Chong v Zetciti WP Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Chong v Zetciti WP Pty Ltd & Ors [2023] NSWPIC 491
APPLICANT:	Ai Tee Chong
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT: FOURTH RESPONDENT:	Zetciti WP Pty Ltd Si Ying Goh Si Rong Goh Hock Meng Goh
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	20 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim by parents and sisters of deceased worker for lump sum death benefit and interest; worker suffered from Brugada syndrome; worker was employed as a pick packer and sustained a heart attack injury having run after shoplifters who had stolen from the first respondent’s business; first respondent disputed injury; substantial contributing factor to injury; main contributing factor to injury; that the worker’s employment gave rise to a significantly greater risk of the heart attack than had he not been employed in employment of that nature; and that the worker’s death resulted from a work-related injury; consideration of Rail Services Australia v Dimovski & Anor, Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd, EMI Australia Limited v Bes, Renew God’s Program Pty Ltd v Kim, SB v XFPL, De Silva v Secretary, Department of Finance, Services and Innovation, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited, Tarry v Warringah Shire Council, Zinc Corporation Ltd v Scarce, Kasim v Busways Blacktown Pty Ltd, and Secretary, Department of Communities and Justice v Galea; Held – worker sustained personal injury (heart attack injury) arising out of or in course of employment, to which employment was a substantial contributing factor; employment did not give rise to a significantly greater risk of the heart attack than had the worker not been employed in employment of that nature; the worker’s death did not result from work-related injury; award for first respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the first respondent.

STATEMENT OF REASONS

BACKGROUND

The worker, Jun Liang Goh (Jun) was employed by the first respondent, Zetciti WP Pty Ltd (Zetciti), as a pick packer at its Asian grocery store. His employer and his colleagues knew him as Liang, but as his mother called him Jun, I have used that name. I have referred to Jun and various members of his family by their given names to avoid confusion, meaning no disrespect.
Jun suffered a cardiac arrest on 27 June 2020, after following (to use a neutral term) from the store some shoplifters, who had stolen alcohol. He died on 2 July 2020.
The applicant, Ms Chong, is the worker’s mother. The second and third respondents, Si Ying and Si Rong, are his sisters, and the fourth respondent, Hock Meng, is his father. They have made a claim pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) for the lump sum death benefit of $827,400, and interest on the lump sum.
On 25 January 2022, the first respondent’s insurer, Insurance and Care NSW (iCare) issued Ms Chong with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
ICare disputed that the worker’s injury arose out or in the course of his employment; that employment was a substantial contributing factor to his heart attack injury; that his employment was the main contributing factor to his heart attack injury; and that his employment gave rise to a significantly greater risk of a heart attack injury.
ICare further disputed that the worker’s employment resulted in the aggravation, acceleration, exacerbation or deterioration of the disease, or that it was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. It maintained that the evidence on file did not support that Jun’s death resulted from an injury.
The applicant requested that iCare review its decision, and iCare issued a review notice on
7 November 2022, advising that it maintained its decision.
The applicant lodged an Application in Respect of Death of Worker (the Application) on
2 December 2022. It named the first, second and third respondents as parties.
The first respondent lodged its Reply on 19 December 2022.
The second respondent lodged her Reply on 15 December 2022.
The third respondent lodged her Reply on 12 May 2023 and an Amended Reply on
16 May 2023.
The Application was amended on 27 July 2023 to join the fourth respondent as a party.
The fourth respondent lodged his Reply on 26 July 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the worker’s injury arose out of or in the course of his employment (s 4 of the 1987 Act);
(b)    whether the worker’s employment was a substantial contributing factor to injury
(s 9A of the 1987 Act);
(c)    whether the worker’s employment was the main contributing factor to his heart attack (s 4(b)(ii) of the 1987 Act);
(d)    whether the worker’s employment gave rise to a significantly greater risk of the heart attack than had he not been employed in employment of that nature (s 9B of the 1987 Act), and
(e) whether the worker’s death resulted from a work-related injury for the purposes of ss 25 and 26 of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

On 16 December 2022, the President’s delegate, Ms Candy Yang, issued a Direction with respect to the provision of evidence by the fourth respondent, or attempts to obtain such evidence; and for information to be provided to the worker’s brother, Mr Jun Hong Goh, as to the potential for him to make a claim and the availability of legal advice.
In the event that the worker’s brother or any other potential dependant wished to make a claim, the applicant was directed to file an Amended Application, joining them as respondents, and provide them with all the documents in the proceedings and details of the Independent Review Office.
The second and third respondents were directed to advise whether they had obtained legal representation and, if so, details of their representatives.
On 29 March 2023, the solicitors for the applicant advised the Commission that Hock Meng had advised that he wished to participate in the proceedings. He was advised to seek legal advice and provided with the contact details of a firm with experience in compensation matters.
The matter was listed for preliminary conference on 15 June 2023. Mr Matthews appeared for the applicant; Mr Studdert, instructed by Ms Van der Zandt of EML and Ms Dean of iCare, appeared for the first respondent; Mr Lam appeared for the second respondent; and Ms Nair appeared for the third respondent. An interpreter in the Mandarin language also attended. The matter was listed for conciliation/arbitration hearing on 1 August 2023.
On 4 July 2023, the applicant lodged an Application to Admit Late Documents, attaching a copy of an email from Hock Meng regarding making a claim, and a letter to him from her solicitors, again advising him of the options open to him, and that the matter was listed for conciliation/arbitration hearing on 1 August 2023.
On 17 July 2023, the applicant lodged an Amended Application, joining Hock Meng as the fourth respondent.
I then convened a further preliminary conference on 27 July 2023. Mr Matthews appeared for the applicant; Mr Studdert, instructed by Ms Van der Zandt and Ms Dean, appeared for the first respondent; Mr Chow appeared for the second respondent; Ms Nair appeared for the third respondent; and Mr Liew appeared for the fourth respondent. An interpreter in the Mandarin language, Ya Juan Huang, also attended.
The third respondent confirmed that she was not seeking to rely on any further evidence. The solicitors for the applicant and second respondent were unable to obtain instructions and were directed to file and serve any further evidence on which they sought to rely by
31 July 2023. The conciliation/arbitration hearing date was confirmed.
No further evidence was filed by either the applicant or the second respondent.
The matter was listed for conciliation/arbitration hearing by the Teams platform on
1 August 2023.
Mr McManamey of counsel, instructed by Mr Matthews, appeared for the applicant;
Ms Goodman of counsel, instructed by Mr Studdert, appeared for the first respondent;
Mr Stanton of counsel, instructed by Mr Lam and Ms Upal, appeared for the second respondent; Mr Andrew Parker of counsel, instructed by Ms Nair, appeared for the third respondent; and Mr Young of counsel, instructed by Mr Liew, appeared for the fourth respondent. Ms Van der Zandt and Ms Dean attended, although they were excused, should they have wished, from the hearing. The applicant and the second, third and fourth respondents attended. Four interpreters in the Mandarin language also attended.
The applicant made a formal claim for interest on the lump sum, without objection.
It was agreed that, should I find for the applicant, the issue of apportionment of the lump sum benefit may be dealt with at a later date, as it was possible that the family members may reach an agreement on a proposed apportionment.
I was advised that Mr Parker would make the primary submissions on behalf of the applicant, and the second, third and fourth respondents.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply by first respondent and attached documents;
(c)    Reply by second respondent and attached documents;
(d)    Reply by third respodent and attached documents;
(e)    Amended Reply by third respondent and attached documents;
(f)    Application to Admit Late Documents dated 4 July 2023, filed by the applicant, and attached documents (Amended Application);
(g)    Reply by fourth respondent, and
(h)    Application to Admit Late Documents dated 26 July 2023, filed by the first respondent, and attached document.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of applicant, Ai Tee Chong

