By
Gaby Grammeno
Contributor
The courier driver was on his way to deliver some goods as part of his job when he noticed a ute behind him speed up and overtake him over a double line, after which the driver of the ute stuck his middle finger up at him. The courier paid no attention, until they both came to a traffic light, with the ute in front of him. When the light turned green, the courier waited about 10 seconds expecting the ute driver to move on, but the ute remained stationary, blocking him.
There was no obvious explanation for the cause or likely duration of the holdup, so he sounded his horn to prompt to other driver to move on, but the other driver made a further abusive gesture, shouted abuse, got out of his car, and ‘power walked’ angrily back to the courier’s vehicle.
The courier then hopped out of his van and was confronted by the other man yelling aggressively in his face. After a short verbal altercation fisticuffs ensued, during which the courier received punches to his eye and left ear, until they were separated by another man.
Both men were charged by the police with affray, but the charges were later withdrawn.
After reporting the incident, his employer required the courier to attend a recorded interview at work. An excerpt of the recording, together with the courier’s identity, was given to the media. The courier was very upset and anxious after the media reported the incident, as he was worried about retaliation by the driver of the ute, who was known to police. His psychological state worsened, until he was diagnosed with post-traumatic stress disorder.
Citing a psychological injury and injury to his ear, nose, and throat-related structures, the worker claimed lump sum compensation for permanent impairment in accordance with s66 of the Workers Compensation Act 1987. The employer rejected the claim, and the case was heard in the Personal Injuries Commission of NSW.
In the Commission
The two questions to be decided by the PIC were, first, whether the psychological and physical injuries the worker received in the physical altercation were sustained in the course of, or arose out of, his employment; and second, whether his injuries were solely attributable to serious and wilful misconduct on his part, in which case he would not be entitled to compensation.
The employer submitted that when the worker opened the door of his vehicle and stepped onto the roadway, he took himself out of the course of his employment; that remaining outside the van and engaging in the altercation with the other driver was not in any way connected or incidental to his employment, therefore he had not been injured ‘in the course of his employment’ and was not entitled to compensation.
Counsel for the worker argued that the driver – who had no hearing in his right ear, having suffered deafness in that ear since childhood – acted reasonably when he got out of the van so he could hear the other driver’s explanation for the cause of the delay and find out when he’d be able to proceed with his delivery for the employer.
Dashcam footage showed parts of the altercation, including the ute driver standing toe-to-toe with him and shouting in the courier’s face.
Counsel for the worker argued that the video evidence clearly shows the other driver acted aggressively towards the courier, who was entitled to defend himself and did so.
NSW Personal Injury Commission Member Karen Garner did not accept the employer’s submission that the courier took himself out of the course of his employment when he exited his work vehicle, or that the courier’s injuries occurred because of serious or wilful conduct on his part.
The Commission determined his injuries were sustained in the course of his employment, as the courier had got out of the car to find out what the problem was and when he’d be able to make his deliveries for the employer. He had not expected to be assaulted. His employment was a substantial contributing factor to the injuries, so he was entitled to a lump sum in compensation for his permanent impairment.
Member Garner ordered the matter to be remitted to the PIC President for referral to a medical assessor for assessment of whole-person impairment, which determines the sum to be awarded.
What it means for employers
To comply with their obligation under WHS laws to provide adequate information, training, instruction, and supervision, employers whose staff need to drive a vehicle to carry out their duties should ensure drivers are instructed in the safest way to deal with aggressive drivers and avoid incidents of road rage.
Read the decision
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