C. Reagh Pty Ltd v Gaydon
[2020] NSWWCCPD 63
•20 October 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | C. Reagh Pty Ltd v Gaydon [2020] NSWWCCPD 63 |
| APPELLANT: | C. Reagh Pty Ltd |
| FIRST RESPONDENT: | John Gaydon |
| SECOND RESPONDENT: | Tara Mooney |
| THIRD RESPONDENT: | David Mooney |
| INSURER: | Hotel Employers Mutual Ltd |
| FILE NUMBER: | A1-6800/19 |
| ARBITRATOR: | Mr C Burge |
| DATE OF ARBITRATOR’S DECISION: | 6 May 2020, amended 11 May 2020 |
| DATE OF APPEAL DECISION: | 20 October 2020 |
| SUBJECT MATTER OF DECISION: | Weight of medical evidence in the Commission; expert evidence regarding ‘stress’; issues of causation in the Commission: application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796, the ‘but for’ test in causation |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr B McManamey, counsel | |
| Hicksons Lawyers | |
| First Respondent: | |
| Mr R Hanrahan, counsel | |
| LHD Lawyers | |
| Second Respondent: | |
| Mr G Young, counsel | |
| Law Partners Personal Injury Lawyers | |
| Third Respondent: | |
| Mr A B Parker, counsel | |
| Carroll & O’Dea Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s identity is amended to “C. Reagh Pty Ltd”. 2. The Certificates of Determination dated 6 May 2020 and 11 May 2020 are revoked. 3. The matter is remitted for re-determination by a different Arbitrator. |
INTRODUCTION AND BACKGROUND
Deanna Mooney (the deceased) was employed as a casual cook at the Castlereagh Hotel at Dubbo.[1] The correct identity of the entity that employed her was C. Reagh Pty Ltd (the appellant). Leave is given to the appellant to amend its identity accordingly. The deceased suffered injury to her back on 5 March 2012 when lifting 20 kilogram drums of cooking oil, in the course of cleaning the fryer in the hotel kitchen.[2] She ceased work on the following day.[3] Her claim for compensation was denied by the respondent’s insurer and was the subject of proceedings in the Commission (No. 5077/12, ‘the original proceedings’).
[1] Deceased’s statement 23/4/12, [8], Application to Resolve a Dispute (ARD), p 4.
[2] Deceased’s statement 23/4/12, [10], ARD, p 4.
[3] Deceased’s statement 23/4/12, [15]–[18], ARD, p 5.
The original proceedings were listed for an arbitration hearing in Sydney on 7 November 2012. The deceased, in the company of her mother, travelled from Dubbo to attend. The parties were represented by counsel. The deceased gave evidence and was cross-examined.[4] A lay witness, the manager of the Castlereagh Hotel, gave evidence in the appellant’s case.[5] Counsel addressed and the Arbitrator who heard the matter reserved his decision.
[4] Transcript, 7/11/12 (T1), T1 33.12–68.6.
[5] T1 71.28–98.5.
In the early evening on the date of the arbitration hearing, the deceased and her mother boarded a flight in Sydney to return to Dubbo. The flight was delayed. The deceased was observed to be anxious. After boarding she was sweating and said she felt like vomiting. She then appeared to sleep, following which her breathing became shallow and she was unresponsive. She ceased breathing and had an absent carotid pulse. Attempts to revive her were unsuccessful. The plane returned to Sydney where an ambulance crew boarded the plane. At 8.25 pm attempts at cardiopulmonary resuscitation were discontinued. An autopsy report gave the cause of death as coronary artery thrombus.[6]
[6] Autopsy Report for the Coroner, ARD, p 179.
The Commission, in the original proceedings, issued a Certificate of Determination and accompanying reasons dated 21 February 2013.[7] The deceased’s claim succeeded, and there was an award of weekly compensation (and associated medical expenses) from 5 March 2012 to 7 November 2012 (the date of the deceased’s death).
[7] ARD, pp 135–154.
John Gaydon (the first respondent) was the de facto partner of the deceased at the time of her death. Dr Herman, a cardiologist, reported to the first respondent’s solicitors on 2 October 2018, on the basis of a file review of material relating to the deceased.[8] The doctor was asked to assume that “[d]uring cross examination, several stressful circumstances unfolded relating to adversarial evidence from a work colleague, questioning about domestic violence and realising surveillance footage had been obtained on her”. The doctor identified a causal relationship between the arbitration hearing and the deceased’s death.
[8] ARD, pp 170–173.
The first respondent’s solicitors made a claim on the appellant’s insurer for the death benefit pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act), a sum of $489,750, in a letter dated 13 December 2018.[9] The insurer issued a s 78 notice dated 14 November 2019.[10] The insurer accepted that the deceased suffered a compensable injury to her back on 5 March 2012, consistent with the result in the original proceedings. It disputed that the deceased’s death resulted from that injury. It stated it did not accept that the first respondent was dependent on the deceased. It relied on the opinion of Dr Haber (a cardiologist who it had qualified to conduct a file review) in asserting the back injury did not materially contribute to the deceased’s fatal heart attack.
[9] ARD, p 159.
[10] ARD, pp 9A–9D.
The ARD instituting the current proceedings was lodged on 23 December 2019. The nominated dependants were the first respondent, Tara Mooney (the deceased’s daughter) (‘the second respondent’) and David Mooney (the deceased’s son) (‘the third respondent’). The ARD also described, as people who may have been dependent for support on the deceased, Nathan Mooney (the deceased’s son, described as “20 at date of death”) and Lorraine Bailey (the deceased’s mother). The Arbitrator said that the deceased’s mother died before the matter was determined and had no entitlement to any apportionment, and that Nathan Mooney was served with all pleadings in the matter but did not appear or make a claim for dependency. The Arbitrator found that Nathan Mooney was “aware of the proceedings and [chose] not to make a claim for dependency”.[11] I will for convenience refer to those dependants who participated in the proceedings (and this appeal) as Mr Gaydon, Tara and David. I will collectively refer to them as ‘the dependants’. I mean no disrespect in this regard.
[11] Gaydon v The Castlereagh Hotel Dubbo [2020] NSWWCC 146 (Reasons), [8]–[9].
The matter was listed for arbitration hearing on 7 April 2020. Consistent with the Commission’s revised procedures due to the COVID-19 pandemic, the hearing was conducted by telephone. Mr Hanrahan appeared for Mr Gaydon, Mr Young for Tara, Mr A B Parker for David and Mr Barter for the appellant. There were no applications to cross-examine or call oral evidence. Counsel for the parties addressed and the Arbitrator reserved his decision.
The Commission issued a Certificate of Determination on 6 May 2020 and an amended Certificate of Determination on 11 May 2020. The Arbitrator found that “the deceased suffered her fatal myocardial infarction as a result of the stress occasioned by the hearing”.[12] The Arbitrator noted there was an “in principle agreement” that the lump sum be apportioned equally between Mr Gaydon, Tara and David, which he considered “appropriate”. It was ordered that the sum of $163,250 be paid to each of Mr Gaydon, Tara and David, together with funeral expenses of $8,834.45 on production of accounts. This appeal is brought against that decision. References in these reasons to the Arbitrator’s reasons are to the amended decision dated 11 May 2020.
[12] Reasons, [36].
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) 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 without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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
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 1998 Act have been met.
THE ARBITRATOR’S REASONS
The Arbitrator noted that, at the hearing, the pleading of injury was amended to read:
“The deceased died after she sustained a heart attack which arose as a consequence of her claim for injury on 5 March 2012.”[13]
[13] Reasons, [7].
