Dasdemir v State Transit Authority of NSW
[2023] NSWPIC 532
•9 October 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Dasdemir v State Transit Authority of NSW [2023] NSWPIC 532 |
| APPLICANT: | Ozan Dasdemir |
| RESPONDENT: | State Transit Authority of NSW |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 9 October 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; worker a bus driver injured during an altercation with a passenger; passenger initiated the incident assaulting the driver on the bus; liability denied on the basis of sections 4 and 14(2), and CCTV footage; Held – the applicant remained in the course of his employment during the whole period during three assaults and further the applicant’s actions did not amount to serious and wilful misconduct within the meaning of section 14(2); JR and DI Dunn Transport Pty Ltd, Sawle v Macadamia Processing Co Pty Ltd and Whittingham v Ascott Air Conditioning Pty Ltd applied; award for the applicant for weekly benefits. |
| DETERMINATIONS MADE: | The Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor for assessment of the whole person impairment arising out of psychiatric injury sustained on 28 November 2020. 2. That the Medical Assessor is to be provided with the following: (a) Application to Resolve a Dispute and attachments, and (b) Reply and attachments. 3. Liberty to apply, if necessary, within 28 days in respect of the quantification of entitlement to weekly compensation. |
STATEMENT OF REASONS
BACKGROUND
Ozan Desdemir (the applicant) claimed compensation for both physical and psychological injuries after being assaulted by a passenger in the course of his work as a bus driver on
28 November 2020. State Transit Authority NSW (the respondent) maintain compensation is not payable as alleged injury arose from the applicant’s ‘serious and wilful misconduct’ and further his actions constituted gross misconduct so as to have taken him outside of the scope of employment, relying principally on s 14 of the Workers Compensation Act 1987 (the 1987 Act).By way of an application to the Personal Injury Commission (Commission), the applicant seeks weekly compensation from 28 November 2020 and lump sum compensation.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter has had a somewhat protracted pathway within the Commission. The respondent maintained its position at preliminary conference resulting in the matter being listed for conciliation/arbitration where the applicant was briefly cross examined. The applicant was represented by Mr Campbell of counsel instructed by Mr Andresakis. The respondent was represented by Mr Hart of counsel instructed by Ms Gewerc. A representative for the insurer did not appear.
Following the arbitration hearing, the parties were ordered to file wages schedules within a timetable. Midway through the timetable there was a request for a further conference. At that conference, I was advised that the applicant had returned to work and further information was to be provided in due course regarding earnings. The respondent indicated it could not file a wages schedule in reply in compliance with the timetable in the absence of a full history of the applicant’s earnings since the date of injury and sought to issue a notice to produce.
At that conference, the parties requested I proceed to determine liability with reference to the question of s 14 of the 1987 Act in the absence of wage particulars. It was agreed that if the applicant was successful, that I was to refer the impairment dispute to a Medical Assessor. The parties also agreed on pre-injury average weekly earnings (PIAWE) at the rate of $1,400 and requested that I grant leave to approach the Commission if consensus could not be reached regarding the level of incapacity and wage loss within 28 days.
ISSUES FOR DETERMINATION
The principal issues arising from the above is the interpretation and application of ss 4 and 14(2) of the 1987 Act to the circumstances of this case.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents filed by the applicant and respondent on
19 July 2023 and 21 August which included 6 CCTV footage videos taken from different angles on the bus and the police prosecution brief relating to charges and ultimate guilty plea of the passenger who assaulted the applicant.
The legislative framework
It is the respondent’s burden to establish the defence with regards to s 14 (2) of the 1987 Act and of course it is the applicant’s burden to establish injury (s 4) and any loss arising therefrom.
Section 4 of the 1987 Act defines injury as a “personal injury arising out of or in the course of employment”.
Section 14 deals with “Conduct of Applicant etc.” and states:
“(1) Compensation is payable in respect of any injury resulting in the death or serious and permanent disablement of a applicant, notwithstanding that the applicant was, at the time when the injury was received—
(a) acting in contravention of any statutory or other regulation applicable to the applicant’s employment, or of any orders given by or on behalf of the employer, or
(b) acting without instructions from the applicant’s employer, if the act was done by the applicant for the purposes of and in connection with the employer’s trade or business.
