Appiah t/as Silver Service Taxi NSW v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Appiah t/as Silver Service Taxi NSW v Workers Compensation Nominal Insurer (iCare) & Ors [2022] NSWPIC 530
APPLICANT:	Moses Kwame Appiah t/as Silver Service Taxi NSW
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SECOND RESPONDENT:	Samer Fathel
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	26 September 2022
CATCHWORDS:	WORKERS COMPENSATION - Application by uninsured employer to dismiss notice issued by iCare pursuant to section 145 of the Workers Compensation Act1987 (1987 Act); reliance on section 14 of the 1987 Act; allegation that worker was driving a taxi while prohibited from doing so; worker was injured in motor vehicle accident when another driver ran a red light; consideration of Gardoll v RJ Fletchers International Pty Ltd, Taylor v Commissioner for Railways, Karim v Poche Engineering Services Pty Ltd, Johnson v Marshall Sons & Co Ltd, Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour, Sawle v Macadamia Processing Co Pty Ltd, Clyde v State of NSW (TAFE Commission).
ORDERS made:	1. That the applicant’s application to dismiss the notice issued by the first respondent pursuant to s 145 of the Workers Compensation Act 1987 is refused. 2. That the applicant is to pay to the first respondent the sum of $51,500.68 in accordance with the notice dated 23 March 2022, issued pursuant to s 145(1) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

The applicant, Moses Kwame Appiah t/as Silver Service Taxi NSW (Mr Appiah) has filed a Miscellaneous Application (the Application) in response to a demand by the first respondent, Workers Compensation Nominal Insurer (iCare), pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act), for the reimbursement of $51,500.68 paid to the second respondent, Samer Fathel (Mr Fathel/the worker).
Mr Fathel claims to have sustained a closed head injury; neck injury; injury to his right ribs; right shoulder injury; back injury; and psychological/psychiatric injury as a result of a motor vehicle accident on 2 April 2019.
ICare has accepted liability for the claim (although not for all the injuries Mr Fathel claims to have sustained) and has paid compensation to him and on his behalf. ICare claims that, as at the date of injury, Mr Appiah did not hold a workers compensation policy.
On 23 March 2022, iCare served on Mr Appiah a notice pursuant to s 145(1) of the 1987 Act. ICare sought reimbursement of the sum of $51,500.68 paid in respect of Mr Fathel’s claim.
On 14 April 2022, the applicant lodged the Application with the Personal Injury Commission (the Commission). The applicant claimed that Mr Fathel was guilty of serious and wilful misconduct, pursuant to s 14(2) of the 1987 Act. Specifically, he claims the worker had been convicted of assault and resisting arrest prior to the date of the injury; and that he was prohibited from driving as a taxi driver pursuant to regulation 24 of the Point to Point (Taxi and Hire Vehicle) Regulation 2017 (the 2017 Regulation), as the offences in question were disqualifying offences. The applicant disputed the quantum of the expenses paid and maintained that no compensation should have been paid to Mr Fathel.
The first respondent lodged its Reply on 5 May 2022. It maintained that Mr Fathel needed to be joined as a party to the proceedings, as any determination of the claim had the potential to affect his future entitlements.
The matter was listed for telephone conference before me on 12 May 2022. Mr Simons appeared for the applicant; Mr Dolan, instructed by Mr Butcher of iCare, appeared for the first respondent; and Mr Frisina appeared on behalf of Mr Fathel.
Mr Frisina advised that Mr Fathel had recently served an Application to Resolve a Dispute (the ARD) in Matter Number W2680/22, making a claim for permanent impairment.
Directions were made with respect to amending the Application to join Mr Fathel as the second respondent, for his Reply to be lodged and served, and for both the Application and the ARD to be heard together.
The second respondent lodged his Reply on 7 June 2022.
The matter was listed for further telephone conference on 1 July 2022. The appearances were as before. Mr Assad Aboud, interpreter in the Arabic language, assisted Mr Fathel. Both matters were listed for conciliation/arbitration hearing on 2 September 2022.

ISSUES FOR DETERMINATION

The issues to be determined are whether the second respondent’s injury was solely attributable to his serious and wilful misconduct; and, if so, whether the injury resulted in serious or permanent disablement.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing on 2 September 2022. Mr Simons appeared for the applicant; Ms Goodman of counsel, instructed by Ms Kikkinis, appeared for the first respondent; and Ms Grotte of counsel, instructed by Mr Frisina, appeared for the second respondent. Mr Butcher of iCare also attended.
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 used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    the Application (as amended to join Mr Fathel as the second respondent) and attachments;
(b)    first respondent’s Reply and attachments;
(c)    second respondent’s Reply and attachments, and
(d)    Application to Admit Late Documents filed by the applicant, dated 5 August 2022, and attachments.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the worker, Samer Fathel

Mr Fathel’s first statement is dated 15 December 2020. I will not refer to that part of the statement that is directed to establishing that he was a “worker”, within the meaning of the legislation, that having been conceded by both respondents. I will also not refer to that part of the statement that describes his treatment and disabilities.
On 2 April 2019, he was driving a black taxi, owned by “Moses” (Mr Appiah – I will refer to him as Mr Appiah) along Parramatta Road, near its intersection with Mallett Street, Camperdown. He was driving in the bus lane and had a green light in his favour at the intersection. He was wearing his seatbelt.
He has difficulty remembering how the accident happened. He has seen video footage of the accident. He can see on the footage that as he drove through the intersection, another car ran a red light and drove across his path from the side. He collided with that car. It flipped onto its side. The airbags went off. There was smoke everywhere.
It was a very frightening accident. It happened suddenly. He cannot remember getting out of the taxi van. He thinks there were people close by who helped him get out. He hit his head. He may have lost consciousness for a short time. He had a headache, neck pain, and pain across his body and lap from the seatbelt. Police and ambulance came. The ambulance officers put a collar on his neck and took him to hospital at Camperdown.
He cannot remember how long he stayed at the hospital. Mr Appiah came to visit him in the hospital. They left at the same time. His family came to pick him up and he left with his family.
In 2018, he was picking up customers from the casino in a maxi taxi. An Uber driver was parked in the bus zone, although he was not supposed to be there. The driver was blocking him from picking up his customers. He got out and yelled at the driver to move, but he would not.
The security guard at the casino thought they were having a fight and called the police. The police arrested him. They also hit him. He injured his arms and felt pain in his neck and back. The injuries were not serious, but he felt affected psychologically, because he felt the police discriminated against him.
He has not driven a taxi since the accident on 2 April 2019, either for Mr Appiah or another company. He does not know if he will be able to drive a taxi again.
Mr Fathel made a second statement dated 10 February 2022. Once again, I will not refer to that part of the evidence that is relevant to the issue of “worker”.
Mr Fathel did not recall signing a one-page lease agreement dated 23 July 2018. He said he did not sign any lease agreement. He would have needed it translated, as he does not understand English very well. He can read some English but does not have very good comprehension.
The worker reported the incident at the casino, which occurred on 9 December 2018, to Mr Appiah. He recommended he go to 13cabs office, as they would help with obtaining a lawyer. He went to the office and was interviewed by two people from 13cabs. He told them what had happened, and it was not his fault. However, he had been charged. They did not help in any way.
Mr Appiah then referred him to a solicitor in the city. He cannot recall his name. He met the solicitor but did not instruct him to act on his behalf. Instead, he went to a Legal Aid solicitor.
He went to court with the Legal Aid solicitor, but there was no interpreter. The solicitor was talking with the judge, but he did not understand what was happening. After this, he asked the solicitor if everything was fine, and she said yes.
He then found out he had been convicted of assault. He consulted another solicitor, Mr Peter Mitchell, and instructed him to act. An appeal was lodged. He is aware that after this, his conviction was overturned by the court. He was advised by Mr Mitchell that whilst his case was pending, he was permitted to continue to drive as a taxi driver.
After December 2018, Mr Appiah was aware he was driving the taxi. He told him he could continue to drive it without logging in to the 13cabs network. He said he would be using his own company, Mokap Australia Pty Limited (Mokap). Mr Appiah continued to provide the key to the cab. He continued to pay Mr Appiah the fee on return of the cab.
The taxi still had the 13cabs signage, but as far as he was aware, Mr Appiah was not using that network. He was not required to log into it. Prior to December 2018, he only logged into 13cabs when he was unable to find a paying fare. There would be a record of him logging in when he accepted a job and he logged off when the job was finished. There would be fares that he took from taxi ranks when he would not log into the network for that job.
He knows Mr Appiah was aware he was driving the taxi after the incident in December 2018. On 13 February 2019, he picked up a fare at Sydney Airport and drove to Schofields. The customer complained to 13cabs that he had overcharged. He is aware that 13cabs contacted Mr Appiah and told him about this. As far as he is aware, Mr Appiah refunded 13cabs $135 in approximately May 2019, and it was passed on to the customer. He was only accepting jobs from the airport or from hotels but would not get work from the 13cabs network.
In response to Mr Appiah’s evidence, he has not worked for another cab company after the accident. He cannot work due to his injuries. It is not correct to say he did not have permission or a licence to drive cabs. Mr Appiah did not ever say that he could not drive pending the outcome of the court case. He told him to drive under Mokap, and he did not need to use the 13cabs network. As a result, he did not log in after this.
He commenced work with Mr Appiah in July 2018 and the incident at Star City did not happen until December 2018. Mr Appiah was informed about it immediately. He was aware he was driving the cab and did not prevent it. He did not ever say to Mr Appiah that he would commence driving again when he was cleared. He did not say he would sub-contract to another driver.
He called Mr Appiah after the accident. He told him he was in hospital. Mr Appiah did not ask if he was driving his cab because he knew he was the driver.
Mr Appiah came to see him at Royal Prince Alfred Hospital (RPA) after the accident. He did not say “Why are you driving the car without a licence?” He said words to the effect that “You already have trouble with the police after the casino incident, why did you create more trouble now?” He said, “I am not in trouble, the accident was not my fault.”
Mr Appiah’s friend, “Monsef”, came with him. Mr Appiah looked very scared. He was not scared at all; he was in pain and shock from the accident. Monsef told him Mr Appiah was scared because he did not have WorkCover insurance. At the time, he did not know what this meant.
A nurse left some workers compensation forms in the room for him. He realised after Mr Appiah and Monsef left that they had taken the papers. When Mr Appiah came to the hospital, he thought he was going to take him home. Mr Appiah said he was not going to, so he had to call his family to pick him up. His family arrived and he was taken home.
He only needs a PIN to log into the 13cabs network if he is using it. Otherwise, he can drive the taxi without logging in. It is up to Mr Appiah to give him permission as to whether he can drive or not.
His taxi licence was not suspended. In any event, his case was pending, and he was advised it was okay to drive. Mr Appiah also told him it was okay. He was aware of the assault charges as he spoke to him on the telephone in December 2018. He told him he could keep driving and referred him to a solicitor. He also said he could keep using the taxi without logging in to the 13Cabs network. Mr Appiah was aware he was doing so.
He denies that Mr Appiah asked him why he was driving and said he was disqualified. He was not disqualified in any event.