Ms Chong’s statement is dated 27 November 2022.
She was at that time aged 46 and was not working. She lived with Jun Hong Goh, Si Ying and Si Rong.
After she split up with her ex-husband, Jun, Si Ying, and Si Rong lived with their father. Jun returned to live with her about six years ago, and her daughters came back about four years ago. Jun Hong had always lived with her.
Jun went to Australia in February 2019, under a student visa. He was studying while in Australia.
To her knowledge, Jun did not have any health issues.
She was aware that Jun worked in a bakery or a milk tea shop in Australia. She was also aware that he got the job with Zetciti. He would send money back to them all. He transferred it to Jun Hong’s account. She was bankrupt, and not allowed to have a bank account.
Jun sent money whenever he could. Doing the best she could, [she thought] it was typically every two to three months. Each time, it would be about AUD $1,000.
She had access to Jun Hong’s account. When Jun sent money, he would call to tell her, and she would get some money out of the account. She paid her daughters’ tuition fees and general living expenses for the family. She gave her daughters some pocket money.
At the time of Jun’s death, her younger daughter was in senior high, and her eldest daughter was in university. They did not complete those studies.
She did not work. She had lupus and at times was in great pain. As a result, it was difficult for her to find a job. She did not have qualifications. She used to work in a restaurant, and last worked in about 2016, when she was diagnosed with lupus.
Her eldest son was employed as a designer, her eldest daughter as a secretary, and her youngest daughter as a cashier in a restaurant.
They all lived in a house owned by her nephew, on which they paid the mortgage. It is an average house with three bedrooms.
The family received government assistance, which was provided to poor families, of about 1,000 Malaysian Ringgit per year. She survived financially as a result of her children continuing to support her.
The Medicare system in Malaysia paid for treatment of lupus. It got worse if she was stressed or physically tired. She took medication every day.

Evidence of second respondent, Si Ying Goh

Si Ying’s statement is dated 2 December 2022.
She was born in 2002 and was then 20 years old.
She lived with her mother, older brother Jun Hong, and younger sister, Si Rong. Her parents had divorced many years ago. The worker lived with their father for some time but moved in with their mother in about 2016.
Her father did not pay any child support after she moved back to live with her mother. Her mother did not work in 2019, nor did she work now. She had an immune system disease.
From November 2019, she was completely reliant on her brothers for financial support. They both gave her mother money for expenses like food, utilities, and the home loan payments. Her mother gave her spending money of a few dollars each day. She understood the money was from her brothers.
Jun went to live in Australia before she went to live with her mother. She thought he had gone in February 2019.
Her mother told her Jun was a very good son and was sending money that supported them.
She had spoken to Jun often by phone. She told him she wanted to study accounting but could not afford to. He told her several times that she should keep going with her studies and he would support her financially.
She did not know how her mother coped financially after her brother passed away.
She finished high school in March 2021. She did not work or study from March 2021 until June 2021.
She found work as a cashier in a bread shop in June 2021 and September 2021, and worked as a cashier in another shop until February 2022.
She studied accounting from September 2021. She had not finished the course as she could not afford it. She stopped studying in August 2022 to start a full-time job.
She was working as an administration clerk. She earned SGD $1,800 a month.

Evidence of third respondent, Si Rong Goh

Si Rong’s statement is undated, although her Reply states that it is dated 9 May 2023.
She was born in 2004 and was then 19.
She lived with her father until about 2018, when she moved to her mother’s home. She continued to live with her mother.
Before her brother passed away, they relied on his and her mother’s income. She was not in contact with her father anymore, and he stopped giving her money when she went to live with her mother.
Her brother moved to Australia to study. He was very kind and generous to their family. He always gave it money when he could.
Her brother told her he planned to return to Malaysia after he finished his studies. As was the expectation of all those living in the family home, he would have continued contributing financially after he finished studying.
While he was in Australia, her brother sent AUD $1,000 to her mother every two to three months. She spent that money on the family. She paid their living expenses, including groceries, contribution to her and her sister’s tuition, and gave them pocket money.
Her tuition was 1,000 Malaysian Ringgit per month, approximately AUD $335. At the time her brother passed away, she was studying at high school. She had 2.5 years left and was due to finish in January 2023. She was not working while she was at school.
It was her intention to attend university to study beauty after she finished high school, with ambitions of being a makeup artist. She intended to work part time, so she could start contributing to her university fees.
She had spoken to her brother about her university fees, and he agreed to help pay them. The Malaysian government does not provide fee assistance.
She intended to live in her family home until she got married. If she was working, she intended to contribute to the household, as well as pay her tuition fees.
She had to withdraw from school once her brother passed away, as she needed to make money for their family. She was not eligible for university. She did not remember exactly when she started working, but she got a job shortly after her brother passed away.
She worked as a waitress, earning approximately 7 Malaysian Ringgit per hour. She worked six days per week, nine hours per day, until December 2022 when the restaurant closed. She did not hold payslips.
She used whatever money she made to pay for her own food. She also gave her mother 500 Malaysian Ringgit every month for groceries.
After the restaurant closed, she got a job in Singapore as an office clerk/administrative assistant. She earned SGD $1,600 per month. She did not have payslips. She continued to give her mother 500 Malaysian Ringgit each month.
She was not enjoying the job. She wanted to change to a job in beauty, but this was difficult without a degree. She would like to try to get a job that did not require a degree. She was likely to make much less money if she did not have one.
She and her brother had a very close relationship. They had multiple calls per week via phone and video. She relied on him for emotional support. They talked about everything. He was very supportive of her.
She missed her brother very much and was devastated to have lost him. It had impacted her and her family greatly.

Evidence of fourth respondent, Hock Meng Goh

Hock Meng’s statement is dated 26 July 2023. He was born in 1971 and was then 51.
About 10 years ago, he and the applicant were divorced. After the divorce, Jun lived with him until around 2016, when he moved in with his mother. His daughters lived with him until 2019, when they moved to their mother’s.
During the time he spent with his late son and his daughters, he fulfilled his responsibilities as a father, taking care of their daily and educational expenses.
In 2019, his son left to study in Australia. He had been working while studying, allowing him to cover his tuition. He was very proud of his son’s achievements.
Before his son left for Australia, they had frequent communication, and he visited the worker often. They used WeChat to communicate while he was in Australia. Although they did not have a high frequency of communication, they called each other when they needed support.
During a phone conversation, the worker expressed his excitement about earning money, stating, “I can make my own money now. In the future, when I have some savings, I’ll transfer some money to you.”
Naturally, he expected that the worker could offer some financial support when he was able.
The loss of Jun had deeply saddened him, and he felt his absence every day, treasuring the memories they shared.
Before the pandemic, he worked as a floor installer in Kuala Lumpur. It greatly reduced job opportunities, so he had to return to his hometown due to the high cost of living in Kuala Lumpur.
He did not have a formal job but engaged in casual work. He still did floor installations, but the small town where he lived did not offer many opportunities, and he could only earn around MYR 2,000 per month (approximately AUD $400). He did not have any additional sources of income.
His father left him and his older brother a 6-acre rubber plantation, but it did not generate any income. They planned to plant durian trees on the plantation.
They cut off the rubber trees and used the money left to plant durian trees. It was not enough. They needed around MYR 4,000 each year for this. He did not have any savings and only had MYR 633.01 in his bank account. He had to borrow money from his brother.

It may take approximately 10 years for the durian plantation to yield a profit.
In 2008, he remarried. His wife helped support their finances by selling food. She earned around MYR 1000 per month (approximately AUD $200).
He had a 13-year-old son who was in middle school. He was responsible for covering his daily expenses. He could not afford a private school, so he attended a government school where fees were not required. He wished to save some money for his son’s future high school and university education.
He sometimes relied on credit cards to meet daily expenses. He was unable to pay off the full amount at once, so it usually took two to three payments to completely clear the balance. He had an outstanding balance of RMl 1,991.03.
The statement has attached a copy of a Visa card showing the outstanding balance and a copy of the fourth respondent’s bank account statement.

