El Ali v Hunter Operations Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	El Ali v Hunter Operations Pty Ltd [2024] NSWPIC 14
APPLICANT:	Khader El Ali
RESPONDENT:	Hunter Operations Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	10 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum compensation for permanent impairment pursuant to section 66; whether psychological and physical injuries sustained by the applicant in a physical altercation were sustained in the course of or arose out of the applicant’s employment; whether the applicant was disentitled to compensation by reason of section 14(2); Held – the applicant sustained injury on 21 January 2019 in the course of his employment and arising out of his employment pursuant to section 4(a), namely a psychological injury and injury to his ear, nose and throat related structures; the applicant’s employment was a substantial contributing factor to the injury in accordance with section 9A; a defence pursuant to section 14(2) is not established; the matter to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury on 21 January 2019 in the course of his employment pursuant to s 4(a) of the Workers Compensation Act 1987 (the 1987 Act), namely a psychological injury and injury to his ear, nose and throat related structures. 2. The applicant’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act. 3. A defence pursuant to s 14(2) of the 1987 Act is not established. The Commission orders: 4. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 21 January 2019 Body parts: Psychological ear, nose and throat related structures Method: whole person impairment. 5. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute (ARD) and attached documents; (b) Reply to ARD and attached documents, and (c) Application to Admit Late Documents by respondent dated 10 November 2023.

STATEMENT OF REASONS

BACKGROUND

Khader El Ali (the applicant) was employed by Hunter Operations Pty Ltd (the respondent) as a courier driver.
The applicant alleges that, arising from and during the course of his employment with the respondent, he sustained both a primary psychological injury and personal injury to his ear, nose, throat and related structures from a physical altercation with the driver of another vehicle (the other driver) on a roadway on 21 January 2019.
On 22 November 2021, the applicant made a claim for permanent impairment compensation pursuant to s 66 of the Workplace Injury Management and Workers Compensation Act 1987 (the 1987 Act) in respect of 19% whole person impairment (WPI) for psychiatric and psychological disorders and 19% WPI for ear, nose and throat related structures. The applicant’s claims were supported by reports of: Dr Robert Gertler, psychiatrist, dated 3 November 2021; Dr Nigel Curtis, oral and maxillofacial surgeon, dated 18 May 2021, and Dr Joseph Scoppa, ear, nose and throat physician dated 14 November 2020 and 18 February 2021.
By notices dated 25 July 2019 and 15 June 2022, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer declined liability for the injuries on the grounds that:
(a)    it disputed that the injuries arose out of or was received in the course of employment as required by s 4 of the 1987 Act;
(b)    it disputed that the employment was a substantial contributing factor to the injuries as required by s 9A of the 1987 Act;
(c)    at the time when the applicant sustained the injuries, the applicant had taken himself outside the course of his employment because he acted in a grossly improper manner by provoking the altercation, and
(d)    by operation of s 14(2) of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The present proceedings in the Personal Injury Commission (Commission) were initiated by an Application to Resolve a Dispute (ARD) lodged on 22 August 2023. The ARD described the injury as follows:
“Frank Injury on 21 January 2019 s4(a)(i) and/or s4(b)(ii)
The Applicant was employed as a courier driver at Hunter Express. In the course of his employment on 21 January 2019 at approximately 3:15pm our client was driving along Homer Street in Marrickville. The applicant has a hearing problem since childhood.
As a result of road rage by another driver the applicant suffered injuries to his hearing/ears, right leg, jaw and Post Traumatic Stress Disorder and Major Depressive Disorder.
Primary Psychological Injury
The respondent insisted on the Applicant to attend for a recorded interview at work. That interview unbeknown to the applicant was released together with his identity to the media and as a result became ... extremely anxious and depressed and has continuously experienced panic attacks as a result. The applicant has developed paranoia whilst also becoming fearful that the person involved will retaliate against him. From the date of the subject incident, our client’s psychological state has progressed negatively, being diagnosed with Post-Traumatic Stress Disorder. The applicant fears retribution from the driver who is known to police.”
The respondent lodged a Reply to ARD (Reply) on 12 September 2023.
At a conciliation/arbitration hearing, conducted in person on 16 November 2023, Mr Stephen Hickey, counsel, appeared on behalf of the applicant instructed by Mr Michael Coorey of
C & M Lawyers. Mr Phillip Perry, counsel, appeared on behalf of the applicant instructed by Ms Hannah Whiting of Lee Legal Group.
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.

