DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER	

CITATION:	Boccalatte v Burwood Council [2022] NSWPICPD 52	
		
APPELLANT:	Stephen Boccalatte	
		
RESPONDENT:	Burwood Council	
		
INSURER:	StateCover Mutual Ltd	
		
FILE NUMBER:	A1-W5987/21	
		
PRESIDENTIAL MEMBER:	Acting President Michael Snell	
		
DATE OF APPEAL DECISION:	22 December 2022	
		
ORDERS MADE ON APPEAL:	1.	The Certificate of Determination dated 22 March 2022 is revoked.
2.	The matter is remitted for re-determination by a different member consistent with these reasons.	
		
CATCHWORDS:	WORKERS COMPENSATION – the test of ‘injury’ in the course of and arising out of employment, application of Tarry v Warringah Shire Council [1974] WCR 1, Humphrey Earl Ltd v Speechley [1951] HCA 75; 84 CLR 126; Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 and associated authorities; the drawing of inferences, application of Luxton v Vines [1952] HCA 19; 85 CLR 352 and associated authorities	
		
HEARING:	On the papers	
		
REPRESENTATION:	Appellant:	
	Mr G Barter, counsel	
	State Law Group	
		
	Respondent:	
	Mr D Baran, counsel	
	Bartier Perry Lawyers 	
		
DECISION UNDER APPEAL		
		
MEMBER:	Mr J Wynyard	
		
DATE OF Member’s DECISION:	22 March 2022	

INTRODUCTION AND BACKGROUND
1.	Stephen Boccalatte (the appellant) was employed by Burwood Council (the respondent) from 23 January 1984. As at 1 January 2017 his position was that of Team Leader for Parks. His duties mainly involved maintenance at Burwood Park. He maintained cleaning services, cleaned lawns and gardens, and maintained flower displays. He typically worked from 5.30am to 2pm, Mondays to Fridays. On 1 January 2017 the appellant had pre-approval to work overtime, commencing his shift at 4.30am (which he did) rather than his usual time of 5.30am. He was working alone. The appellant was approached by a male in the park who stabbed him four times. The male “took off” heading towards the Oval after the appellant hit him with a paper-grabber that was used for picking up garbage. The appellant placed a call to “triple 0” at about 5.15am. Police and an ambulance attended the scene. The appellant was taken to Royal Prince Alfred Hospital with four stab wounds. 
2.	Following this incident the appellant was off work for three weeks and then resumed on light duties, slowly increasing his hours. The appellant lodged claim forms dated 3 and 5 January 2017. By June 2017 he was on the verge of resuming full-time work. The respondent initially paid benefits in respect of weekly payments and treatment. It ceased the payments as at 28 June 2017, when it denied the appellant suffered injury arising out of or in the course of employment.
3.	The respondent wrote to the appellant on 8 June 2017 advising there were allegations that on “one or more” prior occasions he had engaged in exchanging illicit and illegal drugs within Burwood Park and the local government area. The letter stated it was alleged that, at the time of the assault, the appellant was “in the process of participating/undertaking an illicit/illegal drug activity”. The appellant was suspended on full pay, pending an interview that was held on 16 June 2017. On 27 June 2017 the respondent, by letter, said the appellant had admitted participating in the exchange of cannabis to a homeless man, in Burwood Park, on at least three occasions prior to 1 January 2017. It stated the appellant had admitted that at least one of these incidents was in normal working hours, the other times being either before starting work or within a lunch break. It said that on all three occasions the appellant was wearing his council uniform. Following intervention on the appellant’s part by his union, the appellant resigned effective 28 June 2017. 
4.	The respondent issued a dispute notice dated 5 December 2017. It asserted the appellant did not seek approval to commence work prior to 5.30am. It denied the appellant was “acting in the course of [his] employment at the time the assault occurred”. It stated it was “not satisfied that the only reason [the appellant] arrived at Burwood Park at 4.23am was to commence [his] rostered shift, particularly as [he] moved to a part of the Park that was not covered by the CCTV cameras and this was where the assault took place”. It was described as “more likely that [he] arrived much earlier than [his] normal starting time in order to meet a person or persons in relation to [his] illegal activities”. This was described as placing the appellant “outside [his] employment” with the Council. It relied also on an allegation of ‘serious and wilful misconduct’. It disputed that s 9A of the Workers Compensation Act 1987 (the 1987 Act) was satisfied.
5.	The appellant was examined at his solicitors’ request by Dr Ahmed, a psychiatrist, who reported on 27 June 2019 and 10 September 2020. Dr Ahmed diagnosed “Post-Traumatic Stress Disorder and an Alcohol Dependence”. He said “[t]he key contributor is the stabbing event”. On 25 February 2021, the appellant’s solicitors made a claim for lump sum compensation in respect of 21 per cent whole person impairment based on Dr Ahmed’s assessment of the psychological injury.
6.	The respondent issued a further dispute notice dated 21 June 2021. It stipulated that it should be read in conjunction with the earlier notice. It disputed that there had been a psychological injury. It alleged a defence based on s 14(2) of the 1987 Act (‘serious and wilful misconduct’). It disputed the satisfaction of s 9A of the 1987 Act. It raised the issue of ‘credit’.
7.	The current proceedings were listed for hearing on 18 February 2022. Mr Barter appeared for the appellant and Mr Saul for the respondent. The matter was conducted by way of a video hearing. The appellant was cross-examined by leave. Counsel addressed and the Member reserved his decision. The Commission issued a Certificate of Determination dated 22 March 2022, accompanied by the Member’s reasons (the reasons). There was an award in favour of the respondent. 
ON THE PAPERS
8.	Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 	If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
9.	The appellant submits the matter can be determined on the basis of the written material. The respondent indicates it is “content for the matter to be dealt with on the papers but would prefer to have a hearing”. Having regard to Procedural Directions PIC2 and WC3, the documents that are before me and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances. 
THRESHOLD MATTERS
10.	There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The appeal is not interlocutory.
THE NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT 
11.	Section 352(5) provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
12.	In Northern NSW Local Health Network v Heggie, Sackville AJA said: 
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519.”