The Arbitrator noted Mr Gaydon’s counsel submitted the deceased faced the following stressors on her date of death:
(a) an allegation that she sustained injuries due to abuse by Mr Gaydon;
(b) cross-examination relating to the cause of her injury and surveillance;
(c) hearing a co-worker give evidence seeking to invalidate her claim, and
(d) the stress of a delayed flight from Sydney back to Dubbo.[14]
[14] Reasons, [14].
The Arbitrator quoted at length from the reports of Dr Herman and Dr Brender, relied on by the dependants. He noted that findings of injury on the basis of injury simpliciter and the ‘disease’ provisions were not mutually exclusive (referring to Zickar v MGH Plastic Industries Pty Ltd[15]). The Arbitrator referred to a submission on Mr Gaydon’s behalf that, applying the commonsense test of causation described in Kooragang Cement Pty Ltd v Bates,[16] the stress the deceased was subjected to at the hearing of her claim “can be said to have caused her death”.[17]
[15] [1996] HCA 31; 187 CLR 310; 140 ALR 156; 71 ALJR 32.
[16] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang).
[17] Reasons, [15]–[18].
The Arbitrator referred to the submissions of Mr Young, who appeared for Tara. He said Mr Young made the additional submission that the evidence of Dr Smith, a psychiatrist qualified in Mr Gaydon’s case, was uncontradicted. Dr Smith said that “the arbitration, in particular the cross-examination, more likely than not placed [the deceased] under acute stress”.[18] The Arbitrator referred also to the submissions of Mr Parker, for David, that the deceased was exposed to “very stressful questioning by the barristers shortly before her death.[19]
[18] Reasons, [20].
[19] Reasons, [21].
The Arbitrator referred to a submission by Mr Barter (for the appellant) that there was no evidence that the deceased suffered stress. “[T]he Commission is structured to minimise distress suffered by injured parties.” The Arbitrator described the cross-examination of the deceased as “stringent, thorough and completely appropriate in the circumstances”. He said the experience “is a stressful one, particularly in circumstances where there are attacks on credit and matters of a personal nature are raised”. He said the medicolegal opinions “addressed the nature of the cross-examination and not just the length of it”. He rejected a submission by the appellant that there was “insufficient evidence upon which to draw an inference the deceased was under significant levels of stress at the time of her heart attack as a result of the hearing”. The Arbitrator concluded that “taking into consideration the lay and medical evidence, the deceased’s death resulted from the stress of the arbitration hearing on 7 November 2012”. He said, “each of the qualified doctors accept that stress can be a causative factor in myocardial infarction, and that the experience of the hearing would be regarded as a stressful one”.[20]
[20] Reasons, [22]–[28].
The Arbitrator referred to the decision of McGrath J in Karathanos v Industrial Welding Co Ltd, in which it was said:
“It is my view that a reaction to the process of pursuing a claim under the Act, which aggravates the incapacity, is not a consequence of the employment injury which is compensable.”[21]
[21] (1973) 47 WCR 79 (Karathanos), 80.
The Arbitrator referred to the decision in Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd,[22] and said that decision confirmed “the long-held position that the phrase ‘arising out of or in the course of employment’ requires a causal element between the employment and injury”. He referred to “the commonsense test of causation” in Kooragang. He referred to the decision of Roche DP in Manpower Pty Ltd v Harris in which the Deputy President said that “in the light of [Kooragang], I doubt that Karathanos is good law”.[23] The Arbitrator said that he agreed with this view, and accepted a submission by Mr Young that “there is no separate test set aside for the context of litigation”. He said that the commonsense test in Kooragang “supersedes the judgment in Karathanos”.[24]
[22] [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi).
[23] [2011] NSWWCCPD 10 (Harris), [137].
[24] Reasons, [30]–[34].
The Arbitrator said that “had the deceased not been injured in the course of her employment, she would not have been subjected to the cross-examination and the stress of the hearing which took place in November 2012”.[25] He said that the position was analogous to “injury or death sustained in connection with attendance at, for example, a medical appointment associated with a claim”.[26] The Arbitrator made a factual finding:
“Were it not for her original injury, the [deceased] would not have been at the hearing or been subject to cross-examination. Having found the deceased was placed under considerable stress at the hearing by virtue of the nature and extent of the cross-examination, the challenge to her credit and listening to a co-worker give evidence disputing the circumstances of her claim; and noting the medical evidence put forward by both parties, I am of the view the deceased suffered her fatal myocardial infarction as a result of the stress occasioned by the hearing. In my opinion, the applicant has established a causal link between the injury suffered by the deceased in March 2012 and her subsequent death through fatal heart attack after the hearing on 7 November 2012.”[27]
[25] Reasons, [33].
[26] Reasons, [35].
[27] Reasons, [36].
The Arbitrator then made findings and orders relevant to apportionment, funeral expenses and weekly benefits that are not relevant to issues raised on this appeal.[28]
[28] Reasons, [37]–[43].
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, 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.”
In Raulston v Toll Pty Ltd,[29] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[30] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[31]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, 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 [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’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 Arbitrator was wrong.
(c) It may be shown that an Arbitrator 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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[32]
[29] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[30] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[31] [1996] HCA 140; 140 ALR 227.
[32] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[33] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[34]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[35]
[33] [2017] NSWWCCPD 5, [67].
[34] [2001] FCA 1833, [28].
[35] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[36] 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”.[37]
[36] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[37] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[38] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[39]
[38] [2020] NSWCA 54 (Hill).
[39] Hill, [20].
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) The Arbitrator erred in fact and law when he failed to properly evaluate the evidence to determine whether the stress of the arbitration hearing was causative of the heart attack which occurred at least six hours after the arbitration hearing concluded. (Ground No. 1)
(b) The Arbitrator erred in law when he applied the wrong test to determine whether the heart attack causing death resulted from the accepted back injury. (Ground No. 2)
(c) The Arbitrator erred in fact and law when he found that the death resulted from the accepted back condition. (Ground No. 3)
The appellant submits the Arbitrator “treated the matter as a two-step process”. It submits the first of the steps was dealing with whether “there was a causal relationship between the arbitration hearing and the deceased’s death”.[40] The second was “the relationship between the compensable injury and the arbitration hearing”.[41] The appellant’s submissions deal with the first of these matters under Ground No. 1, and the second in its combined submissions dealing with Grounds Nos. 2 and 3.
[40] Appellant’s submissions, [14]–[15].
[41] Appellant’s submissions, [28].
APPELLANT’S SUBMISSIONS ON GROUND NO. 1
The appellant submits the Arbitrator “approached this question of causation on the basis that if he was satisfied the [original] arbitration was stressful then causation was made out”. It submits the Arbitrator “did not actually engage with the evidence to reach his conclusion”. It submits the Arbitrator did not “engage with the surrounding matters”, particularly the “crucial fact that there was a substantial delay between the cessation of the arbitration hearing and the onset of the heart attack”. It submits it was necessary for the dependants “to explain that delay in order to discharge the onus of proof”.[42]
[42] Appellant’s submissions, [22]–[24].
The appellant submits on specific alleged errors in the Arbitrator’s reasoning. It submits the Arbitrator did not refer to the evidence of Dr Haber or Dr Smith as part of his reasoning process.
The appellant refers to Dr Herman’s report, in the dependants’ case. It submits that Dr Herman expressly acknowledged that he “was not an expert in psychological stress and anxiety”. It is submitted to follow from this that Dr Herman “was not qualified to give an opinion about whether the events at the arbitration hearing had in fact given rise to psychological stress and anxiety sufficient to have contributed to the onset of the heart attack”.[43] The appellant submits that Dr Brender and Dr Haber, also cardiologists, were not qualified to give an opinion on the deceased’s levels of stress or its causes.[44] The appellant submits the only doctor qualified in that regard was Dr Smith (a psychiatrist in Tara’s case), but he limited his opinion to the events at the arbitration hearing.[45]
[43] Appellant’s submissions, [16].
