Nicholls v Premier Motor Services Pty Ltd - [2022] NSWPIC 194

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nicholls v Premier Motor Services Pty Ltd [2022] NSWPIC 194
APPLICANT:	Michael Nicholls
RESPONDENT:	Premier Motor Services Pty Ltd
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	2 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Applicant claimed closed period of weekly benefits and medical expenses, including, pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act) the cost of proposed dental treatment, as a result of assault by a passenger on the bus he was driving; respondent disputed that the injury arose out of or in the course of employment, as the applicant was the aggressor and had grabbed the passenger, who retaliated in an attempt to get away; respondent disputed that the applicant had no capacity for work for the entire period claimed; and that the applicant was entitled to an award pursuant to section 60(5) of the 1987 Act; respondent relied on no medical evidence; CCTV footage of the incident taken by cameras in the bus viewed; consideration of Bill Williams Pty Limited v Williams; Held- injury arose out of or in the course of employment and employment was a substantial contributing factor to injury; applicant had no capacity for work in period claimed; award for the applicant for total incapacity pursuant to sections 36 and 37 of the 1987 Act; award for the applicant pursuant to section 60 of the 1987 Act including pursuant to section 60(5) in respect of proposed dental treatment.
ORDERS MADE:	1. That there is an award for the applicant of weekly benefits as follows: (a) from 30 January 2021 to 1 May 2021, pursuant to section 36 of the Workers Compensation Act 1987, at the rate of $1,513.89 per week; and (b) from 2 May 2021 to 17 January 2022, pursuant to section 37 of the Workers Compensation Act 1987, at the rate of $1,274.86 per week. 2. That there is an award for the applicant pursuant to section 60 of the Workers Compensation Act1987, including, pursuant to section 60(5) of the Act, the costs of dental treatment proposed by Dr Khan.

STATEMENT OF REASONS

BACKGROUND

The applicant, Michael Nicholls (the applicant), was employed by the respondent, Premier Motor Services Pty Ltd (Premier), as a bus driver.
On 24 January 2021, Mr Nicholls was driving a bus on a residential route. He was assaulted by a passenger who had verbally abused him, after both men had left the bus, sustaining injury to his mouth, nose, teeth, neck and back, post-concussion syndrome and psychological injury.
The applicant completed an Accident/Incident/Near Miss Report (the incident report) dated 24 January 2021. The incident had occurred at North Wollongong train station, and
Mr Nicholls described it as “assaulted, punched in the face”. He has provided additional detail, to which I will refer in my reasons. The incident report contains a police report number and the name of the officer to whom it was reported.
On 9 February 2021, the respondent’s workers compensation insurer, Allianz, issued the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWPIC 194
Decision Date: 2 May 2022

CaseChat Overview and Summary

The applicant in this matter, Nicholls, sought to claim closed period of weekly benefits and medical expenses from the respondent, Premier Motor Services Pty Ltd, following an assault by a passenger on the bus he was driving. The respondent disputed the claim on several grounds, including that the injury did not arise out of or in the course of employment, that the applicant was the aggressor and had grabbed the passenger, who retaliated in an attempt to get away, and that the applicant had no capacity for work for the entire period claimed. The respondent also contested the applicant's entitlement to an award pursuant to section 60(5) of the Workers Compensation Act 1987 (1987 Act) for the cost of proposed dental treatment. The respondent did not rely on any medical evidence.

The legal issues before the court were whether the injury arose out of or in the course of employment, whether employment was a substantial contributing factor to the injury, whether the applicant had no capacity for work in the period claimed, and whether the applicant was entitled to an award pursuant to section 60(5) of the 1987 Act. The court considered the CCTV footage of the incident taken by cameras in the bus, as well as the case of Bill Williams Pty Limited v Williams. The court found that the injury did indeed arise out of or in the course of employment and that employment was a substantial contributing factor to the injury. The court also found that the applicant had no capacity for work in the period claimed and awarded the applicant total incapacity pursuant to sections 36 and 37 of the 1987 Act. The court further found that the applicant was entitled to an award pursuant to section 60 of the 1987 Act, including pursuant to section 60(5) in respect of proposed dental treatment.

The court's decision was based on a consideration of the evidence presented, including the CCTV footage of the incident, and the relevant legal principles. The court found that the applicant's employment as a bus driver was a substantial contributing factor to the injury he sustained, and that the injury arose out of or in the course of employment. The court also found that the applicant had no capacity for work in the period claimed, and that he was entitled to an award pursuant to section 60 of the 1987 Act, including for the cost of proposed dental treatment. The court's decision was in line with the relevant legal principles and the evidence presented.

The final orders of the court were that the respondent was liable to pay the applicant closed period of weekly benefits and medical expenses, including the cost of proposed dental treatment, pursuant to section 60 of the 1987 Act. The respondent was also liable to pay the applicant total incapacity pursuant to sections 36 and 37 of the 1987 Act. The respondent was ordered to pay the applicant's costs of the proceeding.

Orders