13.	In Raulston v Toll Pty Ltd Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a)	[A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b)	Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong. 
(c)	It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”
THE MEMBER’S REASONS
14.	The Member noted the respondent’s assertion that the appellant commenced work on 1 January 2017 earlier than his appointed start time was not pursued. The appellant produced an authority dated 23 December 2016 authorising an earlier start time.
15.	The Member summarised the police material. The assault occurred at a location where the appellant was out of camera view. The material referred to a police interview in hospital in which the “victim was vague about the incident”. It referred to the appellant having knowledge of growing “one large [cannabis] plant which he had cut up and on-sold to various persons in and around the Burwood area”. The police material indicated the appellant thought “he may have pissed another dealer off for selling on his turf”. The Member referred to the police interview following the appellant’s release from hospital. The appellant said he could not identify the person who attacked him. He said that a reason why he may have been targeted was that “for about 6 months I have been selling cannabis to people that I have known and have attended Burwood Park to collect the cannabis. The dealing times were infrequent.”
16.	The Member referred to the appellant’s interview with Council officers on 16 June 2017. The appellant described selling cannabis, “basically almost gave it away to a homeless man”. He said he gave cannabis to this man on three occasions, in May, June and September 2016. The appellant denied selling it to others, although said “the homeless man might have … [he] could do what he liked with the cannabis”. The appellant said that “these exchanges of cannabis occurred at about 5.15am before he started work”. When it was specifically put to him by Mr Mortimer, who conducted this interview, the appellant denied “that he was in the process of participating and undertaking an illicit drug activity” when he was assaulted. When asked if he had ever “sold or otherwise exchanged illicit or illegal drugs” with the person who assaulted him, the appellant said “I’ve never ever sold him or talked to him”. The appellant said “there had only been one person [he] had given drugs to and that he had not actually taken any money for the drugs”.
17.	The Member referred to a statement by the appellant dated 24 October 2021 in which he said:
“In or around December 2016, the Police were investigating an allegation on me in relation to selling illicit drugs at Burwood Park. However, I was not arrested, charged or convicted of any criminal offence.” 
18.	The Member referred to a statement by the appellant dated 31 January 2022, in which the appellant said that he liked the homeless man (“Barnsy”) and was happy to give him cannabis from his plant. The Member quoted a passage in which the appellant said “I suppose I knew he would sell some and he did give me a small amount of money but I hardly made anything out of it”.
19.	The Member summarised Mr Saul’s cross-examination of the appellant. The appellant said he was “pretty sure” he had sold or given cannabis to the homeless man on four occasions. A man that Barnsy played chess with “started to go on and on about it” until the appellant “gave him some”. This “was the limit of his involvement with cannabis trade”. He later agreed he had charged Barnsy “$200 for a ziplock sandwich bag he had filled with marijuana from his plant”. The appellant conceded he would advance money to Barnsy from time to time. The appellant stated that “he would be getting the money back because [Barnsy] would on-sell the cannabis [the appellant] had given him”. The Member described the appellant as prevaricating when giving evidence.
20.	The Member summarised the reports of Dr Ahmed, the psychiatrist qualified in the appellant’s case. Dr Ahmed considered the appellant suffered from Post-Traumatic Stress Disorder and alcohol dependence, with the “stabbing event” being the “key contributor”.
21.	The Member summarised the report of Dr Lee, the psychiatrist in the respondent’s case. Dr Lee concluded the presentation was inconsistent with Post-Traumatic Stress Disorder. He referred to inconsistency between the appellant’s presentation and “objective findings from the Self-Report Symptom Inventory”. Dr Lee considered he could not make a psychiatric diagnosis due to the “implausible history” and the testing on this inventory which indicated the appellant was “not accurately reporting his symptoms”. He assessed whole person impairment at 0%.
22.	The Member summarised the parties’ submissions. I shall refer to these briefly. Mr Saul submitted that if the appellant could not establish that he was not dealing drugs on 1 January 2017, then he was not acting in the course of his employment. If he was not dealing drugs on that day but knew his attacker due to involvement with drug activity, then he was not in the course of his employment. If the attack was unrelated to drugs, he would still fail as he could not satisfy s 9A (there was specific reference to s 9A(3)). Mr Saul submitted the appellant was not a witness of truth, the appellant could not show he was in the course of his employment at the time of the attack. If the attack was simply random, s 9A would apply. The respondent referred to s 9A(3). Mr Saul submitted the opinion of Dr Lee would be preferred to that of Dr Ahmed as Dr Lee had an accurate history. 
23.	Mr Barter submitted the nature of the appellant’s duties exposed him to a random attack. Mr Barter submitted the appellant appeared unreliable and probably was. It was five years after the event, the appellant suffered the effects of the assault and the aggravating effects of alcohol and a loss of esteem. The documented assault was of such a nature that it was likely to lead to the sort of problems described by Dr Ahmed. The appellant had worked for the Council for 30 years and he was in charge of Burwood Park. It was only speculation that the assault was connected with his dealing with drugs. Mr Barter submitted the respondent carried the onus under s 14 of the 1987 Act. If Dr Ahmed’s opinion was accepted, compensation would be payable in any event because of s 14(2), even if the respondent’s argument was accepted.
24.	Mr Barter submitted there was no proof of the cause of the assault. The appellant was “going about his normal duties in the park”. There was speculation arising from the police statements, which “needed to be approached with a degree of circumspection”. The real issue was whether the appellant took himself out of the course of his employment by engaging in the sale and distribution of illicit drugs. The appellant denied this. He said that such conduct had ceased by September 2016. He identified this date by reference to the Burwood Festival. There was no evidence the appellant was dealing with drugs at the time of the assault. Mr Barter submitted the evidence fell far short of “establishing that the appellant’s injury was solely attributable to any serious and wilful misconduct”.
