Employer liability and Compensation: Garrett and Comcare (Compensation) [2015] AATA 801

The Administrative Appeals Tribunal has found the Commonwealth liable to pay compensation to an employee, after they suffered a stroke whilst showering in a hotel on a business trip.

 Mr Garrett had been employed by the Department of Education, Employment and Workplace Relations as the AEI Educational Counsellor for the Middle East, based in Dubai. In 2010, this position was discontinued and a new position was created with Austrade. Mr Garrett successfully applied for this position.As a result, Austrade requested Mr Garrett travel to Sydney to attend a number of meetings to ensure the smooth transition of his position from the Department to Austrade. This was agreed to by both employers.

After a late night of finishing off work in his hotel room, Mr Garrett planned to head into the Austrade Office. While in the shower, Mr Garrett suffered a stroke and collapsed. The effect of the stroke left Mr Garrett with significant ongoing disabilities including an impairment, an incapacity to work, as well as the ongoing need for medical treatment and rehabilitation.

Consequently, Mr Garrett made a workers' compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) which although was originally rejected by Comcare, in August 2010 this decision was revoked with Comcare accepting liability and agreeing to pay Mr Garrett compensation.  

However, in 2014 Comcare reconsidered its decision again, ultimately deciding it was not liable to pay compensation to Mr Garrett under the Safety, Rehabilitation and Compensation Act 1988. Mr Garrett applied to the Administrative Appeals Tribunal to review this decision.

Decision

The Tribunal in determining Comcare's liability, considered whether the stroke suffered by Mr Garrett arose out of, or in the course of, his employment. This was dependent upon two factors:

1. Whether he suffered the stroke during an interval or interlude in an overall period or episode of work?

2. Whether his employer induced or encouraged him to engage in the activity he was engaged in at the time of the stroke?

It was found that as Mr Garrett was working in a place other than his usual place of work, had already been doing some work in his hotel room and showered with the intention to move his place of work to the Austrade office. The tribunal discussed that whether or not Mr Garrett suffered the stoke in an interval he had suffered it in the course of work. Comcare accepted the injury occurred during an interval in work and therefore so did the tribunal.

The Tribunal further concluded that as both employers approved and paid for Mr Garrett to travel and stay in Sydney for work, they did induce or encourage Mr Garrett to engage in the activity he was engaged in at the time of the stroke. There was no doubt the Commonwealth induced or encouraged Mr Garrett to be at the hotel as well as shower in his hotel room. As he was staying in a hotel whilst on his employer's business, the Tribunal concluded there must have been an expectation that Mr Garrett would need to clean himself. It was held that the relationship between the injury and Mr Garett having a shower did not need to be causal in nature. Rather, only the element of inducement to engage in the activity needed to exist for compensation for the injury to arise.

Ultimately, the Tribunal set aside Comcare's rejection of liability finding that Mr Garrett had suffered a stroke in an overall period or episode of work, and that his employer had induced or encouraged him to engage in the activity he was engaged in at the time of stroke. Thus, Mr Garrett's stroke constituted an "injury" under the Act and Comcare was found liable liable to pay Mr Garrett compensation. Comcare was also ordered to pay costs.

Read the full decision here

 

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate. 

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