Borota v Transit Systems NSW Pty Ltd t/as Transit Systems

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Borota v Transit Systems NSW Pty Ltd t/as Transit Systems [2025] NSWPIC 139
APPLICANT:	Djordje Borota
RESPONDENT:	Transit Systems NSW Pty Ltd t/as Transit Systems
MEMBER:	Parnel McAdam
DATE OF DECISION:	10 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; whether applicant took himself out of the course of employment; serious and wilful misconduct; Tarry v Warringah Shire Council discussed; Karim v Poche Engineering Services Pty Ltd considered; Held – applicant suffered injury in the course of employment; did not take himself out of the course of employment; respondent’s defence of serious and wilful misconduct failed; award for weekly compensation and medical expenses made.
DETERMINATIONS MADE:	The Personal Injury Commission determines: 1. The applicant suffered an injury in the course of his employment on 30 November 2023. 2. The applicant did not take himself out of the course of employment. 3. The injury was not solely caused by serious and wilful misconduct. 4. The respondent is to pay the applicant weekly compensation benefits pursuant to s 36 of the Workers Compensation Act 1987: (a) for the period 17 January 2024 to 29 February 2024, at the rate of $1833.50 per week. 5. The respondent is to pay the applicant weekly compensation benefits pursuant to s 37 Workers Compensation Act 1987 (rounded pursuant to s 82D): (a) for the period 11 March 2024 to 1 April 2024 at the rate of $1,544; (b) for the period 1 April 2024 to 30 September 2024 at the rate of $1,568 (indexed PIAWE figure of $1,960); (c) for the period 1 October 2024 to 30 March 2025 at the rate of $1,600 (indexed PIAWE figure of $2,000), and (d) from 1 April 2025 to date and continuing at the rate of $1,608 (indexed PIAWE figure of $2,010). 6. Liberty to apply in respect of the above calculations. 7. The respondent is to pay the applicant’s reasonably necessary medical expenses pursuant to s 60 of the Workers Compensation Act 1987, on production of accounts, receipts or Medicare notice of charge. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Mr Borota was employed by Transit Systems NSW Pty Ltd t/as Transit Systems (the respondent) as a bus driver. Transit Systems operate bus services in NSW, including the “night ride” buses. Mr Borota was a driver on that service.
On 30 November 2023, Mr Borota was driving the night ride service. At approximately 3:00am, a passenger came to the front of the bus and began tapping on the window that separates passengers from the driver. The passenger became more irate, shouting at him in another language, and began to film Mr Borota. At one point he snatched the phone from her hands and shortly returned it to her. This all occurred whilst the bus was in motion.
The Police were called and attended. Mr Borota attended his General Practitioner, Dr Patu, on the same day of the incident (noting that it occurred in the early hours of the morning) displaying signs of moderate to severe mental stress. He ceased work on that day and has not returned to work since.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act), and
(b) serious and wilful misconduct pursuant to s 14 of the 1987 Act.

Matters not previously notified

At the hearing of this matter on 7 February 2025, the respondent sought leave to dispute previously unnotified matters being substantial contributing factor pursuant to s 9A of the 1987 Act and the defence of reasonable action under s 11A of the 1987 Act. Leave to raise those matters was declined by oral decision at the hearing, following submissions of the parties. It is noted that in respect of the s 11A defence, no medical evidence was provided in support of the dispute notice issued after the Application to Resolve a Dispute was lodged.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
At the hearing of this matter, Mr Borota was represented by Mr McManamey of counsel instructed by Turner Freeman Lawyers. The respondent was represented by Mr Robison of counsel instructed by HWL Ebsworth Lawyers.
Due to preliminary issues being raised, including the respondent’s application to raise previously unnotified disputes and introduce additional evidence into the proceedings, the matter was unable to be resolved at that time. Accordingly, I issued a direction calling for written submissions. The application provided written submissions on 17 February 2025, the respondent on 7 March 2025, and the applicant in response to that on 21 March 2025.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    The Reply;
(c)    The Application to Lodge Additional Documents, lodged by the respondent on 3 February 2025, excluding the reports of Dr Kumar dated 17 December 2024 and 28 January 2025, and
(d)    The CCTV footage of the incident that allegedly caused the applicant’s psychological injury.
I will briefly discuss the relevant evidence here, and refer to it in more detail in providing findings and reasons below.

The applicant’s statement

Mr Borota provides a statement dated 29 October 2024.
He describes driving a bus on the date of injury, “when a female passenger became quite irate and angry towards me”. He says he was frightened in the moment, and “could see that this female passenger had some large knives in her bag”. The passenger began screaming, and attempted to film Mr Borota. He was trying to drive the bus but was unable to do so due to the way she was behaving. He describes the passenger as “trying to assault me with her phone” and that he was “terrified”. He retrieved the phone from her but returned it shortly after. Mr Borota then goes on to describe his injuries, treatment, medications and disabilities.

