Boccalatte v Burwood Council

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Boccalatte v Burwood Council [2022] NSWPIC 120
APPLICANT:	Stephen Boccalatte
RESPONDENT:	Burwood Council
Member:	John Wynyard
DATE OF DECISION:	22 March 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation following knife attack on the applicant at a park where he had been employed for over 30 years; whether applicant’s injury arose out of or in the course of his employment; whether applicant satisfied his onus of proof; whether respondent evidence rebutted the prima facie case presented by the applicant; whether the applicant can rely on section 14 of the Workers Compensation Act 1987 (1987 Act); whether psychiatric injury had been established; Held- although a prima facie case was established; the respondent met its evidentiary burden of proof to rebut the applicant’s prima facie case; Nguyen v Cosmopolitan Homes and Lewis v Doyle considered and applied; analysis of totality of the evidence demonstrated that the applicant was subject of a targeted attacked which involved a knife thrust to the heart (which did not penetrate the chest wall) and stab wounds over the shoulder one of which required surgery; injury did not arise out of or in the course of employment; Nunan v Cockatoo Docks & Engineering Co Ltd considered and applied; section 14 of the 1987 Act accordingly not applicable; Rhodes v Premier Motor Services Pty Ltd and Scharrer v The Redrock Co Pty Ltd considered and applied; applicant’s injury accordingly fell outside the terms of section 14(2) of the 1987 Act; finding that the injury caused serious impairment disablement but award for the respondent.
determinations made:	There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Stephen Boccalatte, the applicant, brings an application for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a psychological injury alleged on 1 January 2017.
Dispute notices were issued and proceedings were subsequently commenced.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)   has the applicant satisfied his onus of proof?
(b)   if so, did his injury arise out of or in the course of his employment? (s 4)
(c)   if so was employment a substantial contributing factor to his injury? (s 9A)
(d)   if so, did the injury result in serious and permanent disablement? (s 14(2)).

PROCEDURE BEFORE THE COMMISSION

The matter was heard by way of video hearing at conciliation and arbitration on 19 February 2022. The applicant was represented by Ms Shifa Ali from State Law Group instructing
Mr Graham Barter of counsel. The respondent was represented by Ms Kate Ralph of Bartier Perry Lawyers instructing Mr David Saul of counsel. Ms Patricia McGroney appeared representing State Cover. The nature of the dispute did not leave any room for conciliation and the matter proceeded directly to a hearing. 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 that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary Evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)   Application to Resolve a Dispute (ARD) and attached documents;
(b)   Application to Admit Late Document (ALD) and attached documents from the applicant;
(c)   Reply and attached documents, and
(d)   ALD and attached documents from the respondent.

Oral Evidence

Mr Saul sought leave to cross-examine the applicant, which was granted.

FINDINGS AND REASONS

The facts of this matter are in small compass. Mr Boccalatte had been employed by the Council for 30 years and had become a leading hand responsible for the administration of the Council’s cleaning businesses at Burwood Park.
On 1 January 2017 Mr Boccalatte commenced his duties in the park at around 4.30 am, having obtained pre-approval to work overtime, his shifts normally starting at 5:30 am. At about 5.15am he was approached by a man in a hoodie, who stabbed him four times – once straight into the heart region (which was fortunately superficial), and three to the upper left back. The Police Service computerised recording system (COPS) reported that the Royal Prince Alfred Hospital (RPA) informed the investigating officers that one of the wounds to the back was critical. Surgery was performed and Mr Boccalatte was discharged the following day.[1] The assailant has never been found.
[1] Respondent Application to admit Late Documents (ALD) p 12.
Mr Boccalatte brings an action in relation to a psychiatric condition alleged as a result of this assault.

Dispute notices

Dispute notices were issued on 5 December 2017 and 21 June 2021.
The former notified Mr Boccalatte that in view of his admission that he supplied illegal drugs at Burwood Park, the Council determined to terminate his employment but on receiving an approach from the Union, agreed to accept a formal resignation which was effective from 28 June 2018.
Liability was denied on the basis that Mr Boccalatte was not acting in the course of his employment, that he started work earlier than his appointed start time, and that he moved to the part of the park that was not covered by CCTV cameras at the time of the assault. The denial was on the basis that it was more likely that Mr Boccalatte arrived much earlier than his normal starting time in order to meet a person in relation to his illegal activities and in doing so he stepped outside the bounds of his employment[2].
[2] ARD p 23.
The latter dispute notice articulated the issues as follows:[3]
(a)   whether Mr Boccalatte had suffered a psychological injury as defined in
s 11A(3) of the 1987 Act;
(b)   whether the injury, which was disputed, arose out of the course of employment pursuant to s 4(a) of the 1987 Act;
(c)   whether employment was a substantial contributing factor pursuant to s 9A or, if it was a disease, whether employment was the main contributing factor pursuant to s 4(b), and
(d)   if an injury was established, then it was solely attributable to his serious and wilful misconduct and therefore no compensation was payable pursuant to
[3] ARD p 29.
s 14(2) of the 1987 Act.
The allegation that Mr Boccalatte commenced his shift earlier than his appointed start time was not pursued, as he lodged with an ALD authority given on 23 December 2016 for an earlier start time at 4.00am.[4]
[4] Applicant ALD p 4.

Police investigation

As indicated, the police attended the RPA Hospital where Mr Boccalatte had been taken following the assault. The investigation was noted in the COPS record. The notes of the investigating officer were also lodged in the respondent’s ALD.
The narrative set out in the COPS report noted that the applicant had been working for Burwood Council for about 30 years, spending most of his time working as a Parks Team Leader. It reported that he was rostered for an early morning start and the officer concerned reviewed CCTV footage showing Mr Boccalatte arriving at 4:23am, and going out of camera view.
The interviewing officer noted:[5]
“….. whilst [Mr Boccalatte was continuing his cleaning duties he has felt a presence behind him. From the corner of his eye he sees a male person that he believed would walk past him. What he doesn’t realise is that the male offender has actually caught up behind him and commenced assaulting the victim… The victim describes the assault as a number of punches to his chest and back. At first he did not realise he had been stabbed until he saw blood coming from his torso area. He then realises that the punches are in fact jabs that he could now feel inside his skin. The victim has grabbed the offender by the neck and the top in an attempt to stop the attack. He also uses a garbage collecting stick to strike the offender numerous times. The victim describes the weapon as a short bladed black handled knife.
The offender has eventually stopped stabbing the victim and all of a sudden allegedly yells “Fuck what have a I done”. He then runs off into the park and in the direction of Comer Street, Burwood. The victim, still conscious at this time, has rung 000 and told them of the incident. Police are on scene at 5.15 am along with ambulance. He is treated and conveyed to Royal Prince Alfred Hospital.”
[5] Respondent ALD p 12.
The report then stated:[6]
“The victim was able to provide a very basic version of events which really did not provide Investigators with much to go on. Although he did state that the person looked familiar to him, when pressed on the issue he was hesitant to provide any information.”
[6] Respondent ALD p 12 - 13.
The police reviewed the CCTV and were confident that they had identified the offender who was wearing a dark hooded jumper and was seen running from the BBQ area towards Comer Street.
The narration stated that it looked as if the attack had been completely unprovoked, but that further investigations were taking place to see whether it might have been targeted.
The entry then indicated that Mr Boccalatte was visited again whilst still in hospital the next day where he declined to take a statement, but agreed to go to Burwood Police Station in a few days. The entry said: [7]
“At first, the victim was again vague about the incident however when pressed about the likelihood of it being a targeted attack, he did declare his knowledge about selling cannabis in very small amounts to people in Burwood Park.
The victim disclosed that he had grown one large plant which he had cut up and on-sold to various persons in and around the Burwood area. He maintains he does not know the offender’s name but believes he has seen him before and could be a local of Britania or Comer Street Burwood. He thinks that he may have ‘pissed’ another dealer off for selling on his turf.
Detectives suspect that he may not be providing the name of the offender as he expressed on a number of occasions his fear of losing his job with Burwood Council and the likelihood of retaliation. This line of inquiry will be canvassed further with the victim when he makes his statement.”

Mr Boccalatte’s statements

[7] Respondent ALD from p 13.