Evidence of Constable of Police Sonia Ibrahim

Constable Ibrahim made a statement dated 22 August 2020, but signed on 24 September 2020.
On 27 July 2020 [sic: 27 June 2020], she and Constable Herro attended Wentworth Place outside Wentworth Point, where the worker worked. There were a number of officers there, and they had established a crime scene.
She was advised by Sergeant Blanchard that the worker had been conveyed to Concord Hospital in a critical condition.
Sergeant Blanchard told her they had reviewed CCTV footage. It showed three unknown males exiting Zetciti. Whilst in the store, one was seen to take a bottle of alcohol without paying for it. All three then ran from the store.
“Goh” (the worker) was seen to chase after the males, and after a short distance he collapsed to the ground. The three continued to run from the scene.
Witnesses advised that CPR (cardiopulmonary resuscitation) was conducted by bystanders, using a defibrillator until the ambulance arrived. Ambulance [officers] continued CPR before conveying the worker to hospital.
She was advised that at no stage did the unknown males come into contact with the worker and they were well ahead of him before he collapsed. Their images were circulated but police were unable to identify any person.
A number of witness statements were obtained.
Due to all the information provided to her, she believed the worker died due to the undiagnosed heart condition. All evidence of the incident showed that the unknown males stole an item and ran off without having any contact with the worker, who chased after them and collapsed.

CCTV footage

The footage is not in evidence. The Application attached a document described as “CCTV footage schedule”. There is no evidence as to by whom it was prepared.
Relevantly, the schedule described one thief leaving the store and Mr Sean Cheng and Ms Carol Cheah being seen in the entrance and then leaving the store “(Carol on the phone)”.
The worker was seen doing some work.
A thief hid alcohol.
The worker walked through the store. He viewed the CCTV monitor in the office.
The worker later placed his drink in his locker and “quickly head[ed] out”.
Carol Cheah asked one of the thieves if he was going to pay.
The worker ran from the back of the storeroom/office area.
Carol Cheah was in the shopping centre asking the cleaner to contact security.

Evidence of Emma Yang

Ms Yang’s statement is undated. She appears to have had reference to the CCTV footage.
On 27 June 2020, three boys came into the shop. They took some bottles of alcohol.
The tally clerk, Sean, tried to find the shopping centre security.
The cashier, Carol, went outside the shop. She told the cleaner to find security near the left-side exit of the shop.
At this time Jun left the store.
The cashier went outside the shopping centre.
Jun went outside the shopping centre.
Sean went with the security guard outside the shopping centre.
One to two minutes later, Sean and the security guard found Jun on the ground, 2m outside the shopping centre. He was unconscious. The ambulance arrived and took him to Concord West Hospital.

Evidence of Carlo Debellis, operations manager

Mr Debellis’ formal statement is dated 18 August 2020.
His partner, Qi Shen, owned the shop. It is an Asian grocery store. They sold noodles, snacks, Asian liquor, fruit and vegetables, rice and sauce, frozen items, “and things like that”.
The worker, whom they knew as Liang, was employed as a casual pick packer, commencing work on 1 May 2020. He was provided with a job description when he started.
The worker did not do all the duties listed in the job description. “Essentially”, he packed the store shelves with instant noodles and snacks. He “did not veer outside of that at all.” He never changed roles and remained in this role until his passing.
The worker’s physical duties entailed him replacing stock on the shelves in the store. The stock was normally in boxes and was delivered to the relevant section in the store by the delivery company or supplier. The worker’s role was then to remove the stock from the box and put It on the shelves.
There was no heavy lifting involved in the worker’s role. The heaviest boxes were the noodles, which would weigh roughly 2kg to 3kg each.
In the days leading up to 27 June 2020, the worker had worked four hour blocks on 23, 24, and 26 June 2020. On 27 June 2020, he was scheduled to work from 10am to 6:30pm, with a half hour break. He had taken his break at about 3:30pm.
The worker was doing his normal duties of stocking the shelves. Some of this was shown on the CCTV footage.
There was nothing out of the ordinary, in terms of the worker’s physical tasks, on any of those days. There was nothing that was more physical than normal.
On the day of Jun’s “incident”, at about 5:35pm, he was at his partner’s home. Normally, when they were not at the store, they could check what was happening through the CCTV system.
They saw what appeared to be a theft unfolding in the store. He saw two very suspicious males, wearing hooded jumpers, in the alcohol section, and one placed an item into his clothing.
He called the store landline, and the cashier, Jia En Cheah (Carol) answered. He told her he had witnessed a theft, and to call the shopping centre security. He described what the males were wearing.
Carol asked if he would like to talk to the alleged thief. He said that was not necessary. He told her not to leave the store.
He tried calling security but could not get through.
He was still keeping an eye on the CCTV but could no longer see Carol in the cashier position. He spoke to her approximately five minutes later but could not recall who called whom.
Carol told him Jun was unconscious and his eyes were closed. He was in a serious condition and they were trying to save him. They had called an ambulance.
Carol had advised that Jun was outside the centre at that time. The store is inside a shopping centre.
He thought it was Carol who told him Jun had been taken to Concord West Hospital. He and Qi Shen went straight there that night.
At the hospital, he was told that Jun had a heart disease called “Brugada Syndrome”. The doctor explained that the disease gave him an arrythmia and caused his heart to stop.
He asked the doctor if Jun had any injuries or signs of harm to his body. The doctor said, no, it was all internal and due to his heart disease.
Jun stayed in ICU (intensive care unit) until 3 July 2020 [sic], when the hospital turned off his life support and he passed away.
He provided the CCTV footage and a breakdown of the shoplifting incident, provided by manager Emma Yang.
At first, he had believed there were only two thieves. Since he had reviewed the footage and spoke to Emma, it appeared there were five, but only three went into the store.
Carol, a cashier, was working that night. Chee Hong Cheng (Sean) was also working. He believed Sean was asked by Carol to try to find security.
Carol followed the males out of the store and asked a cleaner to radio for security. She later told him she left the store so she could tell security which way they had gone.
The CCTV showed that Jun had been out the back of the store, watching this all unfold on the monitor in the office.
Shuk Yi Ho (Joey) was at the time in the office working. The CCTV showed Jun talking to Joey, who could not recall what they were talking about. The footage showed Jun leaving the office, placing the bubble tea he was drinking in his locker, and running out of the store. He would describe it as a slow run.
Joey said that Jun never mentioned the camera or the theft at all.
Another cashier, Xiaotong Huang (Matilda) was also working. She told him Carol followed the thief from the store. Jun came running from the back and asked her what had happened. When she told him Carol and the thief were outside the store, he ran outside very quickly. This was included in the CCTV footage.
He did not know why Jun ran from the store as that was contrary to their policy, but believed he may have been trying to impress Carol. He was aware that Jun gave Carol a Gucci bag for her birthday, but she told him to return it. She had told him she was not interested in him as a partner.
Carol told him this may have made Jun more emotional, seeing her possibly in danger, and knowing the way he felt about her.
Carol told him she saw one of the thieves at the front of the Burger Point shop, which is the centre’s corner business. The thief started to run, and Jun came out and told her to step aside “like in a romantic movie”. He then chased the thief.
Carol did not say how fast Jun was chasing the thief. She said he had crossed the road, but then she could not see clearly as it was dark.
Carol said she had returned to the store, and approximately five minutes later Jun was found outside the centre on the ground. He had been found by Sean and the security guard.
Jun was found only a few metres away from where Carol had been standing when she last saw him chasing the thief. This “indicate[d]” to him that very soon after Carol went back inside, Jun had returned back towards the store, but had not made it.
He did not believe Jun engaged with the thief. Chasing a shoplifter was not part of his duties. He should never have left the store, and neither should Carol. The staff is trained not to chase or approach shoplifters. They have a basic rule, “we do not leave the store”, they call the shopping centre security.
This was part of their Money Handling, Theft and Robbery policy, as well as their Emergency Response to Physical Attacks policy, in which Jun and all the staff was trained.
The staff was provided with this training as part of their induction, and it was ongoing. Jun was inducted by Emma Yang, who also did the ongoing training.
The staff was not generally asked to sign off on the induction or policies and procedures, but they were regularly reinforced. The one about theft was reinforced by Emma at least weekly. It was not documented. It was all done verbally.
The staff was not given copies of the policies and procedures but was aware of where they were kept. They kept copies in the office and out the front, along with all their Safe Work Method Statements (SWMS) “and things like that”. They were readily available to view at any time.
They did not have a specific SWMS for shoplifters or thieves. That was covered in the policies he provided. Both were also displayed in the office and by the cashier area. There were two or three copies out the front, as well as security and police numbers.
Jun was well aware that it was their policy to never chase thieves or leave the store. He had not been asked to chase the shoplifters by anybody. Nobody there would ever ask anyone to do that.
He had been told by some of the staff that in the days leading up to 27 June 2020, Jun had not been feeling well. He believed he had complained to Carol and Sean prior to the Saturday, but they could provide more detail.
He was aware from Carol that at some stage prior to the incident, Jun had consumed four Panadol tablets. He understood Jun had asked Carol for Panadol as he was not well. He knew Carol gave him four Panadol, but not if he took them all at the same time. Carol told him this was the first time he had had Panadol.
He was aware that Jun had complained to Sean on 27 June 2020 about feeling tired, having headaches, and having a sore throat. He had attended a party at Sean’s house on 23 June 2020. Sean told him he had drunk about five alcoholic drinks. Sean and Carol were at the party.
He did not know anything more about the party, or whether Jun usually drank alcohol.
He was aware there was CCTV footage from the shopping centre but had not seen it. He had been told it showed Jun running out, but not collapsing. He understood this happened in an area not covered by the cameras.