ISSUES FOR DETERMINATION

The respondent did not dispute that the applicant sustained both primary psychological injury and physical injury to his ear, nose and throat related structures from a physical altercation on a roadway with the other driver on 21 January 2019.
The parties agree that the following issues remain in dispute:
(a)    were the injuries sustained by the applicant suffered in the course of the applicant’s employment?
(b)    Did the injuries arise out of the applicant’s employment?
(c)    Is the applicant disentitled by reason of s 14(2) of the 1987 Act?

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (AALD) by respondent dated 10 November 2023, admitted into evidence by consent.

Oral evidence

On behalf of the respondent, Mr Perry sought leave to cross-examine the applicant in relation to him getting out of his work vehicle on 21 January 2019 and the interactions between the applicant and the other driver who was involved in the physical altercation.
On behalf of the applicant, whilst Mr Hickey did not express any significant opposition to cross-examination of the applicant, Mr Hickey submitted that the applicant is now profoundly deaf and cannot communicate with sign language although he can lip read. Mr Hickey submitted that the video evidence will speak for itself.
Leave to cross-examine the applicant was refused for the following reasons:
(a)    in Commission proceedings, there is no legal right to cross-examination and the decision whether to allow cross-examination or to limit it are discretionary decisions, which must be made in a context of the legislation, the practices of the Commission and the facts and circumstances of the case under consideration: Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng (Zheng) [2006] NSWCA 34, at [37];
(b)    Procedural Direction PIC10 – Personal Injury Commission Hearings, paragraph 10 states that:
“Questioning or cross-examination of witnesses (including parties) may be permitted if the presiding member decides that it is necessary or is otherwise significantly preferred, in the interests of justice or for any other reason”;
(c)    it is not in dispute that the applicant now has complete hearing loss and is unable to communicate by sign language;
(d)    whilst it appears to be common ground that the applicant has some ability to lip read, there is no compelling evidence that is a reliable method of communication for the applicant, particularly for potentially complex questions and answers;
(e)    the applicant’s written evidence is contained in a signed written statement dated 10 May 2023. The evidence also includes the applicant’s signed written statement sated 22 January 2019 which was provided to the NSW Police Force;
(f)    video evidence before the Commission provides direct evidence of relevant events on 21 January 2019;
(g)    in the circumstances, the Commission is not satisfied that the oral evidence of the applicant during cross-examination would assist the Commission in the determination of the issues in dispute;
(h)    further, the Commission is not satisfied that it is necessary or is otherwise significantly preferred, in the interests of justice or for any other reason that the applicant is cross-examined, and
(i)    accordingly, the Commission declines to exercise its discretion to grant leave to cross-examine the applicant.
On that basis, no oral evidence was given.

SUBMISSIONS

The submissions of counsel are recorded and in writing.
I will summarise counsel’s submissions relevant to the specific issues in dispute when I consider and determine each of those issues.

EVIDENCE

Dashcam video recordings

The evidence includes various video recordings, including two separate dashcam recordings of the altercation between the applicant and the other driver on the roadway on 21 January 2019.

Media reporting

A recording of media reporting of the incident on 21 January 2019 includes the dashcam recording and a recording of the applicant’s interview during which he gave his version of the events.

