Garrett and Comcare

[2015] AATA 801

Garrett and Comcare (Compensation) [2015] AATA 801 (15 October 2015)

Division	GENERAL DIVISION
File number	2014/6047
Stephen Garrett
APPLICANT
And	Comcare
RESPONDENT

Decision

Tribunal	Dr James Popple, Senior Member
Date	15 October 2015
Place	Canberra

Comcare’s decision on 19 November 2014 is set aside and, in substitution, the following decision is made:

The applicant’s stroke is an injury for the purposes of s 5A(1)(b) of the Safety, Rehabilitation and Compensation Act 1988. Comcare is liable, under s 14 of that Act, to pay him compensation in respect of that injury. Comcare shall pay the applicant’s costs of these proceedings.

............................[sgd]............................................

James Popple, Senior Member

Catchwords

COMPENSATION — Commonwealth employees — employee suffered stroke in shower in hotel room while away from usual place of work — whether injury arose in the course of employment — whether injury suffered during an interval or interlude in an overall period or episode of work — whether employer induced or encouraged employee to engage in activity engaged in when injury occurred — whether causal connection required between activity and injury — decision set aside and substituted.

Legislation

Safety, Rehabilitation and Compensation Act 1988, ss 4(9), 5(1), 5A(1)(b), 6(1), 14, 67(8)

Cases

Comcare v McCallum (1994) 49 FCR 199

Comcare v PVYW (2013) 250 CLR 246

Commonwealth v Oliver (1962) 107 CLR 353

Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Kavanagh v Commonwealth (1960) 103 CLR 547

O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000

Reasons for decision

Dr James Popple, Senior Member

15 October 2015

Summary

1. I set aside Comcare’s decision denying the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). The applicant usually worked in Dubai, but was working for a fortnight in Sydney. He suffered a stroke while showering in his hotel room. The time he was in the shower was an interval or interlude in an overall period or episode of work. His employer induced or encouraged him to shower at the hotel before going to his place of work in Sydney. Accordingly, the stroke was an injury that arose in the course of his employment. That means that the stroke is an injury for the purposes of the SRC Act, which means that Comcare is liable to pay the applicant compensation.

   Background

2. Mr Stephen Garrett was employed by the Department of Education, Employment and Workplace Relations (the Department).  He was based in Dubai in the United Arab Emirates.  On 8 May 2010, Mr Garrett travelled from Dubai to Sydney.  On 16 May 2010, he suffered a stroke and collapsed in his hotel room in Sydney.

3. On 16 June 2010, Mr Garrett made a claim for workers’ compensation.  On 16 July 2010, Comcare denied liability.  Comcare said that the stroke did not arise out of, or in the course of, Mr Garrett’s employment with the Department.  On 30 August 2010, Comcare revoked its earlier determination and accepted liability to pay him compensation.

4. On 19 November 2014, Comcare reconsidered that decision, of its own motion, and revoked it.  Comcare decided that it was not liable to pay Mr Garrett compensation.

5. On 24 November 2014, Mr Garrett applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.

   Decision under review

6. The decision under review is Comcare’s decision on 19 November 2014 that Comcare is not liable to pay compensation to Mr Garrett.

   Issues

7. The issue in this review is whether the stroke that Mr Garrett suffered arose out of, or in the course of, his employment (s 5A(1)(b) of the SRC Act).

   ·Whether the stroke arose in the course of his employment depends on whether he suffered it during an interval or interlude in an overall period or episode of work, and (if so) whether his employer induced or encouraged him to engage in the activity he was engaged in at the time of the stroke.

   ·Whether the stroke arose out of his employment depends on whether it was caused by a deep venous thrombosis (DVT) due to his flight from Dubai to Sydney.

   ·Whether the stroke arose out of, or in the course of, his employment also depends on whether he suffered it:

   owhile he was at his place of work, for the purposes of his employment, or was temporarily absent from that place during an ordinary recess in that employment (s 6(1)(b)); or

   owhile he was temporarily absent from his place of work undertaking an activity associated with his employment, or at the direction or request of the Commonwealth (s 6(1)(c)).