Documents of first respondent

Emergency Response – Physical Attack Policy

The policy includes the direction to “yell or scream as loudly as possible”, and to try words such as “STOP, HELP or even FIRE”. (Capitalisation in original).
Workers were told to move away from the person as fast as possible, run to the nearest safe place, a safe office, or a public place; and DO NOT chase anyone. (Capitalisation and bolding in original, in red type).
The policy included the telephone numbers of Auburn Police Station, the shopping centre security, and the store manager.

Money Handling, Theft and Robbery Policy

The policy contains a general notification process that begins with “Staff Member Witnesses Theft”, and provides that shopping centre security, Auburn Police, and the store manager are to be called.
The policy also instructs that during a holdup, among other directions, workers “Do not chase the offender” (bolded in original). The employees are to call 000 and Centre Security on the mobile number provided.

Worker’s job description

The worker’s job description was that of a pick packer, category 3.
The main duties/responsibilities were summarised as:
·        maintaining inventory records and ensuring minimum stock was maintained;
·        proper handling and storage of inventory/stock;
·        replenishing and refilling inventory/stock;
·        checking expiry dates, labels, tags and quality of inventory/stock;
·        ensuring that goods stacked/displayed on the shelves comply with standards of the store and are not damaged;
·        efficiently following all tasks delegated by supervisors;
·        completing all assigned targets within specified deadline;
·        maintaining cleanliness in the store and stockroom;
·        adhere to Zetciti workplace health and safety policies and procedures;
·        maintain a safe work area, and
·        perform other duties as assigned.
The specific duties of pick packer category 3 included packing instant noodles and snacks.

Evidence of Chee Hong Cheng (Sean)

Mr Cheng’s statement is dated 18 August 2020. He commenced employment with Zetciti as a pick/packer on 1 May 2020.
He met Jun when he started working at Zetciti. He was employed to pack the snacks on the shelves.
He was working on 27 June 2020. His first knowledge of anything happening was when Carol, a cashier, asked him to call security. She told him some people had stolen some things but did not say what.
He saw one of the people involved in the theft outside the store, by the travellator. The other was still in the store. They were both males, but he could not describe them.
He went up the travellator to call security. It is in an office upstairs. He told a security guard, whose name he did not know, about the theft.
He and the security guard went straight back to the store. They could not find Carol, so they went to look for her outside. They went to the entrance of the shopping centre, then up to the corner. They could not see Carol or the thieves.
When they went around the corner, they found Jun lying on the ground unconscious. He was about 2m from the footpath outside the restaurant next to Burger Point. This was about 90 seconds after he left the store to get the security guard.
He did not know why Jun was there or how he got there. The last time he had seen him was at about 4:30pm, in the snack area, doing his work.
The security guard started doing CPR. After about five minutes he used a defibrillator. A woman was helping with CPR.
The ambulance arrived about 30 minutes later. He went with Jun in the ambulance to Concord Hospital. Jun was taken into ICU. He stayed for two or three hours but did not see Jun again that night.
He had worked with Jun on 25 June 2020. He was not sure what hours Jun worked, but they finished at the same time and walked to the station together. Jun seemed normal during that work time, and nothing out of the ordinary happened.
While they walked to the station, they just discussed the workday. Jun told him he was cold but did not say anything else. It was cold outside, but he could not recall what Jun was wearing.
The next time he saw Jun was on 27 June 2020. He was doing his normal job of stocking snacks on the shelves. He stocked Asian snacks like onion rings, “and things like that”. They were not heavy at all.
While they had lunch at 3:30pm, Jun said he had a sore throat and felt tired. He had not slept well the night before. He did not say anything else at the time. He was aware from Carol that she gave Jun four Panadol. He did not know when that was, or even if Jun took them. He never saw him take them, and he never said anything about taking them.
Jun went to a party at his house on 23 June 2020. He arrived at about 10pm and stayed the night. The party went until about 1am and he thought Jun had about four alcoholic drinks. He was drinking Soju, an Asian beer. He was a little bit drunk, but otherwise normal.
They were playing cards and had some fried chicken and roasted peanut snacks. Jun had some chicken and snacks.
Jun left at about 10am that morning and seemed normal. He did not know if he had work that day.
He had not seen any CCTV footage of what happened on the night of the incident. He did not know whether Jun had anything wrong with his heart. He had never mentioned anything like that.
He was aware that they were not supposed to chase thieves. They were supposed to stay in the store and call security. He learned that when he first started, because they had to read some information about safety, and that was what it said.

Evidence of Jia En Cheah (Carol)

Ms Cheah’s statement is dated 18 August 2020.
She was employed as a casual cashier and did some cleaning.
She first met Jun at the end of 2019, through a housemate. That was before she started working for Zetciti. He was already working there when she started.
She was working as a cashier on the day of Jun’s incident. The first she knew of thieves was when Carlo called to say there was theft in the store. Carlo told her to watch some people and call security.
There were two thieves in the store, but there was also one outside. She saw them taking alcohol.
She told Sean to notify security. He went upstairs, where security had an office. She asked the thief, who was hiding alcohol, to pay for it before he left the store, but he refused and left.
She then left the store to see which direction the thief took, so she could show security. She saw him go out of the entrance to the mall. As she followed, she found a cleaner, “an Indian guy”, whose name she did not know, and told him to notify security as well.
She continued to follow the thief and saw him up the street at the front of Burger Point on the corner. She kept walking towards him, and he started to run, down the street to the left.
At that stage, Jun came running from behind her. She heard him coming, and he asked her to step aside and overtook her. He did not touch or move her out of his way.
Jun was running very fast. She had never seen anybody running that fast. He continued to follow the thief, who was still running.
The thief crossed the road and Jun also crossed the road. The thief had run down the stairs on the shopping centre side of the street and crossed the road about 10m after that. Jun was about 10m or so behind and crossed the road in the same place.

