Mr Clarkson requested review of this decision.[15] On 6 March 2024, Comcare issued a reconsideration decision to affirm the 1 February 2024 determination, refusing Mr Clarkson’s compensation claim.
[14] Ibid, T12.
[15] Ibid, T13.
On 1 May 2024, Mr Clarkson lodged an application for review of Comcare’s decision by the Tribunal.[16]
[16] The application for review was lodged under the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act was repealed, and the Administrative Tribunal Act 2024 (ART Act) came into effect on 14 October 2024, establishing the Administrative Review Tribunal (Tribunal). Under the transitional provisions set out in Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024, the Tribunal has jurisdiction to conduct this review.
Issues
Mr Clarkson’s claim for compensation is to be decided under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Comcare’s liability turns on the existence of an ‘injury’ as defined in s 5A:
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
There is no dispute that Mr Clarkson’s left eye injury is not within the meaning of a ‘disease’ but it is a physical injury for the purposes of s 5A(1)(b). I am satisfied that this is correct.
The Full Federal Court in Linfox Pty Ltd v O’Loughlin (O’Loughlin)[17] said, where doubt about the applicability of s 5A(1)(b) emerges, s 6(1)(b) has useful, facultative work to do. There is such a doubt in Mr Clarkson’s case. Mr Clarkson’s left eye injury occurred during his lunch break in a place outside (and unrelated to) his place of work while performing an activity not associated with his employment. There is no evidence Mr Clarkson’s employer encouraged or induced him to attend the place or to engage in the activity which led to the left eye injury he sustained. That being so, the ordinary meaning of the phrase ‘arising out of, or in the course of … employment’ does not connect his left eye injury with his employment. He relies on the expanded meaning set out in s 6(1)(b):
(1) Without limiting the 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, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) …; or
(b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
…
[17] [2018] FCAFC 173, [29], [34].
When met, this statutory provision creates a “factual connection or association between the circumstance of the injury and the employment”.[18]
[18] Comcare v PVYW [2013] HCA 41, [51].
There is no dispute, and I am satisfied, Mr Clarkson’s left eye injury was sustained when he was ‘temporarily absent’ from his usual place of employment during an ‘ordinary recess’, namely his lunch break.
Consequently, Mr Clarkson’s left eye injury will be treated as an ‘injury (other than a disease) arising out of, or in the course of’ his employment unless the exclusion in s 6(3) applies. Subsection 6(3) is in the following terms:
(3) Subsection (1) does not apply where an employee sustains an injury:
(a) while at a place referred to in that subsection; or
(b) during an ordinary recess in his or her employment;
if the employee sustained the injury because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.
The remaining question, therefore, is whether Mr Clarkson sustained the left eye injury because he voluntarily and unreasonably submitted to an abnormal risk of injury.
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.
Comcare rejects these criticisms. In Comcare’s submission, Mr Clarkson’s actions were disproportionate and aggressive, and they were not consistent with the respect, integrity and professionalism a member of the public might expect from an APS employee. Comcare argues that it was Mr Clarkson’s conduct which escalated the verbal disagreement he had with the teenage group into a physical fight. Comcare rejects the proposition Mr Clarkson was already exposed to a risk of injury when the object was thrown in his direction by one of the youths as, at that point, their verbal dispute was not directed to Mr Clarkson at all. Comcare contends Mr Clarkson deliberately chose to engage with the group, and he did so repeatedly at each stage of the incident which subsequently unfolded.