25.	Mr Saul, in reply, submitted the evidence in the material from the police investigation was more reliable than statements given in 2021. There was no indication the conduct of the police was unacceptable or that the appellant had been pressured into saying what he did. He submitted “gross misconduct is one thing. Criminal activity is another”. It was submitted the appellant’s account was not reliable and he had not satisfied his onus of proof.
26.	The Member said the appellant had satisfied him, to a prima facie level, that he was in the course of his employment at the time he was stabbed. On 1 January 2017 he had permission to start early, he was observed on CCTV arriving at Burwood Park (his usual place of work) at 4.23am dressed in his uniform. He was assaulted in Burwood Park and beat off his assailant using his garbage collecting stick. The Member said the outcome depended on whether he could infer the attack was connected to the drug dealing during the year before. He said this involved an analysis of the different statements.
27.	The Member listed, in point form, the information that was disclosed by the appellant at Royal Prince Alfred Hospital (on 1 and 2 January 2017), Burwood Police station (on 6 January 2017), the respondent’s premises (on 16 June 2017), to Dr Ahmed (on 27 June 2019 and 10 September 2020), to Dr Lee (on 23 April 2021), in his statements (dated 24 October 2021 and 31 January 2022) and when he gave evidence (on 19 February 2022 [sic, 18 February 2022]). 
28.	The Member referred to various submissions made on the appellant’s behalf dealing with suggested inconsistencies in what the appellant said. The Member rejected a submission regarding the effects of shock and medication on the appellant. The Member said there was “no evidence however to suggest that [the appellant] was so affected by his experiences that his reported statements were untrue”. The Member said there was no evidence that the appellant “thought he was under duress” when giving information to the police. The Member did not accept the appellant’s evidence in cross-examination that he made “an honest mistake” when he told police that he had sold cannabis to various people in the Burwood area (before later maintaining the contrary). The Member did not accept that the appellant made a mistake in not, at the hospital, giving police the name of the suspected assailant. He did not accept that the appellant may have given the name “Harry” at that time which was not recorded. 
29.	The Member referred to the police interview on 6 January 2017, in which the appellant said that he had been selling cannabis for about six months to people he knew who would attend Burwood Park to collect the cannabis that he had grown. The Member said the appellant did not restrict his admission to the supply of only one person, the homeless man; this was first mentioned in the interview with the respondent on 16 June 2017. The homeless man was first named in a statement on 31 January 2022. The Member said this was the only interview in which the appellant described the detail of his dealing in cannabis. The Member said it was at the interview at the respondent’s premises that there was first mention of the appellant’s nephew with Crohn’s disease and of the appellant only supplying cannabis on three occasions. The assertions were inconsistent with what he was recorded as telling the police. The reference to the appellant growing cannabis because his nephew had Crohn’s disease also occurred for the first time in the interview on 16 June 2017, which the Member said was inconsistent with what the appellant was recorded as telling police.  
30.	The Member said the appellant’s statement that he had never taken any money for drugs contrasted with his statement to the police on 6 January 2017 that “he had not earned any more than $1,000 from his dealing”. The Member also referred to “two curious allegations” by the appellant. The first was obtaining cannabis seeds from overseas; it was unexplained how he had the knowledge to do this. The second was the assertion that the appellant used up his cannabis plant by September 2016 yet was still under police investigation in December 2016. 
31.	The Member said that he kept in mind, when considering the appellant’s evidence, that the appellant suffered from alcohol dependency. The Member referred to his observations of the appellant during cross-examination:
“Whilst he did give the appearance of wishing to assist the Commission, his answers and demeanour from time to time were evasive and he had to be reminded from time to time just to answer the question and not volunteer information. He prevaricated often in his answers and was argumentative from time to time with counsel.”
32.	The Member said he was not persuaded that the appellant’s denial of supplying cannabis to people in the Burwood area had any substance. He said he was not convinced, having regard to the appellant’s prevarication, by his answers regarding whether he was present when other drug deals with Barnsy occurred. 
33.	The Member noted the appellant was still a police suspect in the weeks prior to the attack. He reasoned that if the police considered the appellant should be investigated, “other interested parties such as rival drug dealers might also have suspected him of continuing his dealing, whether he was or not, hence the attempt on his life on New Years’ Day”. The Member said the appellant did not raise the proposition that the attack was random until his statement of 31 January 2022, well after the event.  
34.	The Member quoted the following passage from Nunan v Cockatoo Docks & Engineering Co Ltd:
“… If, for example, a private enemy of a worker assaults and injures him when he happens to be at work on his employer’s premises, the assault arising out of something unconnected with the employment and there being no other relevant factors, it is clear that the injury does not arise out of the employment …”.
35.	The Member concluded that the appellant was not in the course of his employment when he was assaulted.
36.	The argument based on s 14 of the 1987 Act remained. The Member quoted from the reasons of Basten JA in Scharrer v The Redrock Co Pty Ltd:
“… However, that appears to give s 14(2) a form similar to s 14(1) as an independent source of entitlement. Historically the provisions served different functions; s 14(2) started life as a limitation on the primary entitlement in the case of relevant misconduct. When a qualifying exception was made to it, in the case of death or serious and permanent disablement, the appropriate reading required that the primary entitlement to compensation was restored, by disregarding the disqualifying misconduct: it did not create a new form of entitlement. Thus the injury must, at that time, otherwise have arisen out of and in the course of the employment.”
