Rhodes v Premier Motor Services Pty Ltd
[2021] NSWPIC 504
•7 December 2021 (amended 8 December 2021)
| 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 Notices dated 7 April 2021 and 1 September 2021 in reliance on sections 4, 9A and 14(2) of the Workers Compensation Act1987 (the 1987 Act). In short, the respondent claimed that, based on CCTV footage, the applicant’s injury was solely attributable to his serious and wilful misconduct, and that at the time of his injury, he was no longer in the course of his employment.
ISSUES FOR DETERMINATION
At the hearing on 18 November 2021 the parties agreed that Mr Rhodes had sustained injuries primarily to his right shoulder and that the surgery performed by Dr Haber was reasonable and necessary.
The parties also helpfully agreed on the pre-injury average weekly earnings (PIAWE).
The principal issues were the application of ss 4 and 14(2) of the 1987 Act, given the circumstances of the injury to which I will refer more fully below, and incapacity.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attached documents;
(b) Reply and attached documents; and
(c) two surveillance DVD’s taken from different angles on the bus.
THE EVIDENCE DISCUSSED
The applicant’s evidence
Mr Rhodes prepared a detailed and lengthy statement dated 10 September 2021. Given the nature of the injury and the issues in dispute, I think it is appropriate to set it out in full as follows:
“1. I have worked at Premier Illawarra as a suburban bus driver for the last 10 years. Before working as a bus driver, I worked in general property maintenance. And prior to this I worked for 25 years as a self-employed as a haulage contractor…
5. At approximately pm on 19th January 2021, I stopped at a scheduled bus stop on the Princes Highway near Dapto where a man with a young girl boarded the bus. The provided CCTV footage incorrectly stated 8pm, but this was potentially due to the cameras being set 1 hour ahead due to day-light-savings time.
6. When the two passengers boarded the bus, the male passenger informed me that he was unable to pay for the fare as he stated that the top up machine at Woolworths was not working. The passenger then said ‘where the f**k do I top up my Opal card then?’. The passenger had a Woolworths bag and had presumably just been shopping. This type of excuse was common.
7. In mid to late 2020 the government introduced an option to use your credit or debit card to tap on for bus trips. As a result, if a passengers opal card did not work, there were other cashless means to pay for a fare.
8. For such a small amount of $2.50 my employer stated that if any passenger could not pay or had insufficient funds by any means then you were to advise them that could not travel and would have to leave the bus.
9. In practice, although I understood this directive, I hated it as effectively it made us act like security guards and put us into conflict with passengers who could not pay the fare.
10. If the passenger refused to leave the bus in these circumstances, the normal procedure was to contact the depot for further instruction. Often when we would call the depot, the operator on the other end of the two-way radio would then state via speaker that the passenger would have to vacate the bus and could not travel. The passenger would purposefully be able to hear the conversation between the driver and the operator.
11. Once the conversation via the two-way radio would take place, the depot would then contact the driver and ask them if the passenger has left the bus, or does the driver require police assistance. Often the passengers would be frightened off by the threat of the police and the fact that they are being filmed. Almost always the drivers would point to the camera when speaking to the passenger, to show it was being recorded.
12. On the day of the assault, I recall the passenger telling me that he could not pay his fare. The passenger then asked me ‘how was he going to get home’, to which I replied that this is beyond my control and that if he could not pay the fare then he could not ride.
13. I then pointed to the camera and informed the passenger that he was being filmed, stating that ‘to tell the government’ about him not having a fare. Sometimes notifying them of the CCTV cameras, would quite often persuade them to leave the bus.
14. This did not work and the passenger then swore at me, and then I said to him ‘see yah later’, telling him to get off the bus.
15. The passenger then told me ‘you can make me get off the f***ing bus if you want’.
16. I then picked up the radio to make the call on the radio.
17. About half-way through the radio call, the passenger reached into the cabin. I believe he grabbed my daily journals throwing them at me and then attempted to grab the cash tin. I then dropped the two [way] radio (Annexure 1). I was also worried that the passenger would use the steel box as a weapon.
18. I was startled at the passenger reaching into the cabin. I became frightened and anxious.
19. I was in shock. I did not expect it.
20. I instinctively grabbed the passenger’s arm. I wanted to prevent him from reaching for the cash box again.
21. The passenger was too strong.
22. He released himself and then he reached over the drivers shield and punched me in the head (Annexure 2).
23. I was very afraid of being trapped in the compartment.
24. I then attempted to the unlock the drivers compartment door but was unsuccessful.
25. The passenger then held onto the busses doors and proceeded to kick the cabin, which I was up against, forcefully twice (Annexure 3).