Applicant

In the applicant’s signed statement dated 10 May 2023 (the applicant’s statement), the applicant stated that, as he was performing his work as a courier driver at about 3.30pm on 21 January 2019, the other driver raised his hand out of the window with a rude gesture as he overtook the applicant’s vehicle by crossing double lines in a school zone. The applicant denied making any gesture or sounding his horn in response. The applicant stated that after overtaking the applicant’s vehicle, the other driver slowed down even though there was no vehicle in front of it.
The applicant stated that some 700 to 800 metres further, as the applicant’s vehicle approached a green light at an intersection, the other driver suddenly stopped his vehicle immediately in front of the applicant’s vehicle at the green light, causing the applicant to stop his vehicle. The applicant stated that he did not know why the other driver did not move his vehicle. The applicant stated that he sounded the horn on his vehicle three times however the other driver did not move his vehicle.
The applicant stated that:
“22    ... At that point the other driver of the black ute started to raise his arm outside the window. The lights were still green and he wouldn't move. I had no idea why he was so angry and could not hear anything except it looked like he was shouting and swearing.
23.    I decided to get out of my truck to see why he was so angry and why he would not move.
24.    At about the same time I got out of my truck and the other driver got out of the black ute.
25.    The other driver seemed very angry and came close up to me and started yelling saying, ‘who the fuck are you to be driving so slow and to beep at me the light just tumed green’. I said words to the effect, ‘calm down I don't want to any trouble, I was just letting you know the light was green and you should go as I am working and need to make my next delivery’.
26.    The other driver said, ‘shut the fuck up I'm going to break your fucking head’. I said ‘I don' t know what your problem is and don't you talk to me like that you fucking dickhead’.
27.    The other driver said words to the effect, ‘look at you thinking you are such a tough guy you fucking dickhead’ in a very aggressive manner and I feared for my life thinking he was about to hit me.
28.    I said, 'don't touch me, you are in my space I was just checking to see what is going on because I could not hear what you were saying’.
29.    The other driver then came towards me in an aggressive manner and said words to the effect ‘lets go one on one on a footpath’ while he grabbed my right arm and pulled/pushed me. I felt anxious and afraid he was going to hit me and I decided to defend myself and the fight began. Everything went so fast, I did not have time to think other than to survive and that this person wanted to cause me serious damage due to his aggressive nature, and unstable behaviour and being so mad that I was driving a truck slowly in a suburban street in a school zone. I had no other choice to think this man was capable of anything and I needed to defend myself. It was too late to get back into my truck to avoid him. I thought if I turned my back on him he would have killed me.
31.    After the incident the other driver came back for the second time and said ‘COME BACK OUT YOU FUCK WIT, COME BACK OUT!’ And that's when I closed my truck window at the same time he walked towards me, then he got into his car and left. I have viewed the video footage of the altercation afterwards. The police later charged both me and the other driver. I entered a plea of not guilty and the Court dismissed the charges against me.
32.    As a result of the fight, I was in pain and my hearing aid was halfway out and I was bleeding from my left ear, and my left eye. I was in shock, there was ringing in my ears and pain around my face, and upper body including my neck. I was unable to do the next drop off as I had blood coming out of my ear, my eye was red, I had a severe headache and I was shaking.
...
39.    ... everything happened so fast and it was basically instinct which kicked in for me to survive.
...
40.    It was as if he was picking to have a fight and it is unknown to me why he was so angry and had stopped at the lights for no reason other than to provoke a fight and he was meaning to cause and in fact did cause me harm...”

NSW Police

A signed statement of the applicant dated 22 January 2019 (the police statement) which was prepared by the NSW Police Force (NSW police) set out a similar although not identical narrative. It stated:
“4.     About 3:45pm on Monday the 21st January 2019, I was driving one of the courier trucks for my company... As I was driving I... noticed a black ute speed up and overtake me over a double line. The male who was driving then stuck up his middle finger at me because he thought I was going too slow.
5.     I didn't pay any attention to his actions and stayed calm, Ignoring him. We then both came to a set of lights at the Intersection of Bayview Ava and Homer St, Earlwood, I was in my truck waiting behind the black ute for the tights to turn green. The lights then turned green and I waited for approximately ten seconds for the black ute to drive, which he did not do.
6.     After waiting the ten seconds I pressed my horn in order to get him to drive through the intersection as he was taking a long time. The black ute did not move again and the male that was driving rolled down his windows and made a gesture with his right hand saying 'what!’. I pressed my horn again gesturing him to move through the intersection and stop blocking traffic. He then screamed out ‘Fuck You’ and stuck his middle finger up at me again.
7.     I saw him then open his car door and get out of the car... He started to powerwalk to my car and he seemed very angry like he wanted to fight me.
8.     He walked up to where the mirror on my door was and that's when I opened my door and jumped out of my truck. The man came up to my face and started yelling at me:
He said: 'Who the fuck do you think you are beeping at me! The light just turned fucking green’.
I said: ‘Mate, Just calm down, Just calm down, I don't want to have a bad day.’
He said: ‘Get the fuck back In the truck before I fucking break your head!'.
I said: ‘Don't you talk to me like that you fucking dlckhead.’
He said: ‘look at you acting tough now, who do you think you are? Let's go to the footpath, 1 on 1.’
9.     The man then used his right hand to throw a punch at my face but he completely. missed me as I moved back. I then threw a punch back which landed on·his face in order to defend myself. He then threw another punch which landed on my right eye causing pain and a second punch to my left ear which also connected making me feel like I was about to pass out.
10.    I then grabbed him and threw him to the ground where I was on top of him and started throwing punches at him. At this point a man by the name of Bill came up and grabbed me from behind in order to calm me down and stop fighting. I then calmed down and got back into my truck so I can get back to my depot In order to report the incident.
11.    The man came up to my window saying ‘Come back out you fuckwit, come back out’ and was gesturing for me to come back and fight him. I rolled my window up and ignored him so he could leave me alone. He then went back to his car and drove off...’
I note that the applicant was subsequently critical of the police statement and stated that he believed that the police skimmed over relevant details.
Records of the NSW police indicate that both the applicant and the other driver were charged with affray and offensive conduct in relation to the incident on 21 January 2019, however all charges were subsequently withdrawn. A case narrative prepared by the NSW police stated that videos of the incident appeared to show that both accused persons exited their vehicles almost simultaneously where they became engaged in a verbal stoush, face to face, on the roadway. It stated that:
“In partly obscured dash-cam footage of the incident, it appears that [the applicant] throws a left handed punch before the footage stops momentarily. Upon the footage continuing after an unknown time period on what appears to be a separate dash-cam it shows both Accused persons in a physical melee, where both are involved in a wrestle with [the applicant] connecting a number of punches on [the other driver]...”
The case narrative prepared by the NSW police stated the opinion that “Had both accused persons remained within their vehicles, this incident would not have taken place”.

