Rhodes v Premier Motor Services Pty Ltd - [2021] NSWPIC 504

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rhodes v Premier Motor Services Pty Ltd [2021] NSWPIC 504
APPLICANT:	Mark Rhodes
RESPONDENT:	Premier Motor Services Pty Ltd
MEMBER:	Deborah Moore
DATE OF DECISION:	7 December 2021 (amended 8 December 2021)
CATCHWORDS:	WORKERS COMPENSATION - Worker a bus driver injured during an altercation with a passenger; passenger initiated the incident assaulting the driver on the bus; applicant said fear and anxiety caused him to leave the bus where a further altercation took place on the footpath; liability denied on the basis of sections 4 and 14 (2) of the Workers Compensation Act 1987 (1987 Act), and CCTV footage; Held - the applicant remained in the course of his employment during the whole period from the initial assault to the further altercation on the pavement; the applicant’s actions did not amount to serious and wilful misconduct within the meaning of section 14(2); JR and DI Dunn Transport Pty Ltd, Sawle v Macadamia Processing Co Pty Ltd and Whittingham v Ascott Air Conditioning Pty Ltd applied; award for the applicant for weekly benefits and section 60 expenses.
DETERMINATIONS MADE:	1. The applicant sustained an injury on 19 January 2021 arising out of and in the course of his employment with the respondent. 2. The injury was not sustained as a result of any serious and wilful misconduct as defined in s14 (2) of the Workers Compensation Act 1987. 3. The respondent is to pay the applicant weekly compensation based upon no capacity to earn in accordance with the PIAWE at the rate of $1,319.49 from 28 May 2021 to date and continuing. 4. The respondent is to pay the applicant’s s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mark Rhodes, was employed by the respondent, Premier Motor Services Pty Ltd as a bus driver.
He claimed that on 19 January 2021 he was assaulted by a passenger and sustained injuries to his face, right shoulder and a psychological injury.
In proceedings before the Personal Injury Commission (the Commission), W1046/21 on 19 July 2021 Member Beilby issued Consent Orders in the following terms:
“1. The application is discontinued.
Notations
a. The respondent agrees to pay the applicant, on a voluntary basis, weekly compensation as follows: $1000 per week from 20/1/21 to 27/5/21.
b. The applicant admits and agrees that upon payment of the above sum, he will have received all his entitlements to weekly compensation to 27 May 2021.
c. The respondent is to receive credit for any sick leave paid to the applicant between 20/1/21 to 27/5/21.”

On 28 May 2021 the applicant underwent surgery to his right rotator cuff at the hands of Professor Mark Haber.
By this Application to Resolve a Dispute (the Application) registered in the Commission on 14 September 2021, Mr Rhodes sought weekly payments of compensation from 28 May 2021 together with s 60 expenses.
Liability was declined by the respondent’s insurer, Allianz, by a s 78 Notice dated 10 February 2021 and confirmed in subsequent s 78…

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: [2021] NSWPIC 504
Decision Date: 7 December 2021 (amended 8 December 2021)

CaseChat Overview and Summary

In Rhodes v Premier Motor Services Pty Ltd, the applicant, a bus driver, sought workers compensation after being injured in an altercation with a passenger. The passenger initiated the incident by assaulting the driver on the bus, leading to a subsequent altercation on the footpath after the driver left the bus due to fear and anxiety. The employer denied liability under sections 4 and 14(2) of the Workers Compensation Act 1987, citing CCTV footage. The court had to determine whether the applicant remained in the course of employment from the initial assault until the further altercation and whether the applicant’s actions constituted serious and wilful misconduct.

The court considered whether the applicant’s departure from the bus and the subsequent altercation on the footpath were part of the same incident or if they constituted separate events. The court applied the decisions from JR and DI Dunn Transport Pty Ltd, Sawle v Macadamia Processing Co Pty Ltd, and Whittingham v Ascott Air Conditioning Pty Ltd to conclude that the applicant remained in the course of employment throughout the period. The court held that the applicant’s actions did not amount to serious and wilful misconduct as per section 14(2) of the 1987 Act.

Following the reasoning, the court determined that the applicant was entitled to weekly benefits and section 60 expenses. The employer’s appeal was dismissed, and the applicant was awarded compensation for his injuries.

Orders