Reports of Dr Nagesh

Dr Nagesh provides a report on behalf of the applicant dated 25 June 2024. Dr Nagesh takes a history of the incident as follows:
“Mr Borota alleged, on 30 November 2023, while he was driving his bus, he was verbally abused by a female passenger who started playing pranks on him, started tapping him with her phone, she tried to assault him with her phone, she became verbally abusive towards him, swore at him, he had to stop the bus, he had to call the police. He was working at night.”
Dr Nagesh provides the following diagnosis and opinion:
“Mr Borota, while employed by Transit Systems Sydney as a bus driver, was verbally abused, assaulted with a phone, threatened, intimidated and swore at. In spite of making a complaint, there was a lack of support from the management. In the context of this alleged incident, he has developed the following symptoms, which include depressed mood, anxious, fearful of returning back to driving again, insomnia, loss of appetite, lack of energy and motivation, anhedonia, diminished ability to concentrate, feelings of worthlessness. Based on his alleged symptoms, I am of the opinion he meets the criteria for major depression of moderate degree with anxious distress”.
Dr Nagesh opined that on the balance of probabilities, the psychological injury was caused by the subject incident where Mr Borota was verbally abused by a female passenger.
Dr Nagesh provides a supplementary report dated 8 October 2024, with reference to reports of Dr Lim, Mr Matek, and certificates of capacity. In that report he agrees with the diagnosis of post-traumatic stress disorder.

Reports of Dr Patu

Dr Patu is a general practitioner who saw Mr Borota first on 30 November 2023. He writes a letter of same date to the respondent, with the following:
“Herewith is Mr Djordje Borota who was seen today at our clinic with moderate to severe mental stress from an emotional injury at work at 3 am this morning at night rider-where he was verbally abused by a female passenger in an aggressive manner -He is taking some days off and a follow up review-next Monday.”
On 11 December 2023 he provides a further report, that appears to be a response to a questionnaire sent by the respondent. He provides a diagnosis of adjustment disorder at that time. The cause of the injury is “verbal abuse by a female passenger of Mr Djordje Borota – while he was at work as a bus driver at the time and date of emotional injury”.

Reports of Dr Lim

Mr Borota first attended on Dr Lim on 20 August 2024. Dr Lim provides an initial report on 27 August 2024. He takes a history of injury of “When he was verbally abused by a passenger who was carrying knives, his psychological condition was aggravated”. He goes on to record:
“He was verbally abused by a female passenger and she tried to assault him with her phone. He could see she had some large knives in her bag. She put her phone in front of his face while he was driving. He was highly fearful of this causing an accident in a bus full of passengers. He reported the incident to his managers. He has not returned to work since 30/11/2023.”
Dr Lim opines that Mr Borota suffered a psychological injury from the workplace, “with many incidents requiring police assistance. When he was verbally abused by the passenger, his PTSD was re-aggravated”.
Dr Lim provides a further report dated 24 September 2024 with the same history of injury. He diagnoses “PTSD”. In respect of causation he states:
“He sustained a psychological aggravation after being verbally abused by a passenger who was carrying knives. This was on the background of repeated traumatic incidents driving the nightride bus, which was the main cause for the deterioration of his psychological condition”.

Report of Robbie Matek

Mr Borota was referred to Mr Matek, a psychologist, for psychological therapy. He provides a history in the following terms:
“At the time of his injury, Mr. Borota was employed by Transit as a Bus Driver on a full-time basis. Mr. Borota reported that his job role involved transportation of customers to and from destinations. He was verbally abused by a female passenger and she tried to assault him with her phone. He could see she had some large knives in her bag. She put her phone in front of his face while he was driving. He was highly fearful of this, causing an accident in a bus full of passengers. He reported the incident to his managers. Mr. Borota's last day of work was 30/7/2023 and Mr. Borota has not returned to work duties since.”