6 January 2017 to the police

Mr Boccalatte attended Burwood Police Station on 6 January 2013 and a statement was taken from him[8].
[8] ALD p 23.
Mr Boccalatte said:
“In the morning of 1^st January 2017, I started work at about 4:30am at Burwood Park.
I was working alone. I attended the front arch memorial side at the corner of Burwood Road and Park Ave. I started to do the papers, by picking them up. I did the area closest to Burwood Road working my way towards the bugle statute situated close to the arch. Soon after I found a pouch of tobacco. I kept this, it was near a homeless man later and went to the homeless man and saw a mobile phone close to him.
I picked up the phone close to the man and I dropped it, which woke him up. the homeless man told me the tobacco was his and that someone took it off him while he was sleeping. I gave the man the tobacco and the phone.”
Mr Boccalatte then described his attacker, saying he wore a grey coloured hoodie and that the attacker had a small tattoo just near the right side of his eye right near the cheek bone “a tiny anchor or something similar to a teardrop that wasn’t filled in”.
Mr Boccalatte said:[9]
“The man I believe could have been Middle Eastern. Either way I believe that I could not identify this person again. At first I thought I recognised a local person that I know and then I changed my mind. I don’t believe I have seen this person before.”
[9] Respondent ALD p 24.
He said that the attacker advanced towards him and hit him on the left shoulder/chest area. Mr Boccalatte then said:[10]
“8 Suddenly, I could see the males arm moving back and forth to my back, around the left shoulder blade area and hit me about 4 times in quick success. I kept my stance trying to block the male. Immediately after I received this assault, I realised he was stabbing me. I felt a sharp pain and realised that he was using a weapon. …. I then hit the male with the paper grabber… After I hit him in the head the male said ‘Fuck what have I done?”
[10] Respondent ALD p 25 [8].
The attacker then ran away.
Mr Boccalatte described how the police arrived after he had dialled 000. He said that sometime later he was asked by police whether he could have been targeted.
Mr Boccalatte mentioned a Turkish male who had made him the target of complaints along with other Council employees over a five year period.
He then said:[11]
“11. Another reason why I could be targeted is, for about 6 months I have been selling cannabis to people that I have known and have attended Burwood Park to collect the cannabis. The dealing times were infrequent. I was selling for about $200 an ounce. I never really earned anything more than a thousand dollars from it. I have no cannabis left. I believe this to be a bad lesson learnt.”
[11] Respondent ALD p 25 [11].

Statement to the respondent 16 June 2017

Mr Boccalatte participated in a record of interview on 16 June 2017 with Council officers in response to a Show Cause Notification that was given to Mr Boccalatte on 8 June 2017.
In that interview Mr Boccalatte was interviewed by Brian Mortimer, Manager Organisation in Development.[12] At [20] Mr Mortimer put to Mr Boccalatte that on one or more occasions prior to 1 January 2017 he had sold or otherwise engaged in the exchange of elicit and illegal drugs in Burwood Park and the Burwood local public area.
[12] Reply p 6.
Mr Boccalatte said at [21] that on three occasions he “basically almost gave it away to a homeless man”.
From [25] Mr Boccalatte explained that the homeless man owed him money and he offered him cannabis which he had grown himself for his godson who had Crohns disease. He said he gave the cannabis to the man on three occasions, in May, June and September.
Mr Boccalatte then said from [43] that he had found a satchel next to the homeless man and said “Oh look at that”. To which the homeless man said “Can I have it?”.
Mr Boccalatte in response to a further question said that a satchel of cannabis was on the ground with rubbish “we find them quite a lot”.
Mr Boccalatte also said [at 45] that “we find alcohol a lot. We find powder a lot”.
Mr Mortimer again asked about the basis of the arrangement at [47] and Mr Boccalatte again explained that because the homeless man owed him money and because
Mr Boccalatte knew that the homeless man used to smoke it in the night, he gave him the cannabis.
When asked why the homeless man owed Mr Boccalatte money, he replied that “he lent him money, $20 here, $20, and then he disappeared”. He said that he did not see the homeless man for about a year.
When asked whether he sold cannabis to other people in Burwood Park Mr Boccalatte at [52] said that the homeless man might have, but Mr Boccalatte did not. He said the homeless man could do what he liked with the cannabis.
From [54] Mr Boccalatte said that these exchanges of cannabis occurred at about 5.15am before he started work “because that’s the suitable time”.
Mr Mortimer, who was clearly having difficulty with Mr Boccalatte’s answers, asked again at [66] why, if the homeless man owed Mr Boccalatte a small amount of money, he would give the homeless man cannabis. At [67] Mr Boccalatte said “No, that was a one off. He owed me some money”.[13]
[13] Reply p 16.
Mr Mortimer asked further questions about the basis of this transaction, over a number of questions between [70] to [73], repeating that he did not understand the exchange.[14]
[14] Reply p 17.
At [81] Mr Mortimer said he still did not understand and Mr Boccalatte said:
“SB. Because the thing is that I don’t, this thing here, this Cannabis, like I said, it’s too complicated to explain what happened, because I was always trying to help someone, like I said it was my grandson, like my godfather, godson and I had this stuff, really I hadn’t smoked it for, since I was probably in my 20’s, 30 years ago or whatever.”
Later in the interview Mr Boccalatte said that the homeless man was the only person that he dealt with regarding drugs.
Mr Mortimer at [118] put to Mr Boccalatte that when he was assaulted on 1 January 2017 he was in the process of participating and undertaking an illicit drug activity. Mr Boccalatte denied that allegation.
In further elaborating at [127] Mr Boccalatte said that, having started his usual run at 4am, he found a pouch of tobacco. When he looked around he saw a homeless man asleep so he brought it over and “just put it on his table”.
When asked was it the same homeless man that he had been talking about earlier,
Mr Boccalatte agreed it was.
From [141] Mr Boccalatte described the assault.
At [146] he said that as the assailant started walking towards him and as he was looking at the assailant, Mr Boccalatte said:
“….I kind of think I know you, I thought he was someone from up, which I told him, up at umm, I think it’s the umm Britannia Avenue, up the Housing Commission. But when he came closer he had a tattoo and the last time I saw that fellow he didn’t have a tattoo ad it just didn’t seem right, he was putting me off.”
He stated that the assailant stabbed him about three or four times and he repeated that the assailant then said “fuck what have I done and disappeared”.
At [160] Mr Mortimer asked Mr Boccalatte if he had ever sold or otherwise exchanged illicit or illegal drugs with that person and Mr Boccalatte said at [161]:
“I don’t know. I don’t him. What I told the police is that I thought he’s a suspect for me, but I’ve never ever sold him or talked to him.”
Mr Mortimer then asked further questions about Mr Boccalatte dealing drugs on three or more occasions. Mr Boccalatte said [at 198] that it was early in the morning and that two of the occasions were before he started work and the third one might not have been, in fact it could have been lunchtime.
At [228] Mr Boccalatte confirmed Mr Mortimer’s question that there had only been one person Mr Boccalatte had given drugs to and that he had not actually taken any money for the drugs.
When asked whether the evidence he gave the police was the same as the evidence that he had given to the Council at [232] Mr Boccalatte said “yes, correct, yes correct”.

Statement 24 October 2021[15]

[15] ARD p 2.

In this statement Mr Boccalatte confirmed that he had been working for Burwood Council for almost 30 years as a Parks Team Leader.
Mr Boccalatte said that he was at the barbecue playground area holding an auto bin:
“…when a man with a hoodie walked along an adjacent path without me noticing him until he was very close to me. He was walking past me and I said something to the effect of “well, you scared me”. He then turned around, looked at me and began walking towards me. As he came closer, suddenly and without warning, he lunged at me in what I thought was a punching motion striking my left upper chest region. He then very rapidly lunged at me in the same way three times again, striking me around my shoulder region….. He then looked at me and said words to the effect of “what have I done” and then walked off.”
He took three weeks off work and saw his general practitioner Dr Williams. (Dr Williams’ notes were lodged and confirmed that Mr Boccalatte was seen regularly from 3 January 2017 regarding the assault). Mr Boccalatte attempted to return on light duties but after two months felt overwhelmed.
Notwithstanding, he gradually increased his hours and “was on the verge of returning to full time hours” when in or around 8 June 2018 he was asked to show cause why his employment should not be terminated.

