Federal Court of Australia

Comcare v Zakman [2026] FCA 1603

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The decision of the Administrative Review Tribunal dated 24 April 2026 is set aside.

3.    The matter is remitted to the Tribunal for determination according to law.

4.    The applicant is to pay the first and second respondents’ costs of the appeal as agreed or taxed.

5.    There are otherwise no orders as to costs.

THE COURT NOTES THAT:

1.    The parties wish:

(a)    the Tribunal on remittal to be constituted by a different senior member or constituted by a Deputy President; and

(b)    the matter to be decided again without the taking of further evidence.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GOODMAN J:

1    This proceeding involves an appeal from a decision of the Administrative Review Tribunal, by which the Tribunal made an award of compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in favour of the first respondent, Ms Zakman. The Tribunal’s reasons were published as Zakman and Comcare (Compensation) [2026] ARTA 682.

2    On 20 October 2026, the Court received proposed consent orders signed on behalf of all of the parties, which orders included an order allowing the appeal. In accordance with Practice Note Consent orders involving a Federal Tribunal (GPN-TRIB), the proposed consent orders contained notes providing a statement of the matters relied upon to justify the making of those orders. The notes relevantly included (as written):

1.    This is an appeal from a decision of the Administrative Review Tribunal which was made on 24 April 2026 in the matter of Re Zakman and Comcare (Compensation) [2026] ARTA 682.

2.    The Tribunal decided that the Applicant, Comcare, was liable to pay compensation to the First Respondent, Ms Linda Zakman, pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

3.    In summary, the Tribunal found that Ms Zakman suffered a physical injury (other than a disease) “arising out of” her employment for the purpose of s 5A(1)(b) of the SRC Act.

4.    The Tribunal found that Ms Zakman suffered a vertebral artery dissection leading to a stroke which resulted in her suffering incapacity for work. As will be discussed below, the Tribunal found that the vertebral artery dissection bore the necessary connection with employment for it to qualify as an “injury” within the meaning of the SRC Act. Whether that was so was, and remains, controversial as between Comcare and Ms Zakman.

5.    In its statement of reasons, the Tribunal referred to s 5A of the SRC Act, which provides the meaning of the word “injury” for the purposes of the SRC Act.

6.    Relevantly, s 5A(1)(b) of the SRC Act provides that the word “injury” means:

(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 ...

7.    The Tribunal discussed whether Ms Zakman’s vertebral artery dissection arose either “out of”, or “in the course of”, her employment for the purpose of s 5A(1)(b) of the SRC Act (at [70]-[178]). In that respect, the Tribunal observed that Ms Zakman submitted that both the “out of” employment and the “in the course of” employment tests were applicable (at [69]). Accordingly, the Tribunal considered both tests.

8.    As for the “arising out of” limb of s 5A(1)(b) of the SRC Act, the Tribunal found that Ms Zakman was stretching and self-manipulating her neck in a way she believed would assist to alleviate the pain and discomfort in her neck arising from performance of her work but she did so in a dangerous manner that caused the dissection without any understanding of a risk that such an injury might occur (at [132]-[136]). Ultimately, the Tribunal considered that the self-manipulation was “something an employer would reasonably expect an employee to do” (at [138]). Accordingly, the Tribunal concluded that the consequential inadvertent dissection was an injury arising from Ms Zakman’s employment (at [136]-[145]).

9.    As for the “in the course of” limb of s 5A(1)(b) of the SRC Act, the Tribunal found that the timing of the vertebral artery dissection was unclear (at [173]). The Tribunal observed that it might have occurred in the course of Ms Zakman’s employment while she was manipulating her neck or later when she experienced the headache (at [173]). Ultimately, the Tribunal was not satisfied the dissection occurred when Ms Zakman was “doing something that she was required, authorised or expected to do in the course of or incidental to her duties” (at [178]). Accordingly, the Tribunal was not satisfied that Ms Zakman suffered an injury “in the course of” her employment (at [178]).