   Findings

8. I make the findings set out in [9]–[23] below, on the balance of probabilities.  These findings are mostly based on submissions made by Mr Garrett and accepted by Comcare.  They are consistent with the evidence before me including statements made, and evidence given at the hearing, by Mr Garrett and by Ms Patricia Evans (who was, in 2010, an Executive Director at Austrade).

9. Mr Garrett was the Australian Education International (AEI) Educational Counsellor for the Middle East.  His usual place of work was Dubai.  His supervisor was located in the Department’s head office in Canberra.

10. Mr Garrett’s employment required him to travel throughout the Middle East.  The normal working week in Dubai, and the surrounding countries that he serviced, varies between countries and is not restricted to Monday to Friday.  Several times each year Mr Garrett was required by the Department to return to Australia for briefings, industry seminars and other promotional activities.  Mr Garrett was required to, and did, implement procedures and systems of work which enabled him to perform the functions of his employment as the AEI Educational Counsellor when physically away from the office in Dubai.

11. In September 2009, a machinery of government change was announced.  One consequence of this change was that the AEI Middle East position was to be discontinued in July 2010, and responsibility for the off-shore marketing and promotion of Australian education in the region was to be transferred from the Department to Austrade.

12. A new position was created within Austrade as National Education Manager.  Mr Garrett applied for the position.  On 3 May 2010, he was offered the position.  He accepted the offer.  This was to be a promotion for him.  He was to start his new job on 14 June 2010.

13. Ms Evans, of Austrade, asked that Mr Garrett travel to Australia for two weeks.  She wanted him to attend a number of meetings in Sydney, and to ensure a smooth transition of the function of his position from the Department to Austrade.  Ms Di Weddell, then Acting Group Manager (International) in the Department, agreed to this on the proviso that Mr Garrett continued to oversee and perform the duties of AEI Educational Counsellor from Australia during that period.

14. On 8 May 2010, Mr Garrett flew from Dubai to Sydney.  The trip took approximately 18 hours.  He was scheduled to return to Dubai on 21 May 2010.

15. The Department arranged and paid for Mr Garrett’s airfares, and continued to pay his salary.  Austrade arranged and paid for his accommodation, and paid for his meals and incidentals, for the period of his stay in Sydney.  Austrade chose the hotel in which he stayed.

16. While he was in Sydney, Mr Garrett had access to an office, desk, computer, administrative support and stationery at the Sydney Austrade office.  He visited the Austrade office every day.  He also worked at the desk in his hotel room, using his Departmental laptop and hard drive, and the hotel’s internet connection.

17. During his visit to Sydney, he worked—in the Austrade office, and in his hotel room—on work directly related to:

    ·his position as AEI Education Counsellor in Dubai (his Departmental work); and

    ·the preparation and transfer of the offshore marketing function and promotion of Australian education in the Middle East region from the Department to Austrade (his Austrade work).

    Both the Department and Austrade were aware that Mr Garrett was performing Departmental work and Austrade work, and each approved.

18. From his arrival in Sydney until the day before the stroke (that is, 9–15 May 2010), Mr Garrett adopted a daily routine.  He would wake up at about 7.00 am, then use his laptop to do some Departmental work.  He would then shower, dress for work, and have breakfast in the hotel dining room.  He would walk to the Austrade office, where he would work from about 8:15 am until 7:00 or 7:30 pm.  On returning to his hotel room, he would continue to work until 10:30 or 11:30 pm.

19. On the morning of 12 May, Ms Margaret Proctor, Mr Garrett’s Acting Branch Manager within the Department, sent him an e-mail.  She asked about the status of a particular document that Mr Garrett was working on: a “template for Austrade regarding post-marketing and promotions activities” (the template).  The template had been due the day before.  Later that morning, Mr Garrett replied that he had been busy, and that two of his Dubai-based staff were unavailable, but that he would finish the document over the weekend, and send it to her on Monday.