Evidence of the applicant, Moses Kwame Appiah

Mr Appiah’s first statement is dated 7 November 2019 and 14 November 2019.
I will once again not refer to that part of the evidence that is directed to the issue of “worker”. Mr Appiah has referred to Mr Fathel variously by his name and as the applicant. I will refer to him as Mr Fathel or the worker.
He used 13cabs to supply all cab equipment, contacts, clients, radio, fittings, and some uniforms. Once drivers are approved, they can rent a cab and either drive it themselves or sub-contract the driving. This is common in the industry.
Mr Fathel rented from him from late 2018 until he had the accident. At that time, he had two cabs. Due to Mr Fathel having a court case pending relating to a possible criminal conviction, he did not have permission or a licence to drive cabs. Mr Appiah knew this, the worker took the cab under the terms that he was not to drive pending the outcome of the case, and his application as a driver to 13cabs depended on the outcome.
Mr Fathel could, however, subcontract the cab. If he did, then 13cabs would acknowledge that person, because you have to have a PIN to key into the network. You are then available to take their jobs and have work coming from them.
When Mr Fathel started with him, 13cabs told him he had a criminal record and could not drive. He understood Mr Fathel was driving, but once they found out about the pending case and record, the worker asked that the cab not be taken from him, because he was going to subcontract it. Mr Fathel said when he cleared the case he would drive. He agreed to that.
At the time of the accident, and probably before, Mr Fathel was driving but would not use his PIN to log in. If he had used his PIN, he would not have been able to log in. On the day of the accident, he was driving without logging in and without a licence.
On the day of the accident, Mr Fathel called him and said, “Your taxi had an accident”. He asked who was driving. Mr Fathel said he was. He said “How? How [were] you the one driving? Your case is pending. You did not give me any clarification you could drive and you drive and damaging [sic] my car.” Mr Fathel didn’t say much but said he was in hospital.
He went to RPA. He said to Mr Fathel, “Mate, you know you can’t drive. Why you drive? Mate, you’re in trouble. Why you drive the car without a licence?” Mr Fathel was looking at the computer. He said to Mr Fathel, “Mate, why you looking like that? You’re in trouble.” Mr Fathel started to panic and pack up. He asked staff for a form but he couldn’t even sign it so he just left.
He told Mr Fathel he had damaged his car very bad. When he saw him in the hospital, he looked okay, but when he saw the car later and it was big damage, he thought how can he be okay?
When he was leaving the hospital, Mr Fathel followed him out and he was going okay walking behind. He thought he just went home. Later he understood he must have got advice because he put in claims for workers comp and green slip.
“Mina” at 13cabs told him Mr Fathel could not drive due to the pending court case. He had seen him driving a cab since the accident. He was putting himself in danger, but he does not know what he’s told that cab owner. When he saw him driving, it was one to two months after the accident. He found out through the industry he didn’t log into the cab he was driving. He was driving okay. There didn’t seem to be anything wrong with him.
He has not been contacted by the police. He thinks it was Five Dock police because the accident happened in Five Dock. He understands Mr Fathel’s taxi licence is suspended because once you have a criminal record, you can’t drive. The case was pending and wasn’t finalised. He went to court once but wasn’t successful and then went to see a lawyer.
He does not have workers compensation insurance. He did not talk to Mr Fathel about this. He thought he covered all that, as he is self-employed.
He is not aware of the circumstances of the accident. The cab was a total loss and his insurer Allianz paid him out for the loss.
Mr Appiah’s second statement is dated 22 October 2021.
He first became aware that Mr Fathel had suffered injuries and been involved in an accident on 2 April 2019, when he visited him in hospital. He had called from the accident scene, saying he had been in an accident at Parramatta. He said to Mr Fathel, “you should not be driving”. Mr Fathel said, “Sorry”. The worker said he was being conveyed to Camperdown Hospital [sic] by ambulance, and he said he would meet him there.
He first met Mr Fathel in June 2018 at Mascot Airport. Mr Fathel asked if he had any taxis he could drive and he told him he had a spare taxi at home. To the best of his memory, on 23 July 2018, Mr Fathel came to his house and signed a document he has annexed to his statement.
On 2 April 2019, Mr Fathel had been disqualified by the Taxi Network 13cabs from driving or operating taxis. Prior to 2 April 2019, he had been charged for “Assault”. Once he went to 13cabs and was shown a document stating the worker had been charged and disqualified by the network from driving.
He remembers that after he saw this, he rang Mr Fathel and told him he should not be driving. He said he would sublease the taxi and still pay $1,000 per week. He agreed to this. Following the accident, the taxi was repaired at KAS Smash Repairs at Bankstown. He attached photos taken by the repairer.
When he went to the hospital on 2 April 2019, Moncef Neffati was with him. He again asked Mr Fathel why he was driving – “You were disqualified”. He does not remember the reply but remembers seeing the worker leaving the hospital when he left. He does not know if he returned to the hospital after that day. Mr Fathel told him he was not injured. He saw him handed a claim form by one of the nurses. He said he was not going to fill it out.
He later found out Mr Fathel had not been logging on to the taxi network, which would be a way of driving without it knowing who was driving. He knows this as he went to 13cabs about one week after the accident and was told this.

He denies Mr Fathel suffered the injuries, as he saw him at least 10 times driving taxis over several months. He said, “Why are you driving? You are disqualified?” He said, “I need the money”. He attached a Motor Vehicle Claim Form filled out by Mr Fathel on 4 April 2019.