When they crossed the road, she could not see clearly as it was dark outside and the road went downhill, so she returned to the store.
She did not know if Jun caught up to the thief or not, but he was still running very fast.
After about five minutes, she went back outside to try and find security and that was when she saw Jun on the ground with Sean and the security guard and a few others around him.
She did not know why Jun was chasing the thieves. They were not supposed to chase thieves. They had been trained not to chase them. They were supposed to call security. They had a chart at the counter that told them this, and were told by Emma or another leader, Vivian, at the start of their shifts. She had been told this at the start of every shift she had worked.
She followed the thieves so she could show security where they went. She did not ask Jun to chase the thieves and did not know if anyone else did.
Since they had met, Jun had wanted to be her boyfriend. He said that to her. In June 2020,
he tried to give her a Gucci bag for her birthday, but she did not accept it. She told him to return it and he told her to throw it away if she did not want it. He ended up taking it back, and she thought he exchanged it for a pair of shoes.
She had told Jun three times that she was not interested in him as a partner. She told him she would not change her mind. She thought this may have had something to do with why he chased the thieves, to impress her “maybe”.
She knew Jun was tired in the days leading up to the incident. On Thursday 25 June 2020, she made some dumplings overnight. He was her housemate. She knew he had not slept well because she was up all night in the loungeroom and had seen him coming in and out of his room. He was going to the toilet and drinking a lot of hot chocolate.
Before Jun went to bed that night, he told their housemate he had a headache, so she asked her housemate to get him some of her Panadol. The housemate did that and gave it to him. When she saw it again, there were four tablets missing.
She did not see Jun take the Panadol, but she did see him read the instructions on the box, which say for an adult to take a maximum of two at a time. She did not know if he took all four at once.
She did not see Jun much on the Friday. She did not work and did not know if he was working. She did not have any other conversations with him in the days leading up to his incident about how he was feeling as she did not normally talk to him.
She was at a party at Sean’s earlier that week but could not remember what day it was. Everyone was drinking, including Jun. He had taken some beer, but she could not remember what type of beer or how many he drank. He was very drunk.
It was just a normal party. She could not recall what time it finished. Jun stayed at Sean’s. She had seen Jun drink alcohol before, but it was very rare, maybe on five previous occasions. She had never seen him as drunk as he was that night.

Evidence of Xiao Tong Huang (Matilda)

Ms Huang’s statement is dated 28 July 2020.
On 26 June, Carol answered the shop phone. Carol then left the counter, and the next thing she saw was Carol at the entrance of the store with the thief.
The thief left the store and Carol followed him.
Jun came running from the back of the store and asked what had happened. She replied that “Carol and the alleged thief are under Escalator”.
Jun then ran outside the store very quickly.

Medical evidence

Autopsy report for the coroner – pathologist Dr Sairita Maistry

The worker’s direct cause of death was recorded as presumed cardiac arrythmia.
Dr Maistry recorded that the worker had no known medical history, rarely drank alcohol, and did not use illicit drugs. He was considered to be healthy. However, it was reported that he complained of a sore throat and lethargy in the days prior to his collapse.
The circumstances leading to the worker’s death were that on 27 July 2020 [sic] an incident occurred where items were stolen by three offenders. “From bystander reports”, the worker gave chase (about 20 steps), then became dyspnoeic and collapsed.
Security guards placed an automated external defibrillator device on the worker and two shocks were administered. Paramedics arrived and commenced CPR. There was a down time of approximately 20 minutes. The worker was transferred to Concord Hospital.
At the hospital, cardiologist review of electrocardiograms identified ventricular fibrillation, ventricular tachycardia, atrial fibrillation, ST elevation suggestive of Brugada type 2, ST depression on the anterior leads, prolonged QT interval and a possible “epsilon wave”. An echocardiogram showed a possible thickened left ventricle. There was no valvular abnormality and no obvious outflow tract gradient. (Emphasis in original).
The clinical assessment/conclusion was that the worker’s death was the result of a fatal cardiac arrhythmia likely secondary to an underlying genetic cardiac abnormality, in this instance suspected Brugada syndrome. (Emphasis in original).
The worker’s brain death was confirmed on 2 July 2020. His family kindly consented to eye and organ retrieval for donation.
Antemortem blood had been requested and sent for toxicology. The following hospital administered medications were detected in therapeutic/ low concentrations: laudanosine (muscle relaxant), lignocaine (anaesthetic agent), metronidazole (antibiotic) and midazolam (benzodiazepine). No alcohol was detected.
Dr Maistry noted that Brugada syndrome is a genetic disorder that can cause fatal irregular heartbeats and sudden death. Individuals at greatest risk for the disorder are those of Asian descent, particularly of Japanese and Southeast Asian heritage, and it occurs more often in men than women.
Based on the circumstances of the worker’s death, review of medical records, external post-mortem examination, exclusion of trauma, and ancillary investigations, Dr Maistry concluded that death was due to a presumed cardiac arrhythmia.
Dr Maistry recorded as background information the sudden collapse of a healthy young male engaging in mild physical activity.