20. On Friday, 14 May, Mr Garrett worked in the Austrade office on a speech to be delivered by the CEO of Austrade at a function scheduled for the following Monday.  On returning to his hotel room in the evening, he did some more work on the template.

21. On Saturday, 15 May, Mr Garrett followed his usual routine in the morning, even though it was a weekend day.  He walked to the Austrade office, where he worked on the template.  In the evening, he returned to his hotel room, where he continued to work on the template until about 1:00 am on Sunday, when he phoned his family in Dubai.  After that call, he kept working on the template until about 3:00 am, when he went to bed.

22. Mr Garrett woke up at about 7:30 am on Sunday, 16 May.  He used his laptop to do some Departmental work, then had a shower.  His intention was to do more Departmental work and Austrade work that day, at the Austrade office and in his hotel room.  The work he planned to do included finishing the template; and finishing the CEO’s speech, and writing a speech for Mr Garrett himself, both of which were scheduled to be given at the function the following day.

23. While in the shower, Mr Garrett suffered a stroke and collapsed.  He was found by hotel staff later in the day, lying on the floor of his hotel room.  The stroke was caused by a blood clot forming and subsequently lodging in an artery in his neck.  The clot compromised blood flow to his brain, and had to be surgically removed.  The stroke has left Mr Garrett with significant ongoing disabilities.  He has an impairment, an incapacity for work, and needs ongoing medical and rehabilitation treatment.  As a result of this incapacity, Mr Garrett never took up the position as National Education Manager within Austrade.

    Did the stroke arise in the course of Mr Garrett’s employment?

24. Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1)(b) defines “injury” to include “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”.

25. In Hatzimanolis v ANI Corporation Ltd, the High Court considered the circumstances in which an injury arises in the course of employment.[1]  The majority of the Court said:

    … 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”.[2]

    [1] (1992) 173 CLR 473.

    [2] (1992) 173 CLR 473 at 484 per Mason CJ, Deane, Dawson and McHugh JJ, quoting Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 537 per Barwick CJ.

26. The High Court considered this question again in Comcare v PVYW.[3]  The majority of the Court said:

    The starting point in applying what was said in Hatzimanolis, in order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work.  The next inquiry is what the employee was doing when injured.  For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred.  The essential inquiry is then: how was the injury brought about?  In some cases, the injury will have occurred at and by reference to the place.  More commonly, it will have occurred while the employee was engaged in an activity.  It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant.  When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?  When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there?  If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.[4]

    [3] (2013) 250 CLR 246.

    [4] (2013) 250 CLR 246 at 262 [38] per French CJ, Hayne, Crennan and Kiefel JJ.

27. The question whether an injury arises in the course of employment was also recently considered by the Federal Court in O’Loughlin v Linfox Australia Pty Ltd.[5]  That Court identified the following question articulated by the majority of the High Court in PVYW (what the Federal Court called the PVYW question[6]):

    When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity?[7]

    The Federal Court said that the High Court in Hatzimanolis had set down an “organizing principle” for determining when an injury was sustained while doing something incidental to employment, but only in the context of an interval or interlude in an overall period or episode of work.[8]  The High Court in PVYW had “expressly disavowed an intention to reformulate Hatzimanolis”.[9]  It had also set out the order of relevant inquiry:

    The “starting point” is a factual finding that the injury was suffered by the employee “not whilst engaged in actual work”.  The PVYW question is only a relevant inquiry if all anterior inquiries are first satisfied.  In the absence of a finding that the injury was sustained during an Interval, the PVYW question does not arise.