The section 78 notices

The respondent first issued a s 78 notice on 17 January 2024. In that notice, the respondent put in issue injury pursuant to s 4 of the 1987 Act, as well as serious and wilful misconduct pursuant to s 14(2) of the 1987 Act. This notice contains no explanation of how s 4 is relied upon.
In respect of the s 14(2) defence, the notice states:
“I note Transit Systems have completed their investigation into the incident, which has helped to inform the decision to dispute the claim.”
This investigation, which will be discussed below, seems to be the catalyst for the declinature of liability. It is not clear what the “investigation” constituted. The information relied upon includes an “Incident Investigation Report completed by Transit Systems NSW”.
The second s 78 notice is dated 22 August 2024. This appears to be similar, or identical, to the earlier s 78 notice. It states that “Your claim has been reviewed and Liability for your Psychological injury is disputed”. It is not clear what triggered the “review”. There does not appear to be a request for review made by Mr Borota – none is referred to in the in the document, and there are no review requests before me.
A further s 78/s 287A notice issued on 26 November 2024. That notice first put in dispute s 11A, which I previously determined could not be raised as an unnotified dispute. It also, for the first time, puts some clarity around the issues raised with some explanation as to why those dispute provisions have been relied upon.
The 26 November 2024 dispute notice also referred to a s 287A notice of 28 August 2024, apparently triggered by a review request on 8 August 2024 (I note incidentally this may in fact be the 22 August 2024 notice discussed above, and there perhaps was a review request made by Mr Borota). There is also reference to an 11 September 2024 s 287A notice, which apparently includes “a summary of your medical evidence”. That notice is not before me.
The initial “bare bones” notices, as well as the confusing dates referred to in the 26 November 2024 and absence of notices has made understanding the issues in dispute in this matter more complicated than it would otherwise have been.

The incident report

Attached to the application is a document, which appears to be a printout of an electronic form, described as an “incident report”. The document is headed “HSE Controlled Incident Investigation (HS-INCC-0323 Investigation In Progress)”. This document appears to have been prepared on the date of the incident that occurred with Mr Borota. It refers to the incident occurring at 3:17am on 30 November 2023.
Under “what happened” it is described as “Irate female pax”. The detailed description provides:
“Female of Asian descent, non English speaking missed her stop or not going in the same direction of the bus. The female suddenly became irate and started banging on the cabin glass and being loudly abusive and upset at the driver. Irate female will not disembark the bus. VKG contacted and Police attending location.”
The potential consequent details includes “potential for physical assault”. A further description of the incident is provided under the heading “Investigation”. This so-called investigation stated at 8:00am. The description provides:
“A female passenger pressed the stop button to disembark the bus and approached the driver. The Driver told the passenger it was not a designated stop, before the passenger started filming the driver and requesting again to stop. The driver heavily applied the brakes and told the passenger to sit down,
The passenger begins filming the driver, and the bus driver grabs the mobile phone with his left hand and holds the phone for just short of a minute while driving. The passenger is observed screaming and crying before sitting on the floor; at this moment, the driver throws the phone back towards the passenger.
Another passenger provides assistance to the lady in an attempt to calm her it is observed the passenger has very limited English.”
The “root causes” concludes the following:
“The Driver wilfully snatched the passenger’s phone whilst driving. In doing so, he breach NSW road rules and placed himself and other passengers at risk.
The driver’s actions were serious and wilful in Breach of Transit Systems Code of Conduct”.
I presume this “investigation” (which I would note does not appear to have considered any evidence from Mr Borota) was conducted through viewing of the CCTV footage, which has been made available to me.

SUBMISSIONS

As indicated above, this matter proceeded on the basis of written submissions. The applicant went first, providing submissions addressing s 4 of the 1987 Act, noting that the applicant has the onus to prove injury. The respondent then addressed s 14 and provided submissions in reply. The applicant then provided submissions in response.

The applicant’s submissions

The applicant referred to the evidence, in particular his statement and how he felt frightened. The applicant attended Dr Patu, and made a diagnosis of adjustment disorder. The applicant was then referred to a psychologist, who provided two diagnoses being major depressive disorder with anxiety and post-traumatic stress disorder. The applicant refers to the reports of Dr Nagesh, as well as the CCTV footage which corroborates the applicant’s evidence.
The applicant submits that his injury is a personal injury as it arose out of a single event. It is immaterial that the incident could also be categorised as the contraction of a disease (with reference to Rail Services Australia v Demovski and Anor [2004] NSWCA 267. The applicant submits that there can be little dispute that the injury occurred in the course of employment. It is the opinion of all the medical practitioners that the incident on 30 November 2023 was the cause of the applicant’s psychological injury. The evidence does not disclose any other cause for the injury.

The respondent’s submissions

The respondent submits that in this matter, the applicant took himself out of the course of employment he was undertaking. The respondent rejects the applicant’s submission that there is a uniformity of opinion that the injury occurred in the course of employment, because no medical practitioner is qualified to give an opinion on that issue, and the Commission is not bound by medical consensus if the consensus is misplaced. The respondent submits that for the injury to have arisen out of employment, there must be unbroken causal connection with that employment. What the worker did when he was injured was not something reasonably required by him, nor authorised by his employment, but rather “his own criminal conduct”.
The respondent submits that the applicant admits, at least partially, fault on his part, when admitting that he grabbed the phone belonging to a passenger. The grabbing of the phone amounts at least to a common assault, and it also constituted a larceny and a breach of the Road Rules 2014, including banning the use of a mobile phone whilst driving, and negligent, furious or reckless driving.
The respondent submits that the only reason that the applicant was not charged criminally “despite his guilt” was because the Police deferred to the wishes of the victim (being the passenger in the incident). The Commission should agree with the Police that the only criminal conduct that occurred was by the applicant.
The respondent goes on to submit that the injury pleaded in submissions is a frank injury, but the injury in the Application is pleaded as an aggravation injury due to repeated similar incidents that have occurred whilst he was driving the night ride bus. It falls to the applicant to demonstrate that “repeated similar incidents” occurred.
Further, or in the alternative, the respondent submits that the applicant’s conduct was serious and wilful, and it is solely that conduct to which causation can be attributed. The respondent refers to their earlier submissions, submitting that the applicant’s conduct was not only serious and wilful, but indeed criminal. In a case which is not multifactorial, there need not be direct medical evidence on causation, and whilst the respondent carries the onus, it is capable of discharging that onus on the medical case before the Commission because there is no dispute about what caused the injury factually.