37.	The Member said it followed that s 14(2) of the 1987 Act did not assist the appellant, given the finding against him on the issue of ‘injury’. 
38.	The Member considered whether the appellant’s injury caused ‘serious and permanent disablement’, in case he was wrong in his finding regarding the potential application of s 14(2). He did so in the context of the psychological injury which was that relied on in the current proceedings. He summarised the opinions of Dr Ahmed and Dr Lee, finding Dr Lee’s diagnosis “unconvincing”. He concluded that the appellant’s injury “has caused serious and permanent disablement”.
39.	The Member made an award in favour of the respondent.
LEGISLATION
40.	Section 4 of the 1987 Act relevantly provides:
	“In this Act—
injury—
(a)	means personal injury arising out of or in the course of employment …”.
41.	Section 14 of the 1987 Act provides:
“14	Conduct of worker etc
(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.”
42.	Section 9A of the 1987 Act provides:
“9A	No compensation payable unless employment substantial contributing factor to injury
(1)	No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note—
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)	The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a)	the time and place of the injury,
(b)	the nature of the work performed and the particular tasks of that work,
(c)	the duration of the employment,
(d)	the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)	the worker’s state of health before the injury and the existence of any hereditary risks,
(f)	the worker’s lifestyle and his or her activities outside the workplace.
(3)	A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a)	the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)	the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)	This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
GROUNDS OF APPEAL
43.	The appellant raises the following grounds of appeal:
(a)	The Member erred in law in his finding that the worker was not in the course of his employment when he suffered injury on 1 January 2017. (Ground No. 1)
(b)	The finding of the Member that the worker was not in the course of his employment at the time he suffered injury was a mixed error of fact and law being against the evidence and the weight of the evidence. (Ground No. 2)
(c)	The Member failed to consider whether or not the worker suffered injury to which his employment was a substantial contributing factor. (Ground No. 3)
GROUNDS NOS 1 AND 2
44.	Grounds Nos 1 and 2 challenge the Member’s finding that the appellant was not in the course of his employment at the time of the relevant assault. It is convenient to deal with these grounds together.
APPELLANT’S SUBMISSIONS
45.	The appellant notes his case was run on the basis that he suffered injury in the course of his employment and that employment was a substantial contributing factor to the injury. He submits that he did not concede that the assault was “targeted” nor that he provoked the act of violence. The appellant’s submissions refer to the insurer’s allegations:
“Statecover concluded you arrived at work early to meet a person or persons in relation to illegal activities. In doing so you stepped outside of your employment with Council. At the time of injury, we considered you were not relevantly engaged in employment.” 
46.	The appellant submits the evidence “did not establish that he was at his place of employment for any reason other than to carry out his employment duties.” 
47.	The appellant refers to the two limbs of the definition of ‘injury’ in s 4, ‘out of’ and ‘in the course of’. It is sufficient to satisfy one of these tests. The appellant submits the Member properly found, in the reasons at [165], that the appellant was in the course of his employment. The appellant submits the Member, in the reasons at [166], wrongly identified an issue regarding whether he could “legitimately draw an inference that the attack suffered by the [appellant] was connected to the drug dealing which he admitted to in the park during the year before”. The appellant submits the finding that the injury was “connected” to a non-work related activity may be relevant to whether injury arose out of employment. It could not go to whether injury arose in the course of employment.
48.	The appellant refers to the discussion in Tarry v Warringah Shire Council in which the Court of Appeal dealt with “the distinction which exists between the two ingredients contained in the definition of ‘injury’”. The appellant refers to the passage from Nunan to which the Member referred (see [34] above). That passage dealt with the issue of whether an injury arose out of employment, rather than whether it was in the course of employment. The appellant refers to the decision of the High Court in Weston v Great Boulder Gold Mines Ltd, in which Menzies J said:
“… I think this appeal can be disposed of by considering two questions: (i) whether personal injury by accident was caused to the worker and, if so, (ii) whether that personal injury by accident arose in the course of the worker’s employment.
It is possible to deal with the second question very shortly, if the appellant’s injury was injury by accident, then Kavanagh’s Case [1960] HCA 25; (1960) 103 CLR 547 compels the conclusion that as it happened while he was working, it was injury by accident arising in the course of his employment.”
49.	The appellant submits that, “[a]t its highest, the evidence upon which the Member relied goes only to a possible motive for the assailant to attack the worker, not to the nature of the activity in which the worker was engaged at the time he was attacked”. It was ultimately accepted that the appellant had authority from the respondent to be carrying out his duties at the time of the attack. The appellant submits the respondent did not rely on the attack occurring in an area not covered by CCTV. His counsel concedes that the police records lead to the inference that his “dealings in drugs had been more extensive than he admitted”. There was not evidence “that he was still engaged in that activity at the time of the attack”. He submits it was not suggested he initiated the attack or that it occurred in the course of a drug related transaction. He submits the evidence falls far short of establishing that he was no longer in the course of his employment. The appellant accepts that the evidence of drug related activity may be relevant to the issue of s 9A. 
RESPONDENT’S SUBMISSIONS
