Nicholls v Premier Motor Services Pty Ltd

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 applicant with a dispute notice, pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Allianz disputed liability for the claim on the grounds that Mr Nicholls’ injury did not arise out of or in the course of his employment; and that his employment was not a substantial contributing factor to the injury. It disputed that he was entitled to weekly payments or payment for medical treatment, because he did not have total or partial incapacity for work resulting from injury; and medical treatment was not reasonably necessary as a result of an injury.
By letter dated 17 March 2021, the applicant’s solicitors requested a review of the decision to dispute liability for the claim.
On 7 April 2021, iCare Workers Insurance (iCare) advised that the decision to dispute liability had been reviewed and was maintained.
The applicant lodged an Application to Resolve a Dispute (the Application) on 22 December 2021. He claimed that on 24 January 2021, he was verbally abused by a passenger. At the next stop, the applicant asked the passenger to leave the bus, as he continued to be aggressive. The applicant stepped outside to call the police, when he was punched in the face, sustaining injury to his mouth, nose, teeth, neck and back, in addition to post-concussion syndrome and psychological injury.
The applicant claimed weekly benefits compensation from 25 January 2021, ongoing. He also claimed $16,075, pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act) in respect of proposed dental treatment.
The respondent lodged its Reply on 21 January 2022. The Reply sought to raise as a defence to the claim that the applicant’s injuries were solely attributable to his serious and wilful misconduct, pursuant to section 14 of the 1987 Act, so that he had no entitlement to workers compensation benefits. This defence was ultimately not relied upon at the hearing of the matter.

ISSUES FOR DETERMINATION

The issues for determination are whether the applicant sustained injury arising out of or in the course of his employment with the respondent; whether employment was a substantial contributing factor to any such injury; whether and to what extent the applicant was incapacitated for work as a result of injury; the quantum of any weekly benefits to which the applicant may be entitled; and the reasonable necessity of medical treatment as a result of injury, including whether a specific order for payment for dental treatment should be made.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation/arbitration hearing by telephone on 6 April 2022.
Mr Tanner of counsel, instructed by Mr Santone, appeared for the applicant; and Mr Andrew Parker of counsel, instructed by Mr Thorne, appeared for the respondent. Mr Nicholls was present.
The Application was amended to claim weekly benefits from 30 January 2021 to 17 January 2022; and a general order for past section 60 expenses and a specific order for payment of dental expenses.
The respondent properly withdrew any reliance on section 14 of the 1987 Act.
The applicant sought to rely on an Application to Admit Late Documents dated 31 March 2022 and attachments, including a further statement dated 31 March 2022. The respondent objected to parts of the statement, and the applicant withdrew paragraphs 1 to 5 and paragraphs 7 to 9.
The respondent requested that it be noted that, in response to Directions for Production, NSW Police had refused to produce its documents; and the applicant’s dentist, Dr Khan, had advised that he has no documents to produce.
The parties had agreed at the telephone conference on 7 February 2022 that the applicant’s pre-injury average weekly earnings (PIAWE) were $1,593.57.

EVIDENCE

Documentary evidence

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 31 January 2022 and attachments, filed by the respondent, and
(d)    Application to Admit Late Documents dated 31 March 2022 and attachments, filed by the applicant, with the exception of paragraphs 1 to 5 and paragraphs 7 to 9 of his statement dated 31 March 2022.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Michael Nicholls