Attachments to the statement

Annexure “A” is a document headed Lease Agreement, dated 23 July 2018, between Moses Kwame Appiah and Samer Fathel. It is signed by only one party. Mr Fathel disputes having signed it.
Annexure “B” consists of some photos of the damaged taxi.
Annexure “C” is a Motor Vehicle Accident Notification and Claim Form, (the claim form) dated 4 April 2019. The box marked “Notification Only” is ticked, while that marked “Claim” is not.
Mr Appiah is recorded as the owner of the taxi, and Mr Fathel as the driver. It is noted that the expiry date of his licence was 30 January 2022.
The accident was recorded as having occurred on 2 April 2019 on Mallet Street, Camperdown. The nearest crossroad was Parramatta Road. The accident was described by Mr Fathel as “I was driving straight when the other party crossed a red light and hit my front.” His vehicle was towed to KAS Smash Repairs.
Mr Fathel has provided details of the other vehicle, including the registration number and the driver’s particulars. He has ticked the box marked “Yes” next to the question “Was anyone injured?”
The police – Constable Davis – attended and the QP Number is provided. None of the parties has sought to rely on any police report

Evidence of Moncef Neffati

Mr Neffati’s statement is dated 20 October 2021. It is not clear to me what role Mr Neffati played in this matter.
He became aware that Mr Fathel had suffered injuries and been involved in an accident on 2 April 2019, when he visited him at Campbelltown [sic] Hospital.
He asked the driver why he was driving T1149 (changed to T2636 on 19 February 2019), and he was not legally allowed, as they had both been notified by 13cabs/Point to Point that he was disqualified after assaulting an Uber driver.
Mr Fathel asked, “Am I in trouble?” and he answered, “Yes you are, and you will [assumed to be get] everyone in trouble”, as two days before the accident he agreed to drop the car.
Mr Fathel was scared and took his shoes, running out without filling out any medical paperwork, knowing he had a criminal record and would get into more trouble. Three days after the accident, Mr Fathel called him trying to sort things out about driving and his accident, but he stopped him by saying he cannot drive, and he’s got a criminal record.
Mr Fathel called him after one month, saying he needed money. He again reminded him he was not qualified by Point to Point to drive, and he hadn’t heard from him again.

Second respondent’s criminal history

The New South Wales Police Force has produced Mr Fathel’s criminal history – bail report, in response to a Direction for Production issued in respect of previous proceedings.
Mr Fathel was charged on 13 March 2011 with common assault. He was sentenced on 22 September 2011 to “Bond s10: 6 months” and charged court costs of $81.
On 9 December 2018, Mr Fathel was charged that on 8 December 2018 he resisted an officer in execution of duty, and with common assault. On 9 January 2019, he was sentenced on each charge to a 12 month community correction order. It was noted that an all grounds appeal had been lodged against both sentences.
On 4 June 2019, both orders were quashed by the District Court, and the matters were remanded to the Local Court.
On 26 September 2019, the Local Court sentenced Mr Fathel to a conditional release order without conviction for 12 months in respect of the charge of common assault. The charge of resist officer in execution of duty was “dismissed – not guilty after hearing”.

Second respondent’s driver authority

The authority issued by Roads and Maritime Services (RMS) that is in evidence expired on 24 July 2018.
There are several conditions attached to the authority. By the next business day, Mr Fathel was required to advise RMS in writing of all details it may require if his licence expired, was cancelled, or suspended. He was also required to advise RMS if he was charged with or convicted of a criminal offence.

Records of 13cabs

There is a record of a Notifiable Occurrence Alert on 10 December 2018.
The category noted was an incident involving the conduct of a driver while driving a vehicle used for a passenger service that results in a driver being charged with a major offence within the meaning of the Road Transport Act 2013.
The description of the occurrence is that the driver pressed “emergency” at about 0400 on 9 December 2018 after being released from four hours in custody. He was called on his mobile. He explained he had a verbal altercation with an Uber driver at Star Casino. As a result, he was tackled by six police officers and handcuffed. He alleged he had suffered injuries as a result. He requested camera images and legal representation. He was advised to contact “DS” (possibly dispatch) on Monday during business hours.
The camera download had been requested by the police. A message had been sent to the taxi and the driver to bring the vehicle to TaxiTech on Monday morning.
There is a “private note” that the driver was interviewed on 10 December 2018 by Mr Nicholas Gerald Desai and Mr Stefan Bakopoulos, DS Manager.
Mr Fathel claimed he was restricted from parking at the legal pick up zone by an Uber driver. Repeated requests to move the vehicle were not complied with. “Driver Samer tapped the Uber driver’s car, asking him to move”. He admitted to grabbing the Uber driver’s phone and throwing it in the back seat because the driver ignored him.
Security at the casino called the police for assistance. Six cars and 10 drivers arrived and arrested Mr Fathel with excessive force, resulting in him sustaining injuries to his wrist. He believed the actions taken by security and the police were racist.
Based on Mr Fathel’s history of aggression, and past complaints, “DS” advised him that his conduct was deemed aggressive, unprofessional, and not in line with the code of conduct. His access to the dispatch system was restricted. Mr Fathel showed them a court summons for 9 January 2019 and other summons’s post his interview with the police.
Mr Fathel’s ability to drive with 13cabs would be decided after review of the court outcome. He claimed he was not a violent or aggressive person. He had a disabled daughter, loved Australia, and wanted to serve in the army, but his application was rejected. He also worked as a security guard.
Mr Fathel wanted 13cabs to appoint a lawyer for him, as in his opinion Uber supports its drivers in this manner. They advised him to seek his own legal counsel and contact them after the court outcome.
Mr Desai recorded his observations that the driver did not seem genuine. He constantly interrupted during the interview and seemed uninterested in references to the code of conduct. After the interview, Mr Fathel met him in the parking lot. He said, “Brother give me your phone number. Only you can help me, because even the manager Stefan is racist, he is Aussie”.
Mr Desai had concerns for the company’s image and the safety of passengers if Mr Fathel continued to drive for 13cabs.
There is a private note made by Ms Mina Asianidis (assumed to be the Mina referred to by Mr Appiah) on 2 April 2019 that Mr Fathel’s last recorded action was on 9 December 2018 when he logged off. There is a comment that he had a criminal charge noted, and “account has been made inactive”. The records of 13cabs show that there is no further activity after this log off at 22:35:04 on 9 December 2018.
A passenger made a complaint on 16 February 2019 that he had been overcharged on 13 February 2019 on a journey from Sydney Airport to Schofields. The passenger did not book through 13cabs app, but took the taxi from the taxi stand at the airport.
A staff member at 13cabs noted “Driver used to drive with us however taxi number is ours and an active vehicle in our system”.
Mr Fathel was asked to attend 13cabs office to discuss the matter, but it was suggested that the passenger be refunded $90 immediately, as “driver unlikely to attend”. Mr Appiah was called advising that he should attend to make a full refund, as “the driver was removed from the network December 2018”. It was noted that the taxi operator (assumed to be Mr Appiah) attended and refunded $135.
There is correspondence from Peter Mitchell Lawyers, who represented Mr Fathel in the criminal proceedings arising out of the incident with the Uber driver and police.
What appears to be the first letter from Mr Mitchell is undated and addressed to Point to Point Service Delivery Team (Point to Point). It is assumed it was written shortly after 4 June 2019.
Mr Mitchell advised that Mr Fathel had instructed him to appeal his convictions on charges of resist officer in execution of his [sic] duty and common assault. As a result of his convictions on 9 January 2019, “he is unable to work as a taxi driver for several months”.
Mr Mitchell appeared in the District Court on 4 June 2019, when Mr Fathel’s pleas were set aside, and the matter was remitted to the Court (assumed to be the Local Court) on 10 July 2019, to obtain a hearing date.
As it was not known when the hearing would occur, Mr Fathel was seeking to have the suspension of his taxi licence lifted to allow him to work until the matter was determined.
On 16 October 2019, Mr Mitchell again wrote to Point to Point. He advised he was instructed that “your records who that our client has a criminal conviction which was conviction which was entered last year” [sic].
Mr Mitchell said that Mr Fathel was not provided with an interpreter, and therefore pleas of guilty were entered. He did not realise what he was pleading guilty to.
Mr Fathel appealed. The matter took several months, and the District Court remitted the matter to the Local Court for a hearing on 26 September 2019. Mr Fathel was found “not guilty” to both charges. He was given a conditional release without criminal conviction.
Mr Mitchell asked that Mr Fathel’s name be removed from their records as he had not been able to work in the taxi industry for some considerable time due to this matter.
This letter enclosed a copy of a Conditional Release Order dated 26 September 2019, which pertains to the charge of common assault.