The applicant in response

In response, the applicant submits that the applicant continued to perform his duties by driving the bus throughout the incident. The injury arose out of employment as the incident related to the driving of the bus.
In respect of s 14, the applicant submits that the respondent has not addressed two of the elements of that section. The first is that the respondent must show that the serious and wilful misconduct was the sole cause of the injury. The respondent puts it no higher than the conduct was at least partially his own fault. It cannot be said that the taking of the phone was the sole cause of the injury. The second is that to establish serious and wilful misconduct, it is necessary to establish that the applicant engaged in the conduct although he was aware it was serious and it caused a risk of injury and that he proceeded without regard to that risk. For the conduct to be serious, it needs to be more than negligence, even beyond culpable or gross negligence.

In this case the applicant was being accosted by a passenger. There is no evidence to suggest that when the applicant relieved the passenger of her phone he did it knowing that it caused a risk of injury or that it might technically amount to an offence. There is no evidence that the applicant was aware that his accounts could amount to any of the claimed offenses or that the action carried a risk of injury. In any event the applicant has a series condition, has no current work capacity, and it is likely to be permanent.

FINDINGS AND REASONS

There are two disputes raised by the respondent in this case. The first concerns injury pursuant to s 4 of the 1987 Act. The second concerns serious and wilful misconduct under s 14 of the 1987 Act.