(2) If it is proved that an injury to a applicant is solely attributable to the serious and wilful misconduct of the applicant, 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 applicant caused by an intentional self-inflicted injury.”
Section 14 requires an applicant firstly to establish that the injury arose “out of or in the course of employment”. The onus then falls upon the employer to establish that the injury “is solely attributable to the serious and wilful misconduct of the applicant”.
THE EVIDENCE DISCUSSED
The applicant’s evidence
The applicant prepared a detailed and lengthy statement. His recount of the events has been consistent throughout the entire course of the claim.
In his claim form dated 12 January 2021, the applicant recounted the particulars of injury as follows (unedited);
“…the last passenger verbally abused me and hit the driver’s cabin accusing me of going to the wrong place. I was startled and left my cabin to show him the destination sign on the bus to explain that he got the wrong bus. He kept swearing at me, spat me and he hit me in the stomach. As a reflex, I tried to prevent him from running away. Shortly after I stopped. At that point he hit me with the skateboard giving big cut on my right forehead. Then I was selfdefening myself and tried to stay away from him. He run back and hit me one more time on my head resulting in broken nose from 3 parts.”[1]
[1] Folio 3 ARD.
The written statement[2] forming the evidence in the ARD was entirely consistent, relevantly (unedited):
“3. On 28 November 2020 in the course of my employment I secured a bus at the bus terminus in Campbell Parade in Bondi at around 18.40. I called out ‘last stop.’ The service was a 362 from Coogee to Bondi Beach.
4. After securing the bus by parking it safely near the bus stop at the kerb, putting the handbrake on and letting the passengers off by opening both doors which activates the brakes automatically, I noticed there was a passenger sitting at the back of the bus. The passenger became upset and angry insisting that the bus was supposed to go to Bondi Junction instead. The passenger walked from the back of the bus towards the front door yelling abuse and then punched the driver's cabin window whilst swearing at me shouting words to the effect, ‘This bus is supposed to go to Bondi Junction you fucking idiot’. I was in shock at that point by his aggression.
5. The passenger was displaying anti-social behaviour but I did not recognise the passenger as a threat at this point. I left the driver's cabin very quickly to firstly ensure, as per my duty, that the signage on the front of the bus was correctly showing. As I was leaving the bus I was pointing to the front sign area (from inside of the bus) and then when outside of the bus near the front door I was pointing to the sign on the front of the bus to show the passenger so he could understand. My intention was then to direct and assist him how to get in the right bus, that is providing customer service as I am required to do so.
6. I was due to start another service, so at the time the bus was secured with the engine on. I stayed within 3 meters around the bus as required. The passenger continued with verbal abuse outside the bus and assaulted me by spitting on me (I spat on the ground like PPST sound), this was whilst I was trying to point out the destination signs on the front and side of the bus.
7. As I was about to get back in the bus the passenger punched me in the stomach. My only thought was to protect myself from further assault by grabbing him to stop, being a natural reflex of protection. The passenger then hit me with his skateboard and I tried to grab him to control his actions as I was hit a second time in the head with the skateboard which then broke my nose. During this alteration we wrestled a bit as I was still trying to protect myself. Witnesses then approached me to assist and told me I had a deep cut on my head.
8. At no time did I think I was in danger in trying to assist the passenger as to his destination. My main aim was to deal with the passenger's complaint and provide customer service as required. My actions were not intentional or deliberate.
9. At all times I was just trying to protect myself.”
[2] Folio 9 ARD.
During cross examination, the applicant’s evidence again was consistent. Counsel for the respondent attempted to elicit evidence that the applicant left his cabin to pursue a confrontation because he was irritated and angry after having been sworn at by the passenger. Even with broken English and the lapse of time, the applicant’s testimony remained consistent with previous statements. Counsel persisted in cross examination, although efforts to do so only reinforced the applicant’s prior statements, that he left his cabin to check the route signs and to show the customer that he had driven the correct route, but also ensure the route was correctly displayed for the next driver.
The respondent’s evidence
The respondent relies largely on the CCTV footage. There are seven in total. The first CCTV footage attached to the reply appeared to be an edited and collated version of multiple CCTV angles. At the preliminary conference, I expressed a view that edited footage was suboptimal as I could not satisfy myself that all necessary events had been captured, and so requested complete CCTV footage from the day in question. This was provided in an application to admit late documents and specifically Camera 2 footage was replayed on multiple occasions at the arbitration.