Film of the accident

The film is described in the first respondent’s Reply as being dated 6 April 2020 (“recorded date incorrect”). The date on the film I have viewed is recorded as 22 June 2017. It is, however, clearly the film that was recorded on the date of the accident.
The film was taken from inside the taxi. The taxi was in the bus lane and had the green light. It was struck from the right by another vehicle, which ended up on its side.
What appears to be smoke came from the vehicle. Bystanders approached, and someone called “Fire! Fire!” Some belongings were removed from the vehicle and a woman was assisted to get out.
A man who may have been a police officer ran past the car, and a man walked past with a fire extinguisher. Someone called “Stay away! Everyone stay away! Stay away from the car please!” There was further inaudible conversation. The car was seen to be rocking. A grinding noise was then heard.
There is no film of the worker getting out of or being assisted from the taxi.

Medical evidence

NSW Ambulance

The records of NSW Ambulance show that it attended a scene that was described as “high mechanism rollover” on 2 April 2019. The crew treated Mr Fathel, whose injuries were described as abdominal pain, neck pain and headache.
When the crew arrived, Mr Fathel was standing on the side of the road with the “firies” and police. He complained of neck pain, headache and abdominal pain. He was alert and orientated, with nil diaphoresis (perspiration), nil dizziness, nil nausea, and nil vomiting.
Mr Fathel was “collared”, and sandbags were used to immobilise his head. He had self-extricated from the car and was ambulant prior to the paramedics’ arrival.
Mr Fathel was taken to RPA.

Royal Prince Alfred Hospital

The first respondent’s Reply refers to having attached the discharge referral from RPA. The document is illegible, so it is of no assistance.

Liverpool Medical Centre

It is not my intention to refer in detail to the clinical records.
Dr Akram Bangash recorded on 8 April 2019 that Mr Fathel had been involved in a motor vehicle accident on 2 April 2019. “A lady from the opposite direction turning on red light hir [sic: his] car hit her car”. Mr Fathel was taken to RPA by ambulance “in coma”. He was there for 1.5 days, with “no discharge papers”. He was told that the doctor should send a request to RPA for information. A request was faxed.
Dr Bangash recorded pain in the neck, occipital headache, and lower back [pain], no radiation. The cervical spine was tender, and range of motion painful and limited.
Mr Fathel continued to consult the practice after the accident. He complained of symptoms in his cervical spine, and back.
On 17 July 2019, Dr Bangash recorded “relapse of cervical and lumbar spine. Third party. PTSD, depression, insomnia”. Mr Fathel was referred to Mr Kasim Abaie, psychologist.
The records contain an Initial Needs Assessment and Activities of Daily Living (ADLs) Report, arranged by NRMA Insurance Limited (the CTP insurer). The report was prepared by Mr Magee Dwayhe and Ms Sheridan Paul of OT Rehab Consulting.
Mr Fathel complained of constant neck pain, radiating to the head (6/10); headaches (constant pain and dizziness) (6/10) and intermittent lower back pain (5/10). He also reported feelings of depression and difficulty sleeping.
Mr Fathel’s treatment consisted of physiotherapy twice a week. He felt it assisted him. He had consulted Mr Abaie twice but reported no improvement in symptoms.
Mr Fathel’s treatment was discussed with Dr Bangash, who agreed to referral to an exercise physiology program. He was concerned about a return to pre-injury duties, due to repetitive lifting and bending required when driving a maxi cab.
Mr Michael Prasqualin, physiotherapist, reported “not much improvement”, which he related to pain focused behaviours and lack of motivation. It had not been possible to liaise with Mr Abaie at that stage.
Ms Paul conducted an ADL assessment. Based on her observations and the medical information relating to Mr Fathel’s physical injuries, she thought many of his difficulties were largely due to his psychological status and fear of pain, rather than his physical injuries. He presented with fear avoidance behaviours, with reluctance to participate in physical activity due to fear of further injury.
Ms Paul opined that Mr Fathel would require ongoing encouragement and reassurance to ensure he commenced a gradual resumption of ADLs. He would require assistance from his general practitioner (GP) and psychologist to manage and improve his poor sleep patterns, increasing his wakefulness to allow for participation in his pre-motor vehicle accident activities.
On 13 September 2019, Dr Adel Zaki recorded that Mr Fathel had reported worsening of his neck and upper back pain. The history of work-related motor vehicle accident in April had been noted. There was “nil” improvement in his pain. He had been unable to do any work or house related activity since. He had since been getting “rather low mood” and felt more anxious. He had been feeling like a disabled person.
Dr Zaki advised consequential depression and anxiety status was highly related to possible PTSD-like syndrome.
On 18 November 2019, Dr Bangash recorded referrals to Zena Mardini and Dr Renata Bazina.
Dr Bangash recorded on 16 March 2020 that Mr Fathel had pain in his cervical spine and right shoulder, and depression. He was fit to do some sort of work.
On 11 May 2020, Dr Bangash recorded a history of worsening lower back pain for seven days. “A house doctor was called and gave him Norflex”. This did not help his pain and he was taken to hospital. The pain radiated to his left leg. He was put on Mersyndol Forte and Indocid. He needed physio and had been referred by Liverpool Emergency Department.
On 2 November 2020, Dr Bangash recorded that Mr Fathel’s depression had flared up. He had invested $30,000 in a scam.
Dr Bangash recorded on 20 April 2021 that Mr Fathel had post-traumatic stress disorder and depression following motor vehicle accident. He had cervical disc degeneration and still got a lot of pain. He needed to see a psychologist. He was referred to Dr Ashraf Philips, psychiatrist, at Campbelltown.
On 22 June 2021, Dr Raja Annamuttu recorded cervical radiculopathy and referred Mr Fathel to Dr Balsam Darwish.

Dr Matthew M. Giblin – orthopaedic surgeon

Dr Giblin reported to Dr Zaki first on 23 September 2019.
Dr Giblin recorded a history that the motor vehicle accident occurred on 10 February 2019, which is incorrect. He noted that Mr Fathel was the driver, with a seatbelt, and his car was hit from the front. He was assessed at hospital for two days and then discharged.
Since the accident, Mr Fathel had had neck pain with radiation to both trapezii, headaches, and low back pain. There was no radiation to the upper or lower limbs, and no associated paraesthesia. His treatment had consisted of physiotherapy and medication. Although he had had MRIs, he could not tell Dr Giblin where they were, the results, or when they were done. Dr Giblin therefore recommended that they be repeated and asked him to get a bone scan.
On 9 October 2019, Dr Giblin reported that Mr Fathel’s bone scan was normal.
MRI of the cervical spine showed quite a deal of degenerative change, with some possible compression of the right C4 nerve root at C3/4. At C4/5 there was a right sided disc bulge and some osteophyte encroachment on that right sided neural exit foramen.
MRI of the lumbar spine confirmed some degenerative change, particularly at the facet joints at L4/5 and L5/S1.
One of Mr Fathel’s major concerns was that he could not drive for distances, as he got neck and low back pain, with dizziness. Dr Giblin was unable to explain the dizziness, unless it was a term Mr Fathel used to describe some other symptom Dr Giblin did not understand. If, however, it was dizziness, he had asked Mr Fathel to see Dr Zaki, who could organise for him to see a neurologist.
Dr Giblin opined that ideally Mr Fathel may do best with anti-inflammatory and analgesic. In view of the dizziness, Lyrica should be avoided for the time being. He could benefit from acupuncture.
Mr Fathel’s symptoms would take some time to improve. Dr Giblin had advised him it may take four or five years, and would never completely go, but it should get better than it was. He returned Mr Fathel to Dr Zaki’s care.

Mr Kasim Abaie - psychologist

Mr Abaie reported to Dr Bangash on 5 October 2019.
Mr Fathel had attended for six sessions. He reported that his mental health had dramatically deteriorated after he was involved in a car accident on 2 April 2019. The accident “nearly took his life”. A female driver, crossing a red light, speeding, crashed into his bus [sic], which was written off. This left him suffering ongoing back and neck pain.
Mr Fathel had had a very traumatic childhood, growing up in war and living in very harsh circumstances at a very young age. He reported experiencing extreme fear, witnessing people being killed, and not knowing what the future held, or whether he would survive the next bomb.
When Mr Fathel came to Australia, all he wanted was to live a safe life. He started a family and tried to face the struggles and challenges of life. He had been here for about 15 years, worked as a security guard and taxi driver, and had no criminal record. He was caring for an autistic daughter, which added to his mental health deterioration.
The issues impacting Mr Fathel were recorded as pain in his back, shoulder, neck, and head; depressive and anxious mood; uncontrolled smoking; lack of support; stress related to his daughter; financial problems; social isolation; and anger management problems. He had a history of post-traumatic stress disorder and depression.