10.    The matters set out at paragraphs 8 and 9 above illustrate an irreconcilable inconsistency in the Tribunal’s reasons. Reduced to its essentials, the Tribunal simultaneously concluded that the self-manipulation undertaken by Ms Zakman was and was not something an employer (Ms Zakman’s employer) would expect an employee (Ms Zakman) to do in employment (Ms Zakman’s employment) (cf [138] and [178]). That simultaneous but irreconcilably inconsistent conclusion, which was central to the decision it made, makes it impossible to understand the Tribunal’s reasons for decision.

11.    In that respect, it is well-established that a tribunal’s reasons must:

a.    set out its reasoning in sufficient detail to “make intelligible the true basis of the decision” (ARM Constructions Pty Ltd v Deputy Commissioner of Taxation [1986] FCA 108; (1986) 10 FCR 197 at (FCR) 204);

b.    be expressed in “clear and unambiguous language, not vague generalities” (Wonson v Comcare [2020] FCAFC 76; (2020) 276 FCR 613 at [90], citing Ansett Transport Industries (Operations) Pty Limited v Wraith (1983) 48 ALR 500 at (ALR) 507); and

c.    disclose “the logical process” by which the Tribunal moved from its factual findings to its ultimate conclusion (Secretary, Department of Employment and Workplace Relations v Homewood [2006] FCA 779; (2006) 91 ALD 103 at [40]).

12.    In summary, the Tribunal must adequately disclose the logical process by which it reached its ultimate conclusion and a failure to do so amounts to error of law (Prosegur Australia Pty Ltd v Higgerson [2024] FCA 203; (2024) 181 ALD 471 at [87]).

13.    The parties agree and submit that there is, at the very least, arguable appellable error in the Tribunal’s decision because the process by which it reached its ultimate conclusion that Ms Zakman suffered an injury “arising out of” her employment is, with respect, unintelligible (cf Higgerson at [84]). In that respect, the reasons do not explain in clear and unambiguous language how Ms Zakman could have suffered an injury within the meaning of s 5A(1)(b) of the SRC Act where her neck self-manipulation simultaneously amounted to something that allegedly was and was not something her employer would have expected her to do in her employment. That being so, the logical process by which the Tribunal reached its ultimate conclusion is elusive (Higgerson at [86]).

14.    For the above reasons, question of law 4, as supported by grounds 2(d) and (h), insofar as those grounds are relevant to ground 4(b), of Comcare’s appeal should be answered, “yes”. Put simply, the Tribunal’s reasons failed to explain, or failed adequately to explain, how Ms Zakman’s vertebral artery dissection could have been an injury “arising out of” or “in the course of” her employment when it could not reconcile for itself whether the self-manipulation was or was not something her employer would have expected her to do in her employment. That being so, the appropriate relief is to set aside the Tribunal’s decision and remit the matter to the Tribunal to be decided again. In that respect, the parties agree and submit that the matter should be decided again without the taking of further evidence, consistently with the objective in s 9 of the Administrative Review Tribunal Act 2024 (Cth).

15.    As for constitution on remitter, the Applicant and First Respondent agree and submit that the Tribunal should be constituted by a Deputy President or a different senior member. Based on the nature of the error agreed by the parties and as submitted to this Court in relation to the Tribunal’s handling of the matter, it is appropriate for the Tribunal to be differently constituted, at the same or higher level of member as the member who made the decision, so that justice is seen to be done in the circumstances (cf Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at (FCR) 42-43). The Second Respondent submits to any order made by the Court in that respect.

16.    Further, the parties have reached agreement as to appropriate orders as to costs. That agreement requires no further explanation given the matters set out in GPN-TRIB at [2.2]. The orders may comfortably be made by the Court.