The footage provided extended for over 30 minutes covering six separate cameras on the bus summarised as follows:
· Camera 1 – unable to be opened – a corrupted file – although not pressed by the respondent;
· Camera 2 – driver seat and front door (replayed on multiple occasions throughout the arbitration hearing with the assault occurring at 4.23 to 5.44 of that film;
· Camera 3 – bus interior – which shows at 4.32 the applicant’s cabin being struck by the passenger;
· Camera 4 – back seat of the bus – revealing that the passenger does not exit through the back door of the bus as did other passengers but rather walks to the drivers cabin and then strikes the perspex enclosed cabin;
· Camera 5 – side door – the assault is evident at 5.03 of this footage, and
· Camera 6 – bus rear view camera – containing no images of the assault only pedestrians inspecting the aftermath.
The respondent relied on the footage to deny liability with reference to s 14 of the 1987 Act. It summarised the footage as follows in its s 78 notice dated 7 December 2020;
· CCTV footage of the incident on 28 November 2020 shows you shouting at a young, male passenger as he passes your seated driver’s position, and taps on the safety plexi-glass surrounding you and separating you from passengers;
· the footage then shows the passenger alighting from the bus, exiting it from the front door;
· the passenger has already left the bus and is walking away when you are seen getting out of your seat, and leaving the bus to pursue him;
· the CCTV footage then shows you engaging in an altercation with the passenger, which included you physically assaulting the passenger and striking him a number of times, and
· in response to being struck by you, the passenger is seen striking you in the face with his skateboard.
There is no formal CCTV summary report prepared by an independent videographer and there are no stills. This required me to independently review each CCTV. I was required to do this on multiple occasions as what I observed was at variance to what was recorded in the section 78 notice and significantly so.
My observation of the CCTV footage which I spent several hours replaying over multiple days and on multiple occasions shows the following;
· the footage shows the passenger yelling abuse at the applicant as he was walking from the back of the bus to the front. He elects not to use the back exit;
· the footage next shows the passenger with a closed fist "punch" the safety plexi-glass;
· the footage shows the safety glass then shaking from the force;
· the footage shows the applicant, whilst still in his seat, pointing to the signs of the bus and verbally directing the passenger to check the signs on the bus to confirm the destination;
· the passenger alighted from the bus exiting from the front door;
· the applicant getting up out of his seat several seconds later to check and ensure the signs at the front and side of the bus are correct;
· the footage does not show the passenger walking away from the bus. When the applicant alights, the passenger is near the front door of the bus. The applicant asked the passenger, "What did you say to me?" The passenger continued verbal abuse which is largely inaudible;
· the footage then shows the applicant's arm, when the applicant is outside the bus (near the front of the bus) pointing to the sign at the front of the bus trying to again to explain to the passenger;
· the passenger then assaults the applicant near the front of the bus by punching him in the stomach;
· the next part of the footage shows the applicant trying to protect himself and attempting to stop the passenger running away. He manages to take hold of the passenger;
· a scuffle then ensues and the applicant is struck on the face by the skateboard;
· the footage shows the passenger fleeing from the scene of the assault. The footage shows witnesses trying to locate him;
· the footage then shows numerous witnesses and pedestrians observing the aftermath, and
· the applicant returns to his cabin covered in blood and attempts to look for something to clean his wounds.
My interpretation of the footage and summary of the chronology is similar that of the applicant’s recount when requesting a review, which was largely ignored by the respondent.[3]
[3] Folios 38 and 39 of the ARD.
Medical evidence
The extent of wages loss is unknown at this stage as the parties agreed to sort this out amongst themselves following my decision. However, with regards to incapacity, there is no dispute the applicant sustained an assault and has been certified unfit for work and then fit for suitable duties during various periods of time. The chronology of events shows that despite a lack of support from the respondent, the applicant attempted to reskill in other areas away from the public and had undertaken short term work trials which appear to be largely unsuccessful.