Mr Abaie diagnosed post-traumatic stress disorder with depressive mood and insomnia. Mr Fathel required psychotherapy and counselling. CBT (cognitive behavioural therapy), exposure therapy, problem solving, and anger management had been applied to reduce his stress and depression.

Dr Sheikh M Habib – orthopaedic surgeon

Dr Habib was qualified by Mr Fathel and reported on 6 February 2020. He recorded a history that on 2 April 2019, Mr Fathel was driving his taxi. While going through a green light in his favour, he was hit from the right by a car from the right, running a red light. The taxi started to smoke, and the offending vehicle was on fire.
Mr Fathel’s chest hit the steering wheel, resulting in the air bag being deployed. He was transported to RPA by ambulance for neck pain, headache, and abdominal pain. He was admitted for observation and discharged on 3 April 2019.
Dr Habib noted the contents of Dr Giblin’s reports. Mr Fathel continued to experience considerable symptoms of pain, stiffness, and inability to return to taxi driving. He had not worked since the motor vehicle accident.
Mr Fathel complained of neck pain radiating to the trapezii and the right arm to the fourth and fifth digits of the hand; right shoulder pain with restricted mobility; and low back pain. He had fallen twice at home due to dizziness.
Dr Habib’s impression was of severe musculo-ligamentous strain from severe jarring of the neck, back and right shoulder. Mr Fathel’s injuries had been managed conservatively.
Dr Habib diagnosed cervical discopathy, ongoing aggravation of asymptomatic changes with referred but non-verifiable radiculopathy; traumatic rotator cuff tendonopathy of the right shoulder; and aggravation of lumbar spinal changes and lumbar discopathy with referred but non-verifiable radiculopathy.
Mr Fathel’s prognosis was guarded. He had little understanding of the nature of his injuries “and a fair amount of psychological overlay”. He had seen a psychiatrist and was on dual anti-depressants/anxiolytic medications. He claimed to have a very poor memory since the motor vehicle accident. In the absence of verifiable radicular involvement, the long-term prognosis was considered favourable.
Dr Habib opined that there was no indication for surgery. Future management would be better provided with referral to a multidisciplinary well-equipped pain management clinic for pain management; psychological counselling; occupational therapist input in returning to part time driving smaller vehicles, rather than 12 seater taxis; and physical therapies under supervision by an exercise physiologist.
Mr Fathel had not returned to driving taxis, and at that stage, in his current physical and psychological state, was not considered safe to do so.
Dr Habib assessed Mr Fathel with 16% whole person impairment (WPI), as a result of injuries to his cervical spine, lumbar spine and right upper extremity.

Dr Peter Anderson – consultant psychiatrist

Dr Anderson was qualified by Mr Fathel and reported on 17 April 2020. He recorded a consistent history of the accident.
Mr Fathel’s recollection of what happened at the emergency department was poor. He thought he was in hospital one or two days, and then said it was overnight. He was concerned about his neck, low back, and the top of his head. There had more recently been investigations and he was told there was a fracture in the right shoulder.
Dr Anderson recorded a history that Mr Fathel had not worked since the injury. There was a history of psychiatric problems and his GP had treated him several years ago for what he referred to as anxiety and depression. He was not referred to a mental health specialist or prescribed medication. He referred to his mental health problems as being aggravated by the accident.
Before the accident, Mr Fathel did the shopping and visited Medicare. He took his father and daughter to doctors. He sometimes took care of his daughter and cared for his father. He worked part-time as a taxi driver, two days a week. His other activities were quite limited. He attended church but had no special role there. He had some friends there. Since the accident, he was never in church and did not see any friends. Apart from family activities, there was little social activity before the accident.
Dr Anderson recorded that Mr Fathel had problems going to sleep and his sleep was poor. He argued with and shouted at his wife. She wanted him to return to work, but he could not. The reasons for this were to do with both pain and psychological factors. His communication was poor. He was nervous and would shout at people if they spoke to him.
Mr Fathel started to drink alcohol, which he had not done before the accident. He explained this was because of arguments with his wife. His GP prescribed medication but he could not tell Dr Anderson what it was. He was sent to a counsellor but denied alcohol when he got to the psychologist. He drank at night, drinking a bottle of cheap wine a day, refraining when he was sick or seeing his GP. He had not drunk on the day of the consultation.
Mr Fathel attended the psychologist on multiple occasions and was then asked to get a new referral, but his GP declined. He was under a number of medications but was unclear about the types. He was advised not to drive.
Dr Anderson recorded that Mr Fathel felt tired. He felt anxious when driving and for this reason had stopped driving a taxi. His weight had gone up. He was inactive. He had low back problems. He was not doing any recreational or sporting activities. He was low in mood.
Mr Fathel stayed home for the greater part. He went out if his wife asked him to do shopping, took his father to the doctor and got medications for himself. He was in the habit of driving 15 to 20 minutes to see his mother and sister but was not doing so because of Corona virus restrictions. He said he had no difficulty driving a car if necessary, but avoided driving if he had taken medications, had a neck problem, and felt unsafe.
Dr Anderson recorded that Mr Fathel napped by day because of poor sleep, and sometimes the nap followed the use of alcohol. He found it hard to tolerate the children’s arguments with their mother. He otherwise did little but shop for the family.
Mr Fathel looked after his own hygiene. He had fallen twice in the bathroom. He showered daily before the accident, but now showered once a week. He had difficulty saying how often he changed clothes. He ate one meal a day. He did not prepare food. He tried to eat something before drinking alcohol.
There were a lot of changes in Mr Fathel’s relationships with his wife and children. There was an argument with his wife about money. He got on quite well with his mother and asked her for money. He always argued with his father.
Mr Fathel had difficulties with concentration and dizziness interfered with this. He had tried to read, mostly internet and video viewing, but could not. He fell asleep if he tried to watch TV. His wife woke him, and they argued. She tried to avoid him. He had been prescribed a machine for sleep apnoea but did not tolerate it.
Mr Fathel’s view of the future was on balance negative, but he planned to get a job, which he thought would take him away from his wife and home, which would be an advantage. He was limited to 5kg carrying but was looking for work and would take any kind of job. He was asking people in his community about employment. He did not feel safe to drive a taxi. Taxi drivers were subject not only to accidents but also to insults.
Dr Anderson reported that Mr Fathel had some difficulty giving a history but appeared to be cooperative. He was often slow to give answers, and often changed them. For example, he changed his age from 38 to 39, the time of the accident, the time he got married, and the time he had been a taxi driver. The impression was that he was slowed and had difficulty concentrating.
Mr Fathel denied having intrusive thoughts about the accident, except when he drove a vehicle, when he described anxiety and fear of further accidents when it was triggered in some way. This was why he did not drive unless he had to. His mood was low at the time of the interview. There did not appear to be any abnormal pain behaviour. He did not show signs of self-neglect.
Dr Anderson diagnosed Mr Fathel with Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. The level of depression may at times be quite pervasive, such that a diagnosis of Major Depressive Disorder (MDD) may be appropriate. There is also an indicated diagnosis of Alcohol Use Disorder.
The available documentation suggested a continuing soft tissue injury. It confirmed the history of some mental health difficulties preceding the accident, although Mr Fathel was functioning much better before it occurred.
There did not appear to have been progress with treatment by a psychologist and psychotropic medication with supervision by a GP. Dr Anderson opined that this was not a good prognostic sign, and the likely prognosis was for continuation.
Mr Fathel required antidepressant medication when his depression was at the level of MDD. Best practice would indicate that he see a psychiatrist over two years and have further psychological consultation. The condition was likely to continue for the foreseeable several years. The effect on Mr Fathel was mild to moderate impairment.
The worker had been unfit to work as a taxi driver since 2 April 2019. He was fit to do some work, in addition to his carer responsibilities, of low stress, low responsibility, and part-time, for the foreseeable several years. His WPI was 15%. There was nothing to indicate it would change.