26. At that time I was in total shock and to say that I was ‘freaked out’ would be an understatement.
27. I felt very vulnerable and believed I was going to be bashed.
28. He was a much younger and fitter man than me.
29. I was very much panicked and thought that I had to get out of the cabin.
30. I was scared to remain in the cabin.
31. I believe that most bus drivers are aware of the horrible incident in 2016 when a bus driver was burnt to death after he remained in the compartment of his bus and fuel was thrown on him by a passenger. I really thought about that incident and in these moments I believe that this added to my panic but of course everything happened so quickly.
32. I then climbed over the door to ensure that the passenger had left the bus. I also followed after the passenger in the hope that he would run away. I was also worried if I turned my back on the passenger he would re-enter the bus and assault me again. I also left the bus as I was of the view that if I was outside where people could see me, someone may come to my assistance, which ultimately happened when the two witnesses helped me.
33. I was also mindful that if the passenger kicked the doors of the bus, then the breaks [sic] would automatically be applied. I wanted him away from the bus.
34. I certainly cannot say that I was in a calm and rational state but I was in a very frightened and panicked state.
35. At no time did I make a conscious decision to attack anyone, but instead I tried to defend myself from someone who had already punched me in the head and forcibly kicked in the cabin door.
36. My adrenaline was running very high and everything happened so quickly.
37. Once I was out of the bus I was very anxious and all I wanted to do was protect myself.
38. I was in a very heightened anxiety state and although I don’t clearly remember everything that happened, it is quite possible that I may have looked quite aggressive but in reality, I was quite frightened and the only way I believe that I could have adequately protected myself was to ensure that this person was aware that I would be defending myself.
39. I never went to work that day thinking that I would end up being in a fight. It is the last thing that I would ever want, particularly against a much younger man.
40. My boss turned up after the incident and he would not allow me to drive, and he took over the bus. I thought I was ok up until arriving home where my family members could clearly see I was not well and insisted that I undergo urgent medical care. I was taken to Wollongong Emergency Department, where they diagnosed a tear to my right shoulder, which was diagnosed as a rotator cuff tear. I also had swelling and bruising on my face.”
The annexures referred to by Mr Rhodes were still photographs taken from the surveillance DVD’s.
The balance of the statement dealt with Mr Rhodes’ symptoms and disabilities, summarised as follows:
“Since the surgery I have undergone physiotherapy at Illawarra Physiotherapy. Whilst
I feel better after surgery I still cannot do any strenuous physical work such as mowing the lawn, gardening or lifting heavy objects above 2 kgs. I also cannot lift any objects away from my body due to my lack of muscle strength.Whilst I have had some limitations since surgery, generally I feel that my shoulder is getting better and that the shoulder surgery worked…
However, I am still quite restricted. I am limited with what I can do with my right hand. I primarily use my left hand to do most domestic tasks around the house. I have difficulty moving my right arm across my body or above shoulder height. Whilst this has improved since surgery, my arm is still very restricted in its range of movement…
At home I also have difficulty doing general gardening maintenance due to my injuries and avoid completing these domestic tasks at the risk of agitating my shoulder.
I also have difficulty lifting and carrying items around my home. I often need my left shoulder to stabilise my right shoulder. Tasks such as hanging clothes out on the line I find difficult and I have to mainly use my left arm…
I also have great difficulty in showering due to my restricted movement in my shoulder. I cannot wash my back properly…My sleep has also been affected by my shoulder injury, where I have difficulty sleeping for longer than 1-2 hours at night before I wake up. The pain is the main difficulty, as I irritate the right side of my body before I wake up….”
Given the respondent’s concession as to the nature and extent of the right shoulder injury,
I do not propose to set out in detail the medical evidence other than where relevant to the issue of capacity.Dr Allan has been the applicant’s treating general practitioner for some time, and it was he who referred Mr Rhodes to Dr Haber.
He prepared a number of medical certificates. He certified Mr Rhodes unfit for any work following the surgery up until 28 August 2021. From 29 August 2021 Mr Rhodes was certified as being fit for work for eight hours per day, five days per week. The restrictions included “right arm limited lifting up to 2kgs, nil lifting away from body over-height, unfit for commercial driving, fit for private vehicle driving”.