50.	The respondent submits that an appellate court “will not lightly interfere with a determination based in substance on demeanour and credibility”. Reference is made to well-known authorities such as Abalos v Australian Postal Commission. Reference is made to Fox v Percy in which the High Court stated:
“… In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.” (excluding footnotes)
51.	The respondent makes the point that the Member, in proceedings conducted by video hearing, had the opportunity to see and hear the appellant, as well as observing his demeanour. 
52.	The respondent states that ‘injury in the course of employment’ raises a temporal (as opposed to a causative) element. It submits that, if the case is conducted on the basis of an ‘injury arising out of’, then a causal connection is required. The respondent submits that the question, of whether an inference was available that the attack was connected with the appellant’s drug dealing, required an analysis of the appellant’s statements. It quotes from the decision of Luxton v Vines dealing with the drawing of inferences. The respondent refers to the Member’s comments about the appellant’s evidence (see [31] above). It refers to the concession by the appellant’s counsel that the appellant appeared to be, and probably was, an unreliable witness. 
53.	The respondent submits the appellant’s counsel conceded that the attack was probably targeted. The respondent refers to the finding made by the Member that the appellant had established, to a prima facie level, that he was in the course of his employment when he was stabbed. The respondent submits the Member was then required to consider whether, at the time of injury, the appellant was engaged in criminal activity, drug related activity, that had nothing to do with the appellant’s employment. This was the respondent’s case, that sought to rebut, on the balance of probabilities, the case made by the appellant. It was the respondent’s case that the appellant could not be believed and that he could not discharge his onus. The respondent submits the Member asked himself the correct question in the chapeau of the reasons at [175]: “Conduct not arising out of or in the course of employment”. The respondent submits the Member considered both alternatives, the temporal and the causal connection. 
54.	The respondent refers to the appellant’s reliance on the Presidential decision of Ballina Shire Council v Knapp. The respondent submits this decision was reversed in the Court of Appeal and it is that decision in favour of the employer that should be followed.
55.	The respondent submits that for Ground No. 1 to be made out, the appellant is required to establish that the Member’s finding that the appellant was not in the course of his employment when he sustained injury was not open. It submits the appellant has failed to do this. 
56.	The respondent refers to the appellant’s reliance on his being in the park at the time of the attack, pursuant to authority from his employer for the purpose of carrying out employment duties. The respondent submits that the activity of the appellant was in doubt and the appellant engaged in conduct taking him out of the course of his employment, “by rational inference”. It submits that if the appellant engaged in criminal conduct such as drug dealing, and the attack related to that activity, the injury was not in the course of or arising out of employment. It also would not satisfy s 11A. The appellant’s case is that he was in the park to perform his employment duties, not to sell drugs. This depended on acceptance of the appellant’s version of events.
57.	The respondent refers to the various interviews conducted on 2 January 2017, 6 January 2017 and 16 June 2017, to the histories recorded by Dr Ahmed and Dr Lee, and to the appellant’s statements dated 24 October 2021 and 31 January 2022. The respondent submits the appellant “changed his story time and time again” both to the police and his employer, and then in his statements used in the proceedings. It submits the Member gave reasons for why he found that liability was not established, including that he could not accept the appellant’s evidence “given his unreliability (conceded), prevarication, argumentative nature and credit”. The respondent submits the appellant had imported cannabis seeds to grow a plant. He said he had exhausted this plant by September 2016, but he was still being investigated by police in December 2016. It submits the Member was justified in not accepting the appellant’s evidence that he ceased supplying cannabis in September 2016. The Member was not convinced that the appellant was not present when other drug deals were done with ‘Barnsy’. It submits it was open to the Member to form the view that the appellant was not in the course of his employment when he was assaulted.
58.	The respondent puts its argument on ‘injury’:
“… The instant case was one involving a rational inference that the Appellant was dealing in drugs at the time when he was at the park or certainly at the time of the attack and was not engaged in any activity being that purely of employment. Alternatively fraternising with people and involved in criminal activity outside of employment.
It is more probable than not that there was cannabis being supplied to the homeless man and more probable than not that issues arose between the two men, and further, that another drug dealer’s territory was being violated hence the attack. All of these were appropriate inferences and conclusions to draw. There was no conjecture involved but [they] were founded in the evidence.
The bold submission made at [appellant’s submissions] [27] depends entirely on the Appellant’s evidence being accepted in a sterilised, homogenised way and entirely inconsistent with his own evidence, the evidence that he gave to the Commission and the evidence that he gave in cross-examination.
… The rational probable inference is that issues arose in the park which have no connection whatsoever to employment but were connected to the dealing of drugs. The Appellant simply could not be believed based on the significant amount of inconsistencies in his version. There was no other independent evidence upon which the Commission could rely which was independent of his versions all of them inconsistent. Thus he did not discharge the onus of proof and it was successfully rebutted by the Respondent.”
CONSIDERATION
The references to Knapp
59.	The passage from Knapp No. 1, on which the appellant relies in his submissions, is at [199] of that decision. It contains a quote from the reasons of Samuels JA in Tarry, dealing with the “two ingredients contained in the definition of injury”. There can be no suggestion that the quote represents other than good law. I mention this simply for completeness as it was raised in the respondent’s submissions, on the basis that the appellant should have referred rather to Knapp No. 2 in which the result was reversed in the Court of Appeal (see [54] above).
