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Appeal successful after wrong test applied

  • Newsletter Article
  • Published 22.02.2023

Boccalatte v Burwood Council (NSWPICPD 2022)

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Key Takeaways

  • This decision highlights the importance of understanding the two limbs of the definition of injury (‘in the course of’ and ‘arising out of’).  
  • In the course of employment’ raises a temporal (as opposed to a causative) element, while ‘arising out of the course of employment’ requires a causal connection. These two categories are exclusive of each other and have to be considered independently (see Tarry v Warringah Shire Council WCR 1974).
  • Where the wrong test is applied to either of the limbs of the definition of injury, a re-determination of injury will be required.

Brief Facts

The worker was employed by Burwood Council as a Team Leader for Parks, with his duties mainly involving maintenance at Burwood Park.

On 1 January 2017, the worker was approached by a male in the park who stabbed him four times, in the upper torso, left shoulder and chest. As a result, he developed a psychological injury.

The employer became alerted to information indicating that on one or more prior occasions, the worker had engaged in exchanging cannabis within the park and local government area. It was alleged that at the time of the assault, the worker was in the process of participating in illicit/illegal drug activity. This was put to the worker by his employer. The worker admitted to selling cannabis in the park on three prior occasions (one of those during normal working hours), but argued that he was not selling drugs when the stabbing occurred on 1 January 2017.

The insurer issued a dispute notice in respect to the psychological injury sustained on 1 January 2017 pursuant to s4 (‘injury’) and s9A (‘a substantial contributing factor’) of the Workers Compensation Act 1987 (the 1987 Act). A further notice was issued relying on s14(2) of the 1987 Act (‘serious and willful misconduct’), as well as issues of credit.

On 18 February 2022, the matter was heard before Member Wynyard. The worker was cross-examined by leave. In a written decision, Member Wynyard found in favour of the employer.

The worker sought to appeal the Member’s decision on the grounds that:

  • The Member erred in law in his finding that the worker was not in the course of his employment.
  • 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 evidence.
  • The Member failed to consider whether or not the worker suffered injury to which his employment was a substantial contributing factor.


The worker’s case on appeal aimed to establish that his injury arose in the course of his employment, which required a temporal connection. The appeal related to the Member’s conflation of the ‘two ingredients’ in the definition of injury (‘arising out of’ and ‘in the course of’). In fact, Member Wynyard referenced the following passage from Nunan v Cuckatoo 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.’

The worker submitted that the Member wrongly identified an issue regarding whether he could ‘legitimately draw an inference that the attack suffered by the [worker] was connected to the drug dealing which he admitted to in the park during the year before’. The worker submitted the finding that the injury was ‘connected’ to a non-work related activity may be relevant to whether injury ‘arose out of’ employment but it could not go to whether injury arose ‘in the course of’ employment.

The worker also stated that ‘at 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’.

Acting President Snell referred to the two limbs of the definition of injury (‘in the course of’ and ‘arising out of’), which did not both require satisfaction but needed to be considered independently (see Tarry v Warringah Shire Council). He also referred to Inverell Shire Council v Lewis, where Handley JA said that liability for 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, with no requirement that employment should have any causal connection with the injury.

Acting President Snell noted that the Member’s analysis did not identify evidence of activities or events, from when the worker commenced work on 1 January 2017 up to the time of the assault, in which the worker was involved in the sale of illicit substances. He confirmed that there was no direct evidence of any activity on the worker’s part, on that morning prior to the assault that was inconsistent with the worker being in the course of his employment.

Acting President Snell indicated that the employer’s reference to various inferences, which it submitted should be drawn, 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 worker’s employment; i.e. a test of temporal connection.

He found that Grounds 1 and 2 succeeded. The effect was that the question of injury required re-determination and the matter is to be re-determined afresh by a different Member.


This is another example whereby the application of the wrong tests of the two limbs of the definition of ‘injury’ results in the matter requiring a re-determination of ‘injury’. It is essential for insurers to be aware of what is being argued; i.e. ‘arising out of’ or ‘in the course of employment’. This is so that the correct rebuttal can be made before a Member.