As regards incapacity, the applicant relies on a report of Laura Ansourian dated
29 March 2023. Her qualifications are unknown, but the report suggests she is a therapist who has been treating the applicant since 1 December 2022. She diagnosed post-traumatic stress symptoms arising out of the assault and reported that the applicant informed her that he has been unable to work since the incident and was struggling financially.[4][4] Folio 77 of the ARD.
Certificates of Capacity [5] and a Centrelink medical certificate[6] confirm the mental health diagnosis and fluctuating degrees of incapacity and restrictions.
[5] Folios 78 to 119 of the ARD.
[6] Folio 120 of the ARD.
Medical records from the Prince of Wales Hospital confirm the applicant was Scheduled under the Mental Health Act and was an involuntary patient on 2 April 2022.[7] The report states (unedited):
“Ozan has a history of chronic adjustment disorder with mixed anxiety and depression (diagnosed mid-2021), subclinical PTSD and panic attacks. These diagnoses were established after Ozan was physically assaulted by a passenger on his bus in November 2020, where he suffered a full-thickness laceration to his forehead and a nasal fracture. There is no reported family history of mental illness. Ozan is a non-smoker, does not consume alcohol and denies any illicit substance use.
Ozan initially presented to POWH ED on 02/04/22 with reports of worsening insomnia, anxiety and distress in the setting of multiple physical symptoms including paraesthesia, headache, and vision changes. These symptoms were formulated as a re-experiencing of symptoms that occurred following the physical assault he suffered one year ago…
Ozan was scheduled under the Mental Health Act before being repatriated to POWH Kiloh General as an involuntary patient under the MHA. He was commenced on olanzapine 5mg nocte to good effect. By review on 04/04/22, Ozan was sleeping well, less irritable, less paranoid, and was much more logical in his thought form, demonstrating some capacity to reality test his paranoid ideas….”
[7] Folios 70 and 71 of the ARD.
Dr Teoh, consultant psychiatrist was qualified by the applicant and reported on
24 August 2021. He takes a consistent history of injury ultimately diagnosing chronic adjustment disorder with mixed, anxious and depressed mood. He further reported the prognosis was poor, the condition chronic and concluded employment was the sole cause for symptoms and incapacity. He further reported the applicant could not return to work as a bus driver but could engage in suitable duties noting however the applicant continued to experience social isolation, lack of motivation, insomnia and avoidant behaviour, ultimately assessing a 15% whole person impairment.[8][8] Folios 61 to 66 of the ARD.
Dr Ahmed, consultant psychiatrist was qualified by the respondent. In his report dated
15 June 2022, he agreed with Dr Teoh’s conclusions on diagnosis and causation. With regards capacity, he reported the applicant was fit for work (excluding bus driving) for up to 20 hours per week assuming he had received appropriate treatment. He recorded the applicant was partially fit for employment but had struggled to maintain casual work.[9] He also commented that the applicant had not been able to source appropriate treatment due to the declinature of the claim for financial reasons.
Submissions
[9] Folios 27 to 31 of the ARD.
Applicant’s submissions
Counsel on behalf of the applicant submitted the following;
(a) with regard to s 4 of the 1987 Act the conduct of the applicant did not take him outside of the course of his employment. His actions were incidental to his work as a bus driver and the injuries sustained both physical and psychological arise out of the course of his duties which required treatment and resulted in various periods of total and ongoing incapacity;
(b) as regards s 14, the onus rests with the employer and it has not been discharged. The circumstances of this case differ from those of Kasim v Busways Pty Ltd [2003] NSWCC 6 (Kasim) in that the applicant in this case was not charged with assault. In that case, it was the bus driver that was the antagonist, which is not the case here. Here, the assault was not occasioned by the applicant, he was well within his rights to detain the passenger and it is human nature to engage in a reflexive movement to protect himself and detain the passenger. The reflexive action of restraining the passenger, which then resulted in another physical assault, cannot be classified as ‘wilful’ as it was not deliberate but reflexive. To show that something is wilful requires the demonstration that there was a deliberate act. I was referred to the matter of Aslanian v State Transit Authority [2001] NSWCC 190, which found that natural reactions to defend oneself cannot be considered wilful, and
(c) regarding incapacity, it is evident that the bulk of the medical evidence and the applicant’s work history since injury show that he has been unable to sustain employment on account of his psychiatric diagnosis. There have been short lived work trials but in the main, the applicant has remained largely incapacitated but has shown effort to rehabilitate himself by engaging in studies and trying work that fits within his limitations. Both parties have sought independent medical opinions which are consistent with findings regarding incapacity. The applicant should be entitled to a full and ongoing award.