Mr Rhodes was seen by Dr Bodel on 10 May 2021 prior to his surgery which Dr Bodel recommended he undertake. That was the focus of Dr Bodel’s report.
Included in the Application were a number of still photographs and the CCTV footage. There was CCTV Footage- Camera 1 and CCTV Footage- Camera 2, taken from different angles in the bus both of which I have viewed. I will refer to them as “Video 1” and “Video 2”.
The respondent’s evidence
The same footage was included in the Reply.
The respondent’s case was set out in detail in the s 78 Notice of 1 September 2021 referred to above. It stated:
“Liability is disputed for this incident on the basis of the CCTV footage. This footage shows clearly the following:
17:56:50 - Young male passenger ('the passenger') entered the bus with a female companion.
17:56:55-17:57:27 - A conversation took place between yourself and the passenger surrounding the need to have an opal card to travel.
17:57:32 - You gestured for both the passenger and his female companion to leave the bus and proceeded to begin a call on your radio.
17:57:53 - The passenger reached into the driver's tray and grabs what appeared to be paper and threw it at you.
17:57:58 - You proceeded to grab their left arm in response and their left arm collided with the screen partition.
17:57:58 -17:58:06 - The passenger left the bus after kicking your door.
17:58:08 - You proceeded to climb out of the drivers compartment and follow the passenger on to the pavement, when you stated, 'Do you want to f--king go mate.' 17:58:10 - The footage shows how you proceed to engage in a fist fight on the pavement with the passenger.17:58:24 - The passenger's female companion yelled 'get the f--k back on the bus.’
17:58:30 - The passenger pushed you to the ground, and it appears that you grabbed a hold of his shirt, when the passenger stated 'get the f--k off.’
17:58:51 - The fight continued and the passenger ended up sitting on top of you, while you continued to hold on to his shirt.
17:59:59 - Two witnesses saw the altercation and said 'let him go mate, let him go, let him go bus driver,' and at this stage you let go of your hold of the passenger. 18:08:32 - You told the attending police officers that you were unsure who threw the first punch.
18:13:51 - You told a colleague that you had been seeing the doctor because of a crook back.
18:16:39 - You told the attending police officers that you had been to the doctors every day for the past two weeks.
18:18:08 - You asked a witness who threw the first punch.
In light of the audio/visual footage, we do not agree that your employment with Premier Motor Services Pty Limited is the main contributing factor as required by section 4 and section 9A of [the1987 Act].
By following the passenger off the bus to engage in a physical altercation, you acted in contravention of your employer's guidelines and policies. Your confrontation with the passenger was not reasonably required, expected or authorised by your employer.
We are of the opinion that the footage clearly shows that your actions fell outside the normal duties of your employment. Following the incident, your employer received an email from Senior Constable Taryn Jones on 17 March 2021 advising that upon investigation both parties would be charged for the incident…”
An email from Constable Jones on 17 March 2021 confirmed that “After completing my investigation both parties will be charged. A court date will be set for around 6 weeks time”.
Other documents included in the Reply were the respondent’s Staff Manual of 2015 and the Passenger Service Guide of the same date. The latter has a section dealing with “Abuse directed towards drivers.” It includes:
“Drivers are placed in the unenviable situation of working solo thus it is unlikely you will receive any support when dealing with abusive passengers…
If the abuse from the person is such that it is necessary to approach them immediately remember the following:
► At all times try to avoid becoming involved in an argument as this will only intensify the situation.
► Try to remain calm and alert.
► Never allow the person too close. Remember that intimidation by 'standing in your face' is a form of assault and does not have to be tolerated. Always maintain at least an arms length and adopt a side on stance when dealing with abusive passengers.
► Always try to secure an advantageous position. Do not allow yourself to be backed into a corner. If the abusive passenger is outside the vehicle adopt a high position in the coach stairwell. Do not let the person enter the coach if they are abusive as this removes any positional advantage.
► Always place your own safety first.
Many employees seem to be confused as to when they are permitted to act in self- defence and what the consequences will be, both legally and from management.
No employee of the Premier Transport Group should endure any form of abuse at work. All employees have the same rights at work as they do 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.”In his “Accident Report” completed on the same day as the incident, the applicant stated: “Assaulted inside and outside of bus.” He added: “Refused entry to passenger for no fare. He then attacked me when I called for police assistance”.