[44] Appellant’s submissions, [16]–[18], [23].
[45] Appellant’s submissions, [23].
The appellant submits that in those circumstances, there was no evidence before the Arbitrator that the stress would have continued beyond the end of the arbitration hearing.[46] It submits the Arbitrator did not address the fact that “there was a delay of at least six hours between the conclusion of the arbitration hearing and the onset of the heart attack”. It says “the correct question” was whether the deceased was suffering from stress some hours after the arbitration hearing, when her heart attack occurred. It submits there was no evidence on this point and “the claim should fail”.[47]
[46] Appellant’s submissions, [26].
[47] Appellant’s submissions, [27].
DEPENDANTS’ SUBMISSIONS ON GROUND NO. 1
Dealing with the gap, estimated by the appellant at 6 hours, between the end of the original arbitration hearing and the deceased’s heart attack, Mr Hanrahan (for Mr Gaydon) submits the Arbitrator kept sight of the fact that “severe stress probably played a part in the [deceased’s] experience that day”. He submits the Arbitrator relied on Dr Brender in finding that “by the time [the deceased] left the arbitration rooms and made her way to the airport she would have been extremely stressed and depressed”. He relied on Dr Haber in finding that “the acute blockage of the right coronary artery by thrombus has caused her heart attack”. Mr Gaydon submits the Arbitrator referred to events surrounding the arbitration hearing. There can be little doubt the deceased remained uncertain regarding the outcome of her claim, “accordingly there can be seen to be no alleviation of her distress”. There was evidence that she hated flying, adding to her disturbance.[48]
[48] Mr Gaydon’s submissions, 2.8 (1)(a)–(g).
Mr Young, making submissions on this appeal for Tara, said the totality of the evidence identified multiple stressors on the day of the deceased’s death. The Arbitrator accepted there could be multiple causative factors (identified at [14] above). Mr Young refers to other stressors. The deceased did not know the outcome of her claim and she was afraid of flying. Her flight was delayed. The Report for the Coroner indicates the deceased was anxious from when she was seated. Mr Young submits the “psychological symptoms of traumatic events or stressors would not simply dissipate within hours of exposure”. The deceased was subject to the stressors of the entire day. The appellant’s focus simply on the events at the arbitration hearing is “misconceived”.[49]
[49] Tara’s submissions, [4]–[10].
Mr A B Parker makes submissions on this appeal on behalf of David. He submits the cardiologists supported the contention that stress can lead to myocardial infarction. The issue of stress is addressed by a psychiatrist (Dr Smith), and Dr Brender (a cardiologist) then comments on the effects of stress. There was never any argument that the back injury led directly to the heart attack. Mr Parker submits all doctors noted, either directly or indirectly, that the deceased’s heart attack occurred shortly before her death at 8.20 pm. The correct question was whether the deceased was suffering from stress due to the arbitration hearing, the requirement of a return flight between Dubbo and Sydney, and the return flight to Dubbo being delayed.[50]
CONSIDERATION OF GROUND NO. 1
[50] David’s submissions, 2.8 (1)–(7).
The Medicolegal evidence
The appellant submits that the only medical expert adequately qualified to express an opinion, on the existence and cause of psychological stress and anxiety in the deceased, was Dr Smith, a psychiatrist. It has referred to no authority for the proposition that a qualified medical practitioner, such as a cardiologist, does not have the expertise to express any opinion on these issues in the circumstances. Its submission does not go to relative weight, but rather to whether the opinion of a cardiologist is entitled to any weight at all on such issues. There was a reasonable level of unanimity on the part of the cardiologists who commented on this issue.
Dr Brender
Dr Brender, in his report dated 2 November 2015,[51] described the question posed to him as “Whether the arbitration put the [deceased] at a significantly greater risk of having a heart attack”. He described this as a question he was “happy to address”. The doctor said that he carefully reviewed the transcript of the arbitration hearing, to “assess the degree of stress and its possible involvement in [the deceased’s] fatal episode”. The doctor referred to specific points regarding the arbitration hearing. These were:
(a) there was repeated questioning about prior back and leg injuries and symptoms;
(b) there was a documented history of serious domestic violence. This included events on the weekend prior to the back injury (which occurred on a Monday morning). There was repeated cross-examination about domestic violence which “certainly, judging by her responses, left her quite stressed” (emphasis added), and
(c) during cross-examination the deceased became aware that there was surveillance of her activities, which suggested that her symptoms were not as she described. The doctor said: “she refuted this suggestion, again undoubtedly stressed by the line of questioning, to judge by the mode of her response” (emphasis added).
[51] ARD, pp 174–177.
The doctor referred also to the evidence of the manager, Ms Emery, which he assumed the deceased was present for. The doctor concluded:
“I would have thought that by the time she left the arbitration rooms and made her way to the airport she would have been extremely stressed and depressed regarding the day’s events. Added to that, is the anxiety of the departure from the airport, boarding the flight and discovering that it would be delayed.”
The doctor referred to the deceased’s “underlying coronary artery disease, that is her predisposing factors”. He referred to a “recently formed blood clot causing near complete occlusion” of the right coronary artery, saying “[t]his almost certainly led to her fatal infarct”. He said that the arbitration hearing “would have led to a significant amount of mental stress”. He dealt with the consequences of this:
“In my opinion, the additional stress of a flight delay would have prevented her from relaxing and trying to ‘wind down’.
The physiological and hormonal accompaniments of severe stress are well known, including elevation of blood pressure, activation of neuro-hormonal factors with metabolic changes, activation of sympathetic neuro-transmitters and many more.
All these can interact adversely in patients who already have an underlying predisposing condition.
From my assessment of the reports, especially the transcript of the arbitration hearing, I would have assessed the deceased was under a tremendous amount of stress by the time she left the hearing and this certainly could have been a precipitating factor in her development of a myocardial infarction which proved fatal.
I of course cannot prove, in this case, a direct causal relationship but the events of the day as outlined do give a very strong temporal relationship to the event and I believe it more than likely that it was the antecedent cause for her fatal infarct.”
Dr Herman
Dr Herman’s report dated 2 October 2018[52] was in generally similar terms. The doctor (a cardiologist) stated “I confirm that my speciality is appropriate for the preparation of this report.” He referred to the same pathology on post mortem examination, “90% narrowing (stenosis) in the right coronary artery with superimposed thrombus causing the total occlusion and resulting in a myocardial infarction”. He referred to the deceased’s cardiac risk factors. He referred to a generally consistent assumption regarding the history, with a cross-examination referring to adversarial evidence from a work colleague, questioning about domestic violence and the deceased realising surveillance footage had been obtained. The doctor recorded that “[s]hortly after the hearing, the deceased boarded a flight bound for Dubbo”, and “[s]oon after being seated, she became anxious, nauseated and sweaty”. The doctor said:
“There are several mechanisms by which emotional stress may trigger myocardial infarction including a rise of arterial pressure, vasoconstriction leading to plaque disruption, factors increasing coagulability and these factors predispose to plaque disruption with superimposed occlusive thrombus provoking myocardial infarction and sudden cardiac death.
Emotional stress also enhances activation of the sympathetic nervous system activation which increases platelet aggregation and increases the susceptibility to serious ventricular arrhythmias (which almost certainly occurred in [the deceased’s] sudden cardiac death).
I am not an expert in psychological stress and anxiety but from the transcript of the Arbitration hearing, it seems probable that she had been under a significant amount of stress and the temporal (timing) relationship of her myocardial infarction to the events earlier in the day, suggest that anxiety had played a significant role in her myocardial infarction and subsequent sudden cardiac death.”
[52] ARD, pp 170–173.