    I recognise that the majority [in PVYW] expressed the gateway in different terms (“not whilst engaged in actual work”) to that expressed in Hatzimanolis (“during an interval in an overall period of work”).  But, read in context, that formulation is merely one of a variety of short-hand expressions the majority used to refer to “an interval or interlude within an overall period or episode of work”, for example: “an interval between periods of actual work” …;[10] “between periods of actual work” …;[11] “not whilst engaged in actual work” …;[12] “in an interval in a period of work” …;[13] and “an interval between periods of actual work” …[14]  In the absence of any contest as to the nature and scope of an interval as expressed in Hatzimanolis and of any indication that the majority was concerned to reformulate that concept, there can be no doubt that in identifying the “starting point” for the application of the Hatzimanolis principle the majority stated that the injury in question must have been sustained during an Interval.[15]

    Did Mr Garrett suffer the stroke during an interval or interlude in an overall period or episode of work?

    [5] [2015] FCA 1000 per Bromberg J. His Honour’s reasons for judgment were published on 10 September 2015—after the hearing in this review, but before final submissions were filed. Each party referred to O’Loughlin in those submissions.

    [6]     O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [11] per Bromberg J.

    [7]     Comcare v PVYW (2013) 250 CLR 246 at 262 [38] per French CJ, Hayne, Crennan and Kiefel JJ.

    [8]     O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [39] per Bromberg J, citing Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 478–479 per Mason CJ, Deane, Dawson and McHugh JJ.

    [9]     O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [44] per Bromberg J, citing Comcare v PVYW (2013) 250 CLR 246 at 255–256 [14] per French CJ, Hayne, Crennan and Kiefel JJ.

    [10] (2013) 250 CLR 246 at 259–260 [26]–[27] per French CJ, Hayne, Crennan and Kiefel JJ.

    [11] (2013) 250 CLR 246 at 261 [34] per French CJ, Hayne, Crennan and Kiefel JJ.

    [12] (2013) 250 CLR 246 at 262 [38] per French CJ, Hayne, Crennan and Kiefel JJ.

    [13] (2013) 250 CLR 246 at 268 [60] per French CJ, Hayne, Crennan and Kiefel JJ.

    [14] (2013) 250 CLR 246 at 268 [61] per French CJ, Hayne, Crennan and Kiefel JJ.

    [15]    O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [31]–[32] per Bromberg J. In his reasons for judgment, his Honour used “Interval” (capitalised) to mean “an interval or interlude in an overall period or episode of work” as opposed to “an interval between two distinct periods of work” (see at [14]).

28. The fundamental issue raised in O’Loughlin was whether the PVYW question was applicable to the circumstances in which the injury occurred.[16]  The same issue arises in this review: is the PVYW question applicable to the circumstances in which the stroke occurred?  That depends on whether the injury was sustained during an interval or interlude in an overall period or episode of work.

    [16]    O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [13] per Bromberg J.

29. In its submissions, Comcare said that:

    It seems beyond dispute that at the time the applicant suffered his stroke (after emerging from the shower) he was not actually working.  However, Comcare accepts that the applicant was injured during an interval in an overall period of employment.

    Comcare then argued that, applying the organizing principle set down in Hatzimanolis, as clarified by PVYW, Mr Garrett did not suffer the stroke in the course of his employment.

30. I do not think that it is beyond dispute that at the time that Mr Garrett suffered the stroke he was not actually working.  It is at least arguable that he suffered the stroke while he was engaged in actual work, not “between two periods of actual work”.[17]

    [17]    See O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [23] per Bromberg J, citing Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 at 483 per Mason CJ, Deane, Dawson and McHugh JJ. See also [2015] FCA 1000 at [32], quoted at [27] above.

31. In Comcare v McCallum[18] and in PVYW the employee was injured during an interval or interlude.  In McCallum, the employee fell while showering in her hotel room.  In PVYW, the employee was injured while having sex in her motel room.  In each case, the employee was staying in the hotel/motel because she was required to work in a place other than her usual place of work.

    [18] (1994) 49 FCR 199.

32. Mr Garrett was also required to work in a place (Sydney) other than his usual place of work (Dubai).  But before he showered on the Sunday morning that he suffered the stroke, he had already done some work in his hotel room.  And he intended to do more work that day at the Austrade office and in his hotel room.  By contrast, in McCallum and in PVYW the employee’s activities in the hotel/motel were more clearly distinct from the work she was to do at another place—more clearly engaged in during an interval or an interlude.  The employee in McCallum showered as part of preparing herself for work at another place.  Mr Garrett showered as part of preparing himself to move from working in his hotel room to working in the Austrade office, both places other than his usual place of work.  For these reasons, it could be said that he did not suffer the stroke during an interval or interlude within an overall period or episode of work: he suffered it in the course of his employment.