Dr Mark Herman - cardiologist

Dr Herman was qualified by the first respondent and reported first on 18 December 2021.
Dr Herman recorded that the worker died on 2 July 2020 following a cardiac arrhythmia in the setting of Brugada syndrome.
The worker had no prior cardiovascular history of concern. He was healthy, with no known medical history, rarely drank alcohol, and did not use illicit drugs.
“Apparently”, the worker complained of a sore throat and lethargy in the days prior to his collapse. Dr Herman opined that this was important in the setting of probable pre-existing Brugada syndrome.
On 27 July 2020 [sic], the worker was in pursuit of three shoplifters. After about 20 steps, he became dyspnoeic and collapsed. Security guards administered early defibrillation, and paramedics arrived shortly thereafter and administered CPR.
Dr Herman noted that there was a “down time” of approximately 20 minutes. The worker was taken to Concord Hospital, where there was a return of spontaneous circulation, with ECGs showing ventricular fibrillation, ventricular tachycardia, atrial fibrillation, and an ST pattern consistent with Brugada type 2 syndrome.
The worker was diagnosed with Brugada syndrome, a genetic cardiac abnormality predisposing individuals to sudden cardiac death due to ventricular arrhythmia.
The worker had a cerebral CT scan that showed a global hypoxic injury, a CT cerebral angiogram showing findings consistent with brain death, and an EEG showing no discernible brain activity. Brain death was confirmed on 2 July 2020.
Dr Herman opined that the worker, an otherwise healthy young man, sustained a sudden cardiac arrest due to a ventricular arrhythmia, with prolonged downtime and irreversible brain damage.
Evaluation at Concord Hospital confirmed a Brugada type 2 syndrome, which is a genetic cardiac disorder predisposing to ventricular arrhythmia and sudden cardiac death. (Emphasis in original).
Dr Herman reported that the “triggers” [sic] for arrhythmia in a predisposed individual is usually “fever” and there was a history of the worker having a sore throat and lethargy prior to his collapse.
Dr Herman’s diagnosis was sudden cardiac arrest secondary to a ventricular arrhythmia in the setting of pre-existing Brugada syndrome. In a predisposed individual with Brugada pattern/syndrome, a febrile type illness and/or high carbohydrate diet are known triggers of ventricular arrhythmia and sudden cardiac arrest/death.
Dr Herman noted that there were case reports of severe and prolonged physical activity provoking higher risk of ventricular arrhythmia in predisposed individuals, but sudden short sprinting and/or significant emotional stress is not a documented risk factor for ventricular arrhythmias in Brugada syndrome. (Emphasis in original).
Dr Herman opined that the worker sustained a personal injury arising in the course of employment rather than arising out of the employment itself. (Emphasis in original). Whilst the event occurred at work in the setting of a pursuit situation, emotional or acute physical stress are not known provokers of cardiac arrhythmia in the setting of an individual with Brugada pattern ECG.
Dr Herman did not consider the worker’s employment to be a substantial contributing factor to the injury. His sore throat and lethargy in the days prior to the collapse were probably more relevant, as this may have induced fever.
The worker suffered from the pre-existing condition of Brugada syndrome. This is an autosomal dominant genetic disorder characterised by an abnormal surface ECG, in conjunction with an increased risk of ventricular arrhythmias and sudden death. The worker manifested the typical pattern of the ECG in the post-arrest situation, confirming the diagnosis.
Dr Herman opined that the worker suffered an aggravation of a pre-existing condition in the course of employment but not as a result of the employment itself. There was no clear link between anxiety/sudden exertion and provocation of arrhythmia in Brugada syndrome.
Dr Herman did not consider the worker’s employment to be the main contributing factor to the aggravation of his Brugada syndrome. While the timing appeared relevant, emotional and brief physical stress is not a known risk factor for the provocation of underlying ventricular arrhythmia in this situation.
Dr Herman opined that there was no causal connection between the worker’s employment and his death. He was at risk of a ventricular arrhythmia, and they are often provoked by fever. He apparently had a respiratory tract infection at the time of the cardiac arrest, and this was probably more likely to have been the underlying provoker.
Dr Herman was asked to consider the application of s 9B of the 1987 Act.
Dr Herman opined that the worker had a heart attack injury, as defined by s 9B of the 1987 Act. Specifically, he had ventricular fibrillation and an arrhythmia of the heart, a tachycardia and subsequent damage to the brain and mental harm.
Dr Herman did not consider that the nature of the worker’s employment gave rise to a significantly greater risk of him suffering a heart attack injury than had he not been employed in employment of that nature. He believed the worker would have suffered a heart attack injury at or about the same time in his life regardless of his employment.
Dr Herman provided a supplementary report dated 27 June 2023, having been asked to consider the evidence of Associate Professor Haber, who was qualified by the applicant.
Dr Herman opined that Brugada syndrome is different to most inherited arrhythmic syndromes. (Emphasis in original). Moderate intensity recreational non-competitive sports are considered safe in those patients.
The vast majority of triggering events are due to febrile illnesses, electrolyte imbalance and exposure to certain medications, including anti-arrhythmic drugs and anti-psychotic medications. (Emphasis in original).
Dr Herman reported that although Brugada syndrome patients have historically been advised to avoid high intensity competitive sports, there is no evidence to suggest that exercise increases the risk of a cardiac arrest in those patients.
The vast majority of deaths occurred in patients between the ages of 22 and 65 but were much more common at night and during sleep than while awake. (Emphasis in original). Sudden cardiac death in Brugada patients is rarely related to exercise, which could be a simulator of stress involving chasing an offender.
Dr Herman agreed with A/Prof Haber that the majority of inherited arrhythmic syndromes may be sensitive to catecholamine surges, but reported there was no evidence that Brugada syndrome is triggered by such events. He maintained that the worker’s personal injury occurred in the course of employment rather than arising out of the employment itself. (Emphasis in original).
Dr Herman reiterated that emotional or physical stress is not known to be a significant provoker of cardiac arrhythmia in the setting of Brugada syndrome.

A/Prof Richard Haber – consultant physician/cardiologist

A/Prof Haber reported on 22 February 2022.
A/Prof Haber recorded a history that on 27 July 2020 [sic], while working in a grocery store, the worker noticed three shoplifters stealing alcohol, and they ran out. He chased them down the street, and after running “for about 20 steps (?)”, he became short of breath and collapsed. Security guards, using an external defibrillator device, gave him two shocks.
Paramedics continued CPR when they arrived, by which time 20 minutes had elapsed. The worker was transferred to Concord Hospital, where he died nearly a week later.
A/Prof Haber referred to the findings of the autopsy report.
The clinical assessment and conclusion at the hospital was that the worker’s death was the result of a fatal cardiac arrhythmia, likely secondary to an underlying genetic cardiac abnormality, suspected as most likely to be Brugada syndrome.
A/Prof Haber opined that the details in the coroner’s report, assumed to be the autopsy report. “are probably correct but may be inaccurate”.
A/Prof Haber noted that the worker had no known medical history, rarely drank alcohol, and did not use illicit drugs. He was considered to be healthy, but it was reported that he complained of a sore throat and lethargy in the days prior to his collapse. The coroner concluded that the death was due to a presumed cardiac arrhythmia. (Emphasis in original).
A/Prof Haber opined that fatal ventricular fibrillation occurred in a 19 year old Korean [sic] man thought to have Brugada syndrome, as judged by ECGs. He was apparently healthy prior to this episode. He allegedly complained of a sore throat and feeling off colour for a few days before the fatal event but was not known to have a fever.
A/Prof Haber noted that Brugada syndrome is a very rare, potentially fatal, congenital condition, apparently due to genetic abnormalities. It is more commonly seen in men than women, especially those of Asian origin.
The attacks are often spontaneous, but may be brought on by stress, fever, anti-depressant and other drugs, including cocaine. Many publications referred to the electrophysiological studies, but rarely considered what were actual causes of the attacks of cardiac arrhythmias leading to various forms of presentations of inadequate blood circulation, often fatal in nature.
A/Prof Haber was asked whether he believed the worker sustained an “injury” arising out of or in the course of employment on 27 June 2020, and in particular as a result of chasing the offenders out of the store and down the street.
He responded that, chasing the offenders out of the store and down the street, the worker sustained a cardiac injury as the result of the physical and emotional stress causing release of “adrenaline like” substances which induced cardiac arrhythmia (fatal ventricular fibrillation/ cardiac irregularity).
A/Prof Haber opined that it was more likely than not that the worker’s employment was the main contributing factor to the aggravation of his pre-existing genetic cardiac abnormality. He agreed that the worker certainly had Brugada syndrome, which was more likely than not accelerated by his workplace event.
A/Prof Haber agreed that the worker suffered a heart attack injury. He opined that the employment activity on 27 June 2020 gave rise to a significantly greater risk of him suffering heart attack injury, compared to if he had not been chasing the offenders down the street.
A/Prof Haber was asked if it was likely that the worker would have suffered a heart attack at or about the same time in his life, irrespective of the employment activity he undertook on
27 June 2020.
He responded that there was “no reason to consider this and on the other hand”, it must be noted that for 19 years there was no indication that the worker had this syndrome, and frequently the clinical manifestations start to occur only after the age of 30/40.
A/Prof Haber, commenting on Dr Herman’s report, opined that “looking at literature” there were few reports of what caused actual attacks, which were “more likely than not brought on by acute stressful situation occurring in persons with potentially unstable cardiac rhythm”.
A/Prof Haber noted that Dr Herman considered that a sore throat and lethargy prior to the worker’s collapse were probably more relevant, as fever was a known provoker of ventricular arrhythmia in Brugada syndrome. He opined that there was no evidence that the worker actually had fever. Blood and viral cultures did not reveal any evidence of ANY infection. (Emphasis in original).
A/Prof Haber concluded that it was almost certain that the worker had Brugada syndrome. Until the age of 19, he had no symptoms of a cardiac nature or suspicion of such. On
27 June 2020, he ran after thieves for “about 20 steps (?)” when he collapsed.
Out of hospital resuscitation succeeded in bringing the worker back to normal cardiac rhythm, but as he had 20 minutes of downtime, he had brain damage “and later as result of which he died”. Tests for a possible viral infection did not show any evidence for such an infection, including COVID-19.

SUBMISSIONS

The submissions have been recorded, and a transcript is available. I will therefore summarise the main points.

