Boccalatte v Burwood Council - [2022] NSWPICPD 52

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Boccalatte v Burwood Council [2022] NSWPICPD 52
APPELLANT:	Stephen Boccalatte
RESPONDENT:	Burwood Council
INSURER:	StateCover Mutual Ltd
FILE NUMBER:	A1-W5987/21
PRESIDENTIAL MEMBER:	Acting President Michael Snell
DATE OF APPEAL DECISION:	22 December 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 22 March 2022 is revoked. 2. The matter is remitted for re-determination by a different member consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – the test of ‘injury’ in the course of and arising out of employment, application of Tarry v Warringah Shire Council [1974] WCR 1, Humphrey Earl Ltd v Speechley [1951] HCA 75; 84 CLR 126; Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 and associated authorities; the drawing of inferences, application of Luxton v Vines [1952] HCA 19; 85 CLR 352 and associated authorities
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Barter, counsel
State Law Group
Respondent:
Mr D Baran, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	22 March 2022

INTRODUCTION AND BACKGROUND

Stephen Boccalatte (the appellant) was employed by Burwood Council (the respondent) from 23 January 1984.[1] As at 1 January 2017 his position was that of Team Leader for Parks. His duties mainly involved maintenance at Burwood Park. He maintained cleaning services, cleaned lawns and gardens, and maintained flower displays. He typically worked from 5.30am to 2pm, Mondays to Fridays.[2] On 1 January 2017 the appellant had pre-approval to work overtime, commencing his shift at 4.30am (which he did) rather than his usual time of 5.30am.[3] He was working alone. The appellant was approached by a male in the park who stabbed him four times. The male “took off” heading towards the Oval after the appellant hit him with a paper-grabber that was used for picking up garbage. The appellant placed a call to “triple 0” at about 5.15am. Police and an ambulance attended the scene. The appellant was taken to Royal Prince Alfred Hospital with four stab wounds.[4]
[1] Appellant claim form, 4/1/17, Application to Resolve a Dispute (ARD), p 12.
[2] Appellant witness statement 6/1/17.
[3] Boccalatte v Burwood Council [2022] NSWPIC 120 (reasons), [8].
[4] Appellant witness statement, [7]–[9], ARD, p 3; NSW Police COPS report, ARD, p 68.
Following this incident the appellant was off work for three weeks and then resumed on light duties, slowly increasing his hours. The appellant lodged claim forms dated 3 and 5 January 2017.[5] By June 2017 he was on the verge of resuming full-time work.[6] The respondent initially paid benefits in respect of weekly payments and treatment. It ceased the payments as at 28 June 2017, when it denied the appellant suffered injury arising out of or in the course of employment.
[5] ARD, pp 12–19.
[6] Reasons, [57]–[60].
The respondent wrote to the appellant on 8 June 2017 advising there were allegations that on “one or more” prior…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICPD 52
Decision Date: 22 December 2022

CaseChat Overview and Summary

In the case of Boccalatte v Burwood Council, the dispute involved the interpretation of the criteria for an injury to be considered as arising out of employment under workers' compensation legislation. The plaintiff, Boccalatte, sought compensation for an injury sustained while performing his duties for the defendant, Burwood Council. The matter was heard in the Workers Compensation Commission of New South Wales. The core issue before the court was whether Boccalatte's injury was both in the course of his employment and arose out of his employment, thereby qualifying for workers' compensation.

The court examined the applicable legal principles, referencing the case of Tarry v Warringah Shire Council and others, to determine the correct interpretation and application of the statutory provisions. It was necessary to consider if the injury was directly connected to the employment, as opposed to being an independent event that coincidentally occurred while the employee was at work. The court drew on the reasoning in Humphrey Earl Ltd v Speechley and Nunan v Cockatoo Docks & Engineering Co Ltd to assess the causal link between the employment and the injury. Additionally, the drawing of inferences was guided by Luxton v Vines and associated authorities, focusing on whether the injury was a natural consequence of the employment conditions.

Upon reviewing the evidence and applying the established legal tests, the court concluded that Boccalatte's injury did not meet the requisite criteria to be considered as arising out of his employment. The injury was not a natural consequence of his employment or a risk inherent in the work performed, but rather an independent event. Therefore, the claim for workers' compensation was dismissed. The court's decision hinged on the lack of a direct and necessary connection between the employment and the injury, as well as the absence of a risk specifically associated with the employment that caused the injury.

Orders