1. But I do not have to decide this point.  If Mr Garrett did not suffer the stroke during an interval or interlude, he suffered it in the course of his employment.  Hatzimanolis and PVYW apply only to injuries suffered during intervals or interludes in overall periods or episodes of work.[19]  If he did suffer it during such an interval, the PVYW question arises.  But, as explained below,[20] the answer to the PVYW question is that Mr Garrett’s employer induced or encouraged him to engage in the activity he was engaged in at the time of the stroke.  So, whether or not Mr Garrett suffered the stroke during an interval or interlude, he suffered it in the course of his employment.

   [19]    O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 at [37] per Bromberg J.

   [20] See [36]–[43] below.

2. As Comcare accepts that Mr Garrett was injured during an interval in an overall period of employment, I find that he was—noting that the result of this review would be the same even if he were not.

3. Furthermore, I think that the answer to the PVYW question will be the same whether the interval or interlude was:

   ·the time Mr Garrett spent in the shower on the Sunday morning;

   ·the time he spent that morning preparing to go to the Austrade office (including the time he spent in the shower);

   ·the whole weekend (Saturday and Sunday, 15 and 16 May 2010); or

   ·the entire fortnight that it was planned that Mr Garrett would be in Sydney, away from his usual place of work in Dubai (8–21 May 2010).

   To the extent that it is necessary to make a finding, I find that the interval or interlude was the time that Mr Garret spent in the shower.[21]

   Did his employer induce or encourage Mr Garrett to engage in the activity he was engaged in at the time of the stroke?

   [21]    Even if the interval were the entire fortnight, Mr Garrett’s trip to Sydney was reasonably incidental to his employment.  It was something he was reasonably required, expected or authorised to do in order to carry out his duties, so the PVYW question would be answered in the same way.  I do not think that anything turns on this.

4. As I have found that Mr Garrett suffered the stroke during an interval or interlude in an overall period or episode of work, I must now consider the PVYW question: did his employer induce or encourage him to engage in the activity he was engaged in at the time of the stroke?

5. The answer to the PVYW question will be the same regardless of who was Mr Garrett’s employer. I do not think that it could be argued that an employee who is employed by one emanation of the Commonwealth, but induced or encouraged to engage in a particular activity by another emanation of the Commonwealth, was not induced or encouraged to do so by their employer. I note that, although s 5(1) of the SRC Act says that an employee is a “person who is employed by the Commonwealth or by a Commonwealth authority”, s 4(9) refers to persons engaged by the Commonwealth.[22]

   [22] Section 4(9) and s 5(1) each refers also to a person engaged, or employed, by a “licenced corporation”. That is not relevant to this review.

6. In earlier submissions, Comcare said that Mr Garrett was an employee of the Department and not of Austrade. In later submissions, Comcare accepted Mr Garrett’s assertion that he was an employee of the Commonwealth. That is clearly the case: at all relevant times, Mr Garrett was an employee of the Commonwealth within the meaning of the SRC Act. Even if his employer was the Department, I do not think that it could be said that any inducement or encouragement was by Austrade alone. There was no formal secondment, but both the Department and Austrade knew and approved of Mr Garrett travelling to Sydney for two weeks and doing work for both emanations of the Commonwealth while he was there. The Department paid his airfares and salary. In such circumstances, the Department cannot say that it did not also induce or encourage Mr Garrett to engage in an activity that was induced or encouraged by Austrade.

7. I find that that activity was the shower that he took in his hotel room on 16 May 2010.  Even if the activity is characterised more broadly (for example, Mr Garrett spending time at the hotel between periods of work) it is clear that, on the balance of probabilities, the stroke was not caused by the activity.  Comcare says that that means that the stroke cannot be said to have arisen in the course of Mr Garrett’s employment.