The incident report completed by Mr Nicholls states that a man on the bus was abusing him, calling him “a dickhead etc”. He asked the passenger to leave the bus. “He said no so I told him the police would be coming”.
The passenger still refused. While the applicant was ringing the police, he said “I should kill you here and now”. As the applicant was getting back on the bus, he was struck by a “coward punch and assaulted”.
The applicant made a statement to NSW Police on 31 January 2021.
Mr Nicholls stated that on 24 January 2021, he had to brake at a roundabout. A “guy started abusing me due to me braking. He said that I was speeding”. He noticed the man didn’t have a mask on. He called the applicant a “dickhead” and other abusive words. The applicant kept driving and stopped at North Wollongong Railway Station.
The applicant got off the bus to ring the police. The man was still on the bus. There were about 20 people on the bus. The passenger was standing at the rear door, yelling something at the applicant.
Mr Nicholls called 1223 to get the number for Wollongong Police. He told the man to get off the bus, and he said “no”. The applicant walked over to the steps to the station, away from the bus, to call the police. The man walked up to him and said, “I should kill you here and now”.
The applicant started walking back to the bus to leave, as the man was off the bus. He was about to step into it when he felt a punch to his nose. It came from the right and he didn’t see it coming. He thought his nose was broken and that it was bleeding. His whole face was sore. He radioed the base to say he was assaulted. The man walked over the station bridge and away. Mr Nicholls waited for the police and ambulance.
The applicant spoke to the ambulance officers but didn’t go to hospital. He had blood coming from his nose and mouth, a cut to the right side of his cheek and his top lip. His nose was still sore to touch. He also gave the police some details. The statement described the man.
The applicant went to Dapto Medical Centre on the day of the incident and saw a nurse. She told him to have his nose x-rayed. He also realised his top three teeth were chipped.
On 28 January 2021, the applicant was driving a bus when he stopped on Burelli Street. A man approached the bus to get on, but then sat down on a seat. The applicant wanted to hear his voice, as he thought it was the man who assaulted him. He said, “It’s you, isn’t it?”.
The man started to say the applicant was in the wrong the other day. Mr Nicholls knew it was him who had assaulted him, due to his voice and because it looked like him. He started taking photos of the man and videoing on his phone, but it didn’t work. He called 000.
The man chased the applicant. He put something that appeared to be drugs in his right shoe. When they got closer to the police station, he pulled his drugs out and put them back in his shoe. He kept following the applicant to the back of the police station. The applicant was keeping his distance. He spoke to an officer but had to get back to the bus. The police spoke to the man who had followed him.
The applicant saw Dr Vakil at Bellambi Medical Centre on 29 January 2021. He had been having back and neck problems from the assault. He also had three top teeth chipped, which had to be fixed. He still felt a bit fuzzy and concussed.
There is a photograph of the applicant, which is a very poor reproduction. However, a better copy has been provided as an attachment to the Application to Admit Late Documents dated 31 March 2022. It shows what appears to be a cut on the right side of his nose. His upper and lower lips also appear to have been cut.
The applicant’s first statement in these proceedings is dated 22 December 2021. It includes some still photographs taken from CCTV footage. The footage itself is in evidence, and I will refer to it later in these reasons.
Mr Nicholls had worked for the respondent since August 2015, having previously worked elsewhere as a bus driver for about four years.
On 24 January 2021, Mr Nicholls was driving his allocated shift. He picked up some passengers, one of whom entered the front of the bus without a mask. He held the mask and did not put it on as he rode the bus. Mr Nicholls did not speak to him about this. Premier has stated that drivers are not to get into conflict with passengers who do not comply with health regulations.
The applicant came to a blind corner. A car came up to the roundabout but was not in his line of vision, which was blocked by bushes. Whilst he was slowing to enter the roundabout, the car darted into it. He had to apply the brake harder, so he did not collide with it. “It is a lot easier to stop a car than a bus”.
The passenger verbally abused the applicant. To the best of his recollection, the passenger told him to stop speeding, and used a number of expletives.
After about two minutes of abuse, the applicant stopped the bus at the stop before the assault took place. He attempted to call the information centre (1223) to obtain the number of the local police station. The call did not go through. He continued driving, as he wanted to ensure he could drop the other passengers at North Wollongong train station, so they didn’t miss their train.
Once he arrived at the station, the applicant left the cabin and again tried to ring 1223. He has attached his phone record, which shows a call to this number (Directory Assistance) at 1:05pm on 24 January. He told the passenger that as he had no mask on, he was getting a $200 fine. He got through to the contact centre on the second call and waited outside for information about calling the police.
From 12:02:19 to 12:02:35, the passenger was standing at the rear door, yelling at the applicant, abusing him and accusing him of speeding. The passenger yelled out “you’re a dickhead”. He told the passenger that he was “swearing in front of all these people, I’m asking you to leave the bus”.
As the passenger exited the bus by the rear door, he approached the applicant, saying
“I should kill you here and now”. As he attempted to walk away, the passenger struck him in the head from behind. He described it as a coward’s punch. He didn’t expect it. It was very hard and left him with chipped teeth and a broken nose. It was a total shock.
The passenger clenched his fists and looked like he was going to assault the applicant again. He was very aggressive, and the applicant was afraid. He quickly walked onto the bus and called the depot on the radio. The passenger left the area and walked up the steps to the train platform.
The respondent is stating there was a scuffle but that is not a true and accurate account of what happened. The applicant did not initiate any physical contact, and the passenger punched him in the face from behind. He wanted to avoid an altercation by doing everything he could to de-escalate the situation and safely remove the passenger from the bus.
After the incident, the applicant had pain in his neck, nose and back, and was in shock. He sustained concussion and had a severe headache. A few hours later, he realised he had chipped his teeth and had pain in his mouth. Approximately two months later, a CT scan revealed he had broken his nose.
Premier’s protocol is for drivers to leave the bus to make and take calls, due to the new mobile phone laws. This is a verbal instruction that has not been updated in its policies and guidelines. They have not been updated since 2015. On the date of the incident, the applicant walked off the bus to get the number for Wollongong Police. He did not make a personal call, as this was related to the assault.
Each bus is fitted with a two-way radio. However, on the day of the assault, a Sunday, the office was unattended. The applicant needed to ring the police on his mobile to report and remove the abusive passenger.
After the assault, the applicant reported the incident on his return to base and filled out the necessary paperwork. Premier tells the drivers to fill out an incident report once the shift has finished. The still photos do not provide an accurate account, as there is no audio. The applicant told the passengers he would be calling the police. He went to the police station to give a statement.
On the day of the assault, the general manager, Mark Powell, pressured the applicant into completing his shift, as it is difficult to get a replacement on Sunday. He was concussed and received only a 10 minute break.
Premier did not debrief the applicant before he went back on the road after the assault and did not give him a plan if an abusive passenger boarded his bus again. At no time did management enquire about his health and wellbeing.
On 29 January 2021, Mr Powell told the applicant to meet with Jon Granland “about this guy hitting you last week”. He did not tell the applicant he was suspended. His first notice of this was by email from the payroll officer, Shaa Kramer, on 12 February 2021. He felt very let down, and as though he was made the scapegoat.
The applicant’s employment was terminated on 29 March 2021. He took proceedings in the Fair Work Commission. Part of the allegations was that he failed to report troublesome passengers. A confidential agreement was reached. He did call for assistance when he got off the bus to call 1223. The CCTV footage is one hour out, due to daylight saving.
The applicant is aware that he has been criticised for not hitting the duress alarm. He is not aware of any driver intentionally hitting it. He has had troublesome passengers in the past. Normally once he told them to leave and that he would call the police, that resolved the situation. He thought that was what would occur. At no stage did he believe he was going to be hit. When the assault occurred, it was obviously too late to do anything else.
The applicant referred to his medical treatment, which I will discuss below. He had significant problems concentrating and focusing. He did not feel clear in the head. He found it difficult to perform tasks and was not confident doing something like driving a bus. He felt as though he would put others in danger.
The applicant had developed significant psychological trauma since the incident. He had been greatly affected by not being able to work. He had ruminated about not being able to work, and the assault. He had a great fear of returning to bus driving. He had difficulty falling asleep, as he struggled not to think about the incident.
Mr Nicholls made a second statement, dated 31 March 2022. Part of that statement has been withdrawn and I have not had regard to it. He has summarised what he referred to as key camera times from the CCTV footage.
The applicant started a new job on 17 January 2022, working as a delivery driver. There has been a reduction in pay and entitlements, as he is a casual employee.
Prior to consulting Dr Ahsen Khan, the applicant did not have a regular treating dentist. He previously consulted Dr Champion, who has since retired.
The applicant stated that he had not experienced any previous injuries to his lumbar spine.