Other employees

The evidence also includes statements of other employees of the respondent. Those employees did not directly observe the incident on 21 January 2019. To the extent that those witnesses describe their observations of the dashcam recordings, I give their evidence little weight because the dashcam recordings are in evidence and have been considered by me.
Mr Stephen Stephens, rehabilitation coordinator, stated that on 23 March 2019 the applicant’s brother stated that he was “punched by the other driver through the window” and that the applicant had to get out of the truck to defend himself.
Ms Riria Walker, morning operations manager, advised that the respondent had given an excerpt of a recording of the applicant to the media.

Employment policies and code of conduct

The evidence includes the respondent’s Operation Requirement Policy, Code of Conduct and Workplace Violence Policy which applied to the applicant in his employment.

Medical evidence

A hospital emergency department discharge referral recorded that the applicant presented at the hospital on 21 January 2019 following an assault by the other driver.
In a report dated 20 July 2019, Dr Mosadek Miah, consultant psychiatrist, recorded a reported history that the applicant experienced psychological symptoms since being assaulted and injured badly in a road-rage altercation in early 2019. Dr Miah also recorded that the altercation was reported in the news and there were video recordings of the incident online which the applicant looked back on and the applicant was anxious about being bullied online in relation to the incident.
In a report dated 29 September 2020, Ms Deborah Martin-Smith, the applicant’s treating clinical psychologist, recorded a reported history that. at the time of the incident on 21 January 2019, the applicant was partially deaf and he exited his vehicle because he wanted to be able to hear the other driver who appeared to be gesticulating with his hand and shouting. Ms Martin-Smith recorded that the applicant reported that he panicked and hit the other driver after the other driver hit him in the left eye and left ear causing bleeding from the left eye, ear and hearing aid.
In a report dated 6 March 2021, Ms Sam Borenstein, psychologist, recorded a reported history of the incident on 21 January 2019 that when the other driver did not move forward at the green traffic light, the applicant activated his horn three times and the other driver protested with hand movements and finger signs. Ms Borenstein reported that the applicant stated he could not understand the reason why the other driver was not moving forward at the green traffic light. Ms Borenstein recorded that the applicant stated that he and the other driver exited their respective vehicles at around the same time and that the other driver was the protagonist and instigator of physical violence and that the applicant defended himself.
In a report dated 3 November 2021, Dr Robert Gertler recorded a reported history of the incident on 21 January 2019 that “the other driver was aggressive, was making certain hand movements and finger signs, and was blocking the passage of [the applicant’s] van”. Dr Gertler further recorded that the applicant “exited his van to remonstrate with the other driver. He needed to be close to the other driver so that he would be able to lip read what that person was saying. In the process of doing so however, [the applicant] was assaulted by the driver and a physical altercation ensued...”.

CONSIDERATION

What is the date of injury?