Injury

To the extent that three is a dispute about injury, it is not the usual type of such dispute. Rather, the respondent’s case is that the actions undertaken by Mr Borota took him outside of the course of employment such that he was no longer in the course of employment when he was injured.
I would first note that the applicant’s submissions in response suggested that this issue was not raised in the respondent’s s 78 notice, on the basis that the notice merely relies on the provisions of s 14. That is not precisely correct. The s 78 notices dated 17 January 2024 and 22 August 2024 both refer to s 4 of the 1987 Act. Section 4 is raised in a general way in both. It may have been more properly particularised in s 287A the notice of 11 September 2024, which purportedly exists, but does not appear before me.
I have commented on the adequacy of the s 78 notices above. Section 79(2) of Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) requires that a notice contain “a concise and readily understandable statement of the reason for the insurer’s decision and of the issues relevant to the decision”. The first two notices that I have before me, issued prior to the commencement of these proceedings, do not contain reasons that refer to the injury provisions. The reasons provided in respect of the s 14 dispute arguably extends only to the following words: “I note Transit Systems have completed their investigation into the incident, which has helped to inform the decision to dispute the claim.”
The s 78 notice attached to the Reply contains further detail. That notice provides “observations” about the medical evidence, suggesting that there were:
(a)    new allegations concerning experiences whilst driving the night ride bus (prior to the specific incident on 30 November 2023);
(b)    an issue regarding diagnosis (post-traumatic stress disorder vs major depressive disorder), and
(c)    it was not previously claimed that the injury was caused by multiple events in the course of duties, nor have any alleged incidents which occurred over time been identified.
The notice then goes on to deal with s 14, suggesting that by snatching the passenger’s phone whilst driving, the applicant engaged in serious and wilful misconduct.
Considering the above, it appears one respect the respondent’s s 78 notice(s) have not raised the issue in dispute now contended for before the Commission. Whilst the applicant is not strictly correct to assert that the s 78 notice does not raise a dispute as to whether the applicant was in the course of employment, noting that all of the notices rely on s 4, the nature of the dispute under s 4 does not appear to have been raised in the way now articulated. It may that the respondent required leave to raise this issue. Given the way the matter proceeded at the hearing of the Commission, necessitated by the respondent’s conduct in attempting to raise additional disputes after these proceedings were commenced, the parties were unable to properly canvas the nature of the dispute.
Regardless, the applicant has provided submissions addressing the issue and I will determine it.
The applicant’s initial submissions addressed the issue in the obvious way. There is clear and consistent evidence that the applicant was in the course of his employment when he was injured. He was driving a bus at the time. The consistent medical opinion is that the incident at work on 30 November 2023 was the cause of the applicant’s psychological injury. There is some general issue around the way this case is pleaded in the Application, compared with how the injury was previously notified and dealt with by the insurer. The applicant’s injury description is as follows:
“The Applicant suffered a psychological injury during the course of his employment with the Employer whilst employed in the capacity of Bus Driver which he maintained for 6 years. On 30 November 2023, the Applicant was verbally assaulted by a female passenger whilst he was operating the bus. The passenger began to fil the bus driver after he had refused to stop the bus at a stop which was not a designated stop. The Passenger became irate and proceed to engage in screaming and crying behaviours and became aggressive toward the Applicant.
The Applicant has been diagnosed with PTSD as a result of the subject incident. The Applicant has been incapacitated from work since 30 November 2023.
In the alternative, the injury is pleaded as an aggravation injury whereby the Applicant states he suffers an aggravation of his psychological condition due to repeated similar incidents which have occurred whilst he was driving the night ride bus.”
The alternative injury, involving “repeated similar incidents”, is pleaded as an aggravation, acceleration, exacerbation or deterioration of a disease. The injury, based on the medical evidence available, consisted of a frank injury suffered on 30 November 2023. The applicant refers to Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (Dimovski). The issue in this case was dealt with in Dimovski at [68]:
“Section 16 applies only if the injury “consists in” the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury “consists in” the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s.16(1)(a) to have happened at some time other than when it in fact happened.”
Here, there is an injury that satisfies paragraph (a) of the definition of injury. Mr Borota’s claim, supported by factual and medical evidence, is that the incident that occurred on 30 November 2023 caused his psychological injury. His alternative case (which does not need to be proved, so long as the primary case for injury is proved) refers to “similar incidents” that occurred. I do not need to be satisfied that those similar incidents occurred if I am to accept Mr Borota’s primary case on injury.
As suggested above, the case on injury really concerns the respondent’s submission that Mr Borota took himself out of the course of employment. The specific incident taking him out of the course of employment is, based on the respondent’s submissions, is the act of grabbing the phone belonging to the passenger.