Respondent’s evidence

Staff Manual 2015 (the manual) and Passenger Service Guide 2015 (the guide)

I do not intend to refer to the manual in detail.
The manual provides that “any disturbance caused by boisterous, quarrelsome or violent behaviour which results in disturbing the public peace on the coach or at any Premier Transport Group office/terminal must be reported to Management as soon as practicable. The removal of any offending passenger or passengers must also be reported in a similar manner…”.
The guide, under the heading “Passengers with disabilities. Confrontational situations” refers to abuse directed towards drivers. It observes that drivers are placed in the unenviable situation of working solo, “thus it is unlikely you will receive any support when dealing with abusive passengers”.
The guide goes on to say that it is advisable for drivers to choose the time and place to deal with abusive passengers. It may be a better option to allow the behaviour to continue for a period to ensure the driver is in a better location when s/he decides to approach the passenger. The example is provided of waiting until the bus is closer to a major town before approaching the passenger. Drivers are advised to “always think ahead and have office staff arrange for the Police to meet the coach/bus (if possible) …”.
If it is necessary to approach the passenger, drivers are to remember to try to avoid becoming involved in an argument; try to remain calm and alert; and never allow the person too close. Intimidation by “standing in your face is a form of assault and does not have to be tolerated”.

Drivers are advised to try to secure an advantageous position and not allow themselves to be backed into a corner. If the abusive passenger is outside, they should adopt a high position in the stairwell. They are not to let the person enter the coach if they are abusive.
The guide states that many employees seem to be confused as to when they are permitted to act in self-defence, and what the consequences will be, legally and from management. It states that no employee of Premier should endure any form of abuse at work, and all have the same rights at work as at any other time. “If it is deemed your actions were for self-preservation and they were reasonable in the situation the company will support you”.

Records relating to applicant

There is a Transport for New South Wales complaint dated 4 July 2019, relating to a “passenger disturbance” at a King Street Warrawong bus stop.
It was noted that the POI (person of interest) was using a vapour device at the bus stop, in breach of legislation; the applicant failed to contact base for direction; and his actions placed himself and passengers at risk.
The applicant underwent an Annual Road Assessment on 13 July 2020 and was assessed as competent. The assessor recorded that he presented himself “in a manner that shows they take pride in their job… [and had] friendly customer service skills…”.

New South Wales Police Force

Documents were produced to the Fair Work Commission by New South Wales Police Force. The report of the event on 24 January 2021 states that “bus driver has been hit in mouth and eye by a m (male) passenger who has decamped on foot. Inft (informant) unable to give a desc(ription) of the offd (offender). Bus driver has facial injuries and is bleeding. Ambos requested. Nil weapons mentioned”.
The record noted that CCTV had been obtained from Premier. The POI was described.
The description of the incident was that the POI became upset at the victim (to whom I will refer as Mr Nicholls), due to him braking. Mr Nicholls noticed he was not wearing a mask. The POI continued swearing at him as he drove. He stopped at the bus stop on Porter Street, North Wollongong Railway Station.
Mr Nicholls told the POI to get off the bus, due to him not wearing a mask. The POI refused. Mr Nicholls got off the bus and walked a short distance to phone police. As he was walking back, the POI got off the bus and approached him.
The POI punched Mr Nicholls once or twice to his face, causing a cut to the right side of his nose and upper lip and minor bleeding. The POI walked over the bridge towards Flinders Street. The area was canvassed “with nil find”.
There is an entry on 31 January 2021 noting that Mr Nicholls had noticed a male getting on his bus, whom he thought was the POI. He got off the bus, leaving it running with about 20 passengers, and followed the POI to Wollongong Police Station. Police spoke to both parties and obtained the POI’s details.
Mr Nicholls provided a statement on 31 January 2021. He repeated his earlier evidence, adding that the POI approached him as he walked a short distance to phone police and threatened to kill him. He then walked back to the bus, as the POI was off the bus.
Mr Nicholls felt a punch to his nose. He thought it was broken and it was bleeding. He had a cut to the right side of his cheek and top lip. His top three teeth were also chipped. The report stated that they did not appear to be chipped but appeared to be worn. Mr Nicholls stated he was also suffering a sore back and neck.
Police attended Premier and obtained CCTV. They spoke to the manager, Mark Powell.
Mr Powell had also reviewed the CCTV. He stated he believed Mr Nicholls was speeding during the incident. He has been suspended due to leaving the bus several times.
Mr Nicholls had told him he was applying for $32,000 compensation for being assaulted.
The report stated that the CCTV did not show the POI being aggressive towards Mr Nicholls. He got off the bus and attempted to walk away. Mr Nicholls was seen to approach him and possibly try to grab him. The POI swung his bag in Mr Nicholls’ direction, striking him in the face. Mr Nicholls then walked away.
The POI was spoken to under caution on 3 February 2021 and took part in a “notebook statement”. He had told Mr Nicholls he was speeding and called him a “dickhead as he was carrying on”. Mr Nicholls wanted him off the bus, so he walked off the bus and was going to walk away. Mr Nicholls “got in his face” and grabbed his shirt. It was a reflex action that he swung his bag to get him away. He believed a fight was going to occur and just wanted to get out of there.
The POI also stated that on Thursday he was trying to get away from Mr Nicholls, so he attended Wollongong Police Station.
The police concluded that “the CCTV tends to back up the version supplied by the POI” more than Mr Nicholls. It appeared that Mr Nicholls was trying to use the incident for his personal gain and had fabricated some of his injuries. No other witnesses had come forward. No formal action was taken.