Third respondent

The third respondent submitted that there were two liability issues, that is medical liability and legal liability.
The third respondent submitted that, despite the pleadings, there is insufficient evidence to say that the worker was chasing anyone; and even if he was, that would not be enough for liability to be denied.
The third respondent turned then to the issue of medical causation. She submitted there was medical consensus that the worker had Brugada syndrome. The relevant question was not the nature of the underlying condition, but whether the injury materially contributed to the aggravation of the injury.
The third respondent submitted that the injury fell within s 4(a) of the 1987 Act, which gave rise to s 9A, but if that were not the case, the worker would satisfy s 4(b)(ii).
In submitting that this was a s 4(a) case, the third respondent relied on cases such as Rail Services Australia v Dimovski & Anor[1] and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd.[2] It was a lesser test than “main contributing factor”, but in reality, because it was an aggravation-type injury, on either approach that would be satisfied.
[1] [2004] NSWCA 267 (Dimovski).
[2] [2014] NSWCA 264 (Bindah).
The third respondent referred to the autopsy report and the evidence of the independent medical examiners. She submitted that the relevant test is whether the injury materially aggravated the underlying state; and it is a very similar test under s 4(b)(ii) or 4(a).[3]
[3] State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71.
What was disregarded in those types of cases was the underlying condition itself. What is to be considered is the relevant factor that aggravated the underlying condition. The third respondent submitted that in this case, when the evidence was considered, it could only be employment.

The third respondent submitted that, to accept Dr Herman’s opinion, I would have to ignore the obvious mechanism of injury, that is that the worker fell or had some sort of injury whilst he was running, directly following the larceny that was occurring.
The third respondent submitted it would be a remarkable coincidence if the worker had a heart attack in that circumstance, independent of what was actually going on. It “beggar[ed] belief for any rational mind to draw that conclusion”. There was a prima facie case that could not be discharged by saying there is an opinion against it.
The third respondent submitted that Dr Herman’s opinion that sudden short sprinting and/or emotional stress was not a documented risk factor was in contrast to what is well-known, and of which I could take judicial notice. She submitted it is well-known that heart attacks are caused by those things, or at least they are a factor.
The third respondent submitted that to be satisfied of the weight of Dr Herman’s opinion,
I would want to know to exactly what he was referring, such as studies or examples.
The third respondent referred to Dr Herman’s second report, which she submitted opened the possibility that there were triggering events other than those to which he referred. She submitted that the only rational basis for Brugada syndrome patients being advised not to participate in competitive sports must be that it is a risk factor. There may be no evidence because people with Brugada syndrome accept the advice and do not participate in high intensity competitive sports.
The third respondent submitted that Dr Herman accepted that the worker may have been sensitive to catecholamine surges. The fact that he could not find evidence to support it did not mean causation was not established.
The third respondent submitted that it seemed logical that a stressful event such as this, and an event where high intensity exertion occurs, which this was, could aggravate an underlying condition that ultimately caused a heart attack injury.
The third respondent referred to the decision in EMI (Aust) Ltd v Bes.[4] She submitted that Dr Herman was not saying it was impossible, he was saying it was possible, albeit he considered it was not work-related and was caused by some other unknown or unrelated factor.
[4] [1972] NSWR 238 at [242] (Bes).
The third respondent returned to her submission about logic. She referred to Sea Coatings Australia Pty Limited and Anor v Pascoe & Ors.[5] She submitted that I had expert evidence, and A/Prof Haber’s opinion sat far more logically and consistently with what actually occurred, that is, that the injury occurred following a high stress situation, when the worker was running near people who were stealing.
[5] [2008] NSWCA 54 at [47].
The third respondent submitted that Dr Herman’s alternative theory was speculative. A sore throat and lethargy were not fever. There could be any number of possibilities. It could be asked why a person who had a fever was working, or chasing someone, which she accepted was also speculative.
The third respondent submitted that Mr Debellis’ evidence was not firsthand evidence, but rather what was told to him.
The third respondent referred to Ms Cheah’s evidence that the worker was tired in the days leading up to the event. Tiredness was not a risk factor on Dr Herman’s evidence. She submitted that taking four Panadol tablets did not suggest a febrile illness, or any of the other matters referred to by Dr Herman. It was speculation that the worker had or was getting a fever.
The third respondent submitted that Dr Herman’s opinion was pure speculation. A/Prof Haber has given an opinion far more consistent with the facts and the logical sequence of events.
The third respondent then referred to s 9B of the 1987 Act. She referred to the decision in Renew God’s Program Pty Ltd v Kim.[6] She accepted that it involves an assessment of comparative risks and is not a test of true causation. Such issues in heart attack cases are frequently multifactorial.
[6] [2019] NSWWCCPD 45 at [37] – [53] (Kim).
The third respondent submitted that the only causative factor was the duties the worker was doing on the day. She submitted there was not enough evidence to say he chased the thieves, but he at least followed them and in doing so sustained injury.
The third respondent submitted that the relevant risk did not arise when the worker was at home in that situation, or when he was a labourer or call centre person or academic. It arose because he was in a shop setting and there were assailants there. It did not occur when he was asleep.
The third respondent submitted that the legal test is whether the worker’s actions on the day fell within the meaning of s 4 of the 1987 Act, that is in the course of or arising out of employment. She submitted it was both, but the first respondent bore the onus of establishing that it was not work-related.
The third respondent submitted that the worker had a general onus, but he was plainly doing something work-related, albeit at some stage he left the store. She submitted that the first respondent alleged that he took himself outside the course of his employment and that was its onus.
The third respondent submitted that following someone is quite distinct from chasing someone. The first respondent was making that distinction because it did not seem to take any real issue with Ms Cheah following the thieves. It was prepared to state that the worker was chasing someone, which somehow took him outside the course of his employment and was prohibited.
The third respondent submitted there was no relevant difference. There was not enough evidence to establish that the worker took himself outside the course of his employment. The policies did not support that there was a “no chase policy”.
The third respondent submitted that the policy said the response to a physical attack was “Do not chase anyone”, which did not apply as this was not a situation of physical attack. It was therefore incorrect to say the worker was not to chase them. The action after a hold-up was also not to chase the offender, and this was not a hold-up.
The third respondent submitted that the first respondent had not produced any material to show the worker was trained or inducted. Mr Debellis stated that Ms Cheah [sic: Ms Yang] did the training. There was no documentation of it. There was no evidence of the nature of the training or induction given to the worker.
The third respondent submitted that the training did not account for this situation. It was not an armed robbery or physical attack.
The third respondent submitted that, even if the worker was somehow not acting in the course of his employment at that very moment, that did not mean the injury was not compensable. She referred to the decision in SB v XFPL.[7]
[7] [2022] NSWPICPD 7 at [97] and [100] – [102] (SB).
The third respondent referred to the suggestion that the worker did what he did as some form of romantic gesture and submitted that that type of submission, if it were to be made, should not be accepted. The logical evidence is that he was doing this because he was confronted with people stealing from the store. He was not trying to impress anyone. He just naturally went out and did it.
The third respondent submitted the injury was work-related, there was no impediment under s 9B of the 1987 Act, and the appropriate order was that the death benefit be paid.
In reply to the first respondent, the third respondent submitted that she and the applicant were ad idem that the worker was definitely running. She had framed her submission that there was insufficient evidence to make a finding as to whether he was chasing the offender, following him, or just going out to see what was happening.
The third respondent submitted that the first respondent had placed big importance on apparently not being permitted to chase someone. It had said nothing about Ms Cheah’s conduct, and she apparently was not reprimanded.
The third respondent submitted that A/Prof Haber’s opinion was logically consistent and had been consistent all along with the sequence of events. Dr Herman’s opinion was internally inconsistent, made a number of concessions, and then made bold statements without proper support, that was against logic and how the tribunal of fact ordinarily understood heart attacks.
The third respondent said that the point she had made in her submission was that if I was to accept Dr Herman’s opinion, I ought to be provided with appropriate references to back it up.
The third respondent submitted that she was asking me to grapple with the differing opinions, pick the expert I prefer and the reasons why, or prefer none, because I do not need an expert, although the law said it was preferable.
The third respondent submitted that the first respondent had also misunderstood the nature of s 9B of the 1987 Act. If its submission was that the relevant enquiry was only as to what the worker was ordinarily expected to do, that is packing shelves, that must be rejected.
The third respondent submitted there was no other reason why the worker would have left the store other than to go after the assailants, whether he was chasing or following. That was only connected with employment. It was a factor I was bound to consider under s 9B. That was the activity, which was why she had said that all the relevant liability conditions were satisfied in relation to the same causal matrix. It was exactly what happened in Kim.