8. Comcare says that there has been no superior court decision applying Hatzimanolis or PVYW where the injury was not caused by the activity that the employee was undertaking at the time of the injury.  Comcare points to several comments made by the majority of the High Court in PVYW which, it says, suggest that there must be a causal connection between the injury and what the employer induced or encouraged the employee to do.[23]  I do not think that those comments strongly suggest such a causal connection.  Certainly, none of them is as clear as this extract from the reasons of the majority in PVYW:

   The relevant connection or association created by the Hatzimanolis principle is between that activity and the employer’s encouragement to engage in it.  Likewise, when an injury is sustained by an employee at a place and by reference to that place, in the sense earlier discussed, the connection between that circumstance and the employment is provided by the fact that the employer induced or encouraged the employee to be present at that place.

   The connection or association spoken of is not the causal connection which is attributed to the expression “arising out of … the employee’s employment” in the definition of “injury” in [s 5A(1) of the SRC Act]. It is accepted that compensation may be payable in respect of an injury which is suffered “in the course of” the employee’s employment notwithstanding that there is no such causal connection.[24]

   I understand this extract to mean that the relationship between the injury and the activity is temporal, not causal.  If the employer induced or encouraged the employee to engage in an activity, and the employee is injured while engaging in that activity, it does not matter that the activity did not cause the injury.  If the employer induced or encouraged the employee to be present at a place, it is sufficient that “the circumstance of the injury is referable to the place”.[25]

   [23]    Comcare v PVYW (2013) 250 CLR 246 at 261 [35], [36], 262 [38] and 266 [54], per French CJ, Hayne, Crennan and Kiefel JJ.

   [24]    Comcare v PVYW (2013) 250 CLR 246 at 265–266 [52]–[53] per French CJ, Hayne, Crennan and Kiefel JJ, citing Kavanagh v Commonwealth (1960) 103 CLR 547 at 557 per Dixon CJ; Commonwealth v Oliver (1962) 107 CLR 353 at 359 per Dixon CJ [three other notes omitted]. See also Comcare v PVYW (2013) 250 CLR 246 at 272 [73] per Bell J, at 289 [121] per Gageler J; Kavanagh v Commonwealth (1960) 103 CLR 547 at 558–559 per Fullagar J.

   [25]    Comcare v PVYW (2013) 250 CLR 246 at 262 [40] per French CJ, Hayne, Crennan and Kiefel JJ. This is the “sense earlier discussed” referred to in the quotation above.

9. In this review, the stroke was not caused by the activity that Mr Garrett was engaged in when he suffered it.  He suffered the stroke in the shower, but not because he was showering.  Nonetheless, if the PVYW question is answered in the affirmative, the stroke arose in the course of his employment.

10. In this review, the PVYW question is: did Mr Garrett’s employer (the Commonwealth) induce or encourage him to shower in his hotel room on the morning of Sunday, 16 May?  As noted above, in McCallum, the employee fell while showering in her hotel room.  The Federal Court decided that she was injured during an interval, but that her injuries arose in the course of her employment because her employer had induced or encouraged her to spend the interval at a hotel of her choice.[26]  In PVYW, the High Court explained that an inducement or encouragement to be in a particular place was not sufficient—there must also be an inducement or encouragement to engage in the activity that causes the injury.

    [26]    Comcare v McCallum (1994) 49 FCR 199 at 203–204 per Lockhart J, with whom Hill and Whitlam JJ agreed.

11. The Court in McCallum seems to have taken it as given that the employee was induced or encouraged to shower in her hotel:

    She stayed overnight in a hotel whilst on her employers’ business.  An overnight stay obviously involved the [employee] taking a bath or having a shower; she chose the latter.[27]

    There is no doubt that the Commonwealth induced or encouraged Mr Garrett to be at the hotel in Sydney.  I think the Commonwealth also induced or encouraged him to shower in his hotel room.  Like the employee in McCallum, he was staying in a hotel whilst on his employer’s business.  There must have been an expectation that he would clean himself before going to work.