CCTV

Both parties rely on CCTV footage from the bus being driven by the applicant on the day he was injured. Some of the footage attached to the applicant’s Application to Admit Late Documents dated 31 March 2022 includes audio. Footage was taken with several cameras.
I have reviewed the footage. Some of it is not particularly clear, and some of the interaction between the applicant and the passenger is inaudible over the noise of the engine. The passenger said something to the applicant, or at least about his driving. The applicant stopped the bus and is heard to say, “we’ve just got to wait here for the police”. Someone (assumed to be the passenger) is heard to say, “what was that mate?”, to which the applicant responded, “you’ll see when they get here”.
The applicant told the passenger he would get a $200 fine when the police arrived, as he was not wearing a mask. The passenger said, “Whatever, mate. I’ve got a mask here”. He is heard to call the applicant an idiot, although by this time the applicant was outside the bus.
The passenger said, “You’re in the wrong, dude. You’re in the wrong, mate, not me. You were speeding mate, you were speeding”. There is reference to the roundabout. In reference to the police, the passenger said, “Bring ‘em down mate. I’ll them what happened”.
The applicant asked the passenger to leave the bus. The passenger refused and responded, “you’re a dickhead, mate. You’re a dickhead”.
The applicant, having stepped off the bus, returned and said to the passenger, “Now you’re swearing in front of all these people. I’m asking you to leave the bus [said twice]”. The response was “you should leave, mate”. The applicant then again stepped off the bus. He can be seen through the side window of the bus making a telephone call and walking away from the bus.
I do not accept that the footage shows the applicant pursuing the passenger, grabbing him, or throwing a punch. The passenger alighted through the back door and is seen walking towards the front of the bus. Both men were near the back door when the assault took place. The applicant said “[inaudible] let the passengers get on with their journey”.
The applicant is next seen reeling from what appears to be a punch. The passenger told the police he lashed out with his bag, but it appears to me that he punched the applicant. His fist appeared to be clenched.

Medical evidence

Dr Muhammed Amir Vakil – general practitioner

Dr Vakil’s clinical records are in evidence. I do not intend to refer to them in detail but have had regard to them and to Dr Vakil’s report to the applicant’s solicitors on 4 November 2021.
Dr Vakil reported that he saw the applicant on 29 January 2021. He recorded a history that a person on the bus was abusive and aggressive. The applicant pulled off and called the police. The person followed him and assaulted him from the right. He was hit on the face and nose, sustained a laceration on the lips and chipped his teeth. He was seen by Ambulance and went to work the next day.
For the last few days, the applicant had felt back pain and stiffness, neck strain and dizziness.
Dr Vakil recorded that the applicant looked very anxious. He had pain in the midback, and in the right side of his neck and on looking up. There seemed to be some muscular tension in the neck muscles. There was no report of pins and needles or weakness in the arms, no neurological deficits or evidence of any fractures or serious spinal injuries.
Dr Vakil’s initial impression/diagnosis was “?got jarred when he was punched on the face, leading to spasm on his neck and spine”. The applicant had a small healing laceration of the lips. The front incisors “seem to be irregular? chipped”.
The applicant reported he had been feeling a bit shaken up and stressed from the incident. The back and neck pain was affecting his ability to drive. The plan was to refer him for physiotherapy assessment. He was advised to see a dentist about the tooth chip. Dr Vakil was to review him in one week. He was given a certificate.
The applicant had seen Dr Vakil multiple times since the injury. He continued to suffer from anxiety and panic attacks, including nightmares. His sleep, anxiety and overall health were greatly impacted by the injury. He was unable to return to work due to the injury and its psychological effects.
Dr Vakil opined that the history was consistent with the injuries, and the applicant had definite evidence of trauma from the assault. If the evidence is correct and there were CCTV images of the incident, Dr Vakil strongly suspected this was a result of injury at the workplace. The applicant sustained physical and psychological injuries and was still struggling with the psychological aspects.
The applicant was seeking psychological support and counselling. His neck and back pains had improved and stabilised, but his emotional health had not. Dr Vakil was not sure how he had managed his dental injuries. He was not initially able to afford treatment.
Dr Vakil reported that the applicant needed further opinion from the physiotherapist regarding his neck and spinal pain. He required a dentist’s opinion and would need long term psychological counselling and possibly psychiatric opinion for his anxiety and panic attacks.
Dr Vakil was aware that the applicant had lost his job and could not go back to driving at that stage. His other medical conditions had also been impacted after the injury. If he was stable and deemed fit to drive, he could return to suitable duties. Dr Vakil was unable to give specific dates. He would need a workplace assessment and return to work coordinator to assess his suitability.