17.    For the above reasons, it would be appropriate for orders to be made in the terms proposed by the parties.

18.    Finally, despite the limited nature of the matters set out in these notes and to avoid doubt, Comcare and Ms Zakman have agreed that, on remitter to the Tribunal, neither of those parties will be constrained in the arguments that they may properly put to the Tribunal for the purpose of assisting it to make the correct or preferable decision. In other words, the fact that Comcare and Ms Zakman have not asked this Court to make orders on the basis of the other matters pleaded in Comcare’s notice of appeal and/or Ms Zakman’s notice of contention may not be treated as a concession that any of those pleaded matters is unmeritorious or abandoned as the case may be.

19.    The only exceptions to the matters set out in the above paragraph, however, are that:

a.    Comcare hereby abandons question of law 3 and ground 3 of its notice of appeal, and it will not seek to rely on s 4(3) of the SRC Act on remitter to the Tribunal;

b.    in accordance with paragraph 3 of Ms Zakman’s notice of contention dated 28 May 2026, Comcare and Ms Zakman agree, and will mutually submit to the Tribunal on remitter pursuant to s 103(1) and (3)(b) of the ART Act, that Ms Zakman’s vertebral artery dissection occurred when she was “in the shower”.

20.    The parties respectfully ask the Court to make the requested orders.

(bold, italic and underline emphasis in original)

3    As the parties submitted, the principles applicable on an application such as the present are well-established. The exercise of the power to allow an appeal by consent is dependent upon the identification, to the satisfaction of the Court, of arguable appellable error in the decision the subject of the appeal: see, e.g., Bradken Limited v Norcast S.ár.L [2013] FCAFC 123; (2013) 219 FCR 101 at [2] (Allsop CJ, Mansfield and Jacobson JJ); CQX18 v Minister for Home Affairs [2019] FCAFC 142; (2019) 372 ALR 137 at [9] (Allsop CJ, Perry and Gleeson JJ)); Comcare v Stefaniak [2020] FCA 560; (2020) 170 ALD 262 (Thawley J); and Australian Capital Territory v Ross [2024] FCA 1299 (Needham J). What is sufficient to satisfy the Court of arguable appellable error will turn upon the features of the particular case, including the nature and complexity of the proceeding and the nature of the error identified: Bradken at [2].

4    I am satisfied that there is arguable appellable error in the Tribunal’s decision. In particular:

(1)    the Tribunal made an award of compensation pursuant to s 14 of the Act on the basis that Comcare was “liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee …”;

(2)    “injury” was defined in s 5A of the Act in terms which relevantly required that the injury be a physical injury “arising out of, or in the course of, the employee’s employment”;

(3)    the Tribunal found that Ms Zakman suffered a physical injury in the form of a stroke caused by an arterial dissection as a result of her self-manipulation of her neck to alleviate neck pain (T[133]);

(4)    the Tribunal considered both of the alternatives “arising out of … the employee’s employment” (T[70] to [145]) and “in the course of … the employee’s employment” (T[146] to [178]);

(5)    the Tribunal held that:

(a)    the injury arose out of Ms Zakman’s employment in part because an employer would reasonably expect an employee to undertake exercises to alleviate pain and discomfort arising from the performance of their duties (T[138]);

(b)    Ms Zakman did not suffer the injury in the course of her employment because the self-manipulation was not something that she was required, authorised or expected to do in the course of or as an incident to her duties (T[178]);

(6)    there is at least arguably an inconsistency between the findings in (5)(a) and (b) in that the Tribunal found that the self-manipulation which caused the arterial dissection which led to the injury was something that an employer would and would not expect an employee to do; and

(7)    these inconsistent findings on a central issue give rise to at least an arguable appellable error.

5    It follows that the orders sought allowing the appeal and remitting the matter to the Tribunal ought be made. The parties’ proposed orders also include orders to the effect that the matter be heard by a different member of the Tribunal and of a particular seniority. I am not inclined to make such an order and I will leave the allocation of a particular member to the discretion of the President of the Tribunal.

Associate:

Dated:    27 October 2026