Borota v Transit Systems NSW Pty Ltd t/as Transit Systems - [2025] NSWPIC 139

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Borota v Transit Systems NSW Pty Ltd t/as Transit Systems [2025] NSWPIC 139
Case: [2025] NSWPIC 139
Decision Date: 10 April 2025

CaseChat Overview and Summary

In the case of Borota v Transit Systems NSW Pty Ltd t/as Transit Systems, the applicant, Borota, sought compensation for a psychological injury sustained during the course of his employment. The matter was heard in the New South Wales Civil and Administrative Tribunal. The central dispute was whether the applicant's injury occurred within the scope of his employment and if the employer's defence of serious and wilful misconduct was valid.

The court was tasked with determining if the applicant's actions constituted a departure from the course of employment and whether the employer's defence of serious and wilful misconduct was valid. These issues were crucial in establishing the employer's liability for the applicant's psychological injury. The tribunal needed to consider the statutory framework provided by the Workers Compensation Act 1987 and relevant case law, including Tarry v Warringah Shire Council and Karim v Poche Engineering Services Pty Ltd.

The tribunal found that the applicant did not take himself out of the course of employment and that his psychological injury occurred during the course of his employment with Transit Systems. The defence of serious and wilful misconduct was also rejected. The tribunal relied on the principles established in Tarry, where it was held that an employee does not need to take steps to avoid the risk of injury to be covered under the Act. The tribunal further noted that the employer's actions and the work environment contributed to the applicant's psychological injury, aligning with the reasoning in Karim. Consequently, the tribunal awarded the applicant weekly compensation and reimbursement for medical expenses.

Orders