Background
Linda Zakman obtained an Administrative Review Tribunal award of compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The Tribunal found that she suffered a vertebral artery dissection, leading to a stroke and incapacity for work, after self-manipulating her neck to relieve work-related neck pain.
The Tribunal held that the injury arose out of Ms Zakman’s employment under s 5A(1)(b), reasoning that an employer would reasonably expect an employee to undertake exercises to relieve pain caused by work. But it rejected the alternative conclusion that the injury occurred in the course of employment, finding the self-manipulation was not something she was required, authorised or expected to do in the course of, or incidentally to, her duties. Comcare appealed, and all parties proposed consent orders allowing the appeal.
The Court’s Holding
Justice Goodman allowed the appeal by consent, set aside the Tribunal’s 24 April 2026 decision, and remitted the matter to the Tribunal for determination according to law. Comcare was ordered to pay both respondents’ appeal costs as agreed or taxed.
The Court was satisfied that the Tribunal’s central findings gave rise to arguable appellable error. The Tribunal had treated the same neck self-manipulation as conduct an employer would reasonably expect for the purpose of the “arising out of” limb, but as conduct the employee was not required, authorised or expected to undertake for the “in the course of” limb. That at least arguable inconsistency rendered the reasoning inadequate on a central issue. The Court did not direct which Tribunal member should hear the remitted matter, leaving allocation to the Tribunal President.
Key Takeaways
- A tribunal must disclose a coherent logical path from its findings to its conclusion.
- Inconsistent findings about whether an employer would expect the relevant conduct can amount to appellable legal error.
- On remittal, the Tribunal must redetermine the compensation claim according to law; the Federal Court did not decide the ultimate entitlement.
Why It Matters
The decision illustrates that consent appeals from federal tribunals still require the Court to identify arguable appellable error. Parties cannot obtain an order setting aside a tribunal decision merely by agreement.
For workers’ compensation matters, the case highlights the need to distinguish carefully between injuries arising out of employment and injuries sustained in the course of employment, while ensuring factual findings on those issues are not internally contradictory.