Dr Ahsen Khan – Dentist

Dr Khan has provided an undated report.
Dr Khan reported that the applicant visited his clinic on 18 August 2021. He “elaborated on the trauma” he had suffered earlier in the year and wanted Dr Khan to examine him for any damage.
On examination, Dr Khan found significant enamel fracturing on the upper anterior dentition, extending towards the gingiva; minor enamel incisor chips on the lower anterior dentition, exposing dentine to the oral cavity; and attritional damage on the dentition, resulting from bruxism post-trauma, due to increased stress.
Dr Khan had suggested a treatment plan. He confirmed that the damage to the applicant’s teeth was due to the traumatic incident, and there were no proposed general repairs, other than what was on the treatment plan.
Dr Khan quoted the cost of the treatment plan as $16,075.

Dr Glen Smith – Psychiatrist

Dr Smith was qualified by the applicant and reported on 20 September 2021.
Dr Smith referred to the applicant’s statement, dated 24 January 2021, Dr Vakil’s progress notes and referral to Mr Gerry Wenzel dated 19 February 2021 and certificate of capacity (COC) dated 17 July 2021. The applicant was certified as having no capacity from 20 July 2021 to 20 August 2021.
The applicant denied a history of significant anxiety or depressive symptoms before the present episode. He specifically denied a history of pre-existing panic attacks, obsessions and episodes of depression, hypomania or mania. He had not previously had psychological treatment or antidepressant medication.
Dr Smith recorded a consistent history of events leading up to the assault. The applicant stated he might have lost consciousness for a split second, and the man kept punching him in the head, “I’m not sure how many times”.
The applicant was worried that he could not be replaced on a Sunday, so he completed his shift. He then attended a medical centre and saw a nurse. He later saw a GP who noted he had chipped teeth, back and neck pain. He had the next day off work and was referred for physiotherapy. About two months later, he was referred for CT scan that showed he had a broken nose.
The applicant submitted a claim, but it was declined “because I stepped off the bus to call the police”. He had been told there were no adequate angles of CCTV to view the assault, but his lawyer later obtained the footage and there were no issues with it. The applicant said, “they don’t like paying workers’ compensation”.
After the assault, the applicant felt extremely distressed and had difficulty sleeping due to nightmares. He “could see him coming at me, his big beady glasses, I would wake up in a ball of sweat”. He had intrusive memories and flashbacks of the assault. The passenger’s “face is permanently implanted in my head”. The applicant felt depressed and lost interest in activities. His GP had prescribed a sleeping tablet, which was of some short-term assistance.
In late March 2021, the applicant was sacked. It was alleged he had grabbed the passenger’s bag, which he denied. He submitted an application for unfair dismissal. His employer did not initially provide the CCTV footage, but it showed he had not grabbed the bag and “they changed their story”. There was a settlement, but he was not reinstated. He felt depressed by his employer’s approach, as it told Allianz he wasn’t sick, but sent a letter to the medical unit of Transport NSW, cancelling his bus driver’s licence due to his illness. His driver’s licence was cancelled at the same time. His employer had also not initially informed him he had been suspended.
The applicant remained anxious and depressed, due to post-traumatic anxiety, loss of work role, financial distress, persistent pain and limitation in functioning and lack of support from his employer after the assault. The frequency of nightmares had reduced from every night to three to four times per week. He had difficulties with thinking and concentration after the assault and had an appointment with a neurologist on 3 September 2021.
Due to his ongoing anxiety and depressive symptoms, the applicant had commenced psychological therapy about one week before. He had not seen a psychiatrist or been prescribed an antidepressant. He continued to receive physiotherapy twice per week.
The applicant complained of ongoing depressed mood and anxiety, with no clear diurnal mood variation. He described complete loss of interest and enjoyment of activities. He had previously enjoyed swimming and tennis but had little energy or motivation for them. He suffered ongoing pain, particularly in his back. He had initial insomnia, with multiple middle awakenings with anxious ruminations and nightmares of the assault three to four nights per week.
The applicant reported reduced appetite and weight loss of about 10kg to 15kg. He noted poor memory and “fuzziness”. At times he had thoughts that life was not worth living but denied plans to act on them. He avoided travelling on buses, worrying that he would see the man who assaulted him. He was hypervigilant in public, scanning the environment for risk of further assault.
Dr Smith recorded that the applicant showered daily and prepared meals. He attended physiotherapy and walked daily, as recommended. He no longer drove because his licence was cancelled. He reported marked social isolation. He had difficulties with focus and concentration. He had not worked since the assault.
The applicant had not consumed alcohol lately. He denied any history of prescription or illicit drug use or problematic gambling. There was no relevant family history. He had been diagnosed with diabetes mellitus, which was generally stable. He had been charged with driving with prescribed concentration of alcohol twice during his late teens, and after a “scuffle” in 2006. He also had a back injury, which was subject to workers compensation, when he worked at Bunnings.
Dr Smith reported that the applicant was cooperative. His speech was of low volume, and reduced spontaneity. His thought form was circumstantial. The applicant described his mood as “flat”, rated as 5/10, with 10 being the best he had ever felt. His affect was restricted to the depressed and anxious range, with minimal appropriate reactivity.
The applicant’s thought content was characterised by feelings of worthlessness, hopelessness, and thoughts that life was not worth living. He described visual flashbacks of the assault, but there was no evidence of hallucinations. His registration and short-term memory were intact, and he performed reasonably on simple tests of concentration.
Dr Smith diagnosed post-traumatic stress disorder (PTSD) and major depressive disorder, with anxious distress. The prognosis would depend on the applicant’s response over the next nine months to appropriate psychological therapy and treatment that had only recently commenced. His employment with the respondent was the “main substantial contributing factor to the development of his psychiatric condition”.
Dr Smith opined that the applicant required trauma-focussed psychological therapy for at least nine months, after which the need for treatment would depend on his progress. He was unfit for work, due to his anxiety and depressive symptoms, with associated suicidal ideation and difficulties with thinking and concentration. The duration of his incapacity for work depended on his response to treatment.
The applicant was unfit for work as a bus driver, due to his ongoing anxiety, with recurrent intrusive re-experiencing phenomena related to the assault. It was not likely he would be able to work in any capacity at that stage. His incapacity arose from the assault.