This followed the completion of an investigation by the respondent into Mr Boccalatte’s activities. Mr Boccalatte said:[16]
“24. In or around December 2016, the Police were investigating an allegation on me in relation to selling illicit drugs at Burwood Park. However, I was not arrested, charged or convicted of any criminal offence.”
[16] ARD p 5.
Mr Boccalatte said that he resigned:[17]
“As the work environment in combination with my psychological condition was all too much for me to handle. I had been through a near-death experience and it appeared that no one really cared about me.”
[17] ARD p 5 [28].
Mr Boccalatte confirmed that he subsequently tried to work in a cemetery in Kemps Creek and he had not returned to work since he ceased work there, being unable to continue.

Supplementary statement dated 31 January 2022

On 31 January 2022 Mr Boccalatte gave further detail of his involvement with cannabis. He said that in his time working at Burwood Park for 30 years he became very proud of the park and used to work overtime on weekends and public holidays to keep the park “looking good and functioning properly”. He said he became familiar with a variety of people who used the park including homeless people that slept there. He became acquainted with one of those people whose surname, Mr Boccalatte said, was “Barnes”. He said:
“I can’t recall his first name but everyone called him Barnsy and I remember how polite and friendly he was. I believe he was well-known to the Burwood Police and liked by some of them as well.”
Mr Boccalatte then repeated the explanation earlier given that his nephew was suffering from Crohns disease, and Mr Boccalatte had heard that cannabis treatment was helpful. He said that he ordered cannabis seeds “from overseas” and grew a plant. The nephew did not want the cannabis and Mr Boccalatte therefore wanted to get rid of it as “I hadn’t smoked cannabis for twenty years or more”.[18]
[18] ALD p 2 at [13].
He said:[19]
“On one occasion I was cleaning up in the park when I found a satchel of cannabis near where the homeless man I liked was sleeping. I showed it to him and he asked me if he could have it. I said he could and also told him that I had a plant and could give him some more.”
[19] ALD p 2 at [12].
Mr Boccalatte explained that he had lent the homeless man a small amount of money in the past and because he liked the man he was happy to give the man cannabis from his plant. He said:[20]
“I suppose I knew he would sell some and he did give me a small amount of money but I hardly made anything out of it.”
[20] ALD p 2 at [14].
Mr Boccalatte said that by the time of the Burwood Festival in September 2016, he had used up his cannabis plant and had no further involvement in the distribution of drugs thereafter.
Mr Boccalatte concluded:[21]
“I believe I have been very poorly treated. I admit that I did make a stupid mistake but it had nothing to do with my injuries. I loved the work I did looking after the park. I was attacked when I was just doing my job.”
[21] ALD p 3 at [24].

Cross- examination

As indicated, I granted leave to Mr Saul to cross-examine Mr Boccalatte.
Mr Boccalatte confirmed his supplementary statement of 31 January 2022 that prior to the assault he had been growing one plant of cannabis from seeds he had obtained from overseas, and that he had sold or given cannabis to a homeless man in the park. Mr Saul suggested that had occurred on three occasions, but Mr Boccalatte answered that it was in fact on four occasions. Later in cross-examination, when asked about an earlier statement that he had sold on three occasions, Mr Boccalatte said “I’m pretty sure it was four”.
Mr Boccalatte confirmed in his statement of 31 January 2022 that he had named the person to whom he supplied the cannabis as a Mr Barnes, known as “Barnsy”.
When asked if that was the limit of his involvement, Mr Boccalatte said that sometimes another person would play chess with Barnsy. This person would approach
Mr Boccalatte wanting to “buy some from me”.
Mr Boccalatte told Mr Saul that he explained to this person “I don’t deal with anyone else and you’ll have to talk to Barnsy about that”.
This other person “started to go on and on about it” until Mr Boccalatte gave him some.
Mr Boccalatte said that was the limit of his involvement with cannabis trade.
Mr Boccalatte agreed that he had not told anybody else about that transaction. “It never come up,” he said. The police never asked him, Mr Boccalatte said, “It was just generic, what they were asking”.
Under further questioning he agreed that he “charged Barnsey” $200 for a ziplock sandwich bag he had filled with the marijuana from his plant.
When asked whether the amount that he sold was equivalent to an ounce, Mr Boccalatte replied that it could be but that he never weighed it. He said he just made up the figure of $200, and did not think that it was street value. He said that a homeless man told him that a quarter of an ounce cost $100.
Mr Boccalatte could not recall whether he had mentioned these details to the Council in his record of interview.
Mr Saul then asked about statements Mr Boccalatte made to the Council on 16 June 2017 that Mr Boccalatte had given the cannabis to Mr Boccalatte, as
Mr Boccalatte owed him $50. Mr Boccalatte said that he would advance $10 or $20 from time to time to Mr Boccalatte but he never paid it back.
Under sustained questioning as to that statement Mr Boccalatte stated that he would be getting the money back because Mr Boccalatte would on-sell the cannabis
Mr Boccalatte had given him.
Mr Boccalatte said that he had not been dealing for months before he was stabbed.
He said he was not aware that the police were investigating drug dealing on 16 December 2017.
Mr Saul directed Mr Boccalatte’s attention to the entries in the COPS report. Mr Saul referred to Mr Boccalatte’s statement about selling cannabis in very small amounts to people in Burwood Park:
“Mr Boccalatte: ‘I don’t recall saying that I was selling small amounts.’
Mr Saul: ‘Well, you were weren’t you?’
Mr Boccalatte: ‘Well I don’t know what…what is a small amount?’.”
Mr Boccalatte said that he didn’t know if a bag like he had described before was a small amount. He agreed with Mr Saul that he sold to Barnsy, and that he on-sold.
In answer to a question of whether he was present when Mr Barnes on-sold the cannabis,
Mr Boccalatte was somewhat prevaricating in his answer. He eventually said that
Mr Barnes told him and that “I didn’t witness it”.
When asked about his statement to police that he sold cannabis to various persons in and around the Burwood area, Mr Boccalatte said that it was inaccurate. “I was under stress”,
Mr Boccalatte said. He said he had made a mistake, and he agreed he had not taken any steps to correct the record.
Mr Saul then was asked about the identity of his attacker, and his statement to the police.
Mr Boccalatte responded that person he mistakenly thought was the attacker was a person called “Harry”.
He agreed that he told the police that he may have ‘pissed’ another dealer off who lived in Britania or Comer Street Burwood, for selling on his turf. He denied telling the police that the dealer lived in Comer or Britania St, but then said he had only mentioned Britania St.
When asked why therefore Comer St had been mentioned by the police, Mr Boccalatte then explained how he knew about the person in Britania St but that he was not the assailant, and that Britania St crossed with Comer.
Mr Boccalatte prevaricated again when asked whether he had told the police that he was worried about losing his job and the fear of retaliation. He said after some hesitation that he was not worried about his job, and he eventually said that he did not recall talking to the police about retaliation. He said that he provided the name of the person he thought had attacked him but then said it wasn’t that person because he did not have a tattoo on his face.
Mr Saul suggested that Mr Boccalatte had not mentioned a man named Harry until now, to which Mr Boccalatte replied that what he said in the hospital was not recorded.
Whilst Mr Boccalatte agreed with Mr Saul that he had said at the outset that he had told the truth in every statement he made, he said that this particular matter was not true and must have been “an honest mistake”.
In re-examination Mr Boccalatte said that he had not been through the police records, and
Mr Boccalatte asked whether the police were insistent, or just asking general questions. They wanted to catch the person, Mr Boccalatte replied.
With regard to the statement to the police of 6 January 2017, Mr Boccalatte asked when he had ceased selling cannabis to people. Mr Boccalatte said he had ceased by the time of the Burwood Festival in September 2016 as his plant was “done and dusted” by that time.

