Allsop v NCC Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Allsop v NCC Group Pty Ltd [2025] NSWPIC 553
APPLICANT:	Calum Allsop
RESPONDENT:	NCC Group Pty Ltd
MEMBER:	Adam Halstead
DATE OF DECISION:	15 October 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation; section 66 of the Act; worker working from home; manager attended meeting with worker at home; worker held captive and repeatedly assaulted by manager; psychological injury claimed from assault; injury undisputed; employer contends incident outside scope of employment; section 4 of the Act; employer contends employment not a significant contributing factor; section 94 of the Act; relevance of reason for assault considered; Tarry v Warringah Shire Council, Humphrey Earl Ltd v Speechley, Rantino v Collins & Moss Pty Ltd, and Kelly v Secretary, Department of Family and Community Services considered; Held – assault occurred at work; worker injured in the course of employment; employment a significant contributing factor to injury; referred to Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Personal Injury Commission (Commission) determines: 1. The applicant suffered psychological injury at work on 28 April 2022 after being detained and assaulted by his manager. Injury arose in the course of employment with the respondent. 2. The applicant’s employment with the respondent was a substantial contributing factor to that injury. The Commission orders: 3. The matter is remitted to the President for referral to a Medical Assessor, to be selected by the President, for assessment of whole person impairment arising from psychological injury on 28 April 2022. 4. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents; (c) the Application to Lodge Additional Documents dated 22 August 2025 with attached documents, and (d) this Certificate of Determination with reasons. A brief statement of the Commission’s reasons for the determination is attached.

STATEMENT OF REASONS

BACKGROUND

The applicant, Calum Allsop, was employed by the respondent, NCC Group Pty Ltd. While working from home on 28 April 2022, the applicant was visited by his manager, Edward Ben Fitzpatrick. On that occasion, Mr Fitzpatrick held the applicant captive for over three hours and repeatedly assaulted him, including with a knife. Mr Fitzpatrick was later charged, convicted and imprisoned for a range of serious criminal offences. The applicant claims lump sum compensation from the respondent for psychological injury arising from that event. The respondent disputes the claim on the basis the incident was unrelated to employment.
The applicant commenced proceedings in the Personal Injury Commission (Commission) on 26 May 2025 when an Application to Resolve a Dispute (ARD) was lodged in relation to the disputed claim.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was before the Commission for arbitration hearing on 28 August 2025. The applicant attended and was represented by Mr Morgan of counsel, instructed by Carroll and O’Dea Lawyers. The respondent was represented by Mr Gaitanis of counsel, instructed by Rankin Ellison Lawyers, and a delegate of its insurer was present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have endeavoured to bring the parties to the dispute to an acceptable settlement and am satisfied that the parties have had sufficient opportunity to explore settlement. They have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

It is undisputed that the applicant suffered a psychological injury following the events that occurred on 28 April 2022.
A determination is required about whether the psychological injury that arose from events on 22 April 2022:
(a) is personal injury arising out of or in the course of employment, and
(b) employment was a substantial contributing factor to the injury.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission at the arbitration hearing, without objection, and considered in making this determination:
(a)    ARD and attached documents of 135 pages;
(b)    Reply and attached documents of 57 pages (Reply), and
(c)    Application to Lodge Additional Documents made by the respondent on
22 August 2025 with attached documents of 66 pages (ALAD).
There was no application to call oral evidence or cross-examine any witness at the hearing.