The Legislative framework
Section 4 of the 1987 Act defines injury as a “personal injury arising out of or in the course of employment”.
Section 14 deals with “Conduct of Worker etc.” and states:
“(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.”
Section 14 requires a worker firstly to establish that the injury arose “out of or in the course of employment”. The onus then falls upon the employer to establish that the injury “is solely attributable to the serious and wilful misconduct of the worker”.
There have been a number of decisions dealing with these issues, and I will refer to them below in due course.
FINDINGS AND REASONS
The s 4 injury issue
The nub of the dispute between the parties is the location of the injury.
The applicant submits that there was an unbroken chain of events from the initial assault by the passenger until the altercation on the pavement which is where the applicant sustained his injuries, and that therefore he remained in the course of his employment at all times.
The respondent contends that once the applicant left the bus he then ceased to be in the course of his employment, and the injury was “solely attributable to [his] serious and wilful misconduct”.
There is no doubt in my mind that the passenger instigated the assault when Mr Rhodes refused him entry to the bus. Both Video 1 and 2 confirm this, consistent with the applicant’s statement. It is clear that Mr Rhodes refused entry to the passenger who clearly got angry. Mr Rhodes can be seen pointing to the camera.
To my observation, the passenger was very aggressive in his manner generally. He can be seen looking up at the camera, throwing paper at Mr Rhodes, then throwing a punch over the driver’s cubicle. He then kicks out at Mr Rhodes, and also violently pushes his female companion. The struggle on the footpath was equally violent by the passenger. He can be seen pushing hard at Mr Rhodes then attempting to stomp on his head when he was on the ground.
Mr Rhodes is in his 60’s. He is also by no means a small man but the passenger was obviously much younger, taller and to my mind seemed not unused to fighting.
I have no reason to doubt Mr Rhodes’ statement. It seems to me that anyone in his position would be afraid of what was to come next after the initial assault by the passenger, and he freely admits he “panicked” and “freaked out” and was anxious to get out of the bus. His reasons for this are documented in his statement. He not only thought he was going to be bashed but was mindful of an incident when a driver died when unable to leave the cabin.
In addition, he said that he “climbed over the door to ensure that the passenger had left the bus.” He added:
“I also followed after the passenger in the hope that he would run away. I was also worried if I turned my back on the passenger he would re-enter the bus and assault me again. I also left the bus as I was of the view that if I was outside where people could see me, someone may come to my assistance, which ultimately happened when the two witnesses helped. I was also mindful that if the passenger kicked the doors of the bus, then the breaks [sic] would automatically be applied. I wanted him away from the bus. “
In my view, his explanation is not only plausible but also entirely credible.
The entire video footage from both angles is less than two minutes. Only 8 seconds pass between the time Mr Rhodes was first assaulted and the time he left the bus.
His actions then must be seen in the context of this very short time frame together with his emotional state.
In short, he seems to have acted in the heat of the moment. As Counsel for the applicant put it, he had no time to weigh up his options when he was “under siege and being attacked”.
As Mr Rhodes’ said, and I accept his account:
“At no time did I make a conscious decision to attack anyone, but instead I tried to defend myself from someone who had already punched me in the head and forcibly kicked in the cabin door.” (my emphasis)
He also followed procedure in using his radio. I also note he said that he tried to exit via the driver’s compartment door “but was unsuccessful”.
The Passenger Service Guide is also a useful document, in particular the following:
“Always place your own safety first.
Many employees seem to be confused as to when they are permitted to act in self- defence and what the consequences will be, both legally and from management.
No employee of the Premier Transport Group should endure any form of abuse at work. All employees have the same rights at work as they do 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.”There is no evidence from the respondent to suggest that Mr Rhodes’ actions in the circumstances were not for self-preservation and unreasonable. Indeed, they seem to me to be entirely consistent with the employer’s protocol in such circumstances.
Mr Rhodes confirmed that “my boss turned up after the incident and he would not allow me to drive, and he took over the bus”. I would have thought that if the “boss” had any concerns about Mr Rhodes’ actions or conduct, he would have ventilated them at the time, either to
Mr Rhodes himself or to the police officers who attended.In all these circumstances, I am satisfied that Mr Rhodes remained in the course of his employment from the time of the initial assault up to the time of his injury on the pavement when he engaged in a physical altercation with the passenger, such that the definition of ‘injury’ in s 4 is satisfied.