MEDICAL

Dr Tanveer Ahmed, consultant psychiatrist report dated 27 June 2019

Mr Boccalatte retained Dr Ahmed as his qualified medico-legal specialist.
Dr Ahmed took a history that was generally consistent with the stabbing incident. He recorded that Mr Boccalatte said that it was early in the morning:
“He remembered a man walking up to him. He initially did not think anything of it, but the man came closer and lunged at him with a knife.”
He said:[22]
“I have read the correspondence and understand there was a question of him having known his attacker and that it was associated with Mr Boccalatte selling drugs. The client stated in the interview that he thought he may have known his attacker but did not elaborate.”
[22] ARD p 43.
Dr Ahmed noted the onset of symptoms of nightmares, flashbacks, difficulty completing tasks, and becoming easily overwhelmed. Mr Boccalatte was more irritable with colleagues.
Dr Ahmed recorded:[23]
“After attempting his return to work for approximately two months he felt overwhelmed and could not continue.”
[23] ARD p 43.
Dr Ahmed noted that Mr Boccalatte had been referred to a psychologist and that he had had six to eight sessions. Dr Ahmed also noted that Mr Boccalatte was commenced on the anti-depressant Escitalopram.
Dr Ahmed reported that Mr Boccalatte had been drinking heavily over the last 12 months, consuming over a bottle of Vodka a day.
He noted that Mr Boccalatte had begun working with the respondent after completing his studies in horticulture at TAFE. He had a happy marriage and had been together for 25 years.
Dr Ahmed’s opinion was that Mr Boccalatte was suffering from post-traumatic stress disorder and alcohol dependence. This was characterised by nightmares, flashbacks, avoidance behaviours and emotional numbing. He had largely self-medicated through a heavy alcohol consumption, 8 – 10 standard drinks a day. He had not had formal treatment for his heavy drinking, which is clearly causing difficulties in his social and occupational functioning.
Dr Ahmed said:[24]
“The key contributor is the stabbing event. He had no prior psychiatric history. His re-experiencing phenomena are clear evidence of post-traumatic stress and directly linked to the original incident.”

Dr Ahmed’s report 10 September 2020[25]

[24] ARD p 44.

[25] ARD p 47.

Dr Ahmed reported that Mr Boccalatte continued to drink heavily, up to 10 standard drinks a day. He was continuing to see his psychologist and he was taking the antidepressant escitalopram. He had not had any contact with psychiatrist.
Dr Ahmed noted that although he had recommended more aggressive treatment, it had not actually occurred. He noted that Mr Boccalatte had collapsed recently after taking Valium and alcohol, and that he was especially anxious about dental treatment.
Mr Boccalatte usually lay in bed most days, and was fearful of doing even the most basic household tasks such as mowing the lawn. He had a minimal appetite and had lost weight. Mr Boccalatte said that he usually was very drunk when he went to sleep. He ruminated about how he left work and the nature of it. He did not appear to describe nightmares of the original stabbing.
Dr Ahmed said that Mr Boccalatte had presented with minimal improvement and that his dose of antidepressant was especially low. Dr Ahmed said that Mr Boccalatte did not describe clear nightmares or flashbacks, but Dr Ahmed thought that was probably because he was intoxicated when he went to sleep.
Dr Ahmed repeated that it was possible that Mr Boccalatte’s physical health was worsening and there was worse strain in the family context. He did not have a prior psychiatric history and Dr Ahmed repeated that the incident in the past was the key contributor.

Dr Leonard Lee report dated 23 April 2021

For the respondent Dr Leonard Lee was retained. He reported on 23 April 2021[26].
[26] Reply p 128.
Dr Lee noted Mr Boccalatte had been a Team Leader in the Parks & Garden Team but had not worked substantially since he had been stabbed by an unknown man in the park in 2017.
He noted that Mr Boccalatte lived with his wife and son and received a carer’s pension because his wife suffered from Bipolar Affected Disorder.
Dr Lee recorded Mr Boccalatte’s account of the injury:
“A male began walking past him and he recorded saying, “s…, You rattled me.” The man stopped, looked at him and said something he could not hear, walked towards him and lunged at him. Mr Boccalatte told him to settle down, and the man jumped to his side and started thrashing at him and Mr Boccalatte realised that he had a knife…”
Dr Lee took a consistent history of the stabbing event, noting that Mr Boccalatte was taken to RPA Hospital where he underwent surgery which stopped the bleeding.
He noted that Mr Boccalatte saw a psychologist (Susan) and Dr Lee noted that she advised Mr Boccalatte not to go back to work as early as he did when he was offered the opportunity to do office work. Dr Lee said that the return was not successful and noted
Mr Boccalatte’s refusal to return to the park.
Dr Lee said:[27]
“….about six months later [Mr Boccalatte] began to feel like not doing anything and resigned.”
[27] Reply p 149
Dr Lee reported:
“7. He said he resigned because they were going to terminate him for a breach of Code of Conduct as he had done four deals of marijuana to a homeless man because his nephew who had Crohn's disease did not want to use it so ‘I gave it to him really cheap’, but the man got arrested for possession and dealing ice. This man had asked Mr Boccalatte if he wanted ice and he refused, but a man who he thinks was a police informer had seemed fascinated with the homeless man and one day screamed at the Police ‘why didn't you get him’. This happened about a week before the incident. Subsequently the purported informer was discussing the homeless man's ice habit. Mr Boccalatte had overheard the homeless man and another person saying ‘the ice cream will be here’, so he had told the purported informant, but it was after he got stabbed that he was scared of ‘not knowing what was going on’."
Dr Lee reported that Mr Boccalatte was offered a job at a cemetery at Kemps Creek but panicked before he could take it, possibly because it was an outdoor park situation.
Dr Lee noted Mr Boccalatte admitted to drinking about 10 standard drinks on five of every seven days, either beer or vodka.
Dr Lee said:[28]
“He emphasised that he has not had any legal charges and expressed disappointment that they never found the man who stabbed him because he has not had closure, even though he gave the police a name of a man whom [sic] might have been the perpetrator.”
[28] Reply p 150.
Dr Lee had available what he described as ‘factual evidence’. He noted that the Council was advised in December 2016 that the police were investigating allegations that a Council employee named Stephen was selling drugs in Burwood Park.
In May 2017 the Council received a report from Police and on 8 June 2017 Dr Lee noted that Mr Boccalatte was asked to Show Cause why his employment should not be terminated.
On 16 June 2017 Mr Boccalatte admitted that he had seen or engaged in the supply of illegal drugs in Burwood Park on at least three occasions. These took place during work hours and on one occasion when he was wearing a uniform.
Dr Lee took a history that Mr Boccalatte’s legal representative persuaded Council to accept his resignation rather than terminate his employment.
Dr Lee noted the record of interview between Mr Boccalatte and Council management.
Dr Lee only had access to every second page but noted that Mr Boccalatte admitted giving cannabis to a homeless man in exchange for money on three occasions.
He noted that on 29 May 2015 [sic. Presumably 2017] a Dr Routens diagnosed
post- traumatic stress disorder and a mild obsessive compulsive disorder due to the stabbing incident.
Dr Lee noted some clinical notes from Mindways Psychological Services, which indicated that Mr Boccalatte was fearful, hypervigilant and having trouble trusting on 1 February 2017, but by 23 March 2017 he was to start light duties in the administration office. Dr Lee recorded that the psychologist’s notes showed that the applicant was working four days a week, and felt “underestimated” on 26 May 2017, but that he was suspended on 2 June 2017.
Dr Lee noted Dr Ahmed’s report and diagnosis of post-traumatic stress disorder which had not then reached maximal medical improvement.
Dr Lee noted that there was a review on 10 September 2020 when Dr Ahmed was told that Mr Boccalatte continued to drink heavily whilst taking antidepressants and had not had any contact with his psychiatrist.
His symptoms of nightmares appeared to relate to the termination of his employment and not the stabbing.
Dr Lee’s opinion was:[29]
“29. His presentation is inconsistent with posttraumatic stress disorder, and with objective findings from the Self-Report Symptom Inventory.”
[29] Reply p 153.
Dr Lee said:[30]
“As I am unable to make a psychiatric diagnosis, based on the evidence of implausible history and standardized testing that indicates that he is not accurately reporting his symptoms, I consider his whole person impairment is 0%.”

SUBMISSIONS

[30] Reply pp 154 – 155.