Applicant’s statement evidence

The applicant relies on two statements prepared in relation to his claim for compensation, dated 13 April 2023[1] and 17 January 2025,[2] that describe the events of 28 April 2022 and the subsequent effects. Also in evidence are two statements, dated 29 April 2022[3] and
24 June 2022,[4] the applicant provided to police for the prosecution brief against
[1] ARD, p 7.
[2] ARD, p 10.
[3] ARD, p 1.
[4] ALAD, p 35.
[5] Also referred to variously hereinafter as ‘Ben’.
Mr Fitzpatrick.[5]
On 1 June 2021, the applicant commenced employment with the respondent as a client engagement manager.[6] Mr Fitzpatrick was the senior vice president of sales, and the applicant’s manager.[7] Around September 2021, they each invested substantial funds into a cryptocurrency trading scheme. The scheme performed poorly, and the money invested rapidly diminished.[8] Mr Fitzpatrick became increasingly concerned and agitated about the accruing losses, which he made known to the applicant.[9] Their participation in the investment scheme was outside their work with the respondent, that is, it did not form part of their employment duties.
[6] ARD, p 1 at [4].
[7] ARD, p 7 at [10].
[8] ARD, p 2 at [6].
[9] ARD, p 2, at [7] and [8].
The applicant lived in an apartment in Manly and there were approved work-from-home arrangements in place with the respondent. He was working from home at the time of the relevant events,[10] and authorised to do so. In his first statement given to the police, the applicant recounted that:[11]
“10. About 2:20pm on Thursday the 28^th of April 2022, Ben called me and advised that some of the senior account managers were getting upset with my team at work. Ben with a calm demeanour said that our team was failing and underperforming, and I needed to do a report finding evidence of our team’s good work. At the end of this call, Ben told me that he was heading to Manly at about 4:30pm that afternoon, which I agreed.
11. About 5:30pm on the same date, I was advised by Ben that he was in the downstairs area of my apartment block on Wentworth St, Manly. I brought him up the elevator and invited him into my unit. Ben didn’t appear affected by alcohol and was professional. Ben and I were talking about work calmly for about
20 minutes in my living room before he started asking me about the poor investment. During this time, Ben had two alcoholic drinks and I had half a glass of rum and cola. Ben also placed some pills on top of the Ikea couch area in my living room. Ben advised that he was taking the pills because of his anxiety, and it was effecting [sic] his work because people at work were asking why he was so zoned out.
12. Ben asked me to give him a loan of $120,000. I told Ben that I didn’t have the money. After I said this, Ben appeared to become very aggressive. I saw Ben go to my kitchen table and pull out a 20cm knife from the knife block stand. This knife had a black handle and a 20cm very sharp blade. Ben turned and looked at me and aggressively said, ‘Give me the fucking money now cunt!’.”
[10] ARD, p 13 at [49].
[11] ARD, pp 2 and 3.].
While that statement provided to police contains further extensive detail about the events that followed on 28 April 2022, the statement of 13 April 2023 prepared in relation to his claim for compensation provides a consistent and concise summary of that occasion, which is sufficient for the purposes of this determination:[12]
“10. Over a 3 ½ hour period, Mr Fitzpatrick held me at knife point whilst assaulting me and holding me at ransom. During this time, he was sending work emails and discussing aspects to do with my work at [the respondent] and texting people. He convinced me that a group of people were going to be coming over to my place to torture me, put me in a bin bag, take me out to the ocean, kill me, chop me up and drop me in the middle of the ocean. He kept referring to the TV show Dexter and actively convincing me that a group of people were going to kill me.
12. Mr Fitzpatrick proceeded to force me to contact my aunt and brother regarding obtaining a sum of money. During this time, he continued to assault me on various occasions.
13. When Mr Fitzpatrick developed the belief that my aunt did not have the money he needed available, he proceeded to attempt to kill me with a knife and lunged at me.”
[12] ARD, pp 7 to 8.
The applicant was later able to flee the apartment and alert police.[13] Mr Fitzpatrick was subsequently arrested and charged with various criminal offences then convicted at court and imprisoned.[14]
[13] ARD, p 6 at [28].
[14] ARD, p 8 at [14].
The applicant’s evidence has not been disputed by the respondent and is consistent with the Statement of Agreed Facts tendered to the court in the criminal prosecution of Mr Fitzpatrick. It can therefore be reasonably inferred from the agreement reached on the facts in the criminal proceedings that Mr Fitzpatrick accepted the version of events given by the applicant.