The respondent makes a number of submissions in respect of this, some of which must be rejected outright. The first of those are the suggestions that Mr Borota has committed a crime at any point. The Commission has no jurisdiction to determine whether any individual has breached any of the offences alleged in the respondent’s submissions (common assault, larceny, or offences relating to driving). Factually, these submissions are based on the Police report, produced under direction for production, and in particular the following:
“The only offence police could detect was the VIC taking the phone out of the POI's hands. Police contacted the POI's son who stated his mother was extremely upset with the way she was treated on the day however did not want any police action taken only an apology from the bus driver.”
There is no specific criminal conduct identified that conforms with the submissions given by the respondent. The police identify that the only offence was “the VIC [Mr Borota] taking the phone out of the POI’s hands”. Taking a phone out of someone’s hands is not an offence. The submissions of the respondent are purely speculative. The respondent goes on to submit that “the only reason” why Mr Borota was not charged was because the Police deferred to the wishes of the passenger. Again that submission is purely speculative. A decision to prosecute or fine and individual is not made by an alleged victim.
I am unable to accept, as the respondent submits, that “the only criminal conduct which occurred was by the applicant” (emphasis in submissions). There has been no “criminal conduct” as no charges have ever been laid, let alone findings of guilt (in spite of the suggestion of the respondent that charges weren’t laid “despite his guilt”). Such accusations border on inappropriate to make in submissions.
Having set out all of the above, the issue I must actually determine is whether the applicant’s conduct (regardless of how it is characterised according to other law) took him out of the course of employment. The respondent refers to a number of authorities on the point, including Tarry v Warringah Shire Council [1974] 48 WCR 1 (Tarry), Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 and Humphrey Earl Ltd v Speechley [1951] HCA 75 (Speechley).
The test referred to in Speechley is specifically quoted in the respondent’s submissions, provided as thus:
“…that the question whether a worker has been injured in the course of employment is aided by asking whether, when injured, was the worker ‘doing something which he was reasonably required or authorised to do in order to carry out his duties.”
This follows from Henderson v Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281. The test became known as the Henderson-Speechley test, and was rejected in Hatzimanolis v ANI Corporation Ltd [1992] HCA 21. However, those cases concerned intervals within work which may be considered in the course of employment. They have little relevance here, which involves an action undertaken by the applicant whilst undoubtedly in the course of employment (which allegedly took him outside of the course of employment).
In Tarry, Giles JA stated (at [7]):
“The present position, in my opinion, in determining whether an injury arose out of the course of employment is that, whether the deceased at the time of the injury was within the scope or course or sphere of his employment is a relevant factor, but is not a decisive factor. In a given situation the injury may arise out of the employment even though at the time it is sustained the deceased or the applicant is no longer in the course of his employment. So much was specifically stated by Fullagar J in his judgment in Kavanagh v The Commonwealth (1960) 103 CLR 547 at 558-559. The proper test for determining whether the injury arose out of the employment has been stated by Jordan CJ in Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 at 125, when he describes the employment as causing or contributing to the injury; by Fullagar J in the passage to which I have referred, when he states the need for a causal connection between the employment and the injury and by Starke J in South Maitland Railways Pty Limited v James (1943) 67 CLR 496 at 502, when he says ‘the words ‘out of’ require that the injury had its origin in employment’”.
In Tarry, a disagreement arose between the deceased worker and work colleagues concerning the allocation of work. The injury and subsequent death of the worker arose out of the course of employment as they were directly and unbrokenly connected with employment.
Tarry has been applied in a number of cases. In Northern NSW Local Health District (Tweed Heads Hospital) v Conaghan [2014] NSWWCCPD 54, the worker became involved in an altercation, was subsequently arrested, charged, and pleaded guilty to that charge. That case is relevant to the respondent’s submissions concerning the alleged criminal conduct of Mr Borota (which I have dealt with above) – even if Mr Borota had been guilty of the offences alleged in the respondent’s submissions, he would still potentially be within the course of his employment.
The events of 30 November 2023, as seen in the CCTV footage and summarised in the medical and factual evidence before me, are clear. Mr Borota is driving the night ride bus, early in the morning. The bus is largely empty at the start. A few passengers enter the bus, including the passenger who approached Mr Borota, allegedly causing his injury (who I have and will continue to refer to as the passenger). The passenger enters the bus at around 2:52am (it is noted that the police report indicates this occurred at about 2:30am). She takes a seat and stays there for a period. Mr Borota continues to drive the bus with no incident for around 20 minutes. At 3:12am, the passenger presses the button to stop the bus (at the next stop).
She then immediately walks to the front of the bus (quite precariously, as the bus is still in motion, travelling around 50km per hour) and points, whilst Mr Borota continues to drive. He glances in her direction, then shakes his head and tells her no, “we don’t stop it there” (or the like) and then tells her “don’t make trouble”. She replies in another language. Further discussion occurs, whilst Mr Borota is still driving, being passed by cars, and travelling at over 50km per hour. The passenger continues to argue with Mr Borota and begins raising her voice. Mr Borota says “I told you last time”.
The passenger stays at the front of the bus. At 3:14am, Mr Borota tells the passenger to “sit down”. The passenger reacts and begins to speak to Mr Borota more loudly, and bangs on the bus window. Mr Borota threatens to call the police. The passenger then reaches into her bag.