Respondent

Mr Saul submitted that there were three problems that the applicant could not overcome. If
I could not be satisfied that Mr Boccalatte was not dealing drugs on 1 January 2017, then it could not be said that he was acting in the course of his employment. This would in turn involve a consideration of s 14 (1) of the 1987 Act.
Secondly, if I was satisfied that Mr Boccalatte was not dealing drugs on 1 January 2017 but that he was attacked because he knew his attacker and/or the attacker was involved with drug activity, then it could not be said that the attack was in the course of Mr Boccalatte’s employment, applying the provisions of s 4 of the 1987 Act.
Thirdly, If the Commission found that the attack was indeed unrelated to Mr Boccalatte’s involvement with drugs, nonetheless his claim should fail as he could not establish that employment was a substantial contributing factor pursuant to s 9A of the 1987 Act. Mr Saul submitted that the provisions of s 9A(3) were particularly apposite.
On the evidence, Mr Saul submitted I would find it would be either of the first two alternatives.
It was significant, Mr Saul argued, that the police were never given the detail regarding
Mr Boccalatte’s activities that he gave under cross-examination. Mr Saul referred to many of the inconsistencies that were revealed in Mr Boccalatte’s various accounts, which I shall deal with below, there being no point in rehearsing them here.
In developing his first point, Mr Saul submitted that the inconsistencies damaged
[31] [1998] NSWCC 8
Mr Boccalatte’s credit to the extent that he could not satisfy his onus. Mr Boccalatte had been shown not to be a witness of truth and was unable to show that he had been in the course of his employment at the time of the attack. I was referred to Stojkovic v Telford Management Pty Ltd[31] in that regard.
In addition, Mr Saul said, the respondent relied on the provisions of s 14 of the 1987 Act. If the applicant were dealing in drugs in Burwood Park then he was guilty of serious and wilful misconduct, Mr Saul asserted. He said that the section “all the way through” was problematic, but nevertheless the respondent relied on it. If the applicant was not acting for the purposes of and in connection with the Council’s business, which he clearly was not if he was dealing drugs, then the section had no application, Mr Saul contended.

Were it to be found, Mr Saul said in moving to his second point, that Mr Boccalatte was not involved in the sale of drugs at the time he was attacked, but that the attack was as a result of his previous dealings, then Mr Boccalatte could still not be found to be within the course of his employment within the terms of s 4.
The third possibility would be if it were found that the attack was not related to any of
[32] [2009] NSWCA 324.
Mr Boccalatte’s illicit drug dealings, and was simply a random attack, the provisions of s 9A would then be applicable. Mr Saul submitted that the principles applicable were well-known and referred to Badawi v Nexon Asia Pacidic Pty Ltd [32] in that regard. Mr Boccalatte’s employment duties were as a maintenance man or a cleaner, Mr Saul said, and just because Mr Boccalatte was in the course of his employment, it did not follow that his injury was connected to it, or that that employment was a substantial contributing factor, he said, relying on s 9A(3).
The final point, Mr Saul argued, was the resolution of the question of whether Mr Boccalatte had suffered an injury in any case. This was a question that is to be decided by an examination of the medical evidence. Mr Saul noted that Dr Ahmed was satisfied that Mr Boccalatte had suffered post-traumatic stress disorder, whereas Dr Lee found there was no psychiatric injury. Mr Saul submitted that I would accept Dr Lee’s opinion, as he had an accurate history.

Applicant

Mr Barter suggested that it was preferable to believe that an attack of the severity and ferocity experienced by Mr Boccalatte was targeted, rather than random. Section 9A was not applicable, he said. Mr Boccalatte was at his usual place of employment, carrying out his usual duties, but nonetheless by the nature of his work was exposed to the dangers of working amongst homeless people in the park at 4.30 in the morning in the dark, notwithstanding that the area may have been lit to some extent. Various people of different backgrounds were likely to be around, so Mr Boccalatte was exposed by the nature of his work to a random attack, if there was going to be one.
The difficulty faced by the applicant was that it was five years after the event. Mr Boccalatte gave all the appearances of an unreliable witness, which Mr Barter conceded he probably was. This was because over the whole of the intervening period Mr Boccalatte had been suffering from the effects of the assault, including the aggravating effects of alcohol and loss of esteem. All these consequences, Mr Barter said, that flowed from that assault had been documented by Dr Ahmed.
The suggestion that Dr Lee’s opinion should be preferred would fly in the face of common experience that an assault such as that was more likely to lead to the sort of problems described by Dr Ahmed, Mr Barter submitted. The simple dismissal of Mr Boccalatte’s case by Dr Lee was where the problem arises, Mr Barter suggested.
It would be wrong to accept Dr Lee’s opinion, Mr Barter argued, just because Mr Boccalatte’s statements were unreliable. Mr Boccalatte’s history as at 2017 when he was assaulted was of employment with the Council for 30 years. He had risen to the position of being in charge of Burwood Park. All the rest of his behaviour was out of character with that background, and it was only speculation (to which we were naturally drawn by his admissions of his dealing with drugs) that connected the assault with those dealings.
Section 14(2) laid the onus of the respondent, and required proof, rather than speculation, that the injury was solely (which, Mr Barter submitted, meant ‘only’) due to the serious and wilful misconduct by the worker. However, Mr Barter continued, compensation would still be payable if Dr Ahmed’s opinion were accepted.
There was no proof as to the cause of the assault, Mr Barter claimed. All the evidence showed was that Mr Boccalatte was going about his normal duties in the park at the time he was attacked. There was only speculation arising out of the police statements, and they needed to be approached with a degree of circumspection, Mr Barter argued, because they had been taken at a time when it could be assumed that Mr Boccalatte was still suffering the immediate effects of a serious assault. He was shocked, and may have been on some medication when he was interviewed on the two occasions in hospital.
Mr Boccalatte was described as being vague, and it was probable, Mr Barter urged, that the police were “positively pushing” the idea of a targeted attack on Mr Boccalatte, with which
Mr Boccalatte agreed, at a time when he was still in shock and most likely under the effects of pain killers.
The admission as to dealing in cannabis had subsequently been clarified by Mr Boccalatte’s later statements, Mr Barter said. Mr Barter submitted that the later clarifications did not show inconsistency. That the cannabis was cut up and on-sold made sense, Mr Barter said, when it was realised that Mr Boccalatte was giving the cannabis to Barnsy in order for it to be on-sold so Mr Boccalatte could be repaid. Mr Barter said it explained the “botched” interview with the Council officers.
In the context of Mr Boccalatte’s fear of losing his job and his fear of retaliation as a result of police pressure, he named the wrong person, Mr Barter said. It was easy to see how
Mr Boccalatte was rattled, but he was not inconsistent. The amount of $200 a deal sounded right, but it says more about the probability that the police made that suggestion. He was being asked to comment on a statement he had made to police only a week before. Any perceived inconsistencies should not cloud the real issues in the case. The real issue,
Mr Barter asserted, was whether Mr Boccalatte had taken himself outside the course of his employment by engaging in the sale and distribution of illicit drugs.
The only evidence as to that issue was from Mr Boccalatte who said he was not involved in that activity. There was no other evidence, apart from speculation and inference that the attack was motivated by his dealing in cannabis on some prior occasion. That dealing had ceased by September 2016, and Mr Boccalatte’s evidence in that regard could be accepted because it was consistent with his other evidence, and because he could identify the time by reference to the Burwood Festival. Mr Barter submitted that reliance could be placed on
Mr Boccalatte’s consistent explanation that he had only used one plant in his dealing. There was no evidence that Mr Boccalatte was dealing at the time of the assault, Mr Barter contended.
Mr Barter noted that the denial of liability relating to Mr Boccalatte’s start time was not being pressed. Thus there is no issue that Mr Boccalatte was working in the course of his business when he was assaulted, there was no evidence to suggest that he had interrupted the course of his duties for his own purposes of dealing in marijuana, and only inference or speculation would suggest that the attack was targeted in some way related to the distribution of cannabis. That speculation originated with the police, although it still did not go so far as to connect the assault with the drug dealing.
Mr Barter referred to a number of relevant authorities: Ballina Shire Council v Knapp,[33] Higgins v Galibal Pty Ltd[34] and Toll Holdings Ltd v McCaw.[35] He submitted that these decisions meant that an evaluative consideration of the circumstances that pertained at the time of the conduct impugned was required. The actual evidence showed nothing more than that Mr Boccalatte was in the course of his employment, and there was no evidence that he was engaged in other activity. The evidence fell far short, Mr Barter said, of establishing that Mr Boccalatte’s injury was solely attributable to any serious and wilful misconduct.
[33] [2018] NSWWCCPD 35. Note: Wood DP’s decision was overturned: Ballina Shire Council v Knapp [2019] NSWCA 146.
[34] {1998) 45 NSWLR 45.
[35] [2020] NSWWCCPD 14.