The s 14 (2) “Serious and wilful misconduct” issue
I have already set out above the terms of s 14(2).
To begin with, a worker must first establish that injury as defined in s 4 has been proven before embarking upon a consideration of the relevance and application of the provisions of
s 14. (Neilson J in Stojkovic v Telford Management Pty Ltd [1998] NSWCC 8; (1998) 16 NSWCCR 165).The question arose more recently when considered by the Court of Appeal in Scharrer v The Redrock Co Pty Ltd[2010] NSWCA 365; 8 DDCR 243. In that matter Handley AJA expressed the opinion that s 14(1) “applies to an injury defined in s 4” (at [189]) and that:
“s 14(2), as the text indicates, does not deal with the scope of the worker’s employment. It assumes an injury which arises out of or in the course of the worker’s employment which created a prima facie entitlement to compensation. It then denies that entitlement in cases of proved serious and wilful misconduct except where the injury results in death or serious and permanent disablement.”
For reasons given above, I have determined that Mr Rhodes’ injury arose out of and in the course of his employment with the respondent.
I should add at this point that neither party sought to advance the proposition that
Mr Rhodes’ injury resulted in “serious and permanent disablement”.The concept of “serious and wilful misconduct” was considered at length by O’Meally J in Sawle v Macadamia Processing Co Pty Ltd [1999] NSWCC 26; (1999) 18 NSWCCR 109 (25 May 1999) (Sawle) where he said:
“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. (My emphasis). 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.
25. It had been said that serious and wilful misconduct represented a higher standard of misconduct than that which would justify immediate dismissal…”
Similar issues were considered by Deputy President Roche in Whittingham v Ascott AirConditioning Pty Ltd[2010] NSWWCCPD 36 where he said:
“73. The word “wilful” connotes that the worker must have acted deliberately. He or she must have had knowledge of the risk of injury and, in the light of that knowledge, proceeded without regard to the risk (Sawle)… In view of his level of intoxication, Mr Whittingham was incapable of assessing the risk involved in his actions and his actions cannot be described as wilful.”
The onus rests with the respondent to demonstrate that the conduct was “wilful’” which involves consideration of the worker’s state of mind. (Gardoll v RJ Fletchers International Pty Ltd (1999) 19NSWCCR 30 per Truss J at 34 (Gardoll). 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.
In the present case, I accept the submission by Counsel for the applicant that Mr Rhodes’ fear and anxiety made him incapable of assessing the risks involved when he got into a fight with the passenger, consistent with the observations in Gardoll.
The only evidence as to Mr Rhodes’ state of mind is his own, and for reasons stated earlier,
I accept his evidence.A wilful act will be something done more deliberately than a thoughtless act done on the spur of the moment. (Johnson v Marshall Sons & Co Ltd [1906] AC 409 per Lord Loreburn LC). Wilful misconduct is something done “with the intention of being guilty of misconduct”. (Bist vLondon & South Western Railway Co [1907] AC 209 per Lord James of Hereford).
More recently, in JR and DI Dunn Transport Pty Ltd [2015] NSWWCCPD 38 President Judge Keating said [at 117]:
“The Arbitrator found that the span of time between Mr Wilkinson receiving a blow to his arm whilst on the forklift, subsequently bringing the forklift to a halt, and confronting Mr Linsley, took place within the space of seconds. He found that that span of time was insufficient to enable Mr Wilkinson to form the necessary intention to undertake a deliberately wilful act of misconduct…
Having regard to all of the evidence and the CCTV footage, that finding was open to the Arbitrator and does not indicate error…”I accept that in the present case, the time span was insufficient to enable Mr Rhodes to form the necessary intention to undertake a deliberately wilful act of misconduct.
Neilson J in Kasim v Busways Blacktown Pty Ltd (2003) 25 NSWCCR 450 found that a bus driver who assaulted a passenger, even though there was provocation, had been guilty of misconduct. His Honour found in the circumstances that the misconduct was both serious and wilful, and that the bus driver’s injuries were solely attributable to that misconduct.
In this case however, Mr Rhodes did not initiate the assault. He was initially assaulted by the intended passenger on the bus and because of his fear and anxiety, which I accept, he left the bus and thereupon an altercation ensued.
As Counsel for the respondent correctly pointed out, if I accept the applicant’s statement, and accept that the engagement with the passenger was all “one fluid event” Mr Rhodes’ response could not be regarded as wilful.