Dr Balaji Kalband – Neurologist

Dr Kalband reported to the applicant’s solicitors on 18 December 2021.
Dr Kalband had recorded that on 24 January 2021, the applicant was hit in the face by a passenger, injuring his nose and chipping his teeth. Since then, he had experienced a conglomerate of symptoms, comprising feeling fuzzy in the head, unable to focus, having to double the effort to concentrate on simple tasks such as reading a newspaper, and feeling “half-faint and half-fatigued” with even simple tasks around the house. He had had recurrent daily headaches, in the form of left occipital throbbing pain, with nausea and mild photophobia and phonophobia.
The applicant underwent MRI of his brain with MR venogram on 13 September 2021. It revealed mild microvascular disease, which was considered unremarkable for someone his age. His EEG on 21 September 2021 was normal, apart from excess beta activity, which could reflect normal variant or anxious state.
Dr Kalband diagnosed the applicant with post-concussion syndrome. His prognosis depended on his response to physical therapy and psychological support and rehabilitation measures over the next 6 to 12 months. His condition was not stabilised at that stage.
Dr Kalband opined that the applicant’s employment was a substantial contributing factor to his condition. He had no prior history of neurological ailment.
The applicant needed ongoing physiotherapy, brain injury rehabilitation services relating to post-concussion syndrome, and possibly cognitive retraining, depending on his response to those measures. He would also need various medications to treat his recurrent daily headaches.

Dr Kalband opined that the applicant was unfit for any work at that stage. His incapacity arose from the injuries in January 2021.

SUBMISSIONS

The submissions have been recorded, and I will therefore refer to them only briefly.

Applicant

The applicant submitted that on 24 January 2021, it is quite clear that he was in the performance of his duties at all material times. This is not a case where he took himself out of the course of his employment. At best, the respondent might criticise the manner in which he sought to discharge his duties. That doesn’t mean he ceased to be in the course of his employment or that it was not significantly related to his employment.
The applicant referred to his statement, which is similar to his statement to the police, and the CCTV footage. He submitted there is no evidence that he threw a punch. It is only apparent that he was struck. He was plainly in the course of his employment when he got through to the contact centre. The passenger continued to abuse him and was asked to leave the bus. The applicant had responsibility for the safe carriage of passengers and was entitled not to be exposed to abuse. It is not disputed that the passenger said he should kill the applicant. The respondent has not sought to rely on the evidence of the passenger. There is no reason not to accept the applicant’s evidence.
The applicant submitted that he was returning to the bus when he was struck. There was no break in the course of that period that indicated any intent to remove himself from or desert his employment. Everything was done as part of his responsibility to the passengers.
The applicant submitted that the situation was a crisis. It was not a case where he was free to make decisions to leave the course of his employment to deal with private matters. It was materially related to his duties as a bus driver.
The applicant referred to the dispute notices. He submitted that there is no evidence he was involved in abusive behaviour or an altercation. In engaging with the passenger, he was exercising his authority as the driver of the bus, with responsibility for the welfare of the passengers. There is no evidence he was trying to engage anyone but the employer and the police. The only evidence is of the passenger striking him. Any verbal altercation didn’t cause the physical injury. There was no physical altercation and no evidence of provocation by the applicant. It was an unprovoked assault by a passenger on a bus driver in the course of his job.
The applicant submitted that Dr Smith had diagnosed him with PTSD. One essential criterion is the assault. His symptoms are typical of PTSD. Dr Smith opined that he was unfit for work as a bus driver.
The applicant referred to Dr Vakil’s evidence that he had been “jarred”, which was consistent with the video, showing him reeling after being struck. He was “shaken up”, “stressed”, and required time off to cope. He had seen Dr Vakil multiple times. Dr Kalband had diagnosed post-concussion syndrome many months after the assault.
The applicant submitted that, given Dr Vakil’s evidence and that of Dr Smith, confirmed by
Dr Kalban, it can’t plausibly be suggested he had any capacity for employment. Sections 4 and 9A of the 1987 Act are satisfied. He was certainly incapacitated from 30 January 2021. A COC was issued to 31 January 2022, but it is acknowledged he commenced work on 17 January 2022. He submitted there is no evidence of capacity before that date. He is therefore entitled to weekly benefits pursuant to sections 36 and 37 of the 1987 Act on the basis of total incapacity.
The applicant further submitted that he required treatment as a result of the assault. There is nothing from the respondent giving a basis to reject the dental treatment recommended by
Dr Khan. He sought a general order for medical expenses and a specific order in accordance with Dr Khan’s recommendation.
In reply to the respondent, the applicant submitted that we know what Dr Smith recorded about the passenger having kept punching didn’t occur. The respondent submitted it wasn’t a punch, but a bag. The applicant referred to the CCTV footage, which showed the aggressor with a clenched fist as he is reeling.
As for the police version, the applicant submitted the police weren’t there. I have the task of viewing the video. I have his version, and there is no witness from the respondent to offer any evidence of what occurred. The passenger walked in a deliberate fashion, he was “on a mission” and made a bee line for the applicant. The evidence doesn’t show the applicant to grab him. The police haven’t accurately recorded where they were.
The applicant submitted that it is highly unlikely he would have post-concussion syndrome if he was hit with a bag. It is not open to the respondent to rely on interpretation. I have the video and his version. There is corroboration from the police that the passenger called him a “dickhead”. There is no statement from the passenger, accepting that a person facing an assault charge would give a version to the police to “get himself off the hook”. He submitted
I would give no weight to what the police thought from an examination of the video.
The applicant submitted he was in the course of his employment and did what he had to as a bus driver. It is not a case like Bill Williams Pty Limited v Williams [1972] HCA 23; (1972) 126 CLR 146 (Williams) where the worker was manifestly not in the course of his employment. The respondent may criticise the way in which he did his job. He was not provocative; it was the passenger who was provocative. His actions were designed to ensure the employer and police intervened.
The respondent submitted that the applicant had gone from totally unfit to suddenly fit. The applicant submitted that is the evidence, and it might be different if the respondent had any medical evidence.
The respondent had submitted that if Dr Khan had the CCTV, he might not consider the dental treatment reasonably necessary. The applicant submitted that the respondent could have had Dr Khan examine the CCTV, but there is no countervailing evidence.
The applicant referred to the guide, which provides that he was unlikely to receive any support. He submitted there is no hard and fast rule. His exercised his judgment to get the bus to the station, where he sought to get hold of the police and the employer. The policy recognised the choices drivers have to make.