Respondent’s submissions in reply

Mr Saul responded that there was no lay or medical evidence to support any allegation that Mr Boccalatte’s mental state was compromised by his interaction with police. There was no suggestion in any of the evidence to suggest that the police conduct had been unacceptable. The applicant himself said in his evidence that the content of his statements were honest and correct and in none of them did he raise any concerns about the conduct of the police. There was no suggestion that Mr Boccalatte had been pressured into saying things he did not wish to say.
What the Commission would find, Mr Saul submitted, was that the versions had changed. It was the applicant who volunteered some knowledge of drug dealing in the park, as a result of which the police dug deeper. Mr Barter had “reverse engineered” the process.
In any event, Mr Saul continued, the police evidence was more reliable, it being contemporaneous, than statements made in 2021. There was a change in narration at the time of the Council interview, at which Mr Boccalatte’s account “morphed” into the different explanation which was subsequently maintained in the statements to the solicitors. Mr Saul noted that the identity of the various characters Mr Boccalatte mentioned was not revealed until the statement in January 2022, which detail might have assisted the police enquiry immeasurably had it been given four years before.
Mr Saul also contended that “gross misconduct is one thing. Criminal activity is another”. Dealing in drugs had been occurring in the very park that Mr Boccalatte had been responsible for over many years, Mr Saul said. I could not rely on his account, and
Mr Boccalatte had not satisfied his onus of proof.

CONSIDERATION

Legislation

Section 4 of the 1987 Act provides relevantly:
"‘injury’-
(a) means personal injury arising out of or in the course of employment…”
Section 9A of the 1987 Act provides:
“(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
…
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)-
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f)the worker's lifestyle and his or her activities outside the workplace.
(3)     A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following-
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.”
Section 14 of the 1987 Act provides:
“14 CONDUCT OF WORKER ETC
(cf former s 7 (2), (3))
(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.”

Onus and burden of proof

In considering the issues raised by this case, it is useful to define what it is that the applicant has to establish in order to satisfy his onus of proof. He has to demonstrate that his injury arose out of or in the course of his employment, and that his employment was a substantial contributing factor to the injury. Unless he can satisfy those two elements, his claim must fail.
In order to discharge his onus of proof the applicant has to satisfy a tribunal of fact on the balance of probabilities, the existence of a fact. The tribunal must feel an actual persuasion of the existence of that fact.[36] Although the onus of proof always lies on the applicant, the evidentiary burden of proof can lie on either party, depending on the state of the evidence.[37]
[36] Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44-48].
[37] See discussion by Davies J in Lewis v Doyle [2022] NSWSC 92 from [152].
I am satisfied that the applicant has, to a prima facie level, established that he was in the course of his employment at the time he was stabbed. The police observed him arrive at Burwood Park at 4:23 am on 1 January 2017 on CCTV. He had obtained permission from the respondent to start work early that day, he was dressed in his Council uniform, and Burwood Park was his usual place of work. The applicant was assaulted whilst he was in Burwood Park, and indeed beat off his assailant by using his garbage collecting stick.

Evidentiary issues

The evidentiary onus of proof then lay on the respondent to persuade me that the prima facie case did not represent the true facts. In the final analysis the outcome of this dispute depends on whether I can legitimately draw an inference that the attack suffered by the applicant was connected to the drug dealing which he admitted to in the park during the year before. This requires an analysis of the different statements made at different times by
Mr Boccalatte following the assault.

Royal Prince Alfred Hospital, 8.20am 1 January 2017

Mr Boccalatte’s interview with the police was recorded, as indicated, in the computerised reporting system used by the Police Force, “COPS”. The first interview occurred according to the police notebook in the respondent’s ALD at 8:20 am. Mr Boccalatte was recorded as giving the following relevant information:
·        The assailant was described as of Mediterranean appearance in his early 20s wearing a dark hooded jumper, dark track pants and white sport shoes.
·        The weapon was a short bladed black handled knife.
·        The assailant crept up behind Mr Boccalatte after he had felt a presence behind him, and Mr Boccalatte believed the person was intending to walk past him.
·        The assailant looked familiar to Mr Boccalatte.
·        Mr Boccalatte was hesitant to provide any further information.

Royal Prince Alfred Hospital, 5.28pm 2 January 2017

Mr Boccalatte had been moved to a ward following surgery. He did not wish to make a statement at that time but provided more detail. It was noted that he was vague about the incident but when pressed as to whether the attack had been targeted or not, made the following statements:
i)     He knew about selling cannabis in very small amounts to people in Burwood Park.
ii)     he had grown one large cannabis plant which he had cut up and on-sold to various persons in and around the Burwood area.
iii)    Although he did not know the offender’s name, he believed he could be a local of Britania [sic] or Como Street, Burwood.
iv)    He may have “pissed” another dealer off for selling on his turf.
Burwood police Station, 6 January 2017
·        Mr Boccalatte began work at about 4:30 AM on 1 January 2017, and was picking up papers.
·        He found a “pouch of tobacco” and a mobile phone close to a homeless man.
·        He dropped the mobile phone, which woke the homeless man who claimed the tobacco and the phone were his and Mr Boccalatte gave them to the homeless man.
·        The assailant wore a grey coloured hoodie.
·        He had a small tattoo near the right side of the eye near to the cheek bone.
·        The tattoo looked like a tiny anchor or a teardrop that had not been filled in.
·        The assailant “could have been Middle Eastern” but Mr Boccalatte could not recognise him again.
·        Mr Boccalatte had thought he recognised a local person but he had changed his mind.
·        He had not seen this person before.
·        Mr Boccalatte could have been targeted because he had been selling cannabis for about six months to people that he had known and had attended Burwood Park to collect the cannabis.
·        Mr Boccalatte was selling for about $200 an ounce and had not earned any more than $1000 from it.
Respondent premises, 16 June 2017
·        On three occasions Mr Boccalatte “almost gave” cannabis away to a homeless man.
·        The homeless man owed him money.
·        Mr Boccalatte had grown the cannabis for his godson, who had Crohn’s disease.
·        the satchel that he found next to the homeless man was a satchel of cannabis, which “we” found quite a lot.
·        “We” also found alcohol and powder a lot.
·        Mr Boccalatte did not sell cannabis to other people in Burwood Park, but the homeless man might have, as he could do what he liked with the cannabis.
·        The transaction was too complicated to explain.
·        Mr Boccalatte found a pouch of tobacco on 1 January 2017, which he gave to the homeless man, who was the same homeless man to whom he gave cannabis.
·        As to the actual assault, the assailant started walking towards Mr Boccalatte, and as he was looking at him, Mr Boccalatte thought that he knew who he was, namely, someone from Britannia Avenue
·        However when the assailant came close Mr Boccalatte saw that he had a tattoo
·        Of the three occasions Mr Boccalatte had dealt in drugs occurred twice in the morning before he started work, and the third “could have been” lunchtime.
·        Mr Boccalatte had never taken any money for drugs.
History to Dr Ahmed, 27 June 2019
·        Mr Boccalatte remembered a man walking up to him.
·        Mr Boccalatte did not think anything of it, but the man came closer and lunged at him with a knife.
·        Mr Boccalatte was consuming 8 to 10 standard drinks of alcohol per day which was affecting his social and occupational functioning.
History to Dr Ahmed, 10 September 2020
·        Mr Boccalatte was getting very panicky and drinking more heavily.
History to Dr Lee, 23 April 2021
·        A male began walking past Mr Boccalatte.
·        Mr Boccalatte reacted by saying “s…, you rattled me”.
·        The man stopped and looked at Mr Boccalatte, saying something Mr Boccalatte could not hear.
·        The man then walked towards Mr Boccalatte and lunged at him.
·        Mr Boccalatte told him to settle down, and the man jumped to his side and started thrashing him. Mr Boccalatte realised the man had a knife.
·        Mr Boccalatte told Dr Lee that he had done four deals of marijuana to a homeless man because his nephew had Crohn’s disease did not want to use it.
·        The homeless man got arrested for possession and dealing ice.
·        The homeless man had asked Mr Boccalatte if he wanted ice and Mr Boccalatte refused.
·        However a man who may have been a police informer had seemed fascinated with the homeless man and one day screamed at the police “why didn’t you get him.”
·        Mr Boccalatte said that the suspected police informer was discussing the homeless man’s ice habit. Mr Boccalatte overheard the homeless man and another person saying “the ice cream will be here.”
·        Dr Lee had access to data that said a council employee named Stephen was being investigated in December 2016 for selling drugs in Burwood Park.
Statement 24 October 2021
·        Mr Boccalatte was investigated in or around December 2016 by police regarding his selling illicit drugs in Burwood Park. No charges were laid.
·        Mr Boccalatte was at the barbecue playground area when a man with a hoodie walked along an adjacent path without being noticed by Mr Boccalatte, until the man was “very close to me.”
·        The man was walking past Mr Boccalatte when Mr Boccalatte said something to him (“well, you scared me”).
·        The man then turned around, looked at Mr Boccalatte and “began walking towards me.”
·        As he came closer suddenly, and without warning the man stabbed Mr Boccalatte in the left upper chest region and then three times around his shoulder region.
Statement 31 January 2022
·        The homeless man’s name was Barnes (“Barnsy”).
·        Mr Boccalatte obtained the cannabis because his nephew had Crohn’s disease, but did not want it.
·        Mr Boccalatte had grown the cannabis from seeds he obtained overseas
·        when Mr Boccalatte gave the satchel of cannabis to the homeless man
Mr Boccalatte said he had a plant and could give him some more.
·        He supposed he knew that the homeless man would sell some and Mr Boccalatte did receive a small amount of money but hardly made anything out of it.
·        By the time of the Burwood Festival in September 2016 he had used up his cannabis plant and had no further involvement in the distribution of drugs.
Cross examination, 19 February 2022
·        The person to whom Mr Boccalatte supplied cannabis was “Barnsy”.
·        Sometimes another person would play chess with Barnsy and asked
Mr Boccalatte to sell him some cannabis.
·        Mr Boccalatte said that he would have to talk to Barnsy about that but eventually gave the third person some, which was the limit of his involvement in the cannabis trade.
·        He had not mentioned this event before, and the police did not ask him.
·        Mr Boccalatte said (eventually) that he gave the cannabis to the homeless man even though he was owed money from the homeless man, because he knew the homeless man would on-sell the cannabis and thus repay Mr Boccalatte what was owed.
·        When asked about his comment to the detectives at RPA that he had been selling very small amounts to people in Burwood Park, Mr Boccalatte enquired as to what a small amount was, and when asked if he was present when the homeless man on-sold the cannabis, Mr Boccalatte eventually said that he did not witness it.
·        Mr Boccalatte said that although he stated to the detectives that he sold cannabis to numerous people, that was inaccurate, and that he was under stress and had made a mistake.
·        Mr Boccalatte told Mr Saul that the name of the person he suspected of being his assailant was “Harry”. Mr Boccalatte thought he might have told the police but that they did not record that fact.
·        Prima facie case rebutted