I note that the ARD described the injury as a frank physical injury and primary psychological injury sustained in an altercation on 21 January 2019. The ARD also referred to a primary psychological injury arising from release of the applicant’s recorded interview at work to the media following the incident on 21 January 2019.
On behalf of the respondent, Mr Perry submitted that the claim and dispute notices did not address any claim in respect of injury caused by the conduct of the employer on 22 January 2019 or any other date and, further, that there is no evidence before the Commission of WPI arising from any occurrence other than the altercation on 21 January 2019.
On behalf of the applicant, Mr Hickey submitted that the applicant’s psychological condition sustained in the altercation on 21 January 2019 was aggravated by the conduct of the employer releasing the applicant’s recorded interview to the media on 22 January 2019. Mr Hickey submitted that the culminating injury nevertheless remains caused by the event of 21 January 2019.
I accept that the claimed date of injury is 21 January 2019.

Were the injuries sustained by the applicant suffered in the course of the applicant’s employment?

For the reasons that follow, I am of the opinion that the applicant was in the course of his employment when he sustained injuries during a physical altercation with the other driver on 21 January 2019.
A worker is in the course of his employment, if he is doing something which is part of, or is incidental to, his service: Whittingham v Commissioner of Railways (WA) (1931) HCA 49.
Various case law relevant to the issue of an interruption to the course of employment by the actions of a worker was summarised by Arbitrator Sweeney in the decision of Justin McCaw v Toll Holdings Limited [2019] NSWWCC 264 at [25] to [44], which was upheld on appeal in Toll Holdings Limited v McCaw [2020] NSWWCCPD 14.
Whether a worker is in the course of employment is a matter of degree to be considered on the facts in each case.
On behalf of the respondent, Mr Perry submitted that when the applicant opened the door of his vehicle and stepped onto the roadway, he took himself out of the course of his employment. Mr Perry submitted that the applicant’s task in the course of his employment, was to carry the goods that were in his van to their destination and that removing himself from the vehicle was not conducive to that employment and was adverse to that employment. Mr Perry submitted that the applicant abandoned his employment when he left his van and then, despite an opportunity to return to the van, remained on the street to “remonstrate” with the other driver who was abusive because that was neither part of, nor was it incidental to the applicant’s service. Mr Perry submitted that the facts of this case are analogous to the facts of Bill Williams Pty Limited v Williams [1972] HCA 23 (Williams).
Mr Perry submitted that the applicant’s explanation that he decided to get out of his truck to see why the other driver was so angry and why he would not move should not be accepted because it is inconsistent with Dr Gertler’s evidence which recorded that the applicant exited his van to remonstrate with the other driver. Mr Perry submitted that the evidence gives rise to the inference that the other driver’s hostile conduct was the prompt for the applicant leaving his van, which took him of his own volition out of his employment.
Mr Perry submitted that, even if the applicant was in the course of his employment at the time he left his van, that situation did not continue beyond the time that the applicant was directed by the other driver to get back into his van, but the applicant instead elected to remain out of the van and to continue to provoke violence by adopting antagonistic and abusive language towards the other driver.
Mr Perry submitted that the various evidence supports an inference that the applicant was a willing and voluntary participant and in fact instigator to the physical assault, which cannot be said to be in any way connected or incidental to his employment.
For the applicant, Mr Hickey submitted that the applicant’s injuries were sustained “in the course of employment” as the applicant was employed as a delivery driver and his employment required him to drive. Mr Hickey submitted that the applicant’s exiting of his truck was a requisite and logical development and within the course of the applicant’s employment as the applicant had no hearing in his right ear (having suffered deafness in that right ear since childhood). Mr Hickey submitted that the applicant acted reasonably and in accordance with the respondent’s expectations as it was incumbent on the applicant as part of his work duties to at least determine when he would be able to proceed forward in his employer’s truck and the cause of any delay. Mr Hickey submitted that the applicant acted in the course of his employment attempting to advance his industrial requirements but could not do so by remaining in the cab of his truck.
Mr Hickey submitted that it was open to the applicant to assume that his progress had been interrupted for all manner or reasons including the possibility of anger or outrage on the part of the other driver, nevertheless there was no reason to expect or presume that there would be any violence or a fight would ensue until it occurred.
Mr Hickey further submitted that the applicant is not seen as the initial aggressor in the dashcam video recordings as after exiting his truck he stood beside his driver’s side mirror to await the other driver, who then proceeded to aggressively stand toe-to-toe with the applicant and seemingly shout at him bringing his face into close proximity to the applicant’s face.
Mr Hickey acknowledged that the dashcam recording shows the applicant and the other driver exchanging blows and wrestling with each other and the applicant appearing to get the upper hand and to overcome the other driver.
Mr Hickey submitted that, because of the interval between the cessation of the first dashcam recording and the commencement of the second dashcam recording, there is no depiction of who it was that commenced to become physical with the other, however the video evidence clearly shows that the other driver acted aggressively towards the applicant. Mr Hickey submitted that the applicant was entitled to defend himself and he did.
Considering the evidence, I note that the first dashcam recording appears to show that the applicant’s vehicle came to a complete halt behind the vehicle of the other driver, which was stopped at a green traffic light. It appears that the applicant opened his car door first, however both the applicant and the other driver exited their vehicles at about the same time. It appears that the applicant stood and waited close by his truck, whilst the other driver came up to the applicant there and stood toe-to-toe with the applicant with his face very close to the applicant’s face for some time. The recording appears to show that, a short while later, the other driver reached towards and possibly grabbed or touched the applicant’s right arm with his face very close to the applicant’s face.
The second dashcam recording appears to show the applicant and the other driver engaged in a significant physical altercation exchanging blows and wrestling on the roadway before they were separated by another person.
I accept that the vision of the applicant on the dashcam recordings is limited. On occasion, the vision of the applicant and the other driver is blocked by passing traffic. Neither dashcam recording shows the entire of the interactions between the applicant and the other driver. Further, having regard to the flow of traffic recorded, there does appear to be a lapse of seconds between the taking of the two dashcam recordings, where there is no recorded vision at all of the interactions between the applicant and the other driver. Further, the dashcam recordings do not include audio and do not record the verbal interactions between the applicant and the other driver.
The other evidence is useful to provide a more complete understanding of what occurred.
I note that the description of the events on 21 January 2019 given in the applicant’s statement and the police statement differs somewhat from the description recorded by Mr Stephens, rehabilitation coordinator, which given by the applicant with the assistance of his brother. Mr Stephens recorded that the applicant was “punched by the other driver through the window” and that the applicant had to get out of the truck to defend himself. The dashcam recordings clearly show that version of events is inaccurate.
However, I accept that the description of the events on 21 January 2019 formally given in the applicant’s statement and the police statement is largely consistent with what appears to be shown in the dashcam recordings.
The applicant’s evidence in relation to the events on 21 January 2019 is not challenged by any other witness evidence.
It is not in dispute, and I accept, that the applicant was performing courier driving in the course of his employment on 21 January 2019 immediately prior to the incident.
I do not accept the submission that the applicant took himself out of the course of his employment when he exited his work vehicle. It seems clear from the dashcam recording, and I accept, that at the time when the applicant exited the vehicle, he was unable to drive forward because his vehicle was blocked by the other driver’s stationary vehicle at a green traffic light. Further, I accept that there was no obvious explanation of the cause nor the likely length of the delay in the other driver moving forward. On that basis, I accept the applicant’s evidence that he sounded his vehicle’s horn to alert the other driver to move forward. It seems clear from the dashcam recording, and I accept the applicant’s evidence, that after the other driver’s vehicle remained stationary blocking the applicant’s vehicle, the applicant exited his vehicle in an attempt to ascertain the cause of the other driver’s anger and why he would not move. I consider that it is logical and likely in the circumstances that the applicant would have felt compelled to understand the cause and length of the delay and to resolve the delay.
Further, I accept that the applicant’s goal and actions were the performance of his courier work, which is evidenced by the applicant’s statement that he said to the other driver words to the effect of “calm down I don’t want to any trouble, I was just letting you know the light was green and you should go as I am working and need to make my next delivery” and “I was just checking to see what is going on because I could not hear what you were saying”.
I do not accept the respondent’s submission that the evidence gives rise to the inference that the other driver’s hostile conduct was the prompt for the applicant leaving his van, which took the applicant of his own volition out of his employment. I accept the applicant’s evidence that the other driver had acted in an angry manner to the applicant both when he earlier overtook the applicant’s vehicle and when he was parked in the stationary vehicle at the green traffic light. I consider that it is logical that the applicant had some curiosity about the cause of the other driver’s attitude towards him. Further, I note that Dr Gertler recorded a history that the applicant “exited his van to remonstrate with the other driver”. However, Dr Gertler clearly qualified the statement with the further statement that “He needed to be close to the other driver so that he would be able to lip read what that person was saying”. Considering the evidence as a whole, I do not think that Dr Gertler’s use of the word “remonstrate” necessarily infers that the applicant’s primary concern was other than the timely performance of his courier duties. Nor do I consider that it necessarily infers that the applicant intended to initiate or anticipated an aggressive or violent interaction with the other driver.
I do not accept the respondent’s submission that, even if the applicant was in the course of his employment at the time he left his van, that situation did not continue beyond the time that the applicant was directed by the other driver to get back into his van, but the applicant instead elected to remain out of the van and to continue to provoke violence by adopting antagonistic and abusive language towards the other driver. I accept the applicant’s evidence, which is not in dispute, that he initially responded to the other driver’s threat to “break your fucking head” with words to the effect “Don’t you talk to me like that you fucking dickhead”. However, considering the evidence as a whole, I am not satisfied that the applicant acted in a grossly improper manner by provoking the altercation. I accept on the evidence that the applicant acted responsively to the aggressive behaviour of the other driver, and was not unreasonable in defending himself in the particular circumstances. Further, I accept that there is no evidence that the applicant specifically rejected the other driver’s suggestion to “go to the footpath, 1 on 1”.
However, the applicant explained that:
“I felt anxious and afraid he was going to hit me and I decided to defend myself and the fight began. Everything went so fast, I did not have time to think other than to survive and that this person wanted to cause me serious damage due to his aggressive nature, and unstable behaviour and being so mad that I was driving a truck slowly in a suburban street in a school zone. I had no other choice to think this man was capable of anything and I needed to defend myself. It was too late to get back into my truck to avoid him. I thought if I turned my back on him he would have killed me.”
Having regard to the evidence as a whole, I consider that it is logical and reasonable that the applicant would have held concerns for his own safety in those circumstances at that point in time, and that the applicant instinctively reacted out of concern for his own safety in the moment. Considering the evidence as a whole, I accept the applicant’s evidence in that regard. I accept that, faced with the aggression of the other driver, the applicant felt in a position that he had no real alternative but to defend himself.
Having regard to the evidence as a whole, I reject the proposition that the applicant was the instigator of the physical assault. Further, I reject the proposition that the applicant acted in a manner which took him out of the course of his employment.
Whilst the NSW police held the opinion that the incident would not have occurred if the applicant and the other driver had remained in their respective vehicles, and that was likely the case, I do not find that the applicant’s conduct in the particular circumstances was such that it took him outside his employment.
I consider that the circumstances of the present case are distinguishable from the decision of Williams.
Accordingly, I find that applicant sustained the injuries in the course of his employment with the respondent.

Did the injuries arise out of the applicant’s employment?

Having regard to the provisions of s 4(a) of the 1987 Act and my findings above, it is not necessary for me to determine this issue. However for the reasons set out above, I am also satisfied that the injuries sustained by the applicant arose out of the applicant’s employment.

Is the applicant disentitled by reason of s 14(2) of the 1987 Act?

It is not in dispute that the applicant sustained serious and permanent disablement as a result of the injuries.
Mr Perry made no submission on behalf of the respondent with regard to s 14(2) of the 1987 Act, noting that the injuries the applicant has sustained, on the evidence, have resulted in serious and permanent disablement.
In the circumstances, I find that the applicant is not disentitled to compensation by reason of s 14(2) of the 1987 Act.

SUMMARY

For the above reasons, I find that:
(a) the applicant sustained injury on 21 January 2019 in the course of his employment pursuant to s 4(a) of the 1987 Act, namely a psychological injury and injury to his ear, nose and throat related structures;
(b) the applicant’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act, and
(c) a defence pursuant to s 14(2) of the 1987 Act is not established.
Accordingly, I order that the matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:      21 January 2019
Body parts:          psychological
ear, nose and throat related structures
Method:               whole person impairment.
The materials to be referred to the Medical Assessor are to include:
(d)    the ARD and attached documents;
(e)    Reply to ARD and attached documents, and
(f)    the AALD by respondent dated 10 November 2023.

[2024] NSWPIC 14

10 January 2024