Dr Dush Shan – psychiatrist

Dr Shan was qualified by the respondent and reported on 21 July 2020.
Dr Shan described the worker’s participation in the examination as “less than optimal”. He apparently could not recall details of the accident, but said from watching the cab video later, another car collided with the right side. He could not recall how he emerged from the car or his arrival in hospital. When asked how long he had been kept in hospital, he responded that his wife had insisted he come home as his daughter and father were unwell.
The worker was attending a Dr Pangeous in Liverpool but could not tell Dr Shan even the street address, although he went there by public transport. He planned to see the doctor “straight after this”. He had been seeing psychologist Mr Khasi [sic], who spoke Arabic, but did not indicate any recent or pending visits. He was seeing the physiotherapist weekly.
Dr Shan recorded that Mr Fathel had been taken to the emergency department on one occasion because of a flareup of symptoms. He could not recall whether that was in 2020 or 2019. He was asked about procedures such as injections and responded that he was applying cream and taking medications. He was taking much in the way of medications but could not tell Dr Shan their names. He did not indicate benefit from the medications.
When he was asked about treatment by a psychiatrist, the worker said he needed to see his doctor and obtain a referral. He believed he needed considerable help for his mental health issues.
Mr Fathel demonstrated he had pain in the back of the neck, headaches on the right, shoulder pain and lower back pain.
The worker did not sleep at night but slept all day, so he was mostly in the bedroom. He emphasised that he was irritable, angry, and clashed with his wife, members of the family, “anyone”. He used to drink alcohol every day, but on the advice of his doctor had reduced it considerably. His last drink was about a week ago.
When he was asked to describe his mental symptoms, the worker spoke of feeling anxious and worried about his future and how he would support his children, including his disabled daughter, and sick father. He had lots of commitments he could not fulfil because of “physical pain”. In consequence, he was home most of the time. He might occasionally go to the shops, but his wife did most of the shopping.
Mr Fathel had difficulty providing a clear answer about how much TV he watched. He might watch news from the Middle East, which upset him further. He felt even more upset and agitated when he heard stories of trauma and suffering. It troubled him if the kids turned up the volume too loud, which also caused a headache. This was one reason why he could not study English at TAFE. They found him mentally incapable of completing any courses. He could not say what happened. Apparently, his memory was quite poor.
Mr Fathel had issues with driving. He no longer drove and took public transport. He cared for his father and sometimes accompanied him to doctors, but that was because his father, who was “very old”, still had a licence and drove himself.
The worker lived with his wife and three children. His six-year-old was said to be autistic, but he could provide no information about her level of functioning, as his wife was responsible for all of that. He could not say whether she attended a special school.
Apart from a minor bicycle accident shortly after he arrived in Australia, the worker could not recall any previous medical or psychiatric history, saying he was in excellent health and very fit until the present incident. He was taken to the hospital, although not by ambulance, after the bicycle accident. He had not been working at the time, having just arrived in Australia.
Mr Fathel’s answers often did not respond to Dr Shan’s questions, and he would digress. His participation varied from apparent disinterest [sic] to animated remarks, mainly about how unwell he was. There was some evidence of clinical anxiety, depression, and irritability, in addition to what appeared to be significant illness behaviour.
Dr Shan recorded that the worker believed he could not remember the circumstances of the accident, how he emerged from the vehicle or his trip to the hospital. He appeared to believe that he sustained a blow to the head, as well as the upper body and lower back. He believed he was very disabled, both physically and mentally, and incapable of all work.
The worker believed he was mostly at home, but if he emerged from the house, he walked slowly and sometimes had difficulty with stairs. He believed he experienced pain and discomfort in the affected areas. He believed he had problems of memory and confusion and could not concentrate. He appeared to indicate fear and avoidance of driving, but details were not discussed.
Dr Shan recorded no hallucinations or disorders of perception. There did not appear to be any clinically significant issues of insight or judgement in Mr Fathel’s ability to manage his affairs and interact with professionals. He was alert and orientated and did not show any clinically identifiable issues.
Dr Shan referred to Dr Anderson’s report and conclusions. He noted that Mr Fathel appeared to have a prior psychiatric history of being treated by his GP for depression. He opined that a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood was indicated. There was no evidence, such as abnormal liver function tests, for an ongoing diagnosis related to alcohol use.
Based on the worker’s account of his day-to-day functioning, he was not fit for pre-injury duties. It was unlikely he would recover in less than two years. He was fit for a position as a carer for a disabled person for no more than 20 hours per week. While Dr Shan referred to the enclosure of an assessment of WPI, none is in evidence.

Dr Gregor Bruce – orthopaedic surgeon

Dr Bruce was qualified by iCare and reported on 24 July 2022.
Dr Bruce recorded a history that the worker was driving his mini-van at work when he was run into from the right. He believed he suffered a minor head injury, because he did not have a full recollection of the accident. He was taken to RPA by ambulance. He believed he was kept in hospital for two days but could not recollect and was unsure of his treatment. His parents discharged him and cared for him at home. He was complaining of headache, neck pain and low back pain.
Mr Fathel was prescribed physiotherapy by his GP one week after the accident, and it was continuing. It provided temporary relief. He developed pain in his right shoulder seven months after the accident, and pain radiating down his left lower limb one year after it. While Dr Giblin advised acupuncture, this did not occur. There had been very little change in his symptoms over the past 12 months.
The worker described problems with both the neck and back. The neck tended to be more troublesome because the pain was constant, whereas he had intermittent back pain. When it occurred, it was more intense than the neck pain.
After Mr Fathel had described his symptoms, Dr Bruce opined that the history strongly suggested his “shoulder” pain was referred from his neck.
The worker had not worked since the accident and was certified unfit for all duties. He did no significant household duties and no physical work around the house but did “a little shopping”. He drove his father and daughter to medical appointments. The medication caused problems with mobility. He spent most of his time resting, and often lying down. He was independent in his personal care but could only drive for about five to 10 minutes before he had discomfort.
Mr Fathel had previously had minor symptoms in his neck, “not severe”, and they caused him no difficulties. The situation in his low back was similar. Dr Bruce reviewed the GPs’ notes, which he recorded showed a long history of problems with the worker’s neck and back. They indicated more severe problems with his spine than he described.
Dr Bruce questioned the worker about his medication. He said he was on many medications but could not remember what they were and did not bring a list. They were all prescription drugs.
Dr Bruce noted that Mr Fathel was a vague historian, even allowing for the requirement for an interpreter. His examination was inconsistent.
Dr Bruce diagnosed naturally occurring degenerative cervical and lumbar spondylosis with degenerative intervertebral discs. There was no clear evidence of nerve root involvement or neuropathy in either the cervical or lumbar spine. The pathology pre-existed the accident. It had caused a temporary increase in symptoms that had ceased. The continuing symptoms were the result of the pre-existing condition.
Dr Bruce opined that the worker was fit for the type of work he had been doing before the injury, that is two days per week as a van driver. He was fit for sedentary or very light physical work for five days per week. He should avoid prolonged standing, walking, bending, stooping, or carrying heavy weights, due to his pre-existing pathology. He had had appropriate treatment and no surgical treatment was indicated. His WPI was 7%, all of which was due to his pre-existing condition.

Dr Balsam Darwish - neurosurgeon

Dr Darwish reported to Dr Raja Annamuttu on 6 May 2021.
Dr Darwish referred to a report dated 18 March 2021, which is not in evidence. He noted that the worker continued to complain of multiple symptoms, including neck pain, right shoulder pain and lower back pain.
The worker’s bone scan dated 1 October 2019 was normal. MRI of the cervical spine dated 14 April 2021 showed C5/6 disc protrusion, causing mild canal stenosis but no spinal cord compression. He had right C3 to C6 foraminal stenosis. There was potential compression of the right C5 nerve root in the foramen. MRI of the lumbosacral spine of the same date showed haemangioma affecting the L5 vertebra. This is found in 10% of the population. There were no atypical features, no nerve root compression, and no cauda equina compression.
Dr Darwish was going to organise a right C5 perineural cortisone injection. He had given the worker a prescription for Mobic and advised physiotherapy for his back. “Looking at his condition”, he did not believe Mr Fathel would be able to return to work as a bus [sic] driver.

SUBMISSIONS

The submissions have been recorded, so I will refer to them only briefly.