There are a number of common themes throughout the development of Mr Boccalatte’s narrative. That he was involved in the sale of cannabis he admitted himself. Mr Barter submitted that Mr Boccalatte was probably in shock, and may have been on medication when he first spoke to the police. There was no evidence however to suggest that
Mr Boccalatte was so affected by his experiences that his reported statements were untrue.

167.Mr Barter suggested that the police may have pressured Mr Boccalatte for some answers, but there is again no evidence that Mr Boccalatte thought he was under duress, which appeared to be the import of Mr Barter’s submission. I do not accept Mr Boccalatte’s evidence in cross examination that he had made “an honest mistake” in telling police that he sold cannabis to various people in the Burwood area when he later maintained that he had not. I accept that he may have been stressed, as he was recovering from a life-threatening attack, but I do not accept that such stress as he was under caused him any confusion in his admissions to police.
168.Nor do I accept that he made a further mistake in not giving police the name of his suspected assailant at the hospital. I also do not accept Mr Boccalatte’s alternative evidence that he might have given the name “Harry” at the time but that it was not recorded. The latter two positions are inconsistent in any event.
169.Mr Boccalatte’s reluctance to make a statement whilst he was still in RPA is understandable from his perspective. The COPS record shows that Mr Boccalatte had expressed his concern about losing his job and the likelihood of retaliation in his discussions with police, which the police thought may have been the reason that he had not provided the name of his attacker. It would accord with common sense that, some five years after the event and when
Mr Boccalatte no longer frequented Burwood Park that he would be able to give a name – albeit that he said “Harry” was not the assailant – without fear of retaliation and when he no longer worked for the council.
170.Mr Boccalatte confirmed in his interview with police on 6 January 2017 that he had been selling cannabis for about six months to people that he had known and who “attended Burwood Park to collect the cannabis”. I interpret that somewhat ambiguous sentence in the statement to mean that people Mr Boccalatte knew would attend Burwood Park to collect the cannabis that he had grown. It is significant that these versions were given by Mr Boccalatte over a period of six days following the assault. At this time there was no attempt by
Mr Boccalatte to restrict his admission to the supply of cannabis to just one person, namely the homeless man that he did not name until his statement of 31 January 2022.

It was not until Mr Boccalatte was interviewed by Mr Mortimer from the Council on 16 June 2017 that Mr Boccalatte claimed that he had only supplied cannabis to the homeless man, under circumstances that Mr Mortimer struggled to understand. It was only in this interview that Mr Boccalatte described the detail of his dealing in cannabis.

172.His assertion that he had grown the cannabis because his nephew had Crohn’s disease first appeared during this interview, as did the assertion that he had only supplied cannabis on three occasions. Bearing in mind that Mr Boccalatte was still employed at the time of the interview, he may well have been attempting to minimise his involvement, but his assertions were inconsistent with what he was recorded as telling police.
173.Mr Boccalatte was closely questioned as to how it was that he gave cannabis to the homeless man when the homeless man owed him money. It would have been an easy explanation for Mr Boccalatte to simply say that the homeless man was on-selling
Mr Boccalatte’s cannabis and giving him money from the proceeds. Mr Boccalatte did not do so, saying instead, “it’s too complicated to explain what happened”.
174.Mr Boccalatte’s statement that he had never taken any money for drugs stood in contrast to his statement to police on 6 January 2017 that he had not earned any more than $1,000 from his dealing.
175.His remaining statements continued Mr Boccalatte’s narrative regarding his only dealing three or four times, and only with the homeless man, until his most recent statement of 31 January 2022. Whilst Mr Boccalatte continued to assert that he had only dealt with the homeless man, whom he identified the first time, and whilst he continued to insist that he “hardly made anything” out of his dealing – both assertions being contrary to what he initially told the police – he did make two curious allegations.
176.Firstly, he said he had obtained the seeds for his cannabis plant “from overseas”. That assertion raises the question as to how he had the knowledge in order to do so, and what steps he had to take to successfully import the seeds, which is hardly consistent with the actions of a person who was merely seeking to help his nephew. Secondly, Mr Boccalatte said he had used up his cannabis plant by September 2016 at the time of the Burwood Festival, and did not thereafter involve himself in the illicit drug trade. He was, however, still under investigation in December 2016.
177.I had the opportunity to observe Mr Boccalatte during cross-examination. Whilst he did give the appearance of wishing to assist the Commission, his answers and demeanour from time to time were evasive and he had to be reminded from time to time just to answer the question and not volunteer information. He prevaricated often in his answers and was argumentative from time to time with counsel.
178.In considering his answers I kept in mind the fact that he was suffering from alcohol dependency, and had been drinking 10 standard drinks of alcohol if not on every day, then at least five days per week, as the histories taken by Dr Ahmed and Dr Lee confirmed. Even so, I was not persuaded that his denial that he had been supplying cannabis to people in Burwood Park, or in the Burwood area, as he told police had any substance. Although he initially maintained that he had only dealt cannabis through the homeless person whom we knew by now was called “Barnsy” that he also supplied cannabis to “Barnsy’s” chess playing companion. I was also not convinced by Mr Boccalatte’s prevarication in answering questions as to whether he had been present when other drug deals with “Barnsy” had taken place.
179.Mr Boccalatte admitted in his statement of 24 October 2021 that he had been investigated in December 2016 by police regarding allegations that he had been selling illicit drugs in Burwood Park, which confirmed the unsubstantiated report by Dr Lee. Whether or not he had ceased his activities by that time, he was certainly still a suspect in the weeks prior to the attack. It follows that if the police had been made aware that Mr Boccalatte should be investigated, then other interested parties such as rival drug dealers might also have suspected him of continuing his dealing, whether he was or not, hence the attempt on his life on New Years’ Day.
180.Finally, it is significant that when Mr Boccalatte was first approached by the police he did not suggest that he had been the victim of a random attack. He said that he thought he recognised his assailant and that one reason for the attack might have been that he was trespassing on another dealer’s turf. Whilst Mr Barter submitted that it was preferable to believe that an attack of such severity and ferocity was targeted it was equally possible, as
I understood him, that an attack of such a nature was random. Whilst as a generality, it must be acknowledged that random attacks must occur from time to time, it was not something that was ever raised by Mr Boccalatte until well after the event, in his statement of 31 January 2022.

