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Intent an essential ingredient of the ‘serious and wilful’ misconduct defence

  • Newsletter Article
  • Published 19.12.2023

Dasdemir v State Transit Authority of NSW (NSWPIC 2023)

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Key Takeaways

  • Actions which are taken in self-defence, which may otherwise be actions which are not authorised by an employer, can be considered to be in the course of employment for the purposes of s4 of the Workers Compensation Act 1987 (the 1987 Act).
  • There is a high onus of proof on an insurer seeking to rely on a defence of ‘serious and wilful misconduct’ under section 14(2) of the 1987 Act.
  • It will not be sufficient to show that the injured person engaged in acts which would constitute serious and wilful misconduct without establishing that there was a specific intention (mens rea) attached to those actions.

Brief Facts

The applicant worker was employed by the respondent as a bus driver. On 28 November 2020, the applicant was completing a bus route at the final stop when a passenger confronted him, banging his cabin window and demanding that the bus had not travelled to the correct final destination. The applicant alighted from the bus and became involved in a physical altercation with the passenger during which he was spat on, punched in the stomach and hit over the head by a skateboard.

The passenger pleaded guilty to charges of assault in criminal law proceedings. The applicant brought claim for physical and psychological injuries as a result of the incident.

The insurer disputed liability for the injury under s4 of the 1987 Act. Based on its interpretation of CCTV footage of the incident, the insurer asserted that by alighting from his vehicle to pursue the offender the applicant took himself outside the course of his employment.

Further and with reference to the same evidence, the insurer maintained that the applicant then engaged in a physical altercation with the offender. Accordingly, compensation was not payable as the injury sustained by the applicant was solely attributable to the applicant’s serious and wilful misconduct thereby enlivening a defence to the claim in accordance with s14 (2) of the 1987 Act.

The applicant initiated PIC proceedings by way of Application to Resolve a Dispute claiming weekly benefits and permanent impairment compensation. It was the applicant’s contention that whilst in hindsight it may have been wiser to remain in the vehicle given the aggressive behaviour of the passenger, he was at all times within the course of his employment as he exited the bus to check the signage on the front of the bus and converse with the passenger responsible for the assault.

In addressing the insurer’s s14 (2) defence, Counsel for the applicant asserted that a proper analysis of the CCTV footage confirmed that the applicant was not the antagonist in the incident. Further, the applicant’s attempt to restrain the passenger after the first assault which resulted and a further altercation was an act of self-defence. The actions of the applicant were reflexive rather than deliberate and as such could not be considered ‘wilful’ as required by the provision.


Member Benk first dealt with the dispute raised by the insurer under s4 of the 1987 Act. Accepting the applicant’s evidence that he exited the driver’s cabin to check the bus signage before conversing with the aggrieved passenger, the Member concluded that this was action incidental to the applicant’s employment as a bus driver. Accordingly, the Member was satisfied that the applicant sustained injury in the course of his employment.

Member Benk then considered the defence raised by the insurer in accordance with s14 (2) with reference to the CCTV footage before her. To begin, the Member noted that she obtained a very different impression of the events responsible for the applicant’s injury to the one detailed in the insurer’s dispute notice and argued on behalf of the respondent.

The Member stated that contrary to the insurer’s position, it was notable that it was the passenger that had instigated the assault by spitting at or on the worker and physically assaulting his person thereafter. The applicant’s evidence that he attempted to restrain the passenger in response out of reflex was accepted. Further, the Member accepted that his response was reasonable and in proportion to the harm and assault that he had experienced.

The Member noted that it was the respondent’s burden to establish the application of s14 (2) on the evidence and that it had failed to do so in this instance. In coming to this conclusion, Member Benk relied on authorities which set out that the element of ‘wilful’ within the terms of s14(2) of the 1987 Act.

Referring with approval to the decision of O’Meally J in Sawle v Macadamia Processing Co Pty Ltd (NSWCC 1999), the Member noted the concept of ‘serious and wilful’ misconduct was conduct beyond negligence, even gross negligence and that it must be established on the evidence that the person performing the act did so deliberately with knowledge it will cause a risk of injury.

The above necessarily requires a consideration of the applicant’s state of mind. The onus rests with the employer to establish what in a criminal court is referred to as mens rea: Gardoll v RJ Fletchers International Pty Ltd (NSWCCR 1999).

Member Benk then went on to distinguish this case from that of Kasim v Busways where a driver who was provoked by a passenger had committed an assault and been found guilty of misconduct. Member’s reasoning was that in this case, the applicant did not initiate the assault and merely attempted to restrain the passenger as a means of self-protection.


The recent decision of Member Benk serves to reinforce the heavy evidentiary burden on employers and insurers who seek to rely on the application of s14 (2) of the 1987 Act to deny an injured worker compensation.
Consistent with early decisions of the former Compensation Court of NSW, the decision confirms that for the provision to have application, the evidence must establish that a worker acted deliberately and with knowledge of the potential consequences of their actions before consciously engaging in that conduct in any event.
It can be concluded with some confidence that absence evidence of the above, conduct on the part of an injured worker that is negligent or even grossly negligent will not be determined ‘wilful’ for the purposes of the statutory defence.