Respondent

The respondent submitted that it has a “different take”; and despite what the applicant submitted about the CCTV, I should accept what the police said and what was said in the section 78 notice. I should accept what I see on the CCTV footage, that is that the applicant took himself out of the course of employment. There is also the issue of whether I accept incapacity and the necessity for treatment.
The respondent referred to Dr Smith’s report. It submitted it is not true that the applicant was hit many times. He said in his statement he was hit once. He was not hit by a fist but by a black bag. The objective evidence is different from what Dr Smith was told. The respondent submitted that should give me pause, but after that, there is the question of credit and reliability.
The respondent submitted that there is countervailing evidence, that of the police and the CCTV footage. There is a wealth of evidence directly in contradiction to what the applicant says.
The respondent referred to Williams; Whittingham v Commissioner of Railways (WA) [1931] HCA 49; (1931) 46 CLR 22; and Humphrey Earl Ltd v Speechley [1951] HCA 75; (1951) 84 CLR 126. It submitted that the applicant’s behaviour took him out of the course of his employment, so there was no injury within the meaning of section 4 of the 1987 Act.
The respondent submitted that Comcare v PVYW [2013] HCA 41; 303 ALR 1 is authority on “arising out of” employment – whether the respondent encouraged or acquiesced in the applicant’s behaviour. It submitted he was the antagonist. It referred to the policies. The respondent did not want the applicant to engage in any provocative conduct. He didn’t have to reply to the passenger, tell him to put on a mask, or engage at all. He should have sat there and called the police. He shouldn’t have left the bus at all.
The respondent submitted that, having regard to all the evidence, I would find that the applicant went too far. As a bus driver, he is to drive the bus, not engage. If he’d stayed in the bus, he wouldn’t have been injured. If the policy was to defend the passengers, he might have been justified, but it was the opposite. The injury did not fall within section 4 of the 1987 Act.
The respondent referred to the police report and what Mr Powell had said. It submitted the applicant had possibly tried to grab the passenger, whose reflex action was to swing the bag. The CCTV tends to back up the version of the passenger. The police reviewed it and laid no charges.
The respondent submitted that I cannot accept the applicant’s evidence, which does not match the CCTV or the version of other people. If the police are correct, it is unarguable that the applicant took himself out of the course of employment.
As regards quantum, the respondent submitted that it comes back to whether the applicant can be accepted. Dr Smith’s history is plainly wrong. At best, it was exaggerated, and at worst untruthful. The applicant went from totally unfit for work to fit for pre-injury duties. He was certified as fit for suitable duties in January 2022, and then suddenly fit for pre-injury duties.
The respondent submitted that Dr Khan had no history and asked what he would say if he saw the CCTV footage showing the bag colliding with the applicant from behind. The respondent submitted that Dr Khan should be put aside and rejected.
The respondent submitted that had the opportunity been available in April, May, June or July 2021, the applicant would have made the same quick approach to full time capacity as he did in January 2022. He would have expected to be back to full time work if it had been available. In the absence of wage records, the respondent submitted he would have been earning the same hourly rate and could have earned it earlier.
The respondent submitted that, should I find for the applicant, a general order for medical expenses should result.