Conduct not arising out of or in the course of employment

For these reasons, I am satisfied that Mr Boccalatte was not in the course of his employment when he was assaulted. His case is analogous to the example given in one of the many authorities referred to by Nielsen J in Stojkovic, at [55]. His Honour cited dicta from Nunan v Cockatoo Docks & Engineering Co Ltd:[38]
[38] (1941) 41 SR (NSW) 119 per Jordan CJ at 124.
““….If, for example, a private enemy of a worker assaults and injures him when he happens to be at work on his employer's premises, the assault arising out of something unconnected with the employment and there being no other relevant factors, it is clear that the injury does not arise out of the employment….”

Section 14(2) of the 1987 Act

In Rhodes v Premier Motor Services Pty Ltd[39] Commission Member Deborah Moore from [49] referred to the application of s 14 of the 1987 Act. In citing Scharrer v The Redrock Co Pty Ltd[40] she noted that a worker had first to establish that injury as defined in s 4 has been proven before considering the provisions of s 14. In Scharrer Basten JA in considering whether the “injury” described in s 14(2) was independent of the s 4 definition (which required that it arise out of or in the course of employment) stated the following at [160]:
[39] [2021] NSW PIC 504.
[40] [2010] NSWCA 365.
“…However, that appears to give s 14(2) a form similar to s 14(1) as an independent source of entitlement. Historically the provisions served different functions; s 14(2) started life as a limitation on the primary entitlement in the case of relevant misconduct. When a qualifying exception was made to it, in the case of death or serious and permanent disablement, the appropriate reading required that the primary entitlement to compensation was restored, by disregarding the disqualifying misconduct: it did not create a new form of entitlement. Thus the injury must, at that time, otherwise have arisen out of and in the course of the employment.”

183.It follows that s 14(2) does not assist the applicant in view of my finding that his injury did not arise out of and/or in the course of his employment with the respondent.
184.In case I am wrong in that finding, I make the following observations regarding the injury itself.

Injury

Whilst it is clear that Mr Boccalatte suffered serious injuries when he was stabbed, they are not the subject of this application. The relevant injury for the purposes of s 4 is a psychological/psychiatric disorder.
Dr Ahmed assessed Mr Boccalatte on two occasions, 27 June 2019 and 10 September 2020. On 27 June 2019 he described Mr Boccalatte’s experiencing nightmares and flashbacks and related that he became overwhelmed after working light duties for two months. Leaving aside the inaccuracy of that history (Mr Boccalatte was permitted to resign rather than be fired), Dr Ahmed described occasional panic attacks and noted that over the past 12 months Mr Boccalatte had been drinking heavily – over a bottle of vodka a day – when he had only been a social drinker prior to when he was stabbed. Mr Boccalatte was anxious when describing the stabbing to Dr Ahmed and his affect was restricted to the anxious and depressed range.

187.At that time Dr Ahmed diagnosed a Post-Traumatic Stress Disorder and an Alcohol Dependence. Dr Ahmed was satisfied that the “key contributor” was the stabbing event.
188.On 10 September 2020 Dr Ahmed noted that Mr Boccalatte was drinking more heavily and that he had not acted on Dr Ahmed’s recommendation of more aggressive treatment. Significantly, Dr Ahmed thought that the nightmares Mr Boccalatte experienced were not about the stabbing, but rather that he ruminated about how he left work “and the nature of it”. Dr Ahmed’s meaning was unclear but it infers that Mr Boccalatte’s condition may have been as a result of his losing his job with the respondent, which he had held for 30 years or so.
189.In the opinion section of his report, Dr Ahmed stated that Mr Boccalatte did not describe “clear nightmares or flashbacks”, which Dr Ahmed ascribed to the fact that Mr Boccalatte was usually intoxicated when he went to sleep. Dr Ahmed noted that there had been little improvement and that “the incident in the past is the key contributor”.
190.Dr Ahmed’s reports left me in some doubt as to his meaning. Whilst he used the same expression (“key contributor”), in his first report his opinion was unequivocal that it was the stabbing event, but in his second report he simply referred to “the incident in the past”. In view of Dr Ahmed’s earlier observation that Mr Boccalatte did not experience nightmares or ruminate about the stabbing but rather about the nature of how he left work, an interpretation of his expression “the incident in the past” was capable of meaning that the cause of his psychiatric condition was the loss of his job. On reflection, I am satisfied that Dr Ahmed was referring to the stabbing incident. An expert witness would be expected to give an explanation as to why the cause of the condition had changed if that had been Dr Ahmed’s intent.
191.On the other hand, Dr Lee’s opinion was that he was unable to come to a diagnosis because of “implausible history” and the inconsistency in the self-report testing. Dr Lee took a history that Mr Boccalatte was drinking about 10 standard drinks of either beer or vodka on five out of seven days, and that although he was offered a job in the cemetery at Kemps Creek, panicked before he could take it “possibly because it was a[n] outdoor park situation”.
192.Dr Lee noted on mental state examination that Mr Boccalatte told him he was unwell because travelling to the appointment made him “anxious”. He noted that Mr Boccalatte did not become distressed or agitated when discussing the incident (by which I assume Dr Lee means the stabbing), which Dr Lee thought was inconsistent with a Post-traumatic Stress Disorder.
193.Dr Lee noted that on the self-report symptom inventory, Mr Boccalatte’s responses claimed 13 atypical desire and/or rare symptoms. This made it difficult for Dr Lee to confirm a psychiatric diagnosis.
194.Dr Lee referred to Dr Ahmed’s report of 27 June 2019 and the diagnoses then made. He noted that Dr Ahmed reported nightmares and flashbacks, and in the subsequent report of 10 September 2020 that Mr Boccalatte said he had not made any progress.
195.Dr Lee’s opinion appeared to be based on a repudiation of Mr Boccalatte’s reliability. I have reservations about that opinion, as it is not unusual for claimants to present to the medical experts with exaggerated, or that matter histrionic, presentations which sometimes mask a real problem. Beyond noting the amount of consumption, Dr Lee did not consider the alcohol dependence, also reported by Dr Ahmed. Dr Lee did not make any comment as to when that dependence developed, nor did he consider it as a marker of psychiatric injury. Dr Lee spent a disproportionate amount of time discussing the factual evidence and it is difficult to escape the conclusion that his opinion was based on a conclusion that Mr Boccalatte was simply not to be believed.
196.In cases involving this branch of medical science – particularly when a claimant has suffered a life threatening assault - a diagnosis made on that basis is unconvincing. On any objective assessment Mr Boccalatte’s mental condition shows that he has undergone a significant alteration in his personality. Whilst the loss of a job which he had enjoyed for over 30 years must certainly be considered a cause, and whilst his involvement in cannabis dealing is a black mark against his character, it is difficult to accept that none of his change of personality has been caused by the stabbing itself, and was not associated with a psychiatric condition.
197.I am satisfied that Mr Boccalatte’s injury has caused serious and permanent disablement.
198.There is an award in favour of the respondent.

[2022] NSWPIC 120

22 March 2022