Applicant

The applicant submitted that regulation 24(1) of the 2017 Regulation speaks for itself. It says “must not”, not “may not”, drive a taxi. He submitted the worker had been convicted of quite serious offences.
The applicant submitted that s 32 (4) of the Point to Point (Taxis and Hire Vehicles) Act 2016 provides that a conviction for a disqualifying offence includes a finding that the charge is proven, or that the person is guilty of an offence, even though the court does not proceed to a conviction. He submitted that the worker shouldn’t have been on the road. He would not have been injured if there was no accident.
The applicant submitted that regulation 29 of the 2017 Regulation required the worker to give notice of a change in circumstance that rendered him ineligible to drive within seven days of becoming aware of it, and he did not do so. As regulation 27 requires that he must have sufficient competence in English to communicate with passengers, his English must have been good enough to understand his obligations.
The applicant submitted that Mr Fathel was convicted on 9 January 2019, the appeal was after the date of injury, and he was therefore driving while convicted. There is evidence which, if accepted, shows that he was driving on 13 February 2019, because there was a complaint about him overcharging. After the assault, he stopped logging in. He was restricted in December 2018 from the 13cabs network.
The applicant referred to the letters from Mr Mitchell to Point to Point. He submitted the worker knew he had been suspended because Point to Point was being asked to lift the suspension. It was a misrepresentation in the letter dated 16 October 2019 to say Mr Fathel had been found not guilty on both charges.
The applicant referred to the worker’s evidence that he did not know what had happened in court, submitting again that he had to be able to speak English to his passengers. He knew he shouldn’t have been driving. He was suspended and cut off from the network. His conduct was serious and wilful, with complete disregard for the law.
The applicant submitted that the worker was driving without logging in and without a licence on the date of the accident. He was surprised that Mr Fathel was driving.
The applicant accepted that he bears the onus of proving that the worker was guilty of serious and wilful misconduct. He submitted there is no better example of wilful conduct. There has to be more than negligence, and the worker “must have had knowledge” of the risk of injury and proceeded without regard to the risk.
The applicant referred to case law that establishes that it must be demonstrated that the worker knew what he was doing, that there was a risk of injury, and he acted in disregard of the risk. He cited Scharrer v The Redrock Co Pty Ltd [2010] NSWCA 365 (Scharrer);Ballina Shire Council v Knapp [2018] NSWWCCPD 35 (Knapp); and Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour (1998) 45 NSWLR 45 (Higgins).
The applicant finally submitted that he had learnt the worker had been charged and told him he should not be driving. The worker said he would sub-lease the taxi. He found out the worker was not logging in. If he did not do so, he could drive without the network knowing. That was how he “gets around” the suspension.
In reply, the applicant clarified that the decision in Knapp was appealed to the Court of Appeal but submitted it did not deal with “serious and wilful misconduct”.[1]
[1] Ballina Shire Council v Knapp [2019] NSWCA 146.
The applicant submitted that the requirement is that the worker suffer serious and permanent disablement, not serious or permanent disablement. None of the medical reports suggests his condition will remain for the rest of his life.
The applicant submitted that the worker’s injury is solely attributable to his misconduct because, although the other driver was partly at fault, we don’t know the terms of the correction order, or what conditions were attached. There can be quite serious consequences for breach of the order.
The applicant referred to a decision of R v Morris (Morris), which he stated was a 1995 Court of Appeal decision, without providing a citation.
It appears that the decision to which the applicant was referring is R v Nathan Benjamin Morris (unreported, 14 July 1995, NSWCCA), in which Kirby ACJ, Badgery-Parker and Bruce JJ said that if leniency is extended inappropriately:
“…there is a very real risk that the whole regimen of non-custodial sentencing options will be discredited both in the eyes of those members of the community who might otherwise have continued to support them and in the eyes of magistrates and judges; and there is a substantial risk that courts, of their own motion but also reflecting in a general way community opinion, may become increasingly reluctant to extend to offenders those lesser sentencing options which the legislature has provided. It is therefore extremely important that breaches of non-custodial sentencing orders be brought promptly to the notice of the sentencing court and there be dealt with swiftly and, generally speaking, in a manner which will demonstrate how seriously such breaches are regarded and must be regarded in the community interest.”
The applicant’s reliance on Morris appears to be on the basis that the worker’s breach of a correction order was serious, but the submission was not developed.
The applicant submitted that each case depends on its facts, considered objectively. It is not the case that the worker shouldn’t have been doing what he was doing, but he wasn’t at fault. The consideration is not confined to what the other driver did. All the facts are looked at.
Referring to Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26 (Sawle), the applicant submitted that “the act” of the worker was being on the road when he shouldn’t have been. He did not know if the other person was injured. There was a risk of injury to himself. Referring to “wilful”, he acted deliberately. He did not listen to his lawyer’s advice. With knowledge of the risk of injury, he proceeded.
The applicant submitted that a person can go to prison for up to three months for breach of a correction order, and the worker breached two. He logged off “all of a sudden” on 9 December 2018, after being logged on for two years.

Second respondent

The second respondent submitted that the only issue is whether s 14 of the 1987 Act is made out.
The second respondent urged caution in accepting the applicant’s evidence, submitting that he must have known Mr Fathel was driving after having been “locked out” because of the overcharging issue. It was clear that he had been locked out, but he continued to drive. There is the question of whether he had Mr Appiah’s permission to do so.
The second respondent submitted that I should look at the case law on the meaning of “wilful”. There has to be a real appreciation of the risk of injury. There is no evidence of the worker’s state of mind. “Misconduct” doesn’t make it wilful. He had to appreciate that driving resulted in the risk of injury, not just that he was driving, and therefore there was a risk of injury. It must be established that driving contrary to the 2017 Regulation led to the risk of injury.
The second respondent referred to Sawle and Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24 (Karim). He submitted that Scharrer involved a journey claim.
The second respondent submitted that the applicant bears the onus of establishing “serious and wilful misconduct”, referring to Sawle. There is no evidence to suggest driving the taxi gave rise to the risk of injury. The worker didn’t cause the accident. There is no evidence that he appreciated the risk of injury. His conduct was not wilful. The injury cannot have been solely due to his misconduct. It was caused by another driver.
As regards whether the injury has resulted in serious and permanent disablement, the second respondent referred to the evidence of Dr Habib, who was of the opinion that his condition was likely to be permanent. He is receiving weekly benefits and has been certified unfit for work due to both physical and psychological injuries.
The second respondent submitted that whether he has capacity to perform some work is immaterial, referring to Gregson v L and MR Dimasi Pty Ltd [2000] NSWCC 47. He referred to the damage to the vehicle. It was a significant accident.
The second respondent referred to the evidence of his GPs, Dr Giblin and Dr Darwish, as well as that of Dr Habib and Dr Anderson. The fact that his long-term prognosis may be favourable does not mean that I would not find “serious and permanent disablement”. He referred to his assessments of permanent impairment. He submitted that I only have to be satisfied that the injury is likely to result in serious and permanent disablement.

First respondent

The first respondent submitted that the requirement of “solely” can’t be satisfied, particularly because nothing attributes blame to the worker.
The ambulance records state that the worker was outside the vehicle with the police and “firies”. The police were there and there is no report that attributes blame to the worker. The driver of the other vehicle is known. The worker says that vehicle came through a red light. The force was sufficient for the vehicle to roll over. The worker had the green light, which makes it very difficult for me to find that the injury was solely due to his misconduct.
The first respondent relied on the decision of Deputy President Roche in Karim, and the cases to which he referred, including Levin v Moulhis [1965] WCR 177. It submitted that, even if the worker continued to drive, contrary to the 2017 Regulation or code of conduct, this was not sufficient to fit the definition of “wilful”. The gravity of the conduct is not to be judged by its consequences.
The first respondent submitted that while the worker was perhaps driving in breach of the 2017 Regulation, that wasn’t the cause of the accident. If it wasn’t due to someone coming through a red light, there needs to be evidence about that.
The first respondent submitted that the worker does not fall within the definition of “serious and permanent disablement”. There is evidence that he had problems with his neck and back before the accident. The first respondent referred to the GPs’ records. Dr Bruce diagnosed a temporary aggravation of symptoms because he was aware of the earlier issues.
The first respondent submitted that one problem with “serious and permanent disablement” is that the medical evidence is old. Dr Shan opined that the worker was fit for part time work, and even Dr Habib thought he could do other duties. Dr Anderson opined that he was unfit for work as a taxi driver but could do some low stress work. He is not totally incapacitated for work.
The first respondent finally submitted that while this is not a case of serious and permanent disablement, s 14 does not apply as the accident was not caused by the worker.