Was there a concession that the attack was targeted?
60.	The appellant submits:
“For clarity it should be noted that the worker did not concede that the attack was targeted rather it was submitted that society generally prefers to believe that acts of violence are motivated rather than random and tends to look for an explanation.”
61.	The respondent challenges this clarification. It refers to the reasons at [141] where the Member said: 
“Mr Barter suggested that it was preferable to believe that an attack of the severity and ferocity experienced by Mr Boccalatte was targeted, rather than random.” 
62.	The appellant before the Member submitted:
“MR BARTER: Well, nobody likes to think that an attack is going to be random. One likes to think that an attack is going to be targeted if it’s going to be the severity and ferocity of the attack that Mr Boccalatte suffered. As far as Section 9A is concerned, you need to look no further than the fact that Mr Boccalatte was at his place of employment, doing his employment duties, at a time where he was vulnerable, it’s between 4.00 and 5 o’clock in the morning, it’s dark, it’s the day after New Year’s Eve and his task is to carry out duties in a park that is, well, reasonably well lit, I guess, for the darkness but still a place where homeless people live and various people of different backgrounds are likely to be about the place. So he is exposed by the nature of his work to a random attack if there is going to be a random attack.”     
And:
“So there is no proof that the assault to which Mr Boccalatte was subjected whilst going about his normal duties in the park at the time that he was assaulted results from anything other than a person intent on inflicting harm on either him or someone and he happened, because of his employment to be in that place at that time and was attacked.”
And:
“The reliability of the police statement comes from the bottom of page 13 where it says at first the victim was vague and most likely that is the case, about the incident.  However, when pressed about the likelihood of it being a targeted attack, he did declare his knowledge. You can deduce from that, in my submission, that the police were positively pushing the concept of a targeted attack on Mr Boccalatte with which he agreed at the time when he was still suffering shock and still most likely under the effects of pain killers. He says he was pressed and the word ‘pressed’ is, in my opinion, sorry, in my submission, very important.”
63.	When the passage at T 61.10–12 above is read with the surrounding passages, it is apparent that the appellant’s counsel was not conceding that the attack was probably targeted. He was actively dealing with the vulnerability of the appellant, due to his employment duties, to a random attack. He was seeking to explain why the appellant may have gone along with any suggestion by the police that the attack was targeted. I do not accept that the appellant’s counsel conceded, when the material is read as a whole, that the attack was targeted, rather than random.
The nature of ‘injury in the course of employment’
64.	In Humphrey Earl Ltd v Speechley Dixon J (as his Honour then was) described the concept of the ‘course of employment’:
“The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment.”
And (in the context of discussing activities during an interval in employment):
“If he so far deviates from what is reasonably incident to the execution of his duties as to proceed on a purpose of his own not fairly resulting from the nature or incidents of the employment, that purpose cannot be considered in the course of the employment.”   
65.	In Hatzimanolis v ANI Corporation Ltd the plurality said:
“The course of employment is ordinarily perceived as commencing when the employee starts work in accordance with his or her ordinary or overtime hours of work and as ending when the employee completes his or her ordinary or overtime hours of work.” 
66.	The two limbs of the definition of ‘injury’ (‘in the course of’ and ‘arising out of’) do not both require satisfaction, as was clearly stated in Tarry v Warringah Shire Council in which Hutley JA said: “These two categories are exclusive of each other and have now to be considered independently.”
67.	In Inverell Shire Council v Lewis Handley JA (Clark JA agreeing) said:
“The liability of an employer for injury sustained by a worker ‘in the course of’ his or her employment depends on the existence of a temporal relationship between the employment and the injury. See Kavanagh v The Commonwealth (1960) 103 CLR 547 at 556-557, 559, 572, and 575; and Bill Williams Pty Ltd v Williams (1972) 122 CLR 146 at 153, 154-5, 158. There is no requirement in such a case that the employment should have any causal connection with the injury.”
68.	The Member, in his reasoning, quoted from the Court of Appeal decision in Nunan (set out at [33] above). The passage dealt with whether, in an assault on a worker by a “private enemy” occurring in the course of employment, with no other relevant facts, the injury arose out of employment. Jordan CJ and Roper J (Nicholas CJ in Eq agreeing) said “it is clear that the injury does not arise out of the employment”. The Member referred to the current matter as “analogous” to the decision in Nunan. The form of the statutory definition at the time Nunan was decided (contrary to the current position) required that an injury satisfy both limbs of the test (‘in the course of’ and ‘arising out of’) to be compensable. 
69.	The appellant’s submissions refer to Tarry and Weston, and to the fact that the appellant relied on an allegation of injury ‘in the course of employment’. The appellant submits the Member’s reference to whether the attack was “connected to the drug dealing which he admitted to in the park during the year before” (see reasons at [166]) may be relevant to an issue going to ‘arising out of employment’ but was not relevant to injury ‘in the course of employment’. Effectively the appellant’s argument is that the Member conflated the two tests, and consequently applied an incorrect test to the ‘course of employment’ case brought by the appellant. 
The Member’s fact finding
70.	The appellant submits it was the Member’s task to “weigh all the evidence before him and decide whether or not he was satisfied that the worker was in the course of his employment at the time [he] suffered injury”. The Member said “Although the onus of proof always lies on the [appellant], the evidentiary burden of proof can lie on either party, depending on the state of the evidence.” 