Dr Haber
Dr Haber, cardiologist, was qualified in the appellant’s case and reported on 12 June 2019.[53] Dr Haber’s assumed history and understanding of the findings at post mortem were generally consistent with the material in the reports of Dr Brender and Dr Herman. Responding to specific questions from the appellant’s solicitors, Dr Haber said “I do not consider that back injury in any way materially contributed to her heart attack.” He also said:
“The heart attack caused her death.
The blockage of the right coronary artery by the thrombus superimposed on the blockages (stenoses) has caused near complete obstruction of the right coronary artery with the resultant death.
I understand that she was exposed to very stressful questioning by the barristers shortly before her death. IF in fact she was under very heavy emotional stress then it is more likely than not that the acute blockage of the right coronary artery by thrombus has caused her heart attack which was fatal. In such a case it is considered that the plaque on the coronary artery has a tear with resultant leaking of the material from it with resultant thrombus/clot formation nearly blocking the coronary artery which already beforehand had a significant blockage/stenosis with resultant fatal heart attack.”
[53] Reply, pp 7–10.
Dr Smith
Dr Smith, a psychiatrist, reported to Tara’s solicitors on 9 March 2020.[54] Dr Smith said he had reviewed the transcript from the original arbitration in detail, and he reproduced some excerpts from the cross-examination of the deceased. The doctor said that, on the probabilities, the arbitration placed the deceased under “acute stress”. The letter of instruction to the doctor informed him that the deceased was present for the evidence of Ms Emery, and for “robust submissions as to why she should lose her case”. The doctor was informed this experience “appears to have lasted from mid-morning until 2.30 pm, with some intervals”. The doctor responded to a question “Did the arbitration, and in particular the cross-examination, more likely than not place [the deceased] under acute stress?”:
“In my opinion the experience of cross examination was highly likely to have been extremely stressful for [the deceased]. It was noted that she had limited experience and understanding of the Court process, and this likely increased the level of her distress in the context of cross examination. Furthermore, the cross examination raised issues of violent assault against her, which was likely significantly traumatising resulting in severe emotional distress. Therefore, in my opinion, the arbitration, in particular the cross examination, more likely than not placed [the deceased] under acute stress.”
[54] Application to Admit Late Documents (AALD) 19/3/20, pp 1–6.
The status of this evidence
The Commission is not bound by the rules of evidence: s 354(2) of the 1998 Act. The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: s 354(3) of the 1998 Act. Rule 15.2 of the Workers Compensation Commission Rules 2011 provides:
“15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(1) evidence should be logical and probative,
(2) evidence should be relevant to the facts in issue and the issues in dispute,
(3) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4) unqualified opinions are unacceptable.”
In South Western Sydney Area Health Service v Edmonds McColl JA said:
“… the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.”[55]
[55] [2007] NSWCA 16, 4 DDCR 421, [131].
In Onesteel Reinforcing Pty Ltd v Sutton Allsop P said:
“Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.[56]
[56] [2012] NSWCA 282; 13 DDCR 351 (Sutton), [3].
In the same case, Basten JA said:
“Once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself. Indeed, once inadmissible evidence is before a court without objection being taken, the question for the court is merely one of weight: Makita at [86], last sentence.”[57]
[57] Sutton, [83].
In CHEP Australia Limited v Strickland Barrett JA said:
“53. Because the rules of evidence do not apply, medical opinions tendered in proceedings in the Commission do not fall to be assessed according to any direct application of provisions in Part 3.3 of the Evidence Act 1995 or the ‘the basis rule’ by which opinion evidence is to be excluded unless the factual bases upon which the opinion is proffered are established by other evidence. In addition and as Bryson JA observed in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 at [25], assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that proceedings in the Commission were not conducted in a fair way.
54. In Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 at [82], Basten JA said that nothing in the Workplace Injury Management and Workers Compensation Act or the law relating to procedural fairness (which undoubtedly applies) imports into the legally mandated procedures of the Commission limitations on the material that can be considered, derived from the rules of evidence. If the appellant is to succeed in its contention that the Presidential member erred in law by relying on Dr McKechnie's reports, it must show that such reliance entailed failure ‘to act according to equity, good conscience and the substantial merits of the case’ as required by s 354(3). A failure of that kind might possibly be found if a central conclusion was based squarely on an expert opinion that was devoid of foundation and if, in addition, there was no other material before the tribunal capable of supporting the conclusion, so that, as a matter of law, the conclusion was simply unavailable: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [90]-[91].”[58]
[58] [2013] NSWCA 351 (Strickland), [53]–[54].
The appellant, like the dependants, qualified (and relied on) a cardiologist to provide it with a medicolegal opinion on causation. None of the three cardiologists who reported in the matter indicated that expressing an opinion on the presence of stress, and its potential causal relationship to the fatal myocardial infarction, was beyond his expertise. Dr Herman, having described his speciality as “appropriate”, added a rider to his opinion, that he was “not an expert in psychological injury” and said a psychiatric opinion on the quantification of stress would be valuable.[59]
[59] ARD, p 173.
Dr Brender and Dr Haber each expressly referred to having access to the Autopsy Report for the Coroner, the deceased’s medical records and the transcript of the arbitration hearing on 7 November 2012. Dr Herman referred to conducting a “file review”, although did not expressly identify the material he considered. He referred to the autopsy report and factual matters contained in the Report for the Coroner and to the evidence at the arbitration hearing. Dr Herman appears, at the least, to have had access to the Report for the Coroner and the transcript.
Dr Herman said that “several stressful circumstances unfolded” at the arbitration hearing and that “a significant amount of emotional stress had been experienced”.[60] Dr Brender referred to specific aspects of the evidence. He said that repeated cross-examination about domestic violence “certainly, judging by her responses, left her quite stressed”. He referred to cross-examination based on surveillance evidence and said that the deceased was “undoubtedly stressed by the line of questioning, to judge by the mode of her response”. He said that by the time the deceased left the arbitration rooms to travel to the airport she “would have been extremely distressed and depressed regarding the day’s events”.[61]
[60] ARD, p 171.
[61] ARD, p 176.
Dr Haber did not express an independent view on the presence of stress. He referred to the Report for the Coroner which said the deceased “was anxious the moment she sat down in the plane which was slightly delayed”.[62] He expressed an opinion, regarding causation of the thrombus and the “associated fatal heart attack”, on the basis of “IF” there was very heavy emotional stress when being questioned by barristers.[63] Dr Herman referred to “several mechanisms by which emotional stress may trigger myocardial infarction” (see [40] above). Dr Brender also described the “physiological and hormonal accompaniments of severe stress”.[64]
[62] Reply, p 8.
[63] Reply, p 10.
[64] ARD, p 177.
There was also the psychiatric evidence from Dr Smith[65] in the dependant’s case. Dr Smith was provided with the ARD, including its attachments. This included the reports of Dr Herman and Dr Brender, the Report for the Coroner, the deceased’s treating medical records and the transcript of the original arbitration hearing. Dr Smith made numerous references to the transcript, with page references. Dr Smith said the cross-examination was “highly likely to have been extremely stressful”, and that the cross-examination “more likely than not placed [the deceased] under acute stress”. He said the deceased was placed at “significantly greater risk of suffering chronic stress”, although her death on the date of the hearing intervened.
The appellant’s specific points
[65] AALD, 19/3/20, pp 1–6.
The expertise of the cardiologists to deal with ‘stress’
The appellant submits that Dr Herman, Dr Brender and Dr Haber were not qualified to give an opinion about the deceased’s “level of stress or its causes”. This picks up Dr Herman’s remark that he was not an expert in psychological stress or anxiety. For this point to be made good, applying Sutton and Strickland, it is necessary for the appellant to demonstrate that the evidence of these doctors, on the issue of whether the deceased suffered from stress and its causes, is without weight, being not material on which the Commission is entitled to act. The basis for this submission is an assertion that these doctors, who are specialist cardiologists, were not qualified to express an opinion on a psychological condition.