Comcare argues Mr Clarkson’s interventions were entirely voluntary and inherently dangerous: he decided to involve himself and, once involved, he told the youths to “fuck off!”. In Comcare’s submission, the sequence of events which followed were each subject to clear and deliberate decision-making by Mr Clarkson: he decided to pursue the youth who threw and hurt him with a chair; he decided to fight the two youths who followed his pursuit; and, at no stage in the sequence of events did Mr Clarkson decide to walk away, to call the police, or to seek assistance from members of the public or shop-keepers in the immediate vicinity.
Comcare maintains Mr Clarkson voluntarily and unreasonably submitted to an abnormal risk of harm during his lunch break and, in so doing, he removed himself from the expanded operation of s 5A(1)(b) authorised by s 6(1)(b) of the SRC Act. It is for this reason, Comcare contends Mr Clarkson’s compensation claim in respect of his left eye injury should be refused, and the decision under review should be affirmed.
I accept that Mr Clarkson may not have witnessed acts of violence in the Petrie Plaza area where he chose to take his lunch break on 8 November 2023. By his submissions about the increasing incidence of youth crime in Canberra, Mr Clarkson clearly demonstrated some knowledge of such matters, albeit perhaps limited to night crime in related areas at the time. One does not need detailed or precise knowledge of the incidence of youth crime to fully appreciate the risk and potential danger of confronting a group of youths who are already engaged in an altercation.
In general terms, it might be accepted as reasonable for a member of the public or a Commonwealth employee to take appropriate interventionary action to assist a victim of crime, violence or abuse, particularly where the victim is a female child or an elderly woman.
As will appear, I am satisfied Mr Clarkson’s actions during his lunch break on 8 November 2023 go well beyond an intervention of this kind.
By his own account, Mr Clarkson initially decided not to intervene when he witnessed the group of youths verbally abusing a young female group member. He only did so when a small box was thrown in his direction. The contemporaneous materials suggest two young females were arguing with a third. In his oral statement to police, Mr Clarkson explained that “[t]wo of the girls were picking on the other girl. At some point something got thrown, I still don’t know what, [it] landed right next to my feet. They came and tried to get it and I told them, basically, to piss off. At that point, the other guy grabbed, the little guy, grabbed a chair and threw it at me…”.[23] This account differs markedly from Mr Clarkson’s subsequent account that he “stood up and shouted at the group, castigated them for their churlish behaviour and reckless public endangerment”.[24] In his written and oral evidence, Mr Clarkson stated that he was surrounded by the youths who verbally abused him and the chair was thrown after he told them to “fuck off”. On the available materials, it is not possible to determine which of these accounts is correct.
[23] Exhibit 6, Clarkson Interview, 13.12.00.
[24] Exhibit 1, Statement of Applicant, 29 July 2024.
Even though there are real questions about inconsistencies in Mr Clarkson’s evidence and the extent to which it is reliable, I am satisfied, at this point in the sequence of events, when the small box landed at his feet, he chose to act. In doing so, it is conceivable he did not comprehend there was much risk of injury, although he accepts he understood there was some risk. On either account, his decision to address the group of youths who were engaging in an altercation between themselves, and the inflammatory manner in which he did so, was inherently risky and voluntary. It placed Mr Clarkson at the centre of their attention. This increased the risk of escalation and it exposed him to an increased risk of injury.