CONSIDERATION AND FINDINGS

The relevant facts are unchallenged and it also accepted the applicant suffered psychological injury following the events of 28 April 2022. The argument relied upon by the respondent is that those events were unrelated to, and outside the course of and did not arise from, the applicant’s employment.
Section 4 of the Workers Compensation Act 1987 (the 1987 Act) defines compensable injury and requires there to be “injury arising out of or in the course of employment”. A claimant need only establish one of those, that is either that injury arose out of, or, in the course of, employment: Tarry v Warringah Shire Council.[15]
[15] [1974] 48 WCR 5.
The applicant contends that psychological injury was received in the course of employment on 28 April 2022. It is submitted that he was at all relevant times in the course of employment with the respondent given he had been working from home in accordance with standard arrangements and attending to work matters. He allowed Mr Fitzpatrick entry to the apartment for the purposes of a meeting about team performance and, intially at least, that is how the interaction proceeded. The events that followed took place in the applicant’s workplace and he was injured while at work, according to his submissions.
The respondent counters that despite there having been work matters discussed, the subsequent events when the applicant was detained and assaulted, ceased to be relevant to employment and were instead connected with the failed cryptocurrency investment. It was submitted that the incident would not have occurred but for that investment, which was nothing to do with the applicant’s work, and there had been a “deviation from the course of employment”. The pre-existing and “extensive history” between the applicant and
Mr Fitzpatrick concerning that investment was the real cause of the applicant’s injury and that was unrelated to the respondent, according to the submission made for it.
The concept of “in the course of employment” was explained by Dixon J in Humphrey Earl Ltd v Speechley:[16]
“The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment.”
[16] 84 CLR 126 at 133; [1951] HCA 75.
Employer liability for injury in the course of employment “depends on the existence of a temporal relationship between the employment and the injury” and there is “no requirement in such a case that the employment should have any causal connection with the injury” according to Handley JA (with Clark JA agreeing) in Inverell Shire Council v Lewis[17] (Lewis).
[17] [1992] NSWCA 114 at 2.
In Stojkovic v Telford Management Pty Ltd,[18] Neilson J reviewed a range of authority on cases of assault in the workplace and provided a summary of the findings of the Court of Appeal decision in Rantino v Collins & Moss Pty Ltd[19] (Rantino) where it was held that:
“… once it was established that at the time of the injury the worker was in a position required for carrying out his employment, there was a prima facie entitlement to compensation. If there was further evidence which left it uncertain that some act on the part of the worker had taken him out of the scope of his employment, the worker was entitled to a finding that the injury arose out of or in the course of the employment. Prima facie, a worker is in the course of his employment. Positive evidence needs to be adduced to prove that he has abandoned the employment.”
[18] [1998] NSWCC 8.
[19] [1983] WCR 94.
The respondent’s position is essentially that at the point Mr Fitzgerald moved from discussing work matters to the failed cryptocurrency scheme and became aggressive then went berserk, the usual conditions related to work were no longer in effect. That is, there was a deviation from employment at that point. There was undoubtedly a deviation from employment, by
Mr Fitzpatrick, the applicant was unable to remove himself from the course of employment even had he wanted to. He was being held captive, at knife point, by his manager and was unable to exercise any free will of his own in the circumstances. The applicant was under the total control of Mr Fitzpatrick, the manager employed by the respondent, present in the applicant’s home for the purpose of a work meeting.
It is unlikely that at any stage, until he was able to ultimately take flight, the applicant could remove himself from that employment environment. It is evident that the applicant was responding to the directions given by his manager, as erratic and violent as those increasingly became. The applicant did nothing to deviate or remove himself from the conditions of employment, he was unable to do so having been forcibly detained for over three hours. That Mr Fitzpatrick chose to do what he did was entirely beyond the control of the applicant, who was confronted with what must have initially been a surreal, and then terrifying, situation.
The respondent argues the reason for the incident should be sufficient for it to be accepted as being outside its liability. I do not accept that proposition. Whether or not Mr Fitzpatrick’s conduct was the consequence of the failed cryptocurrency scheme, he was in the applicant’s home and workplace, specifically for a meeting to discuss work matters, at that manager’s request and he was in a position of authority over the applicant. In any event, the reason for Mr Fitzpatrick’s behaviour need not have been employment related given the temporal connection: Lewis.
The evidence makes clear that the applicant at all times was responsive to the matters raised by Mr Fitzpatrick. He complied with the request for a meeting and for it to occur in his home. The applicant did all things necessary to facilitate his continued work and was “in a position required for carrying out his employment” as identified by Neilson J referring to Rantino. The fact Mr Fitzpatrick may have shifted the discussion to a non-work related topic and behaved in the way he did had “nothing to do with the applicant”, as was so aptly put by his counsel.