The term ‘stress’ is a general one; although it depends on the specific circumstances, it is a term that is regularly used by lay witnesses, to describe their own mental state or the state of those around them, without objection or controversy. It is a term that is regularly used by general practitioners in discussing the mental states of their patients, without any suggestion that it goes beyond the expertise of general practitioners on the basis they do not hold specialist qualifications in psychiatry. The appellant puts no developed argument going to why a qualified medical practitioner, without specialist qualifications in psychiatry, does not have the expertise to employ the term ‘stress’, in describing a patient’s mental state. It refers to no authority in support of the proposition, which I do not accept.
Section 11A(7) of the 1987 Act draws a distinction between the term ‘stress’ and accepted medical terminology used in making a psychiatric diagnosis:
“In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.”
In Ramsay v Watson the High Court said:
“A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence.”[66]
[66] [1961] HCA 65; 108 CLR 642, [2].
The term ‘stress’ should not necessarily be viewed as one akin to a psychiatric diagnosis. Stress may well be a thing that could be established as being within “the realm of common knowledge and experience”.[67] This will depend on the circumstances in which the term, which of itself lacks precision, is used. In the current matter, Dr Herman, Dr Brender and Dr Haber associated ‘stress’ with the presence of specific effects on the cardiovascular system (see [39] to [41] above). This may well call for a more considered use of the term than its common lay meaning. Assuming that to be so, it is consistent with the discussion above that Dr Herman, Dr Brender and Dr Haber, as qualified medical practitioners, had appropriate expertise to express opinions regarding whether the deceased suffered from stress in association with her attendance and cross-examination at the original arbitration hearing, and surrounding events. A cardiologist would appear to be well qualified to comment on the presence of stress, viewed in that context.
[67] Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 724, cited by McColl JA in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271, [90].
It was then a matter for the Arbitrator, as the finder of fact, to assess the weight to be given to such evidence. The argument that the evidence was without any weight because these doctors did not have specialist qualifications in psychiatry is rejected. If there was a conflict of medical opinion regarding the presence or degree of ‘stress’, arguably the opinion of a psychiatrist may be entitled to greater weight than that of a cardiologist on the point. Even this would be dependent on a consideration of the weight of the evidence in all of the circumstances. In the current matter, the opinion of Dr Smith, the psychiatrist, was generally supportive of, and certainly not inconsistent with, the views of those cardiologists who commented on the presence of stress.
Dr Herman’s reference to a psychiatric opinion
An expert witness should make it clear when a particular question or issue falls outside his or her expertise.[68] Dr Herman, in his report dated 2 October 2018, indicated that his speciality was “appropriate for the preparation of this report”. It is apparent the doctor had access to the transcript from the original arbitration, he referred to the cross-examination of the deceased and the fact that “several stressful circumstances unfolded”. Dr Herman said: “I am not an expert in psychological injuries but it would appear from the evidence, that a significant amount of emotional stress had been experienced”.
[68] National Justice Compania Naviera SA v Prudential Assurance Co Ltd (“The Ikarian Reefer”) [1993] 2 Lloyd's Rep 68 at 81-82, quoted in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, 52 NSWLR 705, [79].
Dr Herman referred to the fact (taken from the Report for the Coroner) that on the return flight to Dubbo “[s]oon after being seated, [the deceased] became anxious, nauseated and sweaty”. The doctor referred to various mechanisms “by which emotional stress may trigger myocardial infarction”. He concluded the plaque rupture, complicated by occlusive thrombus, led to the deceased’s “myocardial infarction (and arrhythmia which led to a sudden death), was probably provoked by the emotional stress that she had encountered earlier in the day”. Dr Herman again pointed out that he was not an expert in psychological injury and suggested “a psychiatric opinion in regards to the quantification of stress would be valuable”.[69]
[69] ARD, pp 170–173.
Dr Herman did not suggest that his opinion on the presence of stress was without foundation or weight. Such an interpretation would be inconsistent with his expressed view that his speciality was “appropriate” for preparation of the report. It is clear, from the discussion in Dr Herman’s report, that he had expertise in the interplay between stress, the cardiovascular system and the occurrence of myocardial infarction. The doctor’s comment, that a psychiatric opinion may be valuable in assessing the quantification of stress, does not involve a concession by Dr Herman that his view on the presence of stress was without any weight, which is the interpretation the appellant seeks to apply. It involves a misreading of Dr Herman’s report when it is read as a whole.
The six-hour interval between the arbitration hearing and the myocardial infarction
The appellant submits it was necessary that the dependants “engage with the crucial fact that there was a substantial delay between the cessation of the arbitration hearing and the onset of the heart attack”. This delay is submitted to have been “some six hours”. It is a factor the appellant says was not addressed by the evidence. It submits Dr Smith “restricted his opinion to the duration of the arbitration hearing and not after”.[70] It submits the correct question was “whether the deceased was suffering from stress due to the arbitration hearing some hours later when her heart attack occurred”. It submits there was no evidence to discharge the onus carried by the dependants to prove this fact.[71]
[70] Appellant’s submissions, [18], [24], [26].
[71] Appellant’s submissions, [27].
The way in which the allegation on causation was ultimately framed did not restrict itself to stress emanating only from the arbitration hearing itself (see [13] above). Mr Hanrahan (for Mr Gaydon) addressed the Arbitrator on the basis that at the end of the arbitration hearing the deceased had “no decision”, was “left up in the air about what the outcome would be”, and “left Sydney with no result and the prospect of further delay”. She then had to deal with “flying home to Dubbo” when “she was afraid of flying”.[72] Mr Hanrahan relied on “all of those factors up until the moment before her death”.[73] He referred to Kooragang and submitted that the multiple events were connected.[74] Mr Young (for Tara) submitted that the delay in the return flight to Dubbo would have caused further anxiety, which was observed by the deceased’s mother and was referred to in the material for the Coroner.[75] The appellant, making submissions in reply at the arbitration hearing,[76] did not submit that these submissions on the dependants’ part exceeded the scope of the allegations relied on by the dependants.
[72] Transcript 7/4/20 (T2), T2 7.15–25.
[73] T2 7.27–29.
[74] T2 9.17–20.
[75] T2 27.23–28.3.
[76] T2 33.28–35.17.
For reasons given above, I do not accept that the probative weight of the dependant’s medical reports from Dr Herman, Dr Brender and Dr Haber, was restricted in the way for which the appellant argues on this appeal.
The various cardiologists had access to the Report for the Coroner. The Report Summary in that document referred to the deceased being anxious when seated in the aircraft, which her mother put down to the flight being slightly delayed. It recorded the deceased was sweating, said she felt like vomiting, and was asleep from shortly after take-off, “breathing heavily and snoring a little”. Her breathing pattern changed, she became unresponsive, and attempts at resuscitation were made by a paramedic, a police officer, and two physicians who were on the flight. The flight returned to Sydney Airport, ambulance crew boarded, and at 8.25 pm it was agreed that cardiopulmonary resuscitation be discontinued.[77] The appellant’s counsel, making submissions to the Arbitrator, described the departure time of the deceased’s flight to Dubbo saying “I think it was 6:40”,[78] although the source of that information is not apparent. The appellant’s submissions state that the flight was scheduled to depart Sydney at 6.40 pm but was delayed until 7 pm.[79] Dr Brender referred to the note in the Report for the Coroner that the deceased’s mother noticed the deceased becoming ill, and said this “was, in retrospect, the early signs of an acute myocardial infarction”.[80]
[77] ARD, p 179.
[78] T2 15.15.
[79] Appellant’s submissions, [4].
[80] ARD, p 175.
