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

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
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.
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…

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 Garrett and Comcare

Details

AGLC: Garrett and Comcare [2015] AATA 801
Case: [2015] AATA 801
Decision Date: 15 October 2015

CaseChat Overview and Summary

The Federal Court was asked to review a decision by Comcare, which determined that it was not liable to pay compensation to Mr. Garrett for a stroke he suffered while on duty. The case centred around whether the stroke arose out of or in the course of Mr. Garrett's employment. Mr. Garrett, an Australian Education International (AEI) Educational Counsellor for the Middle East, suffered the stroke in a hotel room while away from his usual place of work in Dubai. The key legal issues revolved around whether the stroke occurred during an interval or interlude in his employment, whether his employer induced or encouraged him to engage in the activity he was involved in at the time of the stroke, and whether the stroke was caused by a deep venous thrombosis due to his flight from Dubai to Sydney.

The Court found that the stroke did arise out of or in the course of Mr. Garrett's employment. It was determined that the stroke did not occur during an interval or interlude in his employment but rather while he was engaged in an activity associated with his employment. Furthermore, the Court held that the stroke was caused by a deep venous thrombosis due to his flight from Dubai to Sydney. Consequently, the decision of Comcare was set aside, and the Court substituted its decision in favour of Mr. Garrett.

In light of the Court's findings, it was established that Mr. Garrett's stroke arose out of or in the course of his employment. As a result, Comcare was ordered to pay compensation to Mr. Garrett for the injuries he sustained. The Court's decision acknowledged the nature of Mr. Garrett's employment, which required him to travel throughout the Middle East and return to Australia for various activities. The Court also considered the fact that Mr. Garrett was transitioning to a new position within Austrade at the time of his stroke. This case highlights the importance of understanding the scope of employment and the activities that fall within it when determining whether an injury arises out of or in the course of employment.

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

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

Ratio Decidendi

Legal Principle Established

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

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