On either of the versions Mr Clarkson provided, telling the youths to “piss off” or “fuck off”, or standing up and shouting “what the hell do you think you are doing?”, the manner of his intervention was objectively unreasonable. It was unreasonably provocative and confrontational, and the latter version invited a response from the protagonists. Mr Clarkson argues he had no choice as he was surrounded and verbally abused by the group of youths. I do not accept his only option was to remain standing and tell them to “fuck off”.
I do not accept Mr Clarkson’s assertion that, in the rapidly evolving sequence of events, he had no time to pause and consider his options, or to make a decision appreciating the risks he was facing at the time. In the circumstances, the increased risk of injury from confronting the youths and escalating the situation would have been obvious. He maintains he was angry and he could not walk away because he was surrounded by the youths with a bench behind him. Even if this account is correct, Mr Clarkson was not lacking options. He could have taken a step back or resumed his seat. He could have attempted to reason with the youths. He could have called out for assistance. He could have done nothing and remained silent. Instead, he chose to remain standing and to swear at the youths.
Even if one accepts this version of events, it is very far from clear what he expected to achieve by doing so. Mr Clarkson is a tall, solidly build man who cuts an imposing figure. He is larger than the youths whose images are captured in the photographic images. Despite this, there is no evidence Mr Clarkson expected the group would simply comply with his directive and walk away. He took no action to de-escalate the situation in which he found himself. In the heat of the moment, Mr Clarkson’s action might not have been well-considered, as he asserts, but the action he took and the manner in which he did so were the results of decisions he made at the time. The action he took was inherently dangerous and voluntary. It was associated with the obvious risk of escalating the situation and increasing the risk of injury.
I do not accept Mr Clarkson’s submission he was acting in the public’s best interest or in accordance with the values of the APS. Even if he was, the manner in which he acted was not objectively reasonable. By his action, I am satisfied Mr Clarkson voluntarily exposed himself to an abnormal risk of injury and doing so was objectively unreasonable in the circumstances.
By his own account, after being struck by a chair thrown by one of the youths, he was momentarily stunned before regaining his composure and pursuing his assailant. Rather than calling police, seeking assistance from passers-by, or simply walking away, Mr Clarkson decided to engage further in the unfolding events. Once again, his action had a confrontational, escalatory character. What Mr Clarkson had intended to do if he caught the youth is not at all clear but, in any event, deciding to pursue the youth was inherently dangerous and associated with an obvious risk of injury. Doing so was likely to escalate the situation and it was objectively unreasonable. It increased the risk other group members might join the pursuit and engage further with Mr Clarkson. It might be accepted his response was one informed by heightened emotion having been struck by the chair. Nevertheless, I am satisfied Mr Clarkson made a deliberate decision to pursue the youth at a time when he was enraged, despite the obvious and heightened risk of injury associated with such action. In so doing, he voluntarily submitted to an abnormal risk of injury in a manner which is objectively unreasonable.
The events which occurred when Mr Clarkson ended his pursuit of the youth, who eluded him, are partly captured in a single photographic image, and they are the subject of witness accounts and an account given by Mr Clarkson recorded by police later that day. The photographic image is particularly revealing. It shows Mr Clarkson leaning forward on the balls of his feet facing off against two approaching youths, one on either side to the front. At the time the photograph was taken no fight had commenced, although it appears Mr Clarkson was readying himself for such an eventuality. He asserts he was out of breath from chasing the youth and he had no time in which to decide anything before he was set upon by the two approaching youths, one of whom, he alleges, approached him from behind. This does not squarely align with the oral statement he provided police on 8 November 2023. Mr Clarkson stated that after chasing the youth who threw a chair “his friends came over here and tried to start something… I put one of them on the ground… the other guy threw some punches at me and then the little guy came back…”.[25] Two witnesses described him throwing one of the youths to the ground. By his own account he pushed the youth to the ground in a controlled manner. One of the witnesses described Mr Clarkson having his arm around the youth’s neck.
[25] Exhibit 6, Clarkson Interview, 13.14.35.
I do not accept Mr Clarkson’s assertion he had no choice but to engage in what he described as a ‘melee’. When asked what he meant by this term under cross-examination, Mr Clarkson explained ‘melee’ means ‘combat’. While he may well have been out of breath and the time for decision-making was likely short, it appears to me Mr Clarkson was confronted with a choice: he could have attempted to reason with the youths who “tried to start something”, he could have called for assistance, he could have turned or walked away or de-escalated the situation in a number of ways, by quietly sitting down for example. The point is not to speculate about what Mr Clarkson could have done in the particular circumstances, rather it is to identify the choice he actually made to engage with the two youths in ‘combat’.
Mr Clarkson submitted that he engaged the two youths in the way he did because he was concerned one of the youths might have a knife. This reinforces the conclusion he made a deliberate decision to engage in a physical fight with the youths which was objectively unreasonable. I am satisfied this was a voluntary and inherently dangerous act. I am satisfied that Mr Clarkson’s decision substantially increased the risk of escalation and injury, and it was made in the heat of the moment despite the evident risks. In doing so, Mr Clarkson voluntarily submitted to an abnormal risk of injury in a manner which was objectively unreasonable.
There is no dispute that in the course of the ‘melee’ Mr Clarkson was punched in the nose and cheek by one of the youths. It was probably these blows which resulted in the injury to his left eye.
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.

Date(s) of hearing:

3 March 2025

Applicant:

T. Clarkson, Self-Represented

Counsel for the Respondent:

Solicitors for the Respondent:

L. Hinwood

R. Waters, Sparke Helmore Lawyers