For reasons stated above, I do accept Mr Rhodes’ account of the events that day and his state of mind, such that I find that his injuries did not result from serious and wilful misconduct on his part.
The incapacity issue
Section 32A defines “current work capacity” to mean:
“a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
It defines “no current work capacity” to mean:
“a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
The term “suitable employment” is defined, in the same section, to mean:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
·(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
·(ii) the worker’s age, education, skills and work experience, and
·(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
·(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
·(v) such other matters as the WorkCover Guidelines may specify, and
(b) regardless of:
·(i) whether the work or the employment is available, and
·(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
·(iii) the nature of the worker’s pre-injury employment, and
·(iv) the worker’s place of residence.”
Mr Rhodes had surgery on 28 May 2021 and was certified unfit for work by Dr Allan from 28 May 2021 until 27 August 2021.
On 28 August 2021 he was certified fit for “some type of employment” for eight hours per day, five days per week, restrictions being:
“Full-time. (unlimited use of left arm). Right arm limited lifting to 2kg lifting. Nil lifting away from body over above shoulder height. Seated duties suitable. Unfit for commercial driving. Fit for private vehicle driving.”
Counsel for the applicant submitted that there were very few jobs that satisfied those restrictions, particularly given Mr Rhodes’ age and experience. His background is principally in driving. His restrictions would also limit his capacity to undertake property maintenance work.
It was also pointed out that the respondent had not proffered any evidence as to Mr Rhodes’ capacity for work.
Reference was made to the decision in Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55 (Dewar) where Deputy President Roche observed:
“48. The new provisions require a determination of whether a worker has a ‘current work capacity’ or ‘no current work capacity’. A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A…
49. Having accepted that Mrs Dewar has an ‘inability’ arising from her work injury, the Arbitrator’s task was to determine, having regard to the matters listed in the definition of suitable employment, if she was ‘able to return to work in suitable employment’. The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is ‘available’ or is of a type or nature that is ‘generally available in the employment market’.
50. The determination of whether a worker has a current work capacity or no current work capacity will depend on all the evidence…”
In other words, the definition of suitable employment in s 32A applies regardless of whether the work or employment is “available”.
There is no medical or other evidence as to capacity from the respondent.
The only evidence is that of Dr Allan, but since he has been treating Mr Rhodes since the time of his injury, I accept his evidence.
I am satisfied that the evidence certainly indicates that Mr Rhodes has a current capacity for work. However, the matters referred to in s 32A, I am not satisfied that Mr Rhodes has any genuine capacity for suitable employment for the following reasons.
Mr Rhodes was 61 at the time of his injury. I have set out earlier the evidence of his education, skills and work experience. The nature and extent of his injury and the restrictions imposed by Dr Allan, particularly regarding the very limited use of the right arm in my view would significantly impair his ability to undertake most physical jobs.
He has limited, if any, clerical or administrative experience save for perhaps what was required in his driving work (filling in forms and the like) and property maintenance work.
There is no evidence of any occupational rehabilitation services being provided, let alone contemplated.
The onus rests with the respondent to demonstrate that a “real” job exists for Mr Rhodes, having regard to his physical capacity, education and experience.
I accept that Mr Rhodes has been certified as fit for seated duties. He is unfit for any commercial driving including taxi driving or even light courier or delivery work.
Counsel for the respondent submitted that Mr Rhodes could perform retail duties given his experience as a self-employed driver running his own business. Given his age, let alone an absence of evidence of any retail experience, I reject this submission.
For the same reasons, the submission that Mr Rhodes could perform work as a court attendant or tipstaff is also rejected.
In my view, Mr Rhodes is essentially unemployable. I cannot think of any job he could realistically perform given his age, experience and his physical restrictions, particularly as
I said the very limited use of his right arm, especially as regards overhead activities.For these reasons, he is entitled to an award of weekly compensation at the rates and for the period set out in the Application.
SUMMARY
The applicant sustained an injury on 19 January 2021 arising out of and in the course of his employment with the respondent.
The injury was not sustained as a result of any serious and wilful misconduct as defined in
s 14 (2) of the 1987 Act.The respondent is to pay the applicant weekly compensation at the rate of $1,319.49 per week from 28 May 2021 to date and continuing.
The respondent is to pay the applicant’s s 60 expenses.
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