SUMMARY

The applicant disputes his liability to reimburse iCare for payments of compensation made to or on behalf of the worker, as he maintains that s 14 of the 1987 Act operates to preclude payment of compensation in respect of the injury.
The applicant does not dispute that he had not obtained and maintained a policy of insurance pursuant to s 155 of the 1987 Act. He does not dispute that the worker was in the course of his employment when the injury occurred, or the quantum of the compensation paid to him or on his behalf. The sole issue to be determined in this Application, therefore, is whether s 14 applies to the worker.
Section 14 of the 1987 Act provides as follows:
“(1)    Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a worker, notwithstanding that the worker was, at the time when the injury was received--
(a) acting in contravention of any statutory or other regulation applicable to the worker's employment, or of any orders given by or on behalf of the employer, or
(b) acting without instructions from the worker's employer, if the act was done by the worker for the purposes of and in connection with the employer's trade or business.
(2)     If it is proved that an injury to a worker is solely attributable to the serious and wilful misconduct of the worker, compensation is not payable in respect of that injury, unless the injury results in death or serious and permanent disablement.
(3)     Compensation is not payable in respect of any injury to or death of a worker caused by an intentional self-inflicted injury”
Section 14 requires that the injury is solely attributable to the worker’s serious and wilful misconduct. The applicant accepts that he bears the onus of establishing “serious and wilful misconduct”: Gardoll v RJ Fletchers International Pty Ltd (1999) 19 NSWCCR 30. McGrath J said in Taylor v Commissioner for Railways (1970 44 WCR (NSW) 73:
“[i]t seems to me that, in the present case, the Commissioner does carry the onus of establishing what, in a criminal Court, would be regarded as mens rea. In other words, he has to establish that the mind went with the act.” (At [76]).
Deputy President Roche, in Karim, identified the following general principles:
“Firstly, the employer carries the onus of proof of establishing serious and wilful misconduct (Johnson v Marshall Sons & Co Ltd [1906] AC 409 (Johnson); Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour (1998) 45 NSWLR 45 (Higgins)).
Second, the phrase ‘serious and wilful misconduct’ comprehends more than negligence, carelessness, or mere disregard of orders (Johnson; Higgins). Breach of a traffic regulation may or may not be sufficient: a carrier who was injured while alighting from his truck, while it was double-parked on a public street, was found not guilty of serious and wilful misconduct (Thomas v Shelley & Sons Cordial Factory Pty Ltd [1965] WCR 104), but a worker who, having the opportunity to stop, deliberately drove through a red traffic light at high speed was (Levin v Moulhis [1965] WCR 177).
Third, in Johnson, Lord Atkinson observed (at 416-17) that not every violation by a worker of a rule would be regarded as necessarily amounting to serious misconduct. For ‘serious’ to have any force, it must mean:
‘at least that where the risk of loss or injury resulting to any person or thing from the doing of any particular act is very remote, or where that loss or injury, even if probable, would be trivial in its nature and character, the doing of that act, however wilful, would not amount to ‘serious misconduct’ within the meaning of this statute, unless indeed the indirect influence of the act done on the discipline of the factory is to make every transgression serious.’
Fourth, the word ‘wilful’ imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment (Johnson, per Lord Loreburn at 411), or something done ‘with the intention of being guilty of misconduct’ (Bist v London & South Western Railway Co [1907] AC 209 per Lord James of Hereford). The worker must have had knowledge of the risk of injury and, in light of that knowledge, proceeded without regard to the risk (Sawle; Whittingham). [2]
Fifth, the gravity of the conduct is not to be judged from the consequences of the act. As Lord James of Hereford explained in Johnson at 414:
‘A man may be told not to walk on the grass, he does so, he slips up, and breaks his leg. The consequences are serious, but the conduct is not so.’
In summary, the position is succinctly summarised in the following statement by O’Meally CCJ in Sawle, at [24]:
‘Serious and wilful misconduct is conduct beyond negligence, even beyond culpable or gross negligence. In order to establish serious and wilful misconduct, it must be demonstrated that the person performing an act or suffering an omission knows it will cause risk of injury, or acts in disregard of consideration whether it will cause injury. The word ‘wilful’ connotes that the applicant must have acted deliberately. As it seems to me, in order to establish serious and wilful misconduct, a person accused of it must be shown to have knowledge of the risk of injury, and, in the light of that knowledge, proceeded without regard to the risk.’” (From [12]). (Emphasis added).
[2] Whittingham v Ascott Air Conditioning Pty Ltd [2010] NSWWCCPD 36.
If the worker’s serious and wilful misconduct is only one of the causes of injury, s 14(2) is not engaged: Clyde v State of NSW (TAFE Commission) [1995] NSWWCC 38; (1995) 12 NSWCCR 541 (Clyde).
In Clyde, the worker was a truck/courier driver, who was injured when driving under the influence of alcohol. Neilson CCJ found he was in the course of his employment. His honour found serious and wilful misconduct on the basis that the worker drove after consuming a quantity of alcohol he knew would have placed him over the legal limit to drive. However, the injury was also found not to be solely attributable to this misconduct, as the accident was caused, at least in part, by the driver of the vehicle that collided with him.
I accept that, on the evidence, the worker had been convicted of “disqualifying offences” as at the date of the injury. While his convictions were later quashed, that did not occur until June 2019. In accordance with regulation 24 (1) of the 2017 Regulation, the worker “…must not drive a taxi or hire vehicle that is being used to provide a passenger service if the person has been found guilty of a disqualifying offence for a driver”.
The worker’s evidence is that his lawyer told him he could continue to drive the taxi pending the disposition of his appeal, and that the applicant knew he was still driving. He referred to the applicant having refunded the passenger who had complained about him overcharging.
The evidence of 13cabs is that Mr Appiah was asked to refund the passenger, as the driver was removed from the network in December 2018. Mr Appiah has not responded to this evidence. It is likely, in my view, that he was aware that the worker was himself driving the cab, rather than sub-leasing it, but little turns on this.
The applicant appeared to submit that, as the worker was driving a taxi when he should not have been doing so, which placed him at risk of being injured, he was guilty of serious and wilful misconduct, and that is the end of the matter.
That is far from being the case. While Mr Fathel’s misconduct may have been “wilful”, in that it was conscious and deliberate, and not merely a thoughtless decision made on the spur of the moment (Johnson), I do not accept that he had knowledge of the risk of injury, and in light of that knowledge, proceeded without regard to the risk (Sawle and Whittingham).
As O’Meally CCJ held in Sawle, for the applicant to establish that Mr Fathel was guilty of serious and wilful misconduct, he must demonstrate that the worker knew his action would cause the risk of injury or acted in disregard of whether it would do so.
Mr Fathel’s action in driving the taxi when he was disqualified from doing so “caused” the risk of injury only to the extent that he was driving a motor vehicle, like thousands of other workers whose employment involves this activity.
The offences of which the worker was convicted were not driving offences. They were connected with his employment only to the extent that he perceived the Uber driver to have prevented him collecting his passengers. There is no evidence that he was an unsafe driver, or that his conduct in driving the taxi while he was disqualified caused the risk of injury.
The applicant submitted that the consequences of breaching a correction order may be serious. I do not see that that has any relevance to the application of s 14 of the 1987 Act. If Mr Fathel breached a correction order, the consequences to him may indeed have been serious, but it would have nothing to do with the accident in which he was injured.

Even if I accepted, which I do not, that Mr Fathel knew his action would cause the risk of injury, or that he acted in disregard of whether it would do so, the injury was not solely attributable to his conduct.
Although Mr Fathel’s recollection of the circumstances of the accident and its aftermath appears to be less than complete, he has consistently said the driver of the vehicle that struck his vehicle ran a red light. The claim form is consistent with this version of events. So is the film taken from the taxi. He had the green light, and his vehicle was struck from the right.
The police attended the accident. There is no evidence that Mr Fathel was found to be at fault. I would assume that if such evidence existed, the applicant would have adduced it, bearing in mind the onus is on him to establish that s 14 of the 1987 Act applies. There is certainly no reference in Mr Fathel’s criminal history that is before me to any action being taken against him as a result of the accident.
Mr Fathel’s conduct can hardly be the sole cause of his injury if the driver of the other vehicle disobeyed a traffic signal and as a result collided with his taxi. His situation is analogous to that of the worker in Clyde, except that I do not accept he was guilty of serious and wilful misconduct, which Mr Clyde undoubtedly was.
That is sufficient to dispose of the allegation that the worker’s injury was solely due to his serious and wilful misconduct. The accident that caused his injury was not solely, or apparently at all, due to his conduct, but rather to that of the other driver involved.
As I have found that the worker’s injury was not solely due to his serious and wilful misconduct, it is not necessary that I consider whether it resulted in “serious and permanent disablement”.
For the above reasons, the applicant’s Application fails.
The orders are as set out in the Certificate of Determination.

[2022] NSWPIC 530

26 September 2022