I note here that it is not clear that there were knives in the applicant’s bag. Mr Borota reported that to Dr Lim, his treating psychologist, and his statement. I do not think anything turns on the truth of whether the passenger had knives in her possession; clearly Mr Borota thought that she did. A perception of real events can satisfy the test of injury (Attorney General’s Department v K [2010] NSWWCCPD 76; State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249).
The bus then stops suddenly whilst travelling at a relatively low speed (around 30km per hour, according to the CCTV footage). The passenger is thrown forward. Mr Borota then yells at her to “sit down” (most likely for her own safety and the safety of others on the bus and on the roads around the bus). The passenger remains standing, walks around in front of the window that separates the driver from the passenger area of the bus, and points her camera towards Mr Borota (presumably to film him).
It is at this point, at 3:15am, that Mr Borota snatches the phone off the passenger. At the time the bus was not moving. He again says he is going to call the police. Mr Borota commences driving again, and the passenger becomes extremely agitated, screaming at him and other passengers on the bus and shaking the window. The bus is travelling at around 50km per hour at this point. The passenger begins wailing and continues shaking the window.
At 3:16am, after stopping the bus, Mr Borota drops the phone towards the passenger, saying “here”. She continues to wail whilst sitting on the floor. Other passengers depart the bus. The passenger remains on the floor wailing whilst other passengers attempt to alight. Mr Borota tells her to “get off the bus”. The passenger then calls someone (presumably her son), screaming into the phone. A fellow passenger walks towards the front and begins trying to speak to, or calm, the passenger. She remains on the floor of the bus, hysterically sobbing, whilst the other passenger speaks on the phone to whomever she called. At 3:18am, Mr Borota uses his radio and asks them to call the police.
At 3:20am, Mr Borota tells another passenger “I call police. I can’t deal with this”. He discusses what happened briefly with other passengers. The passenger continues to remonstrate Mr Borota in another language, blocking the doorway and hysterically talking. The passenger gets off the floor and pushes against the glass again whilst yelling at Mr Borota in another language. Other passengers attempt to get the passenger to move out of the way. The passenger briefly leaves the bus, only to return to again yell at Mr Borota. Another passenger encourages her to “leave the driver alone”.
At 3:33am, all the remaining passengers depart the bus. Mr Borota remains. It appears that around 3:40am the Police attended the scene, although it is not totally clear as this conversation took place outside of the bus. Mr Borota spoke to them for a period whilst standing just outside the bus door. He resumes driving the (now empty) bus at 3:58am.
I have watched the CCTV footage on a number of occasions to understand the incident that led to Mr Borota’s psychological injury. I found observing the footage confronting. The passenger was extremely distressed. She is, at times, hysterically wailing. She bangs on the glass on a number of occasions, both while Mr Borota is driving and the period following when the bus stopped and Mr Borota called the police.
It is correct that Mr Borota grabbed the phone out of the passenger’s hands. This occurred after the passenger banged on the driver window. It occurred whilst the bus was stopped. Mr Borota had the phone in his possession for approximately one minute. The action of removing the phone appears to have escalated the situation, causing the passenger to become more distressed and act more erratically.
The “investigation” undertaken on the day of the incident concluded that Mr Borota had “breached NSW road rules and placed himself and other passengers at risk resulting in the passenger”. Earlier, it notes “potential for physical assault” as a consequence. I find this investigation outcome curious. It acknowledges the situation Mr Borota was faced with, including a potential for physical assault, but then places the blame on Mr Borota. I note that Mr Borota was not driving (in the sense that the bus was moving) when he took the phone from the passenger nor when he returned it. On both occasions, the bus had stopped. He did not use the phone, making the respondent’s reference to the banning of the use of a mobile phone whilst driving spurious.
I do not accept that the singular action of taking the phone from the passenger, for a period of one minute, took Mr Borota out of the course of employment. He simply reacted in a confronting situation whilst attempting to continue to do his job despite the circumstances. In hindsight, it was probably a poor decision, noting that the passenger became more irate and hysterical following. That does not mean that Mr Borota was no longer in the course of employment. It should be acknowledged that Mr Borota was driving a large vehicle, travelling between 30 and 50kms per hour, at night. The passenger’s actions were likely to distract him. He was in a potentially dangerous situation.
It is of course true that Mr Borota was not “required or authorised” to take the phone from the passenger. On the other hand, Mr Borota was not required to be the subject of verbal abuse whilst driving a 10+ tonne metal vehicle. I have already rejected the respondent’s submission that Mr Borota engaged in “criminal conduct”. The conduct he engaged in was, in the circumstances, wholly understandable.
I do not accept that Mr Borota took himself out of the course of employment. The overwhelming medical and factual evidence points to the cause of Mr Borota’s psychological injury being the event that occurred on 30 November 2023. That event commenced at about 3:12am, concluding either when the passenger left, when the police arrived, or when Mr Borota returned to the depot at the end of the footage. Regardless, the singular action of taking the passenger’s phone did not break the causal chain – it was part of the event, an event that arose out of Mr Borota’s employment.