Dr Herman, dealing with a question about causation of the “fatal infarct”, said:
“… the plaque rupture in the right coronary artery which was complicated by an occlusive thrombus leading to her myocardial infarction (and arrhythmia which led to a sudden death), was probably provoked by the emotional stress that she had encountered earlier in the day.”[81] (bold emphasis in original, italicisation added)
[81] ARD, p 172.
Dr Brender reviewed the transcript of the original arbitration hearing, to “assess the degree of stress and its possible involvement in [the deceased’s] fatal episode”.[82] The doctor referred to questioning about “prior back and leg injuries and symptoms” as “a fairly stressful situation”. He said the repeated questioning about domestic violence “judging by her responses, left her quite stressed”. Dr Brender said, of cross-examination based on surveillance material, that the deceased was “undoubtedly stressed by the line of questioning, to judge by the mode of her response”. Dr Brender said that by the time the deceased left the arbitration rooms to make her way to the airport “she would have been extremely stressed and depressed regarding the days’ events”. The doctor considered the “anxiety of the departure from the airport, boarding the flight and discovering that it would be delayed” would “certainly have increased her stress levels”. He thought the “additional stress of a flight delay would have prevented her from relaxing and trying to ‘wind down’.”[83]
[82] ARD, p 175.
[83] ARD, pp 176–177.
The doctor said the stress the deceased was exposed to “by the time she left the hearing” certainly could have been “a precipitating factor in her development of a myocardial infarction which proved fatal” (emphasis added). He said he could not prove a direct causal relationship, but there was a “very strong temporal relationship” and it was more than likely that the events of the day were the “antecedent cause for her fatal infarct”.
The time that elapsed between the conclusion of the arbitration hearing and the onset of cardiac symptoms is not clear on the evidence. It was less than six hours. The appellant submits the “delay” was not addressed by the evidence. There was evidence from Dr Brender, based on the transcript and the deceased’s responses when giving evidence, that he would have expected the deceased to be extremely stressed and depressed by the time she left the arbitration. The doctor thought the stress levels would have been increased by the flight delay, which would have prevented the deceased from relaxing. There was uncontroverted evidence the deceased was afraid of flying.
The report of Dr Smith,[84] psychiatrist, was generally supportive of the conclusions reached by Dr Brender. Dr Smith referred to specific passages in the transcript of the deceased’s evidence. Dr Smith said that the arbitration, on the probabilities, placed the deceased under “acute stress”. He said “the experience of cross examination was highly likely to have been extremely stressful”. The doctor referred particularly to the passages that raised issues of domestic assault, “likely significantly traumatising resulting in severe emotional distress”. Dr Smith’s specific opinion went to the likelihood of the arbitration hearing causing stress, as those were the specific questions asked of him. Dr Smith did think the experience sufficient that it placed the deceased (had she survived) at a “significantly greater risk of suffering chronic stress”.
[84] AALD 19/3/20, pp 1–6.
There was lay evidence consistent with stress continuing beyond conclusion of the arbitration (the deceased’s fear of flying and the flight delay). There was medical evidence that stress levels would have been extended over time due to these factors (from Dr Brender). The cardiologists did not approach the causation issue on the basis that, for the dependants to succeed, it was necessary that the deceased be suffering from significant stress from the arbitration hearing at the time of the infarct (which is inherent in the question posed by the appellant (see [62] above). Dr Herman described the rupture of plaque in the right coronary artery (which led to myocardial infarction, arrhythmia and death) as being provoked by emotional stress earlier in the day (see [66] above). Dr Brender described the events of the day as the “antecedent cause for her fatal infarct”. The doctor considered the stress the deceased was exposed to “by the time she left the hearing” certainly could have been a precipitating factor in her development of a myocardial infarction which proved fatal (emphasis added).
The appellant’s submission, that the evidence did not deal with the expiration of time between when the arbitration ended and symptoms of the myocardial infarction were apparent, is without merit. The Arbitrator quoted significant passages from the reports of Dr Herman and Dr Brender, including the opinions referred to in the preceding paragraph.[85] The Arbitrator made a finding:
“In my view, taking into consideration the lay and medical evidence, the deceased’s death resulted from the stress of the arbitration hearing on 7 November 2012.”[86]
[85] Reasons, [15]–[16].
[86] Reasons, [28].
There was evidence that dealt with the causal link between the stress to which the deceased was exposed on the day of the original arbitration hearing, and the fatal myocardial infarction that took her life. Consistent with the principles discussed at [22] to [26] above, it was open to the Arbitrator to form the view that he did on that question of causation.
The reports of Dr Haber and Dr Smith
The appellant submits the Arbitrator failed to refer to the reports of Dr Haber and Dr Smith, other than in recounting the submissions of counsel. It submits that Dr Haber (the cardiologist qualified by the appellant) “expressed a view that the heart attack had not been caused by the back injury.”[87]
[87] Appellant’s submissions, [19], [21].
Dr Smith’s report is summarised above. It was put into evidence by the dependants and is generally supportive of the dependants’ medical case (see [42] and [70] above). The appellant does not indicate how any further analysis of Dr Smith’s report would have assisted the appellant’s position, much less have changed the result. Dr Haber’s opinion is summarised at [41] above. The doctor’s remark about the lack of a causal link between the back injury and the fatal myocardial infarction does not engage with the issues and appears to relate to the absence of a direct causative medical link between those events. It is not necessarily relevant to whether causation is established applying the commonsense test of causation in Kooragang. Dr Haber’s discussion about the cause of the fatal myocardial infarction (quoted at [41] above) arguably is supportive of the finding made by the Arbitrator on this issue. However, Dr Haber’s opinion on this issue is not expressed with clarity, and the Arbitrator did not rely on it. Again, the appellant does not indicate how any deficiency in how Dr Haber’s report was dealt with would affect the result.
Matters raised before the Arbitrator going to weight of the cardiologists’ reports
The appellant, at the arbitration hearing, argued that the evidence did not support the proposition that the deceased was “distressed” or “anxious” during the original arbitration hearing. The appellant raised the nature of the “con/arb system that’s been designed to minimise the stress to the participants”.[88] It referred to the alleged absence of evidence that the deceased “was distressed or was anxious during the course of the proceedings”.[89] It referred to the absence of evidence from the deceased’s mother, who had accompanied the deceased on the flight and to the arbitration, that the deceased was stressed that day.[90] (The deceased’s mother died prior to the arbitration hearing in the current proceedings.[91]) Relying on these matters the appellant, addressing the Arbitrator, challenged the weight to be afforded to the evidence from the three cardiologists, given an alleged lack of correlation between the histories relied on and the facts as proved.[92]
[88] T2 12.12–13.21.
[89] T2 13.24–15.5.
[90] T2 15.15–32.
[91] T2 15.28.
[92] T2 16.8–31.
The argument that the cardiologists’ opinions lacked any weight whatsoever, because they could not assess the presence or degree of stress, this being an issue for a psychiatrist, is a specific one. So too is the argument that Dr Herman conceded a lack of psychiatric expertise which deprived his view of any weight. These arguments regarding the expertise of the cardiologists and the associated weight of their reports, were not raised before the Arbitrator. The argument that the dependants’ medical case was not persuasive because it failed to deal with a gap of six hours between when the arbitration hearing concluded, and when the deceased suffered the fatal myocardial infarction also was not made at first instance. The Arbitrator did not err in failing to deal with these arguments, which were not put to him.[93] The appellant should not be permitted on this appeal to raise these arguments, which were not raised at first instance.[94]
[93] Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111, [22], [30].
[94] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481, [7].
Conclusion on Ground No. 1
For the above reasons Ground No. 1 fails. The arguments were not raised at first instance, and in any event, fail on their merits.
