Australia: Costly slip up: Employer liable for day to day activities whilst travelling for employment

Last Updated: 8 November 2016
Article by Brett Ablong and Claire T Tota

Garrett and Comcare (Compensation) [2015] AATA 801

Key Points

  • Employee suffered an injury while in the shower of a hotel room whilst travelling for work.
  • Whether the injury arose in the course of employment on the basis the injury was suffered during an interval or interlude in an overall period or episode of work.
  • Held that the employer had induced or encouraged employee to shower before attending work.


Mr Stephen Garrett was employed by the Department of Education, Employment and Workplace Relations (the Department) as the Australian Education International (AEI) Educational Counsellor for the Middle East. Mr Garrett was based in Dubai in the United Arab Emirates.

In 2009, due to governmental changes, the AEI Middle East position was to be discontinued and the role was to be transferred from the Department to Austrade. A new position was created with Austrade as National Education Manager and Mr Garrett successfully applied for this role.

On 8 May 2010, Mr Garrett travelled from Dubai to Sydney at the request of Austrade in order to ensure a smooth transition from the Department to Austrade. The Department agreed to Mr Garrett travelling to Sydney on the proviso he continue to perform his AEI duties from Australia.

On 16 May 2010, Mr Garrett suffered a stroke and collapsed in his hotel room in Sydney.

On 16 June 2010, Mr Garrett made a claim for workers' compensation. Comcare denied liability on the basis 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 compensation. On 19 November 2014, Comcare reconsidered that decision, of its own motion, and revoked it. Mr Garrett applied to the Tribunal for a review of that decision.

The Law

In considering whether the stroke that Mr Garrett suffered arose out of, or in the course of, his employment, the AAT had to consider whether the applicant suffered a stroke during an interval or interlude in an overall period of work 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.

In Hatzimanolis v ANI Corporate Ltd, the High Court made the following observations:

"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..."

The High Court elaborated on this concept in Comcare v PVYW. The majority of the Court said:

"The starting point... 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... 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?"


Mr Garrett gave evidence to the effect that on the morning of 16 May 2010 he awoke around 7.30am and used his laptop to do some Departmental work. Mr Garrett then took a shower with the intention of doing further Departmental work and Austrade work both at the Austrade office and in his hotel room.

The Department accepted that although at the time of the stroke Mr Garrett was not actually working (as he was in the shower), he was injured during an interval in an overall period of employment. This was accepted by the Tribunal.

The Tribunal then turned to the question of whether the Department had induced or encouraged Mr Garrett to engage in the activity he was engaged in at the time of the stroke.

Mr Garrett was an employee of the Department at the time and not Austrade. Although Austrade asked Mr Garret to travel to Sydney, the Department knew of and approved of the travel and even paid his airfares and salary during the period.

The Tribunal held that in such circumstances the Department could not say that it did not also induce or encourage Mr Garrett to engage in an activity that was induced or encouraged by Austrade.

The Tribunal commented further that there need not be any causal connection between the activity and the injury as the circumstance of the injury is referable to the place. The Tribunal stated that there was an expectation that workers shower before attending work and the Department therefore impliedly induced or encouraged Mr Garrett to shower in his hotel on the Sunday morning.

The Tribunal also commented that the expectation that a worker will shower before coming to work is not limited to working days only, especially in such circumstances where an employee is travelling for work.

The Tribunal made an order that the Comcare was liable to pay Mr Garrett compensation in respect of the stroke.

Lessons learnt

Where a worker is required to travel for employment day to day activities that appear not to relate to their employment may not always be considered an interval in an overall period of employment.

The question will be whether the employee was expressly or impliedly induced or encouraged to undertake that activity by their employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Brett Ablong
Claire T Tota
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions