Kazmi v Trinity Corporate Services Pty Ltd

[2022] NSWPIC 207

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Kazmi v Trinity Corporate Services Pty Ltd [2022] NSWPIC 207

APPLICANT:

Syed Kazmi

RESPONDENT:

Trinity Corporate Services Pty Ltd

SENIOR MEMBER:

Kerry Haddock

DATE OF DECISION:

10 May 2022

CATCHWORDS:

WORKERS COMPENSATION- Claim for weekly benefits and medical expenses as a result of injury to right wrist sustained when applicant forcibly removed from host employer’s premises; applicant attended meeting to discuss complaint against a colleague; applicant was dissatisfied with the proposed resolution of his complaint and became angry and abusive, leading to his removal; respondent disputed that injury arose out of or in the course of employment, pursuant to section 4 of the Workers Compensation Act 1987 (1987 Act); respondent relied on defence pursuant to section 14 of the 1987 Act; dispute as to any entitlement to weekly benefits; Held- consideration of SB v XFPL; Badawi v Nexon Pacific Pty Limited trading as Commander Australia Pty Limited; Nunan v Cockatoo Island Docks & Engineering Co Ltd; Kasim v Busways Blacktown Pty Ltd; Tarry v Warringah Shire Council; Davis v Mobil Oil Australia Ltd; Secretary, New South Eales Department of Educati0on v Johnson; and Sawle v Macadamia Processing Co Pty Ltd; unbroken chain of causation; injury arose out of employment; injury not solely attributable to applicant’s serious and wilful misconduct; award for applicant of weekly benefits and medical expenses.  

ORDERS MADE:

1.     That there is an award for the applicant as follows:

Section 36 of the Workers Compensation Act 1987:

(a)    from 28 August 2020 to 27 November 2020 at the rate of $1,263.50 per week.

Section 37 of the Workers Compensation Act 1987:

(a)    from 28 November 2020 to 17 December 2020 at the rate of $1,064 per week;

(b)    from 18 December 2020 to 14 February 2021 at the rate of $517 per week;

(c)    from 15 February 2021 to 19 February 2021 at the rate of $296.50 per week;

(d)    from 20 February 2021 to 7 March 2021 at the rate of $517 per week;

(e)    from 8 March 2021 to 12 March 2021 at the rate of $817.26 per week;

(f)    from 13 March 2021 to 19 March 2021 at the rate of $645.22 per week;

(g)    from 20 March 2021 to 25 April 2021 at the rate of $517 per week;

(h)    from 26 April 2021 to 11 June 2021 at the rate of $716.50 per week;

(i)    from 12 June 2021 to 27 June 2021 at the rate of $517 per week;

(j)    from 28 June 2021 to 16 July 2021 at the rate of $716.50 per week; 

(k)    from 17 July 2021 to 14 November 2021 at the rate of $517 per week;

(l)    from 15 November 2021 to 19 November 2021 at the rate of $716.50 per week, and

(m)     from 20 November 2021 to date and continuing at the rate of $517 per week. 

2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act 1987.

3.     That the respondent is to have credit for payments made. 

4.      That the parties have liberty to apply with respect to the award of weekly benefits.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Syed Kazmi (Mr Kazmi), was employed by the respondent, Trinity Corporate Services Pty Ltd (Trinity) as a security guard. 

2. On 24 August 2020, Mr Kazmi attended a meeting at the office of his host employer, E Group Security (E Group) to discuss a complaint he had made against a colleague. The discussion became heated, and in the process of being removed from the office, Mr Kazmi sustained injury to his right wrist. 

3. The applicant completed a Worker’s Injury Claim Form (the claim form) on 6 November 2020. He stated that the injury occurred on 28 August 2020. He was in a meeting with his employer and two colleagues, when he was assaulted. “Abdal” [sic], one of his colleagues, grabbed his wrist and pushed it down. He sustained a fractured right wrist and was also punched to the back of his head.  

4. On 8 January 2021, the respondent’s workers compensation insurer, iCare Workers Insurance (iCare) issued the applicant with a dispute notice, pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

5. ICare disputed that the applicant had sustained injury arising out of or in the course of his employment; and that employment was a substantial contributing factor to any injury. It maintained that the injury was solely caused by the applicant’s serious and wilful misconduct. ICare therefore disputed that he was entitled to either weekly benefits or payment of medical expenses.

6. By letter dated 8 February 2021, the applicant’s solicitors requested a review of the decision to dispute liability for the claim.

7. On 22 February 2021, iCare advised that it had reviewed its decision, which was maintained.

8. The applicant lodged an Application to Resolve a Dispute (the Application) on 29 September 2021. He claimed that on 28 August 2020, he attended the respondent’s office, at its request, to discuss a complaint he had made against one of his colleagues. The applicant’s colleague, along with several other men, was present at the meeting and the discussion became heated (I note here that the colleague was not at the meeting). In an attempt to force the applicant out of the respondent’s office, one of the men grabbed the applicant’s right hand and pushed his wrist down. The applicant experienced an immediate onset of pain throughout his right wrist, thus sustaining injury.     

9. The applicant claimed weekly benefits compensation from 19 January 2021, ongoing. He also claimed $850, pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of past treatment expenses.   

10. The respondent lodged its Reply on 21 October 2021. 

ISSUES FOR DETERMINATION

1. The respondent confirmed that the principal issue is whether the applicant was in the course of his employment when he was injured; that section 14 of the 1987 Act is relied on in the alternative; and the applicant’s capacity for work is disputed.

PROCEDURE BEFORE THE COMMISSION

1. The matter was listed for conciliation/arbitration hearing by video on 24 January 2022.   
   Mr McManamey of counsel, instructed by Mr Kardun, appeared for the applicant; and
   Mr Robison of counsel, instructed by Ms Bentley, appeared for the respondent. Mr Kazmi’s video connection was unfortunately not operational, but he joined the hearing by telephone. Mr Lacsina from EML also attended.

2. The Application was amended to name the respondent as Trinity Corporate Services Pty Ltd. It was further amended to claim weekly benefits from 28 August 2020 to date and continuing. The applicant confirmed that he seeks a general order for medical and related expenses, pursuant to section 60 of the 1987 Act.

3. The applicant objected to the admission of the report of Dr Stephen Rimmer, dated 8 December 2021, which was attached to the respondent’s Application to Admit Late Documents dated 14 January 2022. The report was admitted, for reasons given at the hearing and which were recorded.

4. The respondent sought leave to cross-examine the applicant on the issue of his motivation in attending the office of what was described as the host employer; and in respect of its “fallback position” of reliance on section 14 of the 1987 Act.  This was opposed by the applicant. The respondent was granted leave to cross-examine the applicant on the limited basis of what occurred when he was asked to leave the premises, for reasons that were recorded. 

5. Due to the time taken in conciliation, interlocutory matters and Mr Kazmi’s oral evidence, the matter was unable to conclude on 24 January 2022.  It was listed for further conciliation/arbitration hearing on 4 March 2022, when counsel made oral submissions. 

6. After counsel had made their submissions, the decision of Deputy President Snell in SB v XFPL [2022] NSWPOC 7 (SB), having been de-identified, was published. Counsel for the applicant, having appeared in SB, made submissions about that matter at the hearing.

7. The parties were requested to advise whether they wished to make further submissions in light of the decision in SB, and, if so, to agree to a timetable for the submissions, after which the matter would be determined. The parties have provided further written submissions. 

8. I was not advised that the parties had agreed on the applicant’s pre-injury average weekly earnings (PIAWE). They are claimed as $1,330 per week. His bank records are in evidence. The respondent has not disputed his amended wage schedule, attached to the Application to Admit Late Documents dated 25 November 2021. I accept that the PIAWE was $1,330. 

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:

   (a)    the Application and attachments;

   (b)    Reply and attachments;

   (c)    Application to Admit Late Documents dated 25 November 2021 and attachments, filed by the applicant;

   (d)    Application to Admit Late Documents dated 14 January 2022 and attachments, filed by the respondent, and

   (e)    Application to Admit Late Documents dated 25 February 2022 and attachments, filed by the applicant.

Oral evidence

1. Mr Kazmi gave oral evidence and was cross-examined.

FINDINGS AND REASONS

Evidence of the applicant, Syed Kazmi

1. Mr Kazmi gave a statement to the NSW Police dated 31 August 2020. 

2. On 24 August 2020, the applicant’s co-worker (whom other evidence identifies as “George”) made some offensive comments to another colleague (Malik) about Mr Kazmi’s daughters. Malik reported the comments to Mr Kazmi. 

3. When he went home, the applicant sent an email to his national manager, Mr Rob Czub, about the matter, following it with another email the following day. Rob contacted him and said George wanted to apologise. The applicant refused to accept his apology and asked for George to be removed from the site, or for his roster to be changed so he did not have to work with George. They proposed that the applicant move to a different site. He was not satisfied with this, and they invited him to the office to discuss the matter.  

4. On 28 August 2020, Mr Kazmi attended the E Group office. He went to a meeting room with Ms Karen Hewitt (Karen) the HR manager, and Rob. He again requested that George be removed from the site, or his roster be changed. They kept trying to get him to accept his apology. “He” (Rob) smiled, and the applicant thought he was not taking his matter seriously.   

5. The applicant said, “I’m not here to beg you for my job, I came here for my justice. If you don’t, so fuck off”.  They started arguing and swearing at each other. Three others, Abdul (Nemra), Amin (Chamoun) and Sam (Sami Chamoun), the business owner, came into the office.  Abdul and Sami asked him to calm down. Sami said, “If you don’t calm down, get out, you’re trespassing”. The applicant started recording on his phone and said they invited him there and he was not trespassing.

6. As the applicant tried to sit down, Abdul grabbed his right wrist and pushed it down. He felt immediate pain and said, “You’re breaking my arm”. Someone else, he does not know who, punched him twice to the back of the head and kicked his lower back, but he didn’t feel much pain. They started leading him out of the building and let go once they were outside.  

7. The applicant went to his car. He knew there was something wrong with his wrist, so he called the police and paramedics. He spoke briefly to the police before the paramedics arrived and he was sent to hospital. 

8. The applicant had provided the police with a copy of his hospital discharge referral and the video he recorded on his phone. 

9. Mr Kazmi made a further statement on 2 December 2020, to an investigator retained by iCare. He referred to emails between himself, Rob and Karen and the meeting on 28 August 2020. He had expressed his concerns about working with George. They were generally dismissive and kept forcing the issue of him accepting an apology. Karen left the room. Rob started smiling at the applicant, who believed he was not taking the matter seriously. The applicant repeated his evidence to the police about what he had said to Rob. Rob’s attitude frustrated and angered him. 

10. The business owners, Sami and Amin, entered the room with Abdul. The owners asked him to calm down and Sami said if he didn’t calm down, he was trespassing. His evidence about what happened next is largely consistent with what he told the police. 

11. Sami had hold of the applicant’s left hand, and Abdul his right. Abdul was twisting his hand and locked his wrist, pushing down and exerting pressure. He was dragged out the door and thrown onto the street. He sustained a minor fracture in his right wrist.

12. The applicant made a further statement dated 2 February 2021. He has responded to evidence given by witnesses from E Group. 

13. Karen had stated that the meeting was to discuss the outcomes Mr Kazmi would like to see. The applicant had arrived at the office in a pleasant mood and was extremely polite to both her and Rob. Following George’s comments about his family, including that his children should be raped and deserved to die, he decided not to take the issue into his own hands, and instead contacted HR. He had every intention to cooperate, as he believed Karen and Rob could prevent George’s misconduct and support him. 

14. Rob disregarded the applicant’s requests and emphasised that he should simply accept George’s apology and return to work as usual. He did not believe this was a just outcome. He had already emailed Karen on 27 August 2020, advising that he would not accept an apology. He therefore believed the meeting was designed to find an alternative.  

15. Karen had stated that George’s comments were hearsay. That is incorrect, as Malik had told him about the comments and would have affirmed this if asked. Despite believing that the comments were fabricated, Karen and Rob still advised that George had offered to meet and apologise to him. The fact that George was prepared to apologise for something he “didn’t do” further highlighted his guilt.    

16. Rob proposed moving Mr Kazmi to a different site. This made him feel he was getting punished for raising his complaint. He admits raising his voice. He told Rob an apology was not a just outcome and he should not be removed from his placement. It is incorrect that he slammed his hands on the table, as he only raised his voice and never acted in a violent or aggressive manner. At this point, Karen left the boardroom to get Sami and Abdul.  

17. Sami has stated that he asked the applicant to leave. He had every intention to cooperate, as he needed his job but wanted a fair outcome.  He went to sit back down so the meeting could proceed peacefully. However, he was now surrounded by Sami and Abdul, and felt extremely intimidated. His evidence accords with his previous evidence about what happened next.  

18. The attack was completely unprovoked, and Abdul did not use a standard wrist lock, as this would not lead to a broken wrist. This wrist lock is used to control very aggressive persons. The applicant did not ever act in a way deemed to be “very aggressive”.

19. In or around mid-December 2020, the applicant re-commenced work as a security guard. He felt he had to return to work, as he had a family to support. He commenced working 12 hours per week. His right wrist remained highly incapacitated, and the pain worsened throughout his shift. He would have to lie down and rest after.  

20. Throughout the beginning of 2021, the applicant’s right wrist pain remained constant. He had difficulty lifting over 5kg and had become highly reliant on his wife’s help. His wrist remained stiff and was noticeably swollen after physical activity. He has numerous disabilities, including occasional pain; restricted range of movement; aggravation with lifting, pushing or pulling, driving or lying on his right side; weakness in his right arm; and psychological symptoms.

21. The applicant has had limited capacity to return to work since the injury. He does not believe he has the physical capacity to return to full duties. He struggles to do his 12 hour shifts. He also has difficulty sleeping and is constantly tired.

22. The applicant denies that it was his wilful misconduct that led to the injury. He was treated with hostility and disregard by his managers. Despite never acting in a physical manner, he was assaulted by his employers due to his refusal to continue working alongside George. The violence he was subjected to was completely unwarranted. His employer could not be intimidated by him, as he was surrounded by four large men and was in no way a threat. He believes he acted in good conscience, in respect for his family, and was instead met with unjustified violence, resulting in his incapacity to work.  

23. The applicant’s final statement is dated 24 November 2021.

24. The applicant stated that throughout 2021, he continued to have severe pain in his right wrist, particularly at night, when he was woken by pain that travels from his wrist to his elbow and shoulder. He had significantly restricted range of movement, sensitivity to cold, stiffness and difficulty driving. 

25. The applicant did not work from 28 August 2020 until about February 2021, when he began work as a sales representative with Impressive Build, working 20 hours per week. After a three month break due to the pandemic, he had continued in that work. He travels to clients’ homes and measures for wardrobes. He is also responsible for explaining to them the various fittings.

26. The work is not very physical, but the applicant struggles with ongoing pain and symptoms while working. As the job involves a lot of driving, he often experiences flare up of wrist pain from the vibrations of the car and repetitive twisting and turning. As he is right-handed, he has a significant increase in pain due to the pulling, writing and twisting he performs. He continues to work because he needs to support his family. He was certified fit to work 20 hours per week, with a lifting and carrying restriction of 5kg.  

Oral evidence of the applicant

1. Mr Kazmi was cross-examined. His evidence tended to stray from the point, and he failed to respond to the question on occasion. Some of his evidence was inconsistent with his statement evidence and with evidence he had already given orally.

2. The applicant confirmed that on the day he was injured, he went into the boardroom and had occasion to speak to Karen and Rob. He denied that he was angry when he arrived at the office but confirmed that he was angry about the comments George had made about his daughters. 

3. The applicant said that when he attended the office, he was very normal. He was on “very good behaviour because still they are my bosses”, and because he was working with them. At some stage, things became less calm. 

4. The applicant denied having told Karen to “fuck off” but conceded having told Rob to “fuck off”. That was after a while when they started an argument “because how was his behaviour”. If he was an abuser or an angry man, why would he not speak to George? He didn’t talk to him, because he explained this matter to his office to resolve this dispute. This was a very serious matter.  

5. Mr Kazmi was asked whether he called Karen and Rob “cunts”. His answer was non-responsive. He said he didn’t talk to Karen when he came in, other than to say hello. There was an argument between him and Rob, in which she was not involved. She was very calm, sitting and listening to both of them. 

6. The applicant asked Rob if he put himself in Mr Kazmi’s position, “what is his behaviour and how, what is your actions?” Rob was smirking at him, and this hurt him a lot, because he was there for his daughters. He was not there for his job. He had told them in the beginning he was not there to beg them to keep him in the job. This was very serious because George told bad words about his daughters. Rob was smirking, and he told him, “fuck you”. He told this to Rob not Karen. When the argument started, she was not involved in it.      

1. Mr Kazmi was upset because “he” (who was not made clear) was recording him. He “put camera” and he was not legally allowed without the applicant’s permission. He hid the recording, and “why didn’t he bring the camera recording in, in tribunal?”

2. The applicant then agreed that he called Rob a “cunt”. He was asked if he started banging on the table. He responded that “when he started, when he told me ‘fuck you and cunt and this stuff’”, an argument started and Rob stood up, so the applicant also stood up. Rob became angry and they started swearing at each other. This was from both sides. Karen left the room first. He thinks he banged once on the table, “because he, yes, I did”. He said he just banged once. When they were arguing and Rob was swearing, Rob banged on the table.   

3. Mr Robison asked if it became quite noisy while the applicant was swearing and banging on the table. The applicant responded that it was not only him, but they were swearing at each other. He agreed that it became noisy, and Abdul and some others came into the room.  

4. The applicant was asked if he was then asked to leave. He was asking the business owner, “Mr Sam”, “don’t you listen? What’s going on?” He just told the applicant to leave. The applicant said he would not leave until they listened to why he was there, and he was there to get “justification what my colleague did with me”. He refused, and then they removed him from the property. It was the owner of the business who told him to leave.   

5. The applicant agreed that, as a security guard, he knew that when told to leave, he had to leave. He said they had the right to ask him to leave even if they had invited him, but this is not the way to remove someone from the site. He was not resisting, and they could not say he was. “They [not transcribed] to me to punch me or hit me and then they told me to break my arm”. There were four big men. How could he resist them?   

6. Mr Robison put to Mr Kazmi that when he was asked to leave, he did not stand up and leave. Mr Kazmi said he did. He was asked if he continued to argue and responded “No, I yes, I’d been sitting on seat, yes, you’re right”.  He agreed that he started filming on his phone, because he knew what they were doing with him. If he was guilty, and doing something wrong, why would he record himself?

7. The applicant agreed he did not have permission to record, but they were recording him as well. Rob put the camera on the table and videoed him. He was videoing the applicant with a professional camera without his permission, but he “didn’t tell them nothing”. 

8. The applicant agreed he didn’t leave and stayed sitting in the chair. Abdul took him by the wrist and together with others, he walked Mr Kazmi outside the building. It was put to him that nobody swore at him in the meeting, to which he answered that it was because they knew he was recording. They were not swearing when he was being removed.

9. Mr Robison put to the applicant that nobody other than he swore in the boardroom. His evidence is that he and Rob were swearing at each other. No one else swore at him. He and Rob were swearing at each other before he started filming.   

10. It was put to the applicant that, apart from Abdul taking him by the wrist and escorting him out, nobody touched him. He answered that they hit him on his back and neck, and Abdul twisted his arm.  He denied having lied about being hit.

11. The applicant denied continuing to swear as he was being removed from the building. He said “You have to see the video. I wasn’t swearing”.

12. The applicant said he told them he would take them to court. There is reference to the police, but much of this part of his evidence has not been transcribed. He swore on the street but not in the premises.  He then said he didn’t use the word “court” but said he was going to call the police. He swore at all of them when he was out on the street and told them he was recording this thing and reporting to the police.

13. The applicant’s evidence is that he did not say he would leave of his own accord, or walk out on his own, or something like that. 

Evidence of Karen Hewitt – Human Resources Manager

1. Ms Hewitt’s statement is dated 16 December 2020. 

2. The applicant was not a direct employee, but was engaged through Trinity, a labour hire agent. He attended a meeting at the E Group offices on 28 August 2020, to discuss the outcomes he would like to see after he made a complaint about a colleague.

3. The complaint was investigated by Mr Czub and the findings were communicated to the applicant. The applicant advised that he didn’t accept this, and E Group invited him to the office to discuss the complaint. From the moment he entered, he was rude and arrogant to staff in the office, after being requested to sign in with the Covid-19 barcode.   

4. At about 11:20am, she and Mr Czub went into the meeting with the applicant. She spoke about the findings and re-confirmed that the person about whom he complained had never said anything to him direct, he was receiving information third-hand, and this was hearsay. 

5. She told the applicant the individual had no recollection of what he was alleged to have said but had offered to meet Mr Kazmi and apologise if he had said or done anything to offend him.  

6. The applicant refused to accept this, so she asked him what outcome he wanted. He started yelling that there was no justice, and he wanted justice, at the top of his voice. Mr Czub asked him to calm down, went through the complaint, and pointed out he wasn’t even willing to meet and discuss the alleged comments, “which again are hearsay coming from a third party”.   

7. The applicant started raising his voice, swearing on Allah. She respectfully asked him not to do that. He started screaming that she and Mr Czub wanted to remove him off site, though he had done nothing wrong.

8. She asked the applicant to calm down, and re-confirmed that the business had an obligation under WHS. If he didn’t feel comfortable in his work environment and wasn’t prepared to even accept an apology based on alleged comments, the business would have to consider moving him to another site where he felt safe. At no time was his work ethic questioned.

9. The applicant again started screaming “don’t tell me he is a baby, teenager, he is 29 years old”. Mr Czub asked him to please listen to what they were saying, as he was not prepared to give that person the benefit of the doubt. Therefore, they had an obligation to ensure he was on a site where he felt comfortable.

10. The applicant asked why he should be moved, as he did nothing wrong.  Mr Czub explained the alleged comments were hearsay, no proof had been provided, and the individual had offered to apologise for something he may or may not have said in jest. The applicant wasn’t listening and started screaming even more, stating that he was there for justice.

11. Mr Czub stated he was cancelling the meeting, as the applicant was not being reasonable, wasn’t listening, and as he couldn’t calm down, there was no reason to continue.

12. The applicant stood up and called her and Mr Czub “cunts”, stating “Fuck E Group. I want justice” and he “wasn’t licking anyone’s ass [sic]”. Mr Czub asked him to step out and opened the door to show him out. He started yelling, “call the fucking police. Fuck you Rob and you HR. Fuck you all”. 

13. Mr Amin Chamoun, Mr Sam(i) Chamoun (to whom I will refer herein as Sami to avoid confusion, while meaning no disrespect), Mr Ken Jenkins and Mr Abdul Nemra had attended to ensure everything was OK. The applicant was asked to settle down. He told everyone to “get fucked”, he wasn’t leaving, to call the police. Mr Nemra requested everyone to leave the office, and only he and Sami remained with the applicant.

14. Everyone could hear the applicant still screaming, telling Sami to “fuck off” and he wasn’t leaving. He had to be physically escorted by Mr Nemra to the carpark. While that was happening, she did not witness anything that could be classified as excessive force.

Evidence of Robert Czub – National Operations Manager

1. Mr Czub’s statement is dated 18 December 2020. 

2. The applicant was a good worker, turned up to shifts, and covered shifts when needed. 

3. The applicant attended a meeting with him and Ms Hewitt on 28 August 2020, to discuss an incident that had taken place at the QVB. The applicant had made a formal complaint to him that a colleague had allegedly made a comment about his family.

4. He investigated the complaint, and the meeting was to discuss the outcome and resolution. It was held in the boardroom. The applicant in his opinion was coming across as arrogant and seemed to be upset.

5. Ms Hewitt began by outlining the complaint and why the applicant had been asked to attend. She then explained how the complaint was investigated and the actions or outcomes they would like to see as a business. Their resolution was to have the applicant and the other employee meet in a formal mediation so they could discuss what was said and work through the issues in order to continue working together.   

6. The applicant was not happy with this solution and became agitated, demanding justice and a better outcome.  He explained that the comments were alleged, and they could not remove the other party from the site or terminate his employment, as the applicant was suggesting.

7. The applicant became more agitated and aggressive and began yelling at him and
   Ms Hewitt. He continually asked the applicant to calm down and to stop yelling. The applicant became more aggressive and began swearing on Allah, speaking in Arabic, and yelling that he wanted the other party removed from the site. 

8. Ms Hewitt kept explaining their position and advised the applicant that if he was not able to deal with the situation professionally, they had an obligation to the other party, which unfortunately meant they may need to move Mr Kazmi to another site. The applicant continued to raise his voice and began degrading the other party. He cannot recall the exact words.     

9. The applicant then calmed down and asked why he should be removed from the site. He explained that there was no evidence of the comments occurring, no witness, and the other party did not recall making such comments. He was, however, willing to meet the applicant to discuss the matter. The applicant refused and was speaking very poorly of the other party.

10. He explained that as a duty of care to the other party, the only resolution may be to move the applicant to another site. The applicant began slamming his hands on the table and screaming he wanted justice. He advised the applicant the meeting was over, stood up, opened the door, and asked the applicant to leave.

11. The applicant stood up and began calling him and Ms Hewitt “cunts”, stating “fuck E Group” and “I want justice”. He again asked the applicant to leave, but he said he was not leaving, “call the fucking police. Fuck you”. This was yelled at the top of his voice, while Mr Kazmi was standing and facing him.  In his opinion, the applicant was very aggressive.

12. He positioned himself in a defensive manner, as he felt the applicant might try to hit or attack him. Sami Amoun, Amin Chamoun, Ken Jenkins and Abdul Nemra came running to see if everything was OK. Sami was asking the applicant to calm down. The applicant told everyone to “fuck off”, refused to calm down, and refused to leave.  

13. Being in the industry they are in, he knew that the best thing for him to do was to leave, as the applicant was upset with him. He believed the applicant would then calm down and listen to everyone else trying to reason with him. He left and went back to his desk. Everyone left but Mr Nemra, Sami and the applicant. He could see they were trying to talk to the applicant, but he continued yelling and telling them to “fuck off”.   

14. He noticed the applicant move toward Mr Nemra, who had to grab him, put him in a wrist lock and escort him out of the boardroom. This is a standard lock, used to control very aggressive persons of interest and escort them off the premises. It is used in training all security officers when they obtain a license. It is also the next step in the use of force continuum.  

15. He followed Mr Nemra outside, where he released the applicant, advised him not to return and gave him a move on direction. The applicant walked away, and they all went back inside.  

Evidence of Sami Chamoun – Director

1. Mr Chamoun’s statement is dated 21 December 2020. 

2. On 28 August 2020, he was sitting in his office when he heard loud yelling. At first, he did not take much notice, until it kept going and started to get louder. He got up to have a look, and realised it was coming from the boardroom. 

3. When he arrived at the boardroom, Mr Nemra and Mr Jenkins had also heard the yelling and arrived from the other side of the office. Mr Czub and Ms Hewitt were talking to the applicant in the boardroom. It was the applicant who was yelling.   

4. Mr Nemra asked Mr Czub, Ms Hewitt and any other on-lookers to leave the room and immediate area. He did this as other staff had gathered around, and the applicant was getting aggressive, throwing his hands in the air and smacking the table. 

5. Mr Nemra asked the applicant to settle down. Mr Chamoun told him to stop yelling, as he was starting to scare some of the staff. The applicant continued, kicking the chair and yelling swear words. He and Mr Nemra asked him to stop, calm down and talk to them about what was wrong, or he would have to leave. He continued yelling, smacking the table again with his hand.  

6. The applicant leant towards him and Mr Nemra in an aggressive manner. He stepped back and told the applicant he had gone too far and had to leave immediately. Mr Nemra also asked him to leave and said if he did not, they would have to escort him offsite.  

7. The applicant refused and Mr Nemra placed his right hand on the inside of his arm in a forward gesture to get him to start walking. The applicant resisted, pushing back and striking Mr Nemra in the shoulder. He took out his phone and tried to film them, which they did not really care or worry too much about.  

8. By this time, the applicant was really starting to get aggressive and making him and the office staff uncomfortable and frightened. Mr Nemra placed his hand on the applicant’s wrist in a wrist lock position and asked him to walk outside. The applicant tried to resist, but walked to the front entrance, about 10 metres from the boardroom. Mr Nemra released his wrist and he walked away of his own accord.

9. During this time, he was positioned just behind Mr Nemra. He did not witness any behaviour that would be classified as excessive force. 

Evidence of Abdul Nemra – General Manager

1. Mr Nemra’s statement is dated 23 December 2020.

2. On 28 August 2020, he was working when he heard a commotion coming from outside his office. He investigated and identified the source as a screaming male, coming from the boardroom.

3. He walked towards the boardroom, as did other staff, including Mr Jenkins and both Mr Amin Chamoun and Mr Sami Chamoun. In the boardroom were the applicant, Mr Czub and Ms Hewitt.

4. The applicant was making wild hand gestures and screaming at the top of his voice. He was erratic and highly aggressive in tone and demeanour. His outburst was aimed at Mr Czub and Ms Hewitt. Fearing that the applicant would escalate in physical aggression, he stepped between him and Mr Czub and Ms Hewitt, asking them to leave the room.

5. He took these actions to remove Mr Czub and Ms Hewitt from a potentially harmful situation and as the applicant’s conflict was with them, their withdrawal would eliminate the conflict.  Once they were out of the room, he requested the applicant to talk to him in the same calm manner in which he was talking to Mr Kazmi.

6. The applicant’s behaviour became more sporadic and impulsive. At times, he would demand justice and then threaten physical violence. He made continual threats. Sami identified himself as the owner and offered to hear the grievance. This was received with further erratic behaviour. The applicant said words to the effect of “Fuck E Group. You are nothing. I will have my justice”.

7. He again asked the applicant to talk to them in a calm manner so they could resolve his grievance. He reminded the applicant they had a lot of young female staff and to be mindful and considerate of that. The applicant started yelling again. It had become clear that while they remained in the room, they were offering him an audience, and he was not interested in resolving his issue.

8. At this point, the applicant was for the first time asked to leave. He refused and was advised that under the Inclosed Land Protection Act 1901 [sic], he was required to vacate the premises. He refused and pulled out his phone to record the incident.

9. The applicant attempted to sit, stating words to the effect that, “I’m not leaving, I’m going to sit here and you better not fucken touch me”. He advised the applicant that if he refused to comply with his legal request to vacate the venue, he would be physically removed. The applicant said, “I’m not leaving. Fuck E Group, you shit company”.

10. At this point he stepped towards the applicant with the clear intention to physically eject him. The applicant came forward with what he believed was the intention to resist. He grabbed the applicant’s right arm, applied a wrist lock (compliance hold), secured him and commenced the removal. As he walked out of the boardroom, Charlie Nohra, rostering manager, secured the applicant’s left arm and assisted in walking him out.

11. As they walked outside, he noticed a young female employee, Georgia Smith, walking towards them. He maintained his hold on the applicant and instructed her to enter the building. Once she walked past, he advised the applicant he would release him and if he returned he would be committing an offence. He released the hold in such a way that it created a safe distance between him and the applicant, who continued to walk down the road. He returned inside to ensure the applicant couldn’t reengage.

12. Sami remained in the room during the entire incident and shadowed the applicant’s removal. A short while later, the police arrived, and he was interviewed and made a statement.

13. He has worked in the security industry since 2005, and often dealt with aggressive and erratic individuals. He believes he was well qualified to deal with the situation. He remained calm and believes his actions were reasonable and proportionate. The applicant was given several opportunities to vacate the building and refused to follow directions. His behaviour would be best described as manic. 

Emails between the applicant and E Group Security

1. I will not reproduce the emails in full, and I have paraphrased some of their contents.

2. On 25 August 2020, the applicant emailed Mr Czub.

3. The applicant complained of “back biting” by George. He had passed comments to
   Mr Kazmi’s colleague that “Syed’s kids die, Syed’s kids burn in hell, Syed’s daughters get raped”. The applicant had “strong evidences [sic] and witness”. He would provide them.

4. The applicant made further allegations against George, regarding revealing site activities and denigrating E Group. 

5. On 26 August 2020, the applicant again emailed Mr Czub, advising that he was waiting for a response. He wanted the matter investigated before he resumed his coming shifts.

6. Ms Hewitt emailed the applicant on 26 August 2020 to advise that the matter had been investigated that morning and they were collating the facts. Mr Czub was away sick, and they would finalise the matter tomorrow (that is, 27 August 2020). Until the investigation was finalised, they expected all staff to continue working their scheduled shifts. They would advise the findings in an efficient timeframe.

7. Mr Kazmi thanked Ms Hewitt for the update.

8. Mr Czub also emailed the applicant on 26 August 2020. He said he had spoken to George formally that day. He was extremely apologetic for his comments and advised “he didn’t mean anything personally such comments”. He had not advised George that the applicant made the complaint, but George had asked Mr Czub to approach him so he could apologise directly to him. He asked if the applicant was happy for him to approach George about the matter.

1. The applicant sent a lengthy email to Mr Czub later on 26 August 2020.

2. The applicant asked whether Mr Czub if he would forgive George? Had the comments been about himself, he shouldn’t take them to Mr Czub and HR. George had passed bad comments about the applicant’s [3] girls and there was no way he would forgive him. He had still not discussed the matter with his wife, who, if she knew, would charge him for abuse.

3. There was a great deal of comment about George that it is not necessary to repeat. The gist of it was that George had a mental illness and was disloyal to E Group and indiscreet in discussing site activities.

4. The applicant stated that in 10 years in the security industry he had never seen a childish rover or controller like George. “E Group keep him on site or remove him. I am leaving this decision on E Group”.

5. The applicant concluded that he would not work anymore with George and would not forgive him. He was requesting that they “kindly” change his roster and put him on George’s opposite days.

6. Mr Kazmi sent another email on 27 August 2020 to Mr Czub and Ms Hewitt. He stated that George had not just abused but had hurt his soul. He was “too stress[ed] about his disgusting comments”. He was waiting for HR’s decision and needed justification about his matter.

7. Ms Hewitt responded on 27 August 2020, copying Mr Jenkins and Mr Czub. She advised that Mr Czub had sent a response yesterday. If the applicant was not prepared to accept an apology or work with George, then under WHS the business had an obligation to relocate
   him to an alternative site, where he would have no interaction with George.

8. Ms Hewitt went on say George had been spoken to, and understood no comments should ever be made, even in jest, as peoples’ perceptions are different to his. He was very sorry for any distress he had caused, but if the applicant was adamant he did not wish to resolve the matter, then the business would take him out of that environment. Mr Czub was away that day, so they would be in touch the next day and action accordingly.

9. Ms Hewitt advised the applicant that if he wished to make an appointment with her, she was happy to discuss everything at head office, with Mr Czub present, so they could give him some reassurance.

10. The applicant emailed Ms Hewitt on 27 August 2020 that he was quite happy to come tomorrow and discuss the matter. He asked that she let him know the time.

11. Ms Hewitt responded that she was waiting on Mr Czub to come back to her with a time, and she would confirm as soon as she heard from him. She sent a later email, suggesting 10:30am if suitable to the applicant. 

Film of the incident

1. I have viewed the CCTV and footage taken by the applicant on a mobile phone.

2. The footage of the main office shows a gathering of men and a discussion. The applicant is then shown from the back, being removed from the building, with a man holding each arm, and others following. The men are shown returning to the office. 

3. The footage from the reception of the office is similar. It shows the applicant being walked out, with a man holding each arm. He appears to be struggling.

4. The applicant is seen on the video taken on his mobile phone facing a man who is wearing a white T-shirt and black trousers.  Mr Kazmi is heard to say, “get away from me” and the response is that he is being asked to leave. He again says to stay away from him and “let me alone”. He is again asked to leave and told he was trespassing. He says “call the police. I’m not trespassing”. 

5. The applicant is asked to get out of the chair and “please leave”.  It appears that he was being pulled, not roughly, from the chair, and again told “please leave. Come on mate”. The man who pulled him from the chair was bearded, wearing a baseball cap and grey jacket over a dark T-shirt. The applicant says, “don’t touch me”.

6. It is then not possible to see what happened, as the video breaks up (it is assumed due to the scuffle). The applicant says he is not leaving and “you can’t hit me, OK”, to which the response is that are were not hitting him, and he says, “you’re breaking my arm”.

7. Someone is heard to say “you’ve had your chance. We’ve asked you politely. We’ve tried to comply [?] with you. We’ve tried to listen to you”. The applicant again says they are breaking his arm, and the response is “we disagree”.

8. The applicant is seen outside. He is told “don’t come back. You’re not welcome here at the business” [or possibly “as a visitor”]. The applicant says, “leave me alone. Don’t hit me, OK”.

9. Someone says, “go inside Georgia please” (to the young woman who is seen in the driveway approaching the building) and “see you later” to the applicant. The applicant says he will see them later, is recording everything, and will call the police. He concludes with “thank you very much. And fuck you too. And fuck you”, and to the background of a barking dog “and fuck your dog”.   

10. The CCTV footage of the driveway shows Ms Smith walking towards the building. The applicant is seen walking out, being held by the right arm by the bearded man in the cap, holding his phone in the other hand. Two other men come onto the driveway, and the applicant walks backwards away from them, still filming.

11. The three other men remain briefly in the driveway and disappear from view. A man wearing a white dress shirt and black trousers is seen in the driveway, on his phone.

Medical evidence

Royal Prince Alfred Hospital

1. The applicant attended Royal Prince Alfred Hospital (RPA) on 28 August 2020.

2. The discharge summary records that he attended with right wrist pain and x-ray showed undisplaced right DR (distal radius) (closed injury).     

3. The history recorded was that the applicant was brought in by ambulance after an alleged assault. He had had “heated argument ‘with boss and colleagues’”. They were trying to escort him out, holding him by the wrists. His right wrist “got twisted, kicked to L [eft] ankle. Got “punched to back of head and neck 3x”.    

4. RPA noted that people were grabbing the applicant from the back. He complained of mild right thoracic back pain. Nil LOC (loss of consciousness) was noted. He denied any other injuries.  

5. The applicant was discharged with plaster care instructions and advised  “Rest and elevation. Simple analgesia”. He was to be followed up next week in the fracture clinic, or seek medical attention sooner if there were any concerns.  

Dr Kalid El Skafi – General Practitioner

1. Dr El Skafi’s records are in evidence.

2. There is a history of adjustment disorder, depression and anxiety that pre-dates the injury.

3. On 17 September 2020, Dr El Skafi recorded that the applicant was allegedly assaulted by his boss after a heated argument. He was held by the right wrist and “twisted hard”, resulting in severe right wrist pain.

4. The applicant was treated at RPA and had an appointment at the fracture clinic on 10 October 2020. He had a painful right wrist at night. Dr El Skafi recorded right wrist fracture,

5. 20 October 2020, Dr El Skafi issued a medical certificate “to whom it may concern”.

6. Dr El Skafi recorded that the applicant was suffering from a right wrist fracture after an alleged assault on 28 August 2020, after a heated argument with his boss at work. He had since been on painkillers and Endep, an antidepressant.   

7. Dr El Skafi opined that stress, with affected concentration and attention, and possibly adjustment disorder, that had been building up post injury, affected the applicant’s judgment, causing delay in presenting his legal paperwork “to the tribunal court”. The clinical records suggest this was for “Fair Trading”, where he was late in submitting a claim.

8. The applicant continued to consult Dr El Skafi, who recorded on 17 November 2020 right wrist fracture and adjustment disorder.

9. On 11 December 2020, Dr El Skafi referred the applicant to orthopaedic specialist
   Dr Jonathan Herald. The referral noted that the applicant had suffered undisplaced right DR fracture in August 2020. He had plaster on for six weeks, and still had pain over the right wrist, although his recent X-rays showed no visible fracture.

10. On 4 June 2021, Dr El Skafi recorded that the applicant was still struggling with his injured right wrist.

11. On 24 July 2021, Dr El Skafi recorded that the applicant had seen “orthopod”. The fracture had healed well. There was a low grade sprain of his wrist capsule. Pain persisted “? Nerve damage”. The applicant had been referred to a neurologist for assessment and NCS (nerve conduction studies). It was noted on 4 August 2021 that he was waiting to see the neurologist. 

12. Dr El Skafi has issued the applicant with certificates of capacity (COCs). It appears that he first certified Mr Kazmi with some capacity for work from 18 December 2020 to 18 February 2021, four hours per day, three days per week, with a lifting capacity of up to 5 kg with his left (assumed to be an error for right) hand.

13. There are various COCs that refer to “2020” in error for “2021”.

14. The last COC in evidence is dated 26 October 2021. The same restrictions are recorded, up to 20 November 2021.

Dr Jonathan Herald – Orthopaedic Specialist

1. Dr Herald reported to Dr El Skafi on 5 July 2021.

2. Dr Herald recorded a consistent history of the injury. He noted that the applicant’s right wrist was twisted and forced into a palmar flexed position. Since then, he had had wrist pain and swelling.

3. The applicant had ongoing pain in his wrist, especially in the ulnar side. He had difficulty with end stage movement of his wrist and pain. He said the ulnar sided wrist pain extended all the way to his shoulder.

4. On examination, the applicant had wrist tenderness and range of motion irritability. He had near full movement, but a positive carpal tunnel compression test.

5. Dr Herald diagnosed possible ulnar neuropathy or carpal tunnel syndrome (CTS) and possible post-traumatic arthritis of the wrist. He referred the applicant for CT and X-ray and nerve conduction studies. He noted that the MRI showed a low grade sprain of the wrist capsule.  

6. The nerve conduction studies were reported by Dr William Huynh, neurologist, on 29 September 2021. He recorded normal and symmetrical upper limb median and ulnar nerve conduction values, without electrophysiological evidence of right sided CTS or ulnar neuropathy (at wrist or elbow).

7. Dr Huynh suggested that dynamic elbow studies of the ulnar nerve may be of value to evaluate the potential for ulnar neuropathy at the elbow, as electrophysiological studies are not entirely sensitive for those with pure sensory symptoms.

Dr James G Bodel – Orthopaedic Surgeon

1. Dr Bodel was qualified by the applicant and reported first on 16 July 2021.

2. Dr Bodel appropriately eschewed any comment on the liability issues. He noted there does not appear to be a dispute as to what happened to cause the injury to the applicant’s right wrist. He has recorded a consistent history of the injury and treatment. The applicant had an appointment with the neurologist next week.   

3. The applicant had had an injection into the back of his wrist that had been helpful. His symptoms had improved but not completely resolved. He had not returned to security work. He was off work for about six months and was working in a sales role for a kitchen manufacturer. This was not very physical work. 

4. Dr Bodel recorded the applicant’s complaints as having been pain over the dorsum of the right wrist that had improved significantly, with the pain now on the volar surface of the wrist, extending along the little finger. It could also extend towards the elbow and shoulder, but he had no painful restriction of shoulder or elbow movement.   

5. Dr Bodel concluded that the applicant suffered a hyperflexion injury to the right wrist as a result of an alleged assault. The probable diagnosis was a ligamentous strain, according to the MRI done 10 months later. 

6. The applicant was making steady progress. He still had an ache in the volar surface of the wrist, with some numbness and tingling radiating to the little finger. Further treatment may be required. He had restricted capacity for work.

7. Dr Bodel reported that the applicant was coping quite well with his new work. Hopefully, with further investigations and possible treatment, he will make a further recovery. At that stage he had 3% whole person impairment, and Dr Bodel opined that it was unlikely, even with further surgery, that it would exceed 10%.  

8. Dr Bodel again reported on 19 August 2021. He agreed that the restrictions on the applicant’s capacity for work appeared appropriate.

Dr Stephen Rimmer – Orthopaedic Surgeon

1. Dr Rimmer was qualified by the respondent and reported on 8 December 2021.

2. Dr Rimmer recorded a consistent history of the injury. The applicant described having various investigations, “all of which appear to have been normal”, but Dr Rimmer had no investigations.

3. The applicant had commenced work in January 2021 as a kitchen manufacturer sales representative, working 20 hours per week. There was no lifting involved.

4. On examination, the applicant repeatedly stated, “look at the swelling”, pointing to the dorsal aspect, radiating to the extensor aspect of the middle finger. Dr Rimmer recorded a very small amount of swelling over the dorsal aspect of the distal radius. The applicant was non-tender to firm palpation throughout. 

5. Dr Rimmer opined, without the benefit of investigations, and from the file provided, that the applicant had an undisplaced distal radial fracture (extra-articular) to the right wrist. He could return to pre-injury duties, effective immediately. Dr Rimmer did not believe he had any present incapacity. 

SUBMISSIONS

1. The submissions have been recorded, and the parties have also provided written submissions. I will therefore refer to them only briefly.

Respondent

1. The respondent submitted that the principal issues are whether the applicant, who was injured while trespassing on premises owned by the respondent’s client, falls within section 4 of the 1987 Act; whether section 14 of the Act applies; and, if the applicant succeeds, the correct measure of his entitlement.

2. The respondent referred to the decision of Member Isaksen in Nizamdeen v University of New South Wales [2022] NSWPIC 17, in which the worker was not considered to be in the course of his employment.

3. The respondent submitted, referring to the applicant’s oral evidence, that his behaviour was appalling. He conceded that he did not leave voluntarily, and he had no business being there at that time. It was not the respondent’s premises, and he had no reason to be there if he was not working. He went there “with a personal axe to grind”.  

4. The respondent submitted that the applicant committed the further offence of recording without consent, referring to the Surveillance Devices Act 2007. Whether he was punched or kicked is in dispute, but whether it occurred or not, they were entitled to remove him, even if there was some untoward conduct on their part, which is not conceded. 

5. The respondent referred in some detail to its lay evidence. It submitted that if the applicant was assaulted, in circumstances where he had taken himself out of the course of his employment, it is not important who was in the right or the wrong. It referred to the film, which it submitted showed the demeanour of those excluding the applicant was calm but firm. 

6. The respondent submitted that it required the applicant to deal with the host employer to the extent that it was necessary, but that did not permit him to trespass. He was invited, but the invitation was revoked.   

7. The respondent submitted that the sole cause of the injury was the applicant’s misconduct, which satisfies section 14 of the 1987 Act, but it principally relies on section 4. It is not in issue that the applicant was injured, but the injury did not arise out of or in the course of employment. The applicant was not a worker when, having been told to leave twice, he refused.

8. As regards incapacity for work, the respondent submitted that, having regard to Dr Rimmer’s evidence, I would not be minded to award the applicant weekly benefits.  

9. In reply to the applicant, the respondent submitted that it is a fact that the applicant was told to leave. The first link in the chain was his arrival for the meeting. The genesis of the injury was what happened after he was told to leave. He has not established the final link in the chain. It is “too far away”.   

10. As regards the distinction between “arising out of” and “in the course of” employment, the respondent described this as “cute”. The section 78 notice refers to both. The injury did not arise out of the comments made; it arose out of the trespass and forceful removal. The respondent submitted that the Commission would not be satisfied of the nexus with employment, even on “arising out of” employment.

11. The respondent’s written submissions are dated 28 March 2022.

12. The respondent submitted that in SB, Snell DP collected authorities on the concept of “arising out of” employment, noting Court of Appeal authority in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 (Badawi), which relied in turn on Nunan v Cockatoo Island Docks & Engineering Co Ltd [1941] NSW StRp 23; (1941) 41 SR (NSW) 119 (Nunan). It requires that there be a “common sense” approach.

13. The respondent submitted that, on that basis, SB is essentially an application of those principles to the facts of that case. Disputes of this type will tend to be fact-heavy, involving inevitably a mix of work and non-work issues, and any given factual matrix will need to be examined to determine whether those facts fall within the concept.

14. Two of the authorities referred to in SB were Kasim v Busways Blacktown Pty Ltd [2003] NSWCC 6 (Kasim) and Tarry v Warringah Shire Council [1974] WCR 1 (Tarry).

15. The respondent submitted that Tarry should be distinguished because the underlying argument in Mr Kazmi’s case was not about work, but about disparaging remarks about his family; and much more importantly, he had taken himself out of the course of his employment by his own conduct in trespassing on the respondent’s premises. The respondent was not submitting that arguments during work about non-work matters are necessarily facts that render injury non-compensable, but the claim here is too remote.

16. The respondent submitted that where a worker commits a criminal offence in remaining at an employer’s client’s office, and gets injured, the link to work is broken. This may be contrasted with SB, in which the deceased worker was shot due to an argument about work. Generally, a victim of violence, where that violence follows an argument in a workplace dispute, will likely have a compensable claim, whereas the perpetrator of a criminal act, such as
    Mr Kazmi, who is injured as a result, does not have a compensable claim because these intentional acts take him outside employment, both factually and legally (emphasis in original).

17. The respondent submitted that the distinction is perhaps fortified by Kasim, where it was found that a bus driver had assaulted passengers, rather than being assaulted by them. There was an award for the respondent by operation of section 14 of the 1987 Act.  

18. SB also addressed the question of breaking the chain of causation. The decision ultimately becomes, to quote Snell DP, “[d]id the employment cause or to some material extent contribute to the…injury?” The respondent submitted that the answer to that in this case is no. This is because whilst there might be a tangential work-related aspect to the original dispute about the worker’s daughters, that dispute did not cause what ultimately transpired (emphasis in original).

19. The respondent submitted that one cannot conflate matters of history with causative potency. That which might be considered “work related” in some general sense, does not engage with the legal test, which necessitates causation from a worker’s work. None of the comments made about the applicant’s daughters required him to trespass and refuse to leave, such that he had to be forcibly removed. It is not enough that he proves a link between the comments about his daughters and the meeting because of the facts that transpired later. Causation in that respect was purely within the control of the applicant and was not part of the course of his employment. Nor did it arise out of that employment, in that the latter test is still a test of causation. 

Applicant

1. The applicant submitted that the Application alleges injury arising out of or in the course of employment. The respondent had not raised at the telephone conference “arising out of” but only “in the course of” employment, and the respondent had made no submissions on whether the injury arose out of employment.   

2. The applicant’s primary basis is “arising out of”. He submitted that the circumstances are essentially uncontroversial. He worked for E Group; he interacted with George, as part of his employment; George made disgusting comments; and this should have produced a response from the respondent, that is to discipline or dismiss George. The complaint was work-related and there was a response. 

3. The applicant submitted that George offered to apologise. He acknowledged what he said. The emails happened next. He didn’t just turn up, uninvited, to discuss what should happen. There was a clear chain of causation. The applicant had a legitimate grievance, he was told nothing would happen to George, but he was being moved. It is not surprising that he got angry. Once again, there was a chain of causation. Things escalated and the fracture to his right wrist occurred.  

4. The applicant referred to Tarry; Davis v Mobil Oil Australia Ltd [1986] NSWCC3; (1986) 2 NSWCCR 51 (Davis); SB, in which Snell DP considered the earlier law in this matter; and Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 (Johnson), in which Emmett AJA held that the chain of causation does not require foreseeability. He submitted there was a simple chain of causation, with nothing to disturb it. The matter escalated due to his perception that he was not being treated fairly, which may be said to be well grounded, although his reaction may have been extreme.   

5. The applicant submitted that it is not necessary to consider whether he was in the course of his employment, but he was in the course of his employment because it was a meeting to discuss a work matter. He might have become loud and abusive, but he did not attack anyone. The fact that he refused to leave did not take him out of the course of his employment.   

6. As for the application of section 14 of the 1987 Act, the applicant submitted that all the respondent had submitted was that it was misconduct. The respondent bears the onus. He referred to Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; (1999) 18 NSWCCR 109 (Sawle). Mere misconduct does not make it wilful.

7. The applicant submitted that the respondent must establish that he had knowledge of the risk of misconduct and made a considered decision to act in disregard of that risk. The applicant was loud, abusive and angry. What the respondent did not ask him in cross-examination was whether he considered the consequences and risk of not leaving? He submitted I would not be satisfied of that. He was upset, agitated and not in a state to make a considered decision. The respondent must show that, with full knowledge of the consequences, he decided to proceed. It has not discharged its onus.    

8. The applicant referred to Johnson v Marshall Sons & Co Ltd [1906] UKLawRpAC 17; [1906] AC 409. He submitted that the “serious” aspect does not relate to the conduct, but to the injury. The misconduct must be such that it gives rise to a serious risk of injury. The people who removed him were trained security people. He had to have appreciated that, if he said no, the response would be to physically assault him. He had to have appreciated at the time, not in hindsight, that the likely consequence would be that they would assault him. The respondent has not addressed this and does not “get to first base”.  

9. As regards incapacity, the applicant submitted that he had been in a cast for some time. He had been certified as totally unfit by his general practitioner (GP) until 17 December 2020. There is nothing to contradict that evidence. The certification changed on 18 December 2020, when he was certified fit to work for 12 hours per week on suitable duties. Once that happened, he started looking for work. He is performing 20 hours work per week, in excess of his certification, earning $547 per week.

10. The applicant submitted that Dr Bodel’s evidence is consistent with his certification. He found there was still loss of range of movement in his right wrist. The COC was “about right”, but the applicant was working a bit more. There could be no criticism of his bona fides in terms of getting back to work and doing the best he can. The respondent’s witnesses acknowledged he was a good worker.

11. The applicant submitted that Dr Rimmer reported in December 2021 that he still complained of pain in the wrist and Dr Rimmer found swelling. It is hard to reconcile Dr Bodel’s and
    Dr Rimmer’s measurements of range of motion, but of more significance, at no stage did
    Dr Rimmer engage with the reality of swelling over the right wrist. It’s a major complaint. In the absence of an explanation of the swelling, how does Dr Rimmer conclude that he is fit? There is no explanation for it. He submitted I should reject his opinion as inconsistent with his findings. It is also inconsistent with Dr Bodel and the GP.    

12. The applicant submitted that an award should be made broadly in terms of the wage schedule attached to the Application to Admit Late Documents dated 25 November 2021. He submitted I would accept that from 18 December 2020, his entitlement for the periods he was not working is 80% x $1,330, although he conceded he had demonstrated he could earn $547 during periods he was not working, so that the calculation is $517 per week. He is seeking a general order for section 60 expenses.

13. The applicant’s written submissions are dated 12 April 2022. The applicant relied on the submissions he had made at the hearing with respect to the decision in SB.

14. The applicant submitted that the respondent sought to distinguish Kasim and Tarry, the claimed point of distinction being said to be that the applicant had taken himself out of the course of his employment when he refused to leave the premises.

15. The applicant submitted that this was the very point of distinction that was rejected in Tarry. The Court of Appeal held that it was immaterial whether the worker was in the course of his employment or not, because the injury arose out of employment. This is why the test is disjunctive, so that an injury is compensable if it occurred in the course of employment or arose out of employment (emphasis in original). The two circumstances are alternatives. It was also the error made by the Commission member at first instance in SB.  

16. The respondent otherwise argued that this matter is to be distinguished because the subject of the original argument was not about work, though it is conceded that this did not necessarily make an injury non-compensable. The applicant submitted this submission does not deal with the fact that the comments were made by a co-worker whilst at work. The applicant’s only reason for being exposed to the comments was because of work.

17. The applicant submitted that his injury resulted from the escalation of the work dispute. The facts of the case are similar to those of Tarry and there is no valid point of distinction.

18. The applicant submitted that the respondent seeks to avoid the work-related nature of the meeting by trying to argue that none of the original comments required him to trespass and refuse to leave. He submitted that this ignores that the refusal was directly related to the meeting held at the respondent’s behest; and also applies the wrong test. It is not whether the comments made by the co-worker required the applicant to refuse to leave. It is whether the combination of the original remarks, the way the respondent reacted to the applicant’s complaints and the events at the meeting were causative of his refusal to leave and the subsequent injury (emphasis in original). He submitted a matter may be causative even though the outcome is not compelled (as in required) or there were other outcomes available.

19. The applicant submitted that ultimately SB confirms that the question is whether there is a causal chain between the events at work and the injury. The comments of the co-worker led to a complaint, which led to the meeting, which led to the argument and him being removed in such a way that he suffered injury at the hand of his employers. The chain of causation is clear and unbroken.

20. The applicant finally submitted that there should be an award in his favour.  

SUMMARY

Injury

1. Section 4 of the 1987 Act relevantly provides:

   “‘injury’ --

   (a)     means personal injury arising out of or in the course of employment,

   (b)     includes a
   ‘disease injury’, which means--

   (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

   (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”

2. Snell DP comprehensively considered and applied the case law relating to “arising out of” employment in SB.     

3. The appellants in SB relied on cases including Tarry, Davis and Johnson. In Tarry, Hutley JA said:

   “In my opinion, it is quite clear on the evidence that the injury from which the deceased died arose out of his employment. It arose out of an altercation between two employees of the Warringah Shire Council about a matter which concerned their respective authorities and duties; it arose in a work situation. It does not follow that the injury did not arise out of employment because in the course of what he was doing, the deceased was doing acts which were not in accordance with his duties as a foreman. It is, of course, misconduct in a foreman to settle matters of responsibility by engaging in fisticuffs with a man under him. That, however, has really nothing to do with the question.”

4. In Davis, Priestley JA said:

   “... In my opinion, the judge at first instance was wrong in point of law in holding, on the facts as he found them, that at the time of the injury the applicant was no longer in the course of his employment and that, therefore, the injury did not arise out of the employment; the second conclusion does not necessarily follow from the other.”

5. In Johnson, Emmett AJA (Macfarlan and Simpson AJA agreeing) said:

   “In common law contexts, an injury or incapacity may be attributable, in the legal sense, to more than one cause operating concurrently. There is no difference between the legal view of causation in tort and causation in the field of workers compensation, subject to the qualification that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. That is to say, the question of foreseeability does not arise. It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by a novus actus interveniens.”

6. Snell DP said in SB [at 78], in reference to the test of “arising out of” employment:

   “The Court of Appeal dealt with the test in Badawi, where their Honours said:

   ‘73. The meaning of ‘arising out of ... employment’ is settled. In Nunan… in what is sometimes still referred to as the authoritative decision on the phrase the Court (Jordan CJ and Roper J, Nicholas CJ in Eq agreeing) adopted a commonsense approach to the application of the phrase, noting that it involved a causative element. In doing so, their Honours, at 123, endorsed the comments of Lord Wright in Dover Navigation Co v Craig[1940] AC 190 at 199 that the Act was a remedial Act intended to give rights to workers that were more extensive than common law rights and which used non-technical language in doing so. As Lord Wright said:

   ‘Nothing could be simpler than the words ‘arising out of and in the course of employment.’ It is clear that there are two conditions to be fulfilled. What arises ‘in the course’ of the employment is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man’s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.’

   74. Their Honours also endorsed the comments of Lord Maugham at 193 in the same case in considering whether the death in that case arose out of applicant’s employment:

   ‘The authorities show, if authorities are needed on that point, that the words connote a certain degree of causal relation between the accident and the employment. It is impossible to define in positive terms the degree of that causal connection ...’”

7. Snell DP went on [at 79] to refer to Tarry, quoting Glass JA, who referred to Nunan, saying:

   “…the injury may arise out of the employment, even though at the time it is sustained the deceased or the [worker] is no longer in the course of his employment…the proper test for determining whether the injury arose out of employment has been stated by Jordan CJ in [Nunan], when he describes the employment as causing or contributing to the injury, by Fullager J…when he states the need for a causal connection between the employment and the injury and by Starke J in South Maitland Railways Pty Ltd James…when he says ‘the words ‘out of’ require that the injury had its origin in the employment.” (emphasis added by Snell DP).   

8. Snell DP also referred [at 80] to Zinc Corporation Ltd vScarce (1995) 12 NSWCCR 566, in which Clarke JA, after discussing the common law test of causation, said:

   “…The question of fact is whether there is such a connection between the worker’s personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment. In deciding that question my preferred view is that the test laid down by Jordan CJ in Nunan… - that the fact of his being employed in the particular job caused, or to some material extent contributed to the injury – should be applied. At the very least the test requires that the employment was a contributing factor to the injury.”

9. Snell DP held in SB [at 102]:

   “In the current matter, the question of whether there was injury arising out of employment involves a consideration of whether, adopting a commonsense approach, there was a causative element to the relationship between the deceased’s employment and the fatal injury. Did the employment cause or to some material extent contribute to the fatal injury? As the third appellant correctly submits, an injury may have more than one cause…”  

10. The factual matrix of this matter is that the applicant was told by a colleague, Malik, that another colleague, George, had made what on any view of the matter were vile comments about his children. When the applicant made his statement in December 2020, his son was aged 12, and his daughters were aged 10, 8 and 18 months. The applicant worked with George.

11. The applicant made a complaint to his host employer (I will refer to it as the employer for convenience) about George’s conduct. 

12. The employer responded that it would investigate Mr Kazmi’s complaint. It did not respond that this was a private matter between him and George. It referred in dealing with the matter to its WHS obligations.     

13. The applicant was not satisfied with the employer’s response, which was that George had offered to apologise, which Mr Kazmi was not prepared to accept; and there were no witnesses, so the comments George had allegedly made were hearsay. The applicant believed Malik could confirm the comments were made.

14. The applicant advised the employer that he would neither accept an apology from George nor continue to work with him. He asked that it change his roster so that he no longer had to work with George. There is a clear and continuing connection with the applicant’s employment.

15. The employer proposed to move Mr Kazmi to another site. Perhaps not surprisingly, he was not happy with this proposal, as he believed he was not the person in the wrong. He was invited to come to the employer’s head office and discuss the matter with Mr Czub and
    Ms Hewitt, so they could give him some reassurance. There is, again, a clear and continuing connection with the applicant’s employment. Both he and the employer wanted a satisfactory outcome to the situation. Where they differed was in what they believed that outcome should be.

16. On the evidence of Ms Hewitt, the applicant was at the employer’s office to discuss his complaint. There was no other reason for him to be there. He was told that George had no recollection of what he was alleged to have said but had offered to apologise. The applicant became angry and demanded “justice”. He wanted George removed from the site, but
    Mr Czub suggested the employer would have to move the applicant if he was not able to deal with the situation professionally. The connection with the applicant’s employment was ongoing.

17. The applicant was asked to leave. His evidence is that he refused to do so until they listened to why he was there. He was there to get “justification what my colleague did with me”. The connection with his employment continued. He did not feel that his complaint had been addressed and he wanted that to occur before he left.

18. The applicant’s behaviour deteriorated to the point where the employer made the decision to physically remove him from the premises, and it was while this was occurring that he sustained the injury. As he submitted, the injury resulted from the escalation of the work dispute and the facts are similar to those in Tarry.

19. I do not accept the respondent’s submission that Tarry may be distinguished because the argument in that case was about work, while in this case it was about remarks made about the applicant’s family. The comments were allegedly made by a colleague, to another colleague, at work. The applicant was exposed to the comments only because he worked with George. He was required to continue to work with George, unless he was successful in having his roster changed or having George moved to another site. 

20. The respondent submitted that the applicant had taken himself out of the course of his employment when he refused to leave the employer’s premises. As the applicant submitted, that distinction was rejected in Tarry. I refer to the remarks of Glass JA in Tarry, quoted above.

21. As Snell DP said in SB, the question is “Did the employment cause or to some material extent contribute to the [fatal] injury?”, and “…an injury may have more than one cause”.

22. In this case, applying the commonsense approach, the applicant was told that a colleague had made insulting remarks about his family to another colleague; he complained to the employer; he was dissatisfied with its response; he was invited to a meeting at its office to discuss the matter and be provided with reassurance; he attended the meeting, the sole purpose of which was to discuss his complaint; he was still dissatisfied with the employer’s response; he became aggressive and abusive; he was asked to leave and refused; he was physically removed; and in the process he sustained an injury.

23. The applicant’s employment caused or materially contributed to the injury. It does not follow that the injury did not arise out of his employment because his behaviour may have been inappropriate, any more than Mr Tarry’s injury did not arise out of employment because he chose to settle a dispute with another employee with his fists.  There was no break in the causal chain. 

24. I do not accept the respondent’s submission that the applicant was the perpetrator, and not the victim, of violence, and he is therefore not entitled to compensation because his intentional acts took him outside his employment. Once again, the applicant relied primarily on “arising out of” employment, and not on whether he was “in the course of” employment.    

1. The applicant’s injury arose out of his employment with the respondent. It is unnecessary to consider whether the injury occurred in the course of his employment.    

2. Although the section 78 notice raised as a matter in dispute whether the applicant’s employment was a substantial contributing factor, to the injury, pursuant to section 9A of the 1987 Act, the respondent did not rely on it at the hearing, and neither party has made submissions that address it.

3. If it is necessary that I determine this issue, I am satisfied that the applicant’s employment was a substantial contributing factor to the injury. The assault that resulted in the injury was the only contributing factor to the injury, and there was no other contributing factor.

Serious and wilful misconduct

1. Section 14 of the 1987 Act provides:

   “(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.”

2. The respondent did not abandon reliance on section 14 of the 1987 Act but submitted only that the sole cause of the injury was the applicant’s misconduct, so the section was satisfied.

3. The respondent bears the onus of demonstrating that the conduct was “wilful”, which involves consideration of the worker’s state of mind. (Gardoll v RJ Fletchers International Pty Ltd (1999) 19 NSWCCR 30 per Truss J at 34. 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.

4. In Sawle, O’Meally J said [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.”

5. As the applicant submitted, he was in no state to make a considered decision about the risk to him of refusing to leave when he was asked to do so. The evidence is clear that he was angry and agitated. I do not accept that he appreciated the likely consequence would be his physical removal from the premises, or that, given those who removed him were trained security personnel (which they were at pains to point out in their evidence), he would be injured in the process. 

6. The defence of “serious and wilful misconduct” fails.

Incapacity

1. The applicant was certified as having no capacity for work until 17 December 2020. That evidence is not contradicted, and I accept that he was totally incapacitated for work from 28 August 2020 to 17 December 2020.

2. I do not accept Dr Rimmer’s evidence that the applicant had no incapacity for work and could resume his pre-injury duties immediately. He found swelling on examination of the applicant’s wrist and gave no reason why he would place no restrictions on his work.  The applicant has been certified with a lifting capacity of 5kg. His GP and Dr Bodel agree on his restrictions. It does not appear to me that he would be able to work as a security guard with those restrictions, and I accept their evidence.

3. The applicant has, since 18 December 2020, been certified as having capacity to work for 12 hours per week.  He has given conflicting evidence about his post-injury work, having stated that he commenced work as a security guard, working 12 hours per week, in mid-December 2020; and that he did not work until about February 2021, when he started working 20 hours per week as a sales representative.      

4. The applicant has submitted that an award should be made in his favour that is broadly in accordance with the amended wage schedule that is attached to the Application to Admit Late Documents dated 25 November 2021, while conceding a demonstrated ability to earn of $547 per week in periods when he was not working. The wage schedule suggests his work as a sales representative commenced on 15 February 2021.  

5. The wage schedule shows that there were periods during which the applicant earned more than $547 per week, and I believe the award should reflect that ability to earn. His earnings have been fairly constant at $547 per week since 26 April 2021, and I accept that as his ability to earn since that date. As he has been working for 20 hours per week for most periods since February 2021, he would be entitled to 95% of his PIAWE, less his earnings during those periods; and 80% of his PIAWE, less his ability to earn, during periods when he was not working. 

6. It seems to me that the applicant would have been capable of working for 20 hours per week in his current employment, which is lighter than that of a security guard, from 18 December 2020 to 14 February 2021, after which he commenced his current employment.   

7. I propose to make an award in the applicant’s favour as follows:

   Section 36 of the Workers Compensation Act 1987:

   (a)    from 28 August 2020 to 27 November 2020 at the rate of $1,263.50 per week.

   Section 37 of the Workers Compensation Act 1987:

   (a)    from 28 November 2020 to 17 December 2020 at the rate of $1,064 per week;

   (b)    from 18 December 2020 to 14 February 2021 at the rate of $517 per week;

   (c)    from 15 February 2021 to 19 February 2021 at the rate of $296.50 per week;

   (d)    from 20 February 2021 to 7 March 2021 at the rate of $517 per week;

   (e)    from 8 March 2021 to 12 March 2021 at the rate of $817.26 per week;

   (f)    from 13 March 2021 to 19 March 2021 at the rate of $645.22 per week;

   (g)    from 20 March 2021 to 25 April 2021 at the rate of $517 per week;

   (h)    from 26 April 2021 to 11 June 2021 at the rate of $716.50 per week;

   (i)    from 12 June 2021 to 27 June 2021 at the rate of $517 per week;

   (j)    from 28 June 2021 to 16 July 2021 at the rate of $716.50 per week; 

   (k)    from 17 July 2021 to 14 November 2021 at the rate of $517 per week;

   (l)    from 15 November 2021 to 19 November 2021 at the rate of $716.50 per week, and

   (m)     from 20 November 2021 to date and continuing at the rate of $517 per week. 

8. The respondent is to have credits for payments made.

9. The parties have liberty to apply with respect to the award of weekly benefits.

Medical expenses

1. There will be an award for the applicant in respect of medical expenses, pursuant to section 60 of the 1987 Act.

2. I determine that the applicant sustained injury arising out of his employment with the respondent on 28 August 2020; employment was a substantial contributing factor to the injury; the injury was not solely attributable to the applicant’s serious and wilful misconduct; the applicant had no capacity for work from 28 August 2020 to 17 December 2020 and has had capacity for work since 18 December 2020; there is an award for the applicant of weekly benefits from 28 August 2020 to date and continuing, with the respondent to have credit for payments made; and there is an award for the applicant pursuant to section 60 of the 1987 Act.

3. The orders are set out in the Certificate of Determination.