Respondent’s submissions
The following represents a summary of the submissions;
(a) the denial on the basis of s 11A is abandoned. It is evident that the real cause of the injury is the assault at work and not subsequent dismissal from employment. Further, PIAWE is not in dispute at $1,400 per week;
(b) as regards s 14, the respondent concedes there is a high bar to satisfy but it can discharge the burden. It was submitted that had the applicant remained in his cabin the assault and subsequent injury would not have occurred. I was referred to CCTV footage replayed multiple times at hearing which the respondent submitted showed the applicant left the cabin, and was agitated and angry and ‘so it cannot be accepted that he left the cabin to check on the route signage or for the purposes of customer service’ but that the only inference that can be drawn is that he left the cabin to have a confrontation with the passenger;
(c) the CCTV footage does show the passenger striking the applicant in the stomach after the applicant showed him the route sign and then running away but the applicant’s actions in running after him were ‘entirely unnecessary’, the evidence that ‘it was a reflex to detain the passenger is fanciful’ and the entire incident could have been avoided if the applicant returned to the cabin, but the CCTV footage shows he was annoyed and wished to pursue a confrontation. It was submitted that at the point of attempting to detain the passenger after being struck in the stomach, the applicant becomes the aggressor and s 14 is enlivened as in the case of Kasim;
(d) that the passenger’s guilty plea in the police brief should not persuade me that the applicant is free of guilt. The passenger’s statement to police reinforces the applicant was verbally abusive and swearing at him and that such statement should be accepted. This reinforces the applicant became the ‘aggressor’ and further that such action is not within the course of his employment and that I could not make any other finding;
(e) that I could not find that the applicant remained in the course of his employment at the time the assault occurred and that his actions of leaving the bus and confronting the passenger are properly considered gross misconduct taking him outside of his duties as a bus driver, and
(f) the applicant is not credible.
FINDINGS AND REASONS
Before I embark on an assessment of the evidence, it is necessary to comment on the credibility of the applicant. Overall, I find the applicant to be credible as despite the pressure of cross examination and the hearing process, the requirement to revisit the assault by constant replay of the CCTV footage at arbitration, his recall of history and evidence remained unchanged.
It is at this point that I must highlight that I find the respondent has misrepresented the events seen in the CCTV footage when denying liability. The respondent submits that the applicant is not credible in these proceedings, yet its own actions fall short of best practice case management. I am the first to promote proper and thorough investigations of claims to ensure that the Scheme is properly managed to maintain its integrity to citizens of this State, but the deliberate misrepresentation and selective representation of events, falls short of the standards of best practice in case management, in fact, it is disingenuous. I do not make this comment lightly as I fully accept that claims assessors face high volumes and time pressures, however, this cannot, of itself, justify the misrepresentation and limited representation of the footage contained in the s 78 notice.
Further, had all the footage been available prior to the preliminary conference and a formal report tendered by an expert videographer with specialised equipment which summarised second by second events, the unnecessary waste of Commission resources could have been avoided or at least mitigated. Certainly, there would have been no dispute on interpretation of events and chronology. The reliance of grainy CCTV footage accompanied by suboptimal audio and lack of independent reporting of that footage is nothing short of amateur claim practice, which is unacceptable and objectionable given the resources available to the respondent.
The s 4 injury issue
The applicant submits he remained in the course of his employment at all times although concedes, with the benefit of hindsight, the dispute could have been handled differently, but his actions were consistent with offering customer service and ensuring that the correct route was identified on the front and side of the bus. Emphasising these to the passenger did not fall out of his job description or take him outside of the scope of his employment.
The respondent contends that once the applicant left the bus he then ceased to be in the course of his employment, and the injury was “solely attributable to [his] serious and wilful misconduct”. Further, that after being struck in the stomach, the applicant should have returned to his cabin and just got on with his duties and that by attempting to restrain the passenger, the applicant engaged in ‘wilful misconduct’.