71.	The course adopted by the Member was to make a finding on a ‘prima facie’ basis, that the appellant was in the course of employment when he was assaulted. He said the appellant was observed on CCTV arriving at Burwood Park (his usual place of work) at 4:23am on 1 January 2017, having previously obtained written permission to start early that day, he was dressed in his uniform. The attack occurred in Burwood Park, his place of employment. The appellant beat off his assailant using his “garbage collecting stick”. I note these facts were largely confirmed by CCTV footage viewed by the police together with the written application by the appellant to commence work early on 1 January 2017. That the appellant beat off his attacker with his garbage collection stick was recorded by the interviewing police officer at Royal Prince Alfred Hospital on the initial interview. It does not appear to have been doubted by the Member, who relied on it in making his ‘prima facie’ finding of injury in the course of employment at [165] of the reasons.
72.	The Member then referred to what he described as “evidentiary issues”:
“The evidentiary onus of proof then lay on the respondent to persuade me that the prima facie case did not represent the true facts. In the final analysis the outcome of this dispute depends on whether I can legitimately draw an inference that the attack suffered by the [appellant] was connected to the drug dealing which he admitted to in the park during the year before. This requires an analysis of the different statements made at different times by [the appellant] following the assault.”
73.	I note that the facts on which the Member relied in making his prima facie finding at [165] were not in serious contest and were not disproved. Rather, the approach taken by the Member involved consideration of whether the respondent could displace the finding that the appellant was in the course of his employment at the time of the assault, by reference to the evidence of dealing with cannabis.
74.	The Member set out a summary of the various interviews and statements from the appellant (see [27] to [30] above). He discussed the appellant’s evidence, including the cross-examination, and made various findings regarding its acceptability. This was under a heading “Prima facie case rebutted”. The Member’s analysis did not identify evidence of activities or events, from when the appellant commenced on 1 January 2017 up to the time of the assault, in which the appellant was involved in the sale of illicit substances (or any other illegal activity). There was no direct evidence of any activity on the appellant’s part, on that morning prior to the assault, that was inconsistent with the appellant being in the course of his employment. 
75.	The Member identified inconsistencies between the multiple versions in the appellant’s interviews and statements (see [27] to [32] above). He made a credit finding based (at least in part) on demeanour. 
76.	The Member dealt with whether there may have been a causal connection between the history of the appellant dealing with cannabis and the assault. The Member referred to the appellant’s statement that he was investigated by police in December 2016 regarding the sale of illicit drugs in Burwood Park. The appellant’s evidence was that he ceased such activities in September 2016. The Member said:
“[The appellant] admitted in his statement of 24 October 2021 that he had been investigated in December 2016 by police regarding allegations that he had been selling illicit drugs in Burwood Park, which confirmed the unsubstantiated report by Dr Lee. Whether or not he had ceased his activities by that time, he was certainly still a suspect in the weeks prior to the attack. It follows that if the police had been made aware that [the appellant] should be investigated, then other interested parties such as rival drug dealers might also have suspected him of continuing his dealing, whether he was or not, hence the attempt on his life on New Years’ Day.”
77.	The reasons at [174] expressed doubt regarding whether the attack was random, while acknowledging that possibility. The Member said the appellant, when initially interviewed by the police, thought he recognised his assailant, and referred to a possibility that he was “trespassing on another dealer’s turf”. The Member said the possibility that the assault was a random attack was not raised by the appellant until his statement dated 31 January 2022.
78.	The discussion at [173] to [174] of the reasons directed itself to whether there was a potential causal link between the assault and the evidence of the appellant supplying cannabis during 2016 prior to the assault. It was of little relevance to the issue of whether the appellant was in the course of his employment at the time of the assault, which was the basis on which his case was conducted. In the reasons at [175], the Member made an ultimate finding of fact: “For these reasons, I am satisfied that [the appellant] was not in the course of his employment when he was assaulted”. The Member described the case as “analogous” to Nunan, quoting the passage set out at [34] above. The content of the reasons at [173] to [174], and the passage from Nunan quoted at [175] (which was relevant to the test for injury ‘arising out of employment’) are consistent with the Member conflating the “two ingredients” in the definition of ‘injury’. I note this ultimate finding of fact was made in a single paragraph, [175], that appeared under a heading “Conduct not arising out of or in the course of employment”. The Member’s reasoning directed itself to whether there was a causal relationship between the employment and the injury, or whether the causal relationship was rather between the history of dealing with cannabis in 2016 and the injury. There is not a requirement, to establish injury ‘in the course of employment’, that there be a causal connection between the employment and the injury (see Tarry and Lewis discussed at [66] to [67] above). 
79.	The respondent at first instance made an argument that raised issues of onus:
“So, in my respectful submission, the [appellant] carries an onus that he was assaulted on the 1st of January in the course of his employment and that essentially it had nothing to do with his prior illicit operation of selling drugs, not only in Burwood Park but possibly in the Burwood area.
In my respectful submission, you cannot be satisfied that the [appellant] is a witness of truth and therefore you cannot be satisfied that the attack did not happen by someone that knew him and that, in fact, targeted him.”
80.	The argument is picked up again in the respondent’s submissions on this appeal (see the last of the passages quoted at [58] above).
81.	The argument is essentially that, the respondent having raised the proposition that the appellant’s actions on 1 January 2017 may have taken him outside the course of his employment, the onus was on the appellant, in his own case, to disprove that proposition. This position is inconsistent with the decision of the Court of Appeal in Rantino v Collins & Moss Pty Ltd. In that case Hope JA (Hutley and Samuels JJA agreeing) said:
“As it seems to me, the findings which the learned Judge made prima facie entitled the applicant, as a matter of law, to an award. Those findings were that the applicant was upon the ladder and painting in the course of his employment. There was, to use his Honour’s words, some contretemps with the foreman. The ladder then slipped and fell and the worker was injured.
In my opinion in those circumstances the applicant discharged his onus of establishing that the injury arose out of or in the course of his employment, unless the judge was satisfied that some event took place which determined the employment, or the worker’s involvement in his employment, prior to the incident occurring which produced the injury. His Honour’s inability to decide what it was that occurred left the applicant in the position that he had stablished prima facie a case which entitled him as a matter of law to an award. The inability of the learned judge to resolve precisely what the contretemps was that took place between the applicant and the foreman left him still in that position.” 
82.	Both parties referred to the decision of Neilson J in Stojkovic v Telford Management Pty Ltd, in which his Honour undertook an extensive review of the case law relating to ‘assault’ cases. His Honour summarised the effect of the decision in Rantino: 
“The appeal was allowed unanimously. The decision of the Court of Appeal was given by Hope JA, with whom Hutley JA and Samuels JA concurred. Their Honours held that once it was established that at the time of the injury the worker was in a position required for carrying out his employment, there was a prima facie entitlement to compensation. If there was further evidence which left it uncertain that some act on the part of the worker had taken him out of the scope of his employment, the worker was entitled to a finding that the injury arose out of or in the course of the employment. Prima facie, a worker is in the course of his employment. Positive evidence needs to be adduced to prove that he has abandoned the employment.”
The potential inferences
83.	There was no direct evidence of matters occurring on 1 January 2017, in the period prior to and including the assault, which would lead to a conclusion that the appellant was not in the course of his employment when he was assaulted. The Member raised the topic of whether an inference should be drawn in the reasons at [166] (see [72] above). He said the result “depends on whether I can legitimately draw an inference that the attack suffered by the [appellant] was connected to the drug dealing which he admitted to in the park during the year before” (emphasis added). The Member here asked himself the wrong question. Whether there was such a causal connection could be relevant to whether the assault arose out of the employment. It was not of assistance in considering the allegation brought, being whether the assault occurred in the course of the appellant’s employment. This was consistent with the conclusion implicit in the reasons at [175], in which it was found that the assault did not occur in the course of employment, supported by a passage from Nunan that dealt with whether an assault arose out of employment.
84.	In Bradshaw v McEwans Pty Ltd the High Court said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”
85.	In Luxton v Vines the plurality described the above passage from Bradshaw as “the test to be applied”. In Flounders v Miller Ipp JA said: “The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture.” In Fuller-Lyons v New South Wales, the High Court spoke of the need for an inference of fact to involve “a definite conclusion of which the trier of fact is affirmatively satisfied as distinct from merely a possible explanation for the known facts”.
86.	The respondent, on appeal, refers to the following inferences which it submits should be drawn:
(a)	The appellant was dealing with drugs at the time when he was at the park or certainly at the time of the attack. He was not engaged in any purely employment activities.
(b)	Alternatively, the appellant was fraternising with people and involved in criminal activity outside employment.
(c)	On the probabilities cannabis was being supplied to the homeless man, issues arose, further “another drug dealer’s territory was being violated hence the attack”.
(d)	Issues arose in the park that were unconnected to employment but were connected to the dealing of drugs.
87.	The reasons do not indicate what factual inferences the Member drew. He did make an ultimate finding of fact. The basis of this is opaque. There is discussion in the reasons at [173] going to whether “interested parties such as rival drug dealers” might have been responsible for the attempt on the appellant’s life on 1 January 2017. This discussion does not contain any factual finding based on an inference. It expresses itself in terms of “might also have suspected him”, it does not involve a positive finding on the probabilities, contrary to the decisions discussed at [84] to [85] above. It is unhelpful to consider whether the inferences nominated on appeal by the respondent were properly available. These were not findings made by the Member, on the basis they were matters that could be properly inferred. Of the potential inferences referred to at [86] above, those at (a), (c) and (d) were conjectural. That at (b) had support in the evidence, however there was little basis for a conclusion on the probabilities that there was any causal relationship between those matters and the assault. In any event, the various suggested inferences went to whether there was a causal relationship between the employment and the injury. The correct question was whether the injury occurred in the course of the appellant’s employment.  
88.	In my view the Member misapplied the test of ‘injury’ in s 4 of the 1987 Act, in that he conflated the tests governing injury arising out of the course of employment and injury in the course of employment. In considering whether the appellant suffered injury in the course of employment, the Member had regard to irrelevant matters, going to whether the appellant had established a causal connection between the employment and the injury.
CONCLUSION
89.	It follows from the above that Grounds Nos 1 and 2 succeed.
90.	As the respondent correctly submits, Ground No. 3 did not arise given the Member’s findings on ‘injury’.
91.	The effect of the above is that the question of ‘injury’ requires re-determination. The issue regarding s 9A of the 1987 Act will require determination if the appellant succeeds on ‘injury’. The appropriate course is that the matter be re-determined afresh by a different member.  
ORDERS DISPOSING OF THIS APPEAL
92.	The Certificate of Determination dated 22 March 2022 is revoked.
93.	The matter is remitted for re-determination by a different member consistent with these reasons.

Michael Snell
Acting President
22 December 2022