Federal Court sends Comcare stroke claim back after tribunal found neck stretching was and was not expected at work

A tribunal decision that a worker’s stroke was compensable has been set aside. The tribunal had decided that the neck self-manipulation which caused the injury was something her employer both would and would not expect her to do.

Justice Goodman of the Federal Court allowed Comcare’s appeal by consent on 27 October 2026 ([2026] FCA 1603). He set aside the Administrative Review Tribunal’s decision of 24 April 2026 and remitted the matter, meaning he sent it back to the Tribunal to be decided according to law.

The Tribunal had found Comcare liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). It found the worker suffered a vertebral artery dissection, which led to a stroke and left her incapacitated for work.

The claim turned on the definition of injury in s 5A of the Act. The relevant part requires a link to employment through either of two alternative tests.

On the “arising out of” test, the Tribunal accepted that the worker had been stretching and manipulating her own neck in the belief it would relieve neck pain and discomfort caused by her work. It found the way she did this was dangerous and caused the dissection, but that she did not appreciate the risk of injury. It considered the self-manipulation “something an employer would reasonably expect an employee to do” and concluded the injury arose out of her employment.

On the “in the course of” test, the Tribunal could not determine when the dissection happened. It was not satisfied the dissection occurred while she was “doing something that she was required, authorised or expected to do in the course of or incidental to her duties”.

On 20 October 2026 the Court received proposed consent orders signed on behalf of Comcare, the worker and the Australian Capital Territory, the second respondent. Notes accompanying the orders said the two findings “illustrate an irreconcilable inconsistency in the Tribunal’s reasons” which “makes it impossible to understand the Tribunal’s reasons for decision.” The notes also recorded that whether the dissection qualified as an injury “was, and remains, controversial” between Comcare and the worker.

The Court can allow an appeal by consent only if it is satisfied there is “arguable appellable error”, an arguable error capable of correction on appeal. Justice Goodman was satisfied. He said there was at least arguably an inconsistency, because the Tribunal had treated the neck self-manipulation as both expected and not expected by an employer, and that “these inconsistent findings on a central issue give rise to at least an arguable appellable error.”

The parties agreed no new evidence should be taken when the claim is reconsidered. Comcare abandoned a question of law and a ground in its notice of appeal, and undertook not to invoke s 4(3) of the Act before the Tribunal. Comcare and the worker also agreed to submit jointly to the Tribunal that the dissection occurred when she was “in the shower”. Apart from those points, neither Comcare nor the worker is constrained in the arguments it can put.

The parties asked for the rehearing to be conducted by a different senior member or by a Deputy President. Justice Goodman declined: “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.” Comcare was ordered to pay both respondents’ costs of the appeal “as agreed or taxed”, meaning formally assessed if the amount is not agreed.

The claim returns to the Tribunal with no finding on liability in place. The Tribunal must decide again whether an injury caused by an employee’s own attempt to relieve work-related pain falls within s 5A(1)(b). The parties have asked that it do so without taking further evidence.

Source: [2026] FCA 1603

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