I am satisfied from review of the CCTV footage that the passenger instigated the assault. The applicant was in fact assaulted three times if not four. First the passenger spits at the applicant (this is not in the footage, but I accept the applicant’s statement). The second assault is when the applicant is punched in the stomach. The third assault occurs when the applicant attempts to restrain the passenger, he is struck on the face with the skateboard.
I was encouraged by the respondent to find that the applicant became the aggressor following his attempt to restrain the passenger and it was submitted that after being struck in the stomach, the applicant should have returned to his cabin. I have to say that such a proposal by the respondent beggars belief. Here the respondent submits that after being assaulted physically and in the presence of bystanders, he should have returned to the cabin and just got on with his day! This submission takes the concept of turning ‘the other cheek’ to a whole new level. I would have been persuaded by such a submission if the assault was verbal in nature, but to expect an individual to return to work after being physically assaulted is to use a word of the respondent ‘fanciful’. I accept the applicant’s statement that he reflexedly attempted to protect himself and prevent the passenger from bolting. I cannot accept that the applicant should have just ‘turned the other cheek’ accepted the assault and returned to his bus, given he was already spat at and then punched in the stomach. I find the applicant’s response to be a reasonable one and in proportion to the harm and assault that he experienced. The applicant did not strike the passenger, only attempted to restrain him, which in the circumstances, was in my view, a limited approach, one unlikely to be adopted by many.
I was then encouraged by the respondent to accept the statements made by the passenger to police which suggested that the applicant provoked the assault but then to ‘ignore’ the guilty plea as ‘people plead guilty for a number of reasons’. I found this to be a novel argument. I am satisfied the passenger was arrested and charged. He pleaded guilty. It is not necessary for me to analyse his motivations for doing so, a conviction has been entered. The applicant was not charged. The statements made by the passenger were self-serving but were to no avail given his ultimate plea. In any event this does not help me with the assessment of ‘wilful misconduct’.
I was somewhat surprised that the respondent did not tender the manual for drivers in these proceedings as most manuals have the position statement of the employer about safety and appropriate responses in such circumstances. Nothing turns on this but as I am familiar with many transport operations, both ground, sea and air, I am aware that most employers have position statements where drivers act in self-preservation, provided that such acts are reasonable and proportionate.
The respondent contends that when the applicant alighted from his cabin that he was irritated and did not leave the cabin to provide customer service but rather to engage in a confrontation. The CCTV footage does not support this contention. If this was the applicant’s intention, he would have immediately approached the passenger. Instead, the footage shows that he moves towards the front of the bus to observe the route signage and points to that signage in an attempt to explain to the customer that he had driven the correct route.
I also accept the applicant’s written and oral evidence that he did not attempt to hurt the passenger but rather protect himself and prevent the passenger from leaving following him being struck in the stomach. I cannot find that the applicant was the aggressor as suggested by the respondent. Whilst I loathe labels, the applicant is in fact a victim.
In all these circumstances, I am satisfied the applicant remained in the course of his employment from the time of the initial assault (spitting) up to the time of his injury on the foot path when he was struck in the stomach (the second assault) and then struck by the skateboard in the face (third assault) such that the definition of ‘injury’ in s 4 is satisfied.
The s 14 (2) “Serious and wilful misconduct” issue
I have already set out above the terms of s 14(2).
To begin with, the applicant must first establish that injury as defined in s 4 has been proven before embarking upon a consideration of the relevance and application of the provisions of
s 14. (Neilson J in Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8; (1998) 16 NSWCCR 165).For reasons given above, I have determined that the applicant’s injury arose out of and in the course of his employment with the respondent.
The concept of “serious and wilful misconduct” was considered at length by O’Meally J in Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; (1999) 18 NSWCCR 109 (25 May 1999) (Sawle) where he said:
“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. (My emphasis). 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.
25. It had been said that serious and wilful misconduct represented a higher standard of misconduct than that which would justify immediate dismissal…”
Similar issues were considered by Deputy President Roche in Whittingham v Ascott AirConditioning Pty Ltd [2010] NSWWCCPD 36 where he said:
“73. The word ‘wilful’ connotes that the applicant must have acted deliberately. He or she must have had knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk (Sawle)… In view of his level of intoxication, Mr Whittingham was incapable of assessing the risk involved in his actions and his actions cannot be described as wilful.”