APPELLANT’S SUBMISSIONS ON GROUNDS NOS. 2 AND 3
The appellant refers to the decision in Karathanos, and the Arbitrator’s reference to Kooragang and Badawi. The appellant does not argue that the Arbitrator erred in not applying Karathanos in the circumstances. The appellant submits the Arbitrator referred to the need for a “common sense causal link between the injuries suffered by the deceased in March 2012 and the heart attack which caused her death in November 2012”. The appellant submits that, having stated the test, the Arbitrator failed to apply it, but rather applied a ‘but for’ test of causation.[95] The appellant refers to the Arbitrator’s reasons at [33] and [36], which read:
“33. There is no question that had the deceased not been injured in the course of her employment, she would not have been subjected to the cross-examination and the stress of the hearing which took place in November 2012.”
“36. Were it not for her original injury, the [deceased] would not have been at the hearing or been subject to cross-examination. Having found the deceased was placed under considerable stress at the hearing by virtue of the nature and extent of the cross-examination, the challenge to her credit and listening to a co-worker give evidence disputing the circumstances of her claim; and noting the medical evidence put forward by both parties, I am of the view the deceased suffered her fatal myocardial infarction as a result of the stress occasioned by the hearing. In my opinion, the applicant has established a causal link between the injury suffered by the deceased in March 2012 and her subsequent death through fatal heart attack after the hearing on 7 November 2012.”
[95] Appellant’s submissions, [29]–[30].
The appellant refers to the decision in Secretary, New South Wales Department of Education v Johnson,[96] which it describes as where “[t]he test of causation was considered most recently by the Court of Appeal”. That decision dealt with the circumstances in which a later injury will be regarded as resulting from an earlier injury. The appellant observes that in the current matter “the heart attack is not a medical consequence of the earlier back injury”, and accordingly does not fit in to the categories outlined by the Court of Appeal in Johnson.[97]
[96] [2019] NSWCA 321 (Johnson).
[97] Appellant’s submissions, [31]–[34].
The appellant refers to Kooragang, in which it was said that “a point can be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped”. This may be explained as a want of sufficient connection. The appellant submits the Arbitrator should have considered these matters but did not. Rather he reasoned by analogy. He said that if a worker suffered a further injury whilst attending a medical appointment in connection with an earlier injury, the second of these injuries was compensable. The appellant submits this is “not a correct statement of the law”.[98]
[98] Appellant’s submissions, [35]–[36].
The appellant refers to the decision of Roche DP in Warwar v Speedy Courier (Australia) Pty Ltd.[99] In that matter a worker suffered a work injury and was later injured in a motor vehicle accident whilst travelling to treatment for the work injury. Roche DP rejected an argument that the injury in the motor vehicle accident resulted from the earlier work injury, as the worker would not have been exposed to the risk of negligence on the part of another driver if not for his need for treatment for the initial work injury. The appellant submits the Deputy President referred to the decision in Sarkis v Summitt Broadway Pty Ltd trading as Sydney City Mitsubishi,[100] in which the Court of Appeal declined to apply the ‘but for’ test. The appellant submits that many events occur attending a medical examination that would not be of sufficient connection. If the Arbitrator’s analysis were correct, the provision in s 10(3)(c) of the 1987 Act, that extends cover to an injury that occurs whilst on a journey to receive treatment, would be unnecessary.[101]
[99] [2010] NSWWCCPD 92 (Warwar).
[100] [2006] NSWCA 358 (Sarkis).
[101] Appellant’s submissions, [37]–[38].
The appellant submits the Arbitrator applied a wrong test. The answer to whether the heart attack resulted from the back injury and any associated physical limitations was clearly no. It submits the arbitration hearing occurred because of the material put forward by the deceased’s work colleague, and the cross-examination on that material. This was “an incident of the claim”, analogous to the car accident in Warwar. The appellant submits there was no feature of the deceased’s injury, the physical and psychological consequences, the associated limitations or medical treatment, that contributed to the arbitration hearing, the events at the hearing or the heart attack. There is a want of a sufficient connection to impose liability.[102]
[102] Appellant’s submissions, [39]–[42].
DEPENDANTS’ SUBMISSIONS ON GROUNDS NOS. 2 AND 3
Mr Hanrahan’s submissions, on behalf of Mr Gaydon, refer to the test described in Kooragang and the need for a commonsense evaluation of the causal chain. The test was quoted in the reasons at [31]. Mr Hanrahan refers to Trogami Pty Ltd t/as IGA Supermarket Bourke v McNeil[103] in which Roche DP quoted a passage from Seltsam Pty Ltd v McGuiness, in which Spigelman CJ said that causation can be established by a process of inference which combines primary facts like “strands in a cable” rather than “links in a chain”.[104] Mr Hanrahan submits that the causal chain has not been snapped “merely by the passage of time”.[105]
[103] [2013] NSWWCCPD 14, [75].
[104] [2000] NSWCA 29; 49 NSWLR 262, [91].
[105] Mr Gaydon’s submissions, [2(a)–(c)].
Mr Hanrahan refers to a decision in Sydney South West Area Health Service v Dyer[106] in which Roche DP concluded that the causal chain had been snapped by a deliberate act by a third party, an assault by a nurse caring for the worker in the worker’s home following a work injury. Mr Hanrahan sought to contrast that with the current matter, where there was “no such disentitling external causative element”. He submits that in Dyer the Deputy President said the ‘but for’ test was not definitive. He submits a “robust and pragmatic approach should be taken to the issue of causation.[107]
[106] [2012] NSWWCCPD 46 (Dyer).
[107] Wilsher v Essex Area Health Authority [1998] AC 1074, per Lord Bridge, 1090, cited in New South Wales Department of Agriculture v Allen [2000] NSWCA 141.
Mr Hanrahan accepts that the Arbitrator made reference to the ‘but for’ test, but submits the Arbitrator then went on to engage in a common sense evaluation of the medical and other evidence, in finding that an appropriate causal link was established. It is submitted that on a common sense basis the deceased’s uncertainty was likely increased by her experience during and following the arbitration hearing.[108]
[108] Mr Gaydon’s submissions, [2(g)–(h)].
Mr Hanrahan submits the back injury on 7 November 2012 was not “accepted” by the appellant before or at the time of the deceased’s death. It was “hotly contested” and involved stressful allegations. It is submitted the Arbitrator’s approach to causation involved no error.[109]
[109] Mr Gaydon’s submissions, [3(a)–(d)].
Mr Young makes submissions on behalf of Tara. He submits the appellant concedes the Arbitrator did not err in preferring the common sense test in Kooragang to the comments of McGrath J in Karathanos. Mr Young seeks to distinguish the decision in Johnson. He submits the current matter does not involve two injuries, but rather an allegation that the deceased’s death resulted from the accepted back injury. He describes the reasons at [35] as involving “a poor choice of analogy” (a subsequent injury when seeking treatment for an earlier work injury). He submits there was no error in the Arbitrator’s review of the relevant authorities, or in the application of the common sense test to the facts (in the reasons at [36]). He submits the reference in that paragraph to “the stress occasioned by the hearing” includes reference to other matters such as the stress of the day, fear of flying and the doubt and stress associated with the outstanding decision. This flows from the fact that the Arbitrator found there were multiple stressors in attending the arbitration hearing that day. It is submitted there was no error in the finding that death resulted from the original back injury.[110]
[110] Tara’s submissions, [11]–[17].
Mr A B Parker makes submissions on behalf of David. He refers to the test in Kooragang. He submits the causal test is clearly satisfied. Following the work injury in 2012 it was necessary that the deceased institute proceedings and attend the hearing. This included being cross-examined, including on credit issues, and hearing evidence from a friend contradicting that of the deceased. It included attending the airport and attempting to fly home, when she was afraid of flying. It is submitted that all of the evidence, medical and factual, supports the conclusion the Arbitrator reached.[111]
CONSIDERATION OF GROUNDS NOS. 2 AND 3
[111] David’s submission, [2.8(8)–(10)].