I accept that submission.
I am satisfied that the applicant was in the workplace, working for the respondent in an interaction with his manager. There is no evidence of any act by the applicant on that occasion that took him outside the scope of his employment or that indicates he abandoned his work: Rantino. To the contrary, he complied with his manager’s every request and direction, as bizarre and violent as they were. The respondent conflates the departure from the scope of employment by Mr Fitzpatrick with the applicant. They must be considered separately not together. When the compliant actions of the applicant are viewed objectively, he at no stage moved outside his work obligations on that day.
There is no dispute that applicant suffered injury on 28 April 2022 from the incident with
Mr Fitzpatrick. I find that incident occurred in the course of the applicant’s employment and accordingly, the definition at s 4 of the 1987 is satisfied.
Section 9A of the 1987 Act also requires consideration. It provides compensation is not payable in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. The provision was considered in a workplace assault case on appeal (from a Deputy President of the former Workers Compensation Commission) in Kelly v Secretary, Department of Family and Community Services[20] (Kelly) wherein Basten JA (with Emmett JA agreeing) found:
“The subjective basis of an attack by one co-worker on another, during the course of their common employment may be a relevant factor in some cases, but in many it will not be. An example where it may be relevant is where two workers start a fight at a pub over a dispute unrelated to work, outside work hours, but continue the fight later during work hours. On the other hand, if a worker were sexually assaulted or harassed by a co-worker, the subjective motivation of the aggressor would be of little if any relevance. Where it is the common employment of two workers which leads to the outbreak of aggression in the course of the employment, in circumstances where such an incident would probably not have occurred absent the common employment, the source of the grievance felt by the aggressor is less likely to be relevant and less likely, if relevant, to carry significant weight.
The Deputy President acted on the basis that there needed to be a substantial causal nexus between the grievance which motivated the aggressor and the nature of the employment of the appellant. That approach involved a restriction on the terms of s 9A which is not found within the language of the provision, nor does it arise by way of reasonable implication. To limit the scope of the inquiry in this way was an error with respect to the proper construction of the statutory requirement. The common employment was not ‘merely a temporal element’, of no substantial causal significance, nor was it correct to dismiss it as only giving rise to causation in the ‘but for’ sense. Accordingly, the errors sought to be identified in paragraphs (a), (b) and (c), set out at [20] above, were based on a wrong construction of the statute.”
[20] [2014] NSWCA 102 at [27] and [28]..
The respondent argues that s 9A cannot be satified in this case because there is no connection between the motivation for Mr Fitzpatrick’s attack on the applicant, the failed cryptocurrency investment, and the applicant’s employment. It is correct that scheme was unrelated to employment, however, as identified in Kelly, it does not need to be as far as it may have been the reason for Mr Fitzpatrick’s assault. The relevant test concerns the contribution made by employment and whether it is substantial.
It may be that, as submitted by the respondent, “but for” the failed investment, the attack by Mr Fitzpatrick would not have occurred, but the relevant contribution to the applicant’s injury was the actual conduct of Mr Fitzpatrick in the workplace rather than the reason for it. That conduct did occur, it made a substantial contribution to the applicant’s injury and it took place while they were both at work. It is unnecessary for there to have been a “causal nexus” between Mr Fitzpatrick’s reasoning and employment, his conduct of itself was sufficient. The essence of the respondent’s submission on s 9A relates to Mr Fitzpatrick’s motive, but such a connection is not necessary, and I reject the proposition that it is relevant in this case. It is the course of conduct that was pursued by Mr Fitzpatrick, and the fact he was the applicant’s manager and ostensibly present for work reasons, that are the relevant considerations.

I am therefore reasonably satisfied that the applicant’s employment was a substantial contributing factor to the injury he suffered on 28 April 2022 for the purposes of s 9A.
In circumstances where the requirements of ss 4 and 9A of the 1987 are satisfied, the applicant is entitled to be compensated for his psychological injury, subject to meeting requirements relevant to the type of claim he has made, in this case those at s 66 of the 1987 Act and related provisions. The parties agree that if ss 4 and 9A were found to be satisfied then the matter is to be referred for medical assessment of whole person impairment. Orders will now made made to that effect.

SUMMARY

The applicant suffered injury on 28 April 2022 after being assaulted by his manager at work. His employment with the respondent was a substantial contributing factor to the injury. The applicant’s claim now requires medical assessment of whole person impairment with respect to that injury.

[2025] NSWPIC 553

15 October 2025