Boccalatte v Burwood Council - [2022] NSWPIC 120

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.…

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.

Keep reading for free

Create a free CaseChat account to read Boccalatte v Burwood Council and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NSWPIC 120
Decision Date: 22 March 2022

CaseChat Overview and Summary

Boccalatte brought an application for compensation against Burwood Council, claiming lump sum compensation following an attack at a park where he had been employed for over thirty years. The dispute hinged on whether Boccalatte's injury arose out of or in the course of his employment, and if he satisfied his onus of proof. Burwood Council argued that the evidence presented by Boccalatte did not establish that his injury arose from his employment, and that his psychiatric injury was not compensable. The court had to determine if Boccalatte had established a prima facie case of injury arising out of or in the course of employment, and whether Burwood Council had successfully rebutted this case. Additionally, the court examined whether Boccalatte could rely on section 14 of the Workers Compensation Act 1987 (1987 Act) and whether his psychiatric injury was established.

The court found that Boccalatte had established a prima facie case, but Burwood Council had successfully rebutted it. The analysis of all the evidence showed that Boccalatte was the subject of a targeted attack involving a knife thrust to the heart that did not penetrate the chest wall and stab wounds over the shoulder, one of which required surgery. The court concluded that the injury did not arise out of or in the course of employment, and that section 14 of the 1987 Act did not apply. The court found that Boccalatte's injury caused serious impairment and disability, but the award was in favour of Burwood Council.

The court's reasoning was based on the totality of the evidence presented, and the conclusion that the attack on Boccalatte was not work-related. The court referred to previous cases such as Nguyen v Cosmopolitan Homes, Lewis v Doyle, Nunan v Cockatoo Docks & Engineering Co Ltd, Rhodes v Premier Motor Services Pty Ltd, and Scharrer v The Redrock Co Pty Ltd to support its decision. The court also considered the applicability of section 14 of the 1987 Act, which was not relevant to Boccalatte's injury. The court's final orders were in favour of Burwood Council, with Boccalatte's claim for compensation dismissed.

Orders