SUMMARY

Injury and substantial contributing factor

Section 4 of the 1987 Act defines injury as a “personal injury arising out of or in the course of employment”.
I do not accept that in acting as he did, the applicant took himself out of the course of his employment. As he submitted, the circumstances differed from those in Williams, where the worker was at work when he was shot by a man (not a fellow employee) who objected to his relationship with the man’s wife.
The passenger who assaulted the applicant was verbally abusive and aggressive towards him. While some of what he said was not audible, I have reproduced above that part that was clear to me. I have no reason not to accept the applicant’s evidence, and he is heard admonishing the passenger for swearing in front of the other passengers. The passenger did not moderate his behaviour, and in fact doubled down on his position.
Having reviewed the CCTV footage in detail, I do not accept that the applicant was provocative, or was the aggressor. I accept that the police may have taken a different view, and that the passenger gave them a different version of events. However, as the applicant submitted, it is possible and perhaps probable that a person facing an assault charge would tell the police a version of events designed to “get himself off the hook”.
The passenger said he was trying to walk away, but none of his behaviour leading up to the assault suggests he was trying to avoid trouble. It suggests the opposite. The applicant told the police, and I have no reason to doubt, that the passenger said he should kill him. The police also seem to have decided, based on something Mr Powell said, that Mr Nicholls was exaggerating his injuries for financial gain, which may have influenced their conclusion.
The applicant attempted to ensure the other passengers caught their train. He tried to contact the police. As he submitted, that was consistent with his responsibility to address the conduct of a disruptive passenger.
The respondent submitted that the applicant did not need to engage with the passenger at all. The applicant has given evidence that, usually, a request that the passenger leave the bus and a threat to call the police was sufficient to deal with a troublesome passenger. That did not occur on this occasion. He was not to know that the passenger’s behaviour would escalate as it did.
The applicant’s uncontradicted evidence is that the base was unattended on Sunday, so he did not try to use the two-way radio. It is difficult to know what assistance the respondent could have provided in any event, except perhaps to contact the police on his behalf.
I have referred to the manual, which suggests that drivers on occasion may need to remove passengers from buses. It is obviously something that happens from time to time. I have also noted what the guide has to say about management of confrontation and dealing with difficult passengers. It is specifically acknowledged that drivers are unlikely to receive any support. They are effectively on their own and have to use their own judgment as to how to deal with a situation that may be developing as they try to do what I accept is a difficult job.
Perhaps Mr Nicholls could have handled the situation differently, or better. Hindsight is always perfect. In the moment, faced with an abusive and aggressive passenger, knowing support was not available to him, he made a judgment and took a course that had worked for him in the past, but did not on this occasion. As he submitted, the fact that there may be criticism of the manner in which he sought to discharge his duties does not mean he ceased to be in the course of his employment.
For the reasons stated above, I determine that the applicant sustained injury arising out of or in the course of his employment with the respondent on 24 January 2021.
As the assault was the only contributing factor to the injury, I determine that it was a substantial contributing factor, pursuant to section 9A of the 1987 Act.

Incapacity

Dr Vakil certified the applicant on 14 January 2022 as having capacity to work for 20 hours per week from 7 January 2022 to 23 January 2022. No restrictions on his activities were recorded. The applicant commenced his current employment on 17 January 2022 (which was the Monday after he consulted Dr Vakil).
There is no evidence that the applicant had capacity for work before the COC was issued on 14 January 2022. I do not accept the respondent’s submission that he had capacity for work in mid-2021. The respondent did not present any medical evidence. It was open to it to request an explanation from Dr Vakil as to why he certified the applicant as fit for his pre-injury duties in January 2022.
I also observe that the applicant’s current position involves delivering fruit and vegetables. He is not required to deal with passengers, as he did as a bus driver.
The applicant has conceded that Dr Smith has recorded an incorrect history that the passenger kept punching him. However, the symptoms of which he complained were accepted by Dr Smith as being typical of PTSD, one of the criteria for which is accepted as being an assault. I do not believe that this incorrect history invalidates Dr Smith’s opinion.
In any event, Dr Kalband diagnosed the applicant with post-concussion syndrome and opined in December 2021 that his prognosis depended on his response to treatment over the next 6 to 12 months, that is, potentially to December 2022.
I determine that the applicant had no capacity for work from 30 January 2021 to 17 January 2022; and he is entitled to an award of weekly benefits for that period.

Medical expenses

The respondent submitted that Dr Khan has not seen the CCTV footage and his evidence should be put aside. I do not agree.
Dr Khan is the only dentist who has provided evidence in this matter. He opined that the damage to the applicant’s teeth was due to the traumatic incident, and he did not propose to make any general repairs. I have seen the CCTV and the applicant’s photograph after the incident, which was obviously traumatic.
The respondent submitted that we do not know what Dr Khan would have said had he seen the CCTV. The respondent had the CCTV from the date of the incident. It could have asked Dr Khan to review it. There is no evidence that it did so.
I see no reason not to accept Dr Khan’s evidence and make a specific order for payment for the applicant’s dental treatment, as well as a general order pursuant to section 60 of the 1987 Act.
I determine that the applicant sustained injury arising out of or in the course of his employment on 24 January 2021; that employment was a substantial contributing factor to the injury; that the applicant had no capacity for work from 30 January 2021 to 17 January 2022; and that the respondent is to pay medical and related costs, pursuant to section 60 of the 1987 Act, including pursuant to section 60(5) of the Act, the costs of dental treatment proposed by Dr Khan.
The orders are set out in the Certificate of Determination.

[2022] NSWPIC 194

2 May 2022