Background
The Arbitrator accepted a submission, consistent with what was said by Roche DP in Harris, that Karathanos was no longer good law since the decision in Kooragang.[112] No party has challenged that view on this appeal.
[112] Reasons, [29]–[32].
There are passages in the reasons that arguably may suggest there was an allegation that the deceased’s death involved a discrete injury pursuant to s 4 of the 1987 Act.[113] The way in which the dependants’ case was pleaded (see [13] above) was consistent with an allegation that the death of the deceased resulted from the compensable back injury found to have occurred on 5 March 2012.[114] It was not argued that the myocardial infarction and the events surrounding it constituted a further ‘injury’ within the meaning of s 4. This is consistent with the Arbitrator’s ultimate finding of fact on causation made at [36] of the reasons (see [79] above).
[113] Reasons, [17], [18].
[114] See by way of example State of New South Wales v Bishop [2014] NSWCA 354.
In Johnson Emmett AJA (Macfarlan JA and Simpson AJA agreeing) said:
“In common law contexts, an injury or incapacity may be attributable, in the legal sense, to more than one cause operating concurrently. There is no difference between the legal view of causation in tort and causation in the field of workers compensation, subject to the qualification that, in a claim for workers compensation, it is unnecessary to prove that the incapacity was the natural and probable consequence of the injury. That is to say, the question of foreseeability does not arise. It is sufficient that the incapacity results from the injury by a chain of legal causation unbroken by a novus actus interveniens.”[115] (excluding footnotes)
[115] Johnson, [53].
The analogy based on attendance for medical treatment
The analogy drawn by the Arbitrator in the reasons at [35], between the deceased’s attendance at the original arbitration hearing and an injured worker suffering further injury attending for medical treatment, is described by the appellant as “not a correct statement of the law”.[116] Mr Young was the only counsel for a dependant to refer to this analogy. He submits that it was a “poor choice of analogy” and says that he does “not cavil” with the appellant’s submissions on the point.[117]
[116] Appellant’s submissions, [36].
[117] Tara’s submissions, [13].
A journey between a worker’s place of abode or place of employment, and another place, for the purpose of receiving medical, surgical or hospital advice, attention or treatment, for an injury for which compensation is payable, is a journey that is covered by the provisions of s 10(3)(c) of the 1987 Act. I accept the appellant’s submission that there would be many events at a medical appointment that would not have “sufficient connection” to employment to be covered by the legislation. One such incident would be that suggested by the appellant, if a worker was assaulted while attending a doctor’s surgery, for reasons unconnected to the injury.
It follows that I accept the appellant’s submission that the analogy drawn in the reasons at [35] involves error.
Was the ‘but for test applied?
The nature of the ‘but for’ test was described by Windeyer J in Faulkner v Keffalinos:
“The consequences that flow from the second accident cannot, I think be regarded as caused, in any relevant sense, by the defendant’s tort. I realise that philosophers and casuists may see these as indirect consequences. But for the first accident the respondent might still have been employed by the appellants, and therefore not where he was when the second accident happened. But lawyers must eschew this kind of ‘but for’ or sine qua non reasoning about cause and consequence.”[118]
[118] [1971] 45 ALJR 80 (Faulkner), 86.
In Sarkis a worker suffered injury in a motor vehicle accident in the course of his employment and was subsequently injured in a further accident, whilst travelling to a doctor (Dr Manohar) for treatment for injuries received in the first accident. He later took his own life. His employer compromised a claim brought by dependants for the appropriate death benefit under the 1987 Act and sought to recover the moneys it had paid, pursuant to s 151Z of the 1987 Act. Potential recovery by the employer lay only in relation to the first of the two accidents. The employer sought to argue that the injuries in the second accident resulted from the first accident. Handley JA (Ipp and Bryson JJA agreeing) said:
“The fact that ‘but for’ the [earlier injury] the worker would not have been visiting Dr Manohar’s rooms does not establish causation.”[119] (excluding references)
[119] Sarkis, [17].
His Honour applied a passage from March v E & M H Stramare Pty Ltd in which Mason CJ said:
“… the ‘but for’ test does not provide a satisfactory answer in those cases in which a superseding cause, described as a novus actus interveniens, is said to break the chain of causation which would otherwise have resulted from an earlier wrongful act.”[120]
[120] [1991] HCA 12; 171 CLR 506, (March), [23].
The appellant submits that the Arbitrator should have considered whether the chain of causation became so attenuated that, for legal purposes, the “causative connection has been snapped”.[121] This raises the question of whether a novus actus broke the chain of causation.[122]
[121] Appellant’s submissions, [35].
[122] Kooragang, 464.
I accept that the Arbitrator’s reasoning at [33] and [36] of his reasons proceeded on the basis of the ‘but for’ test. Paragraph [36] was the main dispositive paragraph that led to the finding that a causal link was established between the injury on 5 March 2012 and the fatal heart attack on 7 November 2012. The reasoning was dependent on the proposition that, but for the injury on 5 March 2012, the deceased “would not have been at the hearing or been subject to cross-examination”.
In the case brought by the dependants, the attendance by the deceased at the original arbitration hearing, and the surrounding circumstances, were a critical component of the chain of causation. That event was said to be causative of stress which the Arbitrator accepted, on the basis of medical evidence that was before him, resulted in the deceased’s fatal heart attack.
The appellant, on the other hand, submits that the causal connection was dependent on whether “the back injury and any physical limitations as a result of the back injury had themselves resulted in the heart attack”.[123]
[123] Appellant’s submissions, [39].
In the current matter, no party argues that application of the test of causation in Kooragang is wrong. No party argues that application of the ‘but for’ test is appropriate. Mr Hanrahan argues that, notwithstanding the Arbitrator’s reference to the ‘but for’ test, the reasons are consistent with the Arbitrator arriving at his result on an application of the common sense test of causation, on the basis of the evidence overall (see [86] above). I do not accept that submission. The Arbitrator’s dispositive finding was in a series of paragraphs which depended logically on a reliance on the ‘but for’ test.
Conclusion on Grounds Nos. 2 and 3
For reasons given above, Ground No. 2 is upheld. The identified errors clearly have the capacity to affect the result. It is inappropriate to deal with Ground No. 3 in the circumstances.
DISPOSITION OF THE APPEAL
The appropriate course is that the Arbitrator’s decision be revoked, and that the matter be remitted for re-determination by a different Arbitrator. The matter having been dealt with on a basis that included consideration of the ‘but for’ test, it remains to be considered whether the dependants succeed in the absence of the errors identified in dealing with Ground No. 2.
The issue between the parties depends to an extent on the scope of the matters that should be considered as properly constituting the chain of causation. The decision in Kooragang suggests that matters beyond the purely medical may be relevant. The withdrawal of workers compensation liability by the employer was raised in Kooragang as potentially relevant.[124] The matters to be considered will doubtlessly depend on the circumstances of each individual case. A matter that was not dealt with in the submissions before the Arbitrator is the question of whether the outcome in the original proceedings is relevant, in considering whether the chain of causation should properly include the original proceedings and arbitration hearing.
[124] Kooragang, 464.
Matters regarding apportionment were dealt with, with the consent of the relevant dependants, at the arbitration hearing in the current proceedings. If consent on apportionment is maintained, it may be that a single counsel can represent the interests of the relevant dependants on the remitter, avoiding the multiplicity of parties. This will obviously be a matter for the dependants involved and the Arbitrator who deals with the matter on remitter.
DECISION
The Certificates of Determination dated 6 May 2020 and 11 May 2020 are revoked.
The matter is remitted for re-determination by a different Arbitrator.
Michael Snell
DEPUTY PRESIDENT
20 October 2020
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