Serious and wilful misconduct

The respondent submits that if I were to be satisfied the applicant suffered an injury pursuant to s 4 of the 1987 Act, the applicant’s conduct amounts to serious and wilful misconduct.
Section 14 of the 1987 Act provides a defense, or disentitling provision, that arises in certain factual circumstances:
“(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.”
The respondent submits that the applicant’s conduct was not only serious and wilful but indeed criminal. I have rejected that argument above. The respondent’s submissions refer to Higgins v Galibal Pty Ltd (1998) 45 NSWLR 45.
The applicant submits that the respondent has not shown that the alleged serious and wilful misconduct was the sole cause of injury. Further, the respondent has not shown that the applicant engaged in the conduct although he was aware that it was serious, that it caused a risk of injury, and he proceeded without regard to that risk, with reference to Sawle v Macadamia Processing Company Pty Ltd (1999) 18 NSWCCR 109. In any event, the applicant’s injury has resulted in serious and permanent disablement.
Deputy President Roche set out a series of general principles concerning serious and wilful misconduct in Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24 (at [12] to [17]):
“First, the employer carries the onus of proof of establishing serious and wilful misconduct (Johnson v Marshall Sons & Co Ltd [1906] AC 409 (Johnson); Higgins v Galibal Pty Ltd t/as Hotel Nikko Darling Harbour (1998) 45 NSWLR 45 (Higgins)).
Second, the phrase “serious and wilful misconduct” comprehends more than negligence, carelessness, or the mere disregard of orders (Johnson; Higgins). Breach of a traffic regulation may or may not be sufficient: a carrier who was injured while alighting from his truck, while it was double-parked on a public street, was found not guilty of serious and wilful misconduct (Thomas v Shelley & Sons Cordial Factory Pty Ltd [1965] WCR 104), but a worker who, having the opportunity to stop, deliberately drove through a red traffic light at high speed was (Levin v Moulhis [1965] WCR 177).
Third, in Johnson, Lord Atkinson observed (at 416–17) that not every violation by a worker of a rule would be regarded as necessarily amounting to serious misconduct. For “serious” to have any force, it must mean:
“at least that where the risk of loss or injury resulting to any person or thing from the doing of any particular act is very remote, or where that loss or injury, even if probable, would be trivial in its nature and character, the doing of that act, however wilful, would not amount to ‘serious misconduct’ within the meaning of this statute, unless indeed the indirect influence of the act done on the discipline of the factory is to make every transgression serious.”
Fourth, the word “wilful” imports that the misconduct was deliberate, not merely a thoughtless act on the spur of the moment (Johnson, per Lord Loreburn at 411), or something done “with the intention of being guilty of misconduct” (Bist v London & South Western Railway Co [1907] AC 209 per Lord James of Hereford). The worker must have had knowledge of the risk of injury and, in light of that knowledge, proceeded without regard to the risk (Sawle; Whittingham).
Fifth, the gravity of the conduct is not to be judged from the consequences of the act. As Lord James of Hereford explained in Johnson at 414:
“A man may be told not to walk on the grass, he does so, he slips up, and breaks his leg. The consequences are serious, but the conduct is not so.”
In summary, the position is succinctly summarised in the following statement by O’Meally CCJ in Sawle, at [24]:
‘Serious and wilful misconduct is conduct beyond negligence, even beyond culpable or gross negligence. In order to establish serious and wilful misconduct, it must be demonstrated that the person performing an act or suffering an omission knows it will cause risk of injury, or acts in disregard of consideration whether it will cause injury. The word ‘wilful’ connotes that the applicant must have acted deliberately. As it seems to me, in order to establish serious and wilful misconduct, a person accused of it must be shown to have knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk.’”
There are a multitude of reasons why I do not accept the respondent’s proposition that the applicant’s injury is caught by s 14(2).
The first is that, as the applicant submits, I am not satisfied that the injury is “solely attributable” to the misconduct alleged. For the reasons I have set out above, the injury was caused by events that started at around 3:16am and ended between 3:40am and 3:58am. Mr Borota, for a period of around one minute, deprived the passenger of her phone. This is the extent of the respondent’s allegation of serious and wilful misconduct. The submissions refer to the applicant admitting that Mr Borota “grabbed the phone belonging to a passenger”, that “the applicant cannot have needed custody of her phone as a protective measure”, and the grabbing of the phone amount to a series of offences or breaches of the road rules.
It is clear that the passenger was acting in an erratic and, at times, threatening way. These actions must also be considered in the context of what Mr Borota was doing when they occurred, and were directed at him – he was driving a bus, in the early hours of the morning, at a reasonable speed.
Secondly, the conduct goes nowhere close to “serious and wilful misconduct” as considered in Karim, which suggests the conduct must be more than negligence, carelessness, or the mere disregard of orders. The grabbing of a phone does not reach anywhere close to that standard.
Thirdly, as pointed out, not every violation of a rule (let alone a law) would be regarded as misconduct. It must be “serious”. The grabbing of a phone, in the circumstances in which it occurred, is not serious – it is an entirely human reaction to an escalating and threatening situation. It may be misconduct from the eyes of the employer, but I do not regard it as serious misconduct.
Fourthly, I would not be satisfied that the misconduct was wilful within the sense of the word. Based on my view of the footage, Mr Borota’s reaction was a snap one at a time when he was under stress. It was akin to a thoughtless act on the spur of the moment, without intention to be guilty of misconduct. I am not satisfied that Mr Borota had any knowledge of the risk of injury at the point of time in which he took the phone off the passenger, and then proceeded without regard to that risk.
As I am not satisfied that the applicant’s injury was solely attributable to serious and wilful misconduct, I do not need to consider whether the injury results in serious and permanent disablement.

Conclusion

I accept that the applicant suffered an injury pursuant to s 4 of the 1987 Act. I do not accept the respondent’s contention that Mr Borota took himself out of the course of employment.
The respondent has failed to satisfy their onus in respect of s 14(2) of the 1987 Act.
Accordingly, there will be an award for the applicant.
The claim before the Commission is one for weekly benefits and medical expenses.
The evidence before me, particularly in the report of Dr Nagesh, shows that Mr Borota has been incapacitated since the injury and remains symptomatic and has no capacity. I have not been taken to any evidence to the contrary. The respondent has not made any submissions about the applicant’s capacity.
The applicant’s pre-injury average weekly earnings were agreed at $1,930. The period claimed is from 17 January 2024 to date and continuing. I will make an award in that regard, including indexation.
The Application also claims medical expenses. I will make a general award for medical expenses pursuant to s 60 of the 1987 Act.

[2025] NSWPIC 139

10 April 2025