    [27]    Comcare v McCallum (1994) 49 FCR 199 at 203 per Lockhart J, with whom Hill and Whitlam JJ agreed.

12. Furthermore, I do not think it matters that Mr Garrett suffered the stroke on a Sunday.  He would sometimes work on weekends when in Dubai or travelling in the Middle East.  The Department and Austrade knew that he planned to work on the weekend of 15–16 May.  He had already done Departmental work and Austrade work on that weekend.  He had intended to do more, in the Austrade office, later on the Sunday.  I do not think the expectation that employees clean themselves before going to work is limited to working days, especially in such circumstances.  I find that the Commonwealth impliedly induced or encouraged Mr Garrett to shower in his hotel on the Sunday morning.

    Does s 6(1)(b) or s 6(1)(c) of the SRC Act apply?

13. Section 6(1) of the SRC Act extends the definition of “injury” in s 5A. Because of what I have decided above, I do not have to decide whether s 6(1)(b) applies: that is, whether Mr Garrett suffered the stroke while he was at his place of work, for the purposes of his employment, or was temporarily absent from that place during an ordinary recess in that employment. And I do not have to decide whether s 6(1)(c) applies: that is, whether he suffered the stroke while he was temporarily absent from his place of work undertaking an activity associated with his employment, or at the direction or request of the Commonwealth.

    Summary: did the stroke arise in the course of Mr Garrett’s employment?

14. Mr Garrett suffered a stroke while taking a shower in his hotel room.  The time he was in the shower was an interval or interlude in an overall period or episode of work.  The Commonwealth impliedly induced or encouraged him to shower at the hotel.  That means that the answer to the PVYW question is that Mr Garrett’s employer induced or encouraged him to engage in the activity he was engaged in at the time of the stroke.  It follows that the stroke arose in the course of his employment.

    Did the stroke arise out of Mr Garrett’s employment?

15. As noted above, section 5A(1)(b) defines “injury” to include “an injury … arising out of, or in the course of, the employee’s employment”. For an injury to arise out of employment there must be a causal connection between the injury and the employment.[28]

    [28] See [40] and note 24 above.

16. Mr Garrett says that the blood clot that caused the stroke was caused by a DVT in his leg, which was caused by his flight from Dubai to Sydney, which was reasonably incidental to his employment.  Comcare says that there is not sufficient evidence for me to find, on the balance of probabilities, that Mr Garrett suffered a DVT or that a DVT caused the stroke.

17. Because I have decided that the stroke arose in the course of his employment (by answering the PVYW question in the affirmative), I do not have to decide whether the stroke arose out of that employment (that is, whether the flight caused the stroke).

    Conclusion

18. Mr Garrett suffered a stroke during an interval or interlude in an overall period or episode of work. His employer induced or encouraged him to engage in the activity he was engaged in at the time of the stroke. The stroke arose in the course of his employment. The stroke is an injury for the purposes of s 5A(1)(b) of the SRC Act. Under s 14, Comcare is liable to pay him compensation in respect of the stroke.

    Costs

19. Section 67(8) of the SRC Act provides:

    (8)Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:

    (a)  varying a reviewable decision in a manner favourable to the claimant; or

    (b)  setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;

    the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.

    In this review, Mr Garrett is the claimant and Comcare is the responsible authority.

20. My decision in this review involves setting aside a reviewable decision and making a decision in substitution that is more favourable to Mr Garrett.  Accordingly, I order that the costs of the proceedings in this review be paid by Comcare.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

.............................[sgd]...........................................

Associate

Dated 15 October 2015

Date of hearing	3 September 2015
Date final submissions received	29 September 2015
Counsel for the Applicant	Mr Karl Pattenden
Solicitors for the Applicant	Slater and Gordon, Lawyers
Counsel for Respondent	Mr Andrew Berger
Solicitors for Respondent	Sparke Helmore, Lawyers