The onus rests with the respondent to demonstrate that the conduct was “wilful” which involves consideration of the applicant’s state of mind. (Gardoll v RJ Fletchers International Pty Ltd (1999) 19NSWCCR 30 per Truss J at 34 (Gardoll). Truss J adopted the reasoning of McGrath J in Taylor v Commissioner for Railways [1970] WCR (NSW) 73 where, at [76], his Honour noted that to establish ‘serious and wilful misconduct’ an employer must establish what in a criminal court is referred to as mens rea.
A wilful act will be something done more deliberately than a thoughtless act done on the spur of the moment. (Johnson v Marshall Sons & Co Ltd [1906] AC 409 per Lord Loreburn LC). Wilful misconduct is something done “with the intention of being guilty of misconduct”. (Bist vLondon & South Western Railway Co [1907] AC 209 per Lord James of Hereford).
More recently, in JR and DI Dunn Transport Pty Ltd [2015] NSWWCCPD 38 President Judge Keating said (at [117]):
“The Arbitrator found that the span of time between Mr Wilkinson receiving a blow to his arm whilst on the forklift, subsequently bringing the forklift to a halt, and confronting Mr Linsley, took place within the space of seconds. He found that that span of time was insufficient to enable Mr Wilkinson to form the necessary intention to undertake a deliberately wilful act of misconduct…
Having regard to all of the evidence and the CCTV footage, that finding was open to the Arbitrator and does not indicate error…”
I accept that in the present case, the time span was insufficient to enable the applicant to form the necessary intention to undertake a deliberately wilful act of misconduct. I further find his actions were reflexive and not deliberate.
I have not ignored the respondent’s submission and specifically that the applicant became the aggressor. I have however already found the applicant was not the aggressor at any stage of the multiple assaults. I note Neilson J in Kasim v Busways Blacktown Pty Ltd (2003) 25 NSWCCR 450 found that a bus driver who assaulted a passenger, even though there was provocation, had been guilty of misconduct. His Honour found in the circumstances that the misconduct was both serious and wilful, and that the bus driver’s injuries were solely attributable to that misconduct.
In this case however, the applicant did not initiate the assault. He was assaulted three times, first spat upon and then struck in the stomach. The final assault occurred when he attempted to restrain the passenger but as already indicated this was for self-preservation and to ensure the applicant did not flee, only to be struck in the face by the passenger’s skateboard. I cannot find that the response was wilful in the circumstances.
For reasons stated above, I accept the applicant’s account of the events regarding his state of mind, supported by actions seen in the CCTV footage and find that his injuries did not result from serious and wilful misconduct.
The incapacity issue
The medical evidence has been discussed above and it is clear that the applicant despite attempting a return to work and training has been unsuccessful in maintaining such employment. Nonetheless, I note that there have been periods of employment and that the applicant and respondent have agreed to cooperate and exchange particulars with regards to wage loss.
Counsel for the respondent suggested that the applicant is not incapacitated however this is against the respondent’s own evidence which suggests that the applicant is unfit to return to his pre-injury employment as a bus driver and further would only be fit to return to suitable duties if adequately treated.
I find that the applicant has had periods of total and partial incapacity arising out of injury on 28 November 2020. It follows given my findings that he is to be awarded weekly compensation for such incapacity.
At both the conciliation/arbitration hearing and the subsequent conference, I was asked to determine the threshold issue of liability, that is s 14(2) and was reassured that depending on the findings the balance of the issues could be addressed interparty provided adequate supporting documentation regarding incapacity and wage loss was provided to the respondent. I did indicate to the parties that if consensus could not be reached, (which is doubtful given that there is no dispute about PIAWE and the experience of the parties) that liberty is granted to either party to apply within 28 days. I urge the parties not to exhaust any more of the Commissions resources on such a routine mathematical exercise.
SUMMARY
The applicant sustained an injury on 28 November 2020 arising out of and in the course of his employment with the respondent.
The injury was not sustained as a result of any serious and wilful misconduct as defined in
s 14 (2) of the 1987 Act.The respondent is to pay the applicant weekly compensation once the applicant provides a wages schedule and supporting documentation regarding wage loss. Should the parties not be able to resolve that issue, I grant liberty to approach the Commission within 28 days.
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