Applicant

The applicant submitted on the issue of medical causation. She submitted that Dr Herman in his first report had recognised that severe and prolonged physical activity was a risk factor.
The applicant submitted that Dr Herman had made a shift in his second report, and the reference to the worker taking about 20 steps. She submitted that there was only one witness to what happened on the day, which was Ms Cheah.
The applicant submitted that Ms Cheah had moved some considerable distance from the store, certainly more than 20 steps. She referred to Ms Cheah’s evidence about the worker overtaking her. She submitted that at this stage the thief had run the distance from the shop somewhere out into the street where these thieves had gone. (It appears that by “the thief” the applicant meant “the worker”).
The applicant submitted that on Ms Cheah’s evidence, the worker was “running flat chat”, the fastest Ms Cheah had ever seen, so it was quite severe exertion. He had also crossed the road.
The applicant submitted that what was described by Ms Cheah was fundamentally different to what Dr Herman had taken as the history. It was this history that became the basis for rejecting his own hypothesis that severe and prolonged activity raises the risk factor. What Ms Cheah had described was severe and prolonged activity.
The applicant submitted that, in his second report, Dr Herman “wants to sort of slide over” and say that whilst Brugada syndrome patients are advised to avoid high intensity competitive sports, which one would think was severe prolonged activity, there is no suggestion that exercise increases the risk of a cardiac arrest in patients with the syndrome.
The applicant submitted that “the trouble with that opinion is it’s the exact opposite of what he’s put in his first report.” He had said that severe and prolonged activity was a risk factor and now said it was not. The applicant submitted he had done that because he was presented with A/Prof Haber’s report in which he opined that the act of chasing the offender down the street gave rise to a greater risk of suffering the heart attack.
The applicant submitted that Dr Herman got the history wrong and had shifted what he said was the empirical basis for his opinion. The reason for the shift was that the true history was severe and prolonged activity.
She submitted that “rarely related”, as Dr Herman opined, means that it is not very often that it happened. It can be understood that that might happen because people with Brugada syndrome tend to get it later in age, and they are being advised not to engage in such activity. “A lot less but rarely related” still translated into “it’s known to be related”. It was
Dr Herman’s original opinion that it can be caused by severe and prolonged activity, which was exactly this case.
The applicant submitted that the only other explanation was that it related to a fever. There was no evidence of a fever, and A/Prof Haber had eliminated it by referring to the blood tests.
The applicant submitted that the fact that someone might have taken a couple of Panadol only meant they had a headache. We are not even sure it was the worker who took it. Fever can be eliminated as being the cause. The only potential cause was the exercise. Dr Herman properly conceded that it was a possible cause, and the reality was that it was the only cause.
The applicant submitted that fever is a risk in Brugada because it raises the body temperature. Running as fast as you can for a distance has a well-documented effect on body temperature.
As regards whether the worker was in the course of his employment or the injury arose out of employment, the applicant submitted that the simple test was what he was doing at the time. He was in pursuit of someone who had stolen from his employer. He was clearly acting in his employer’s interests in that pursuit.
The applicant submitted that the evidence said the worker ran after the thieves. He was doing no more than what Ms Cheah appeared to have been directed to do, or is understood to have done, which was to keep them in sight.
There is no evidence that he caught up with them, and the inference is that he did not, because he was found back closer to the shop. There had clearly been a point where he had given up the chase and was on his way back when he collapsed. In that sense, he was doing no more than Ms Cheah had done and that seemed to be encouraged by the first respondent.

Second respondent

The second respondent adopted the submissions of the third respondent and the applicant.
In reply to the first respondent, the second respondent submitted that confining the employment concerned to things associated with stocking shelves was too narrow an approach to the statutory question of the nature of the employment concerned.
The first respondent submitted that an appropriate way of looking at the section in conjunction with the facts of this matter is that the employment concerned was working in a retail environment, involving having to deal with shoplifters and that gave rise to a greater risk of the worker suffering injury. The “adrenaline rush”, with the vulnerability of suffering this syndrome, brought about the irregular heartbeat that led to his death.
The second respondent submitted that in the worker’s domestic environment, if he had not been employed in that employment, he did not have to deal with shoplifters. I needed to consider that slightly more expansive concept than the inappropriately restricted one advanced on behalf of the first respondent.

Fourth respondent

The fourth respondent submitted that if the first respondent was seriously raising the issue that the worker was on some sort of frolic, or bravery, or action where he had taken himself out of the course of employment, then s 14 of the 1987 Act would have been raised, although the death of the worker provided an obvious exception.

First respondent

The first respondent commenced by referring to the medical evidence.
The first respondent submitted that the evidence of the worker complaining of a sore throat and lethargy in the days prior to his collapse was important in the setting of the pre-existing Brugada syndrome.
The first respondent submitted that there was little difference in the histories recorded by
Dr Herman and A/Prof Haber that the worker had taken about 20 steps before he collapsed, there was a down time of about 20 minutes, and their acceptance of the pre-existing condition.
The first respondent submitted that Dr Herman opined that the trigger for the worker’s arrythmia was a fever. It referred to the evidence of Mr Cheng and Ms Cheah. It was open to draw the inference that the worker took the Panadol; and it was common knowledge that it is taken not just for headaches but for fever aches and pains.
The first respondent noted that Dr Herman talked about other triggers, but submitted he clearly did not class what the worker did that day as being severe and prolonged physical activity, because the history he got was of something like 20 steps and then the collapse.
Dr Herman described this as sudden short sprinting and/or significant emotional stress, which he said were not documented risk factors for ventricular arrythmia in Brugada syndrome.
The first respondent referred to the third respondent’s submission that Dr Herman had not provided any literature for the basis of his opinion. It submitted that A/Prof Haber had also not provided any literature, and it was for the applicant to prove her case, particularly in a case involving s 9B of the 1987 Act.
The first respondent submitted that what Dr Herman was trying to say was that the worker’s personal injury had very little to do with his employment. He did not consider employment to be a substantial contributing factor.
The first respondent submitted that Dr Herman and A/Prof Haber agreed that the worker’s injury was a heart attack injury, as defined by s 9B of the 1987 Act. The worker had an underlying genetic cardiac abnormality, suspected to be Brugada syndrome, and the difference between the doctors was what triggered the heart attack.
The first respondent submitted that A/Prof Haber conceded that a heart attack could be brought on by stress, fever, antidepressant, or certain drugs, but is often spontaneous. He then opined in very dogmatic fashion that it was more likely than not that the worker’s employment was the contributing factor to the aggravation of his pre-existing genetic cardiac abnormality.
The first respondent submitted that A/Prof Haber did not say why employment was the main contributing factor. He said he had not seen any of the ECGs. The first respondent submitted that if he wanted them, he should have asked for them and done a supplementary report.
A/Prof Haber had opined that the worker’s Brugada syndrome was more likely than not accelerated by his workplace event, but he had not explained why, or on what basis he negatived all the other factors.
The first respondent submitted that I would not accept A/Prof Haber’s opinion because he did not explain his conclusion.
As regards s 9B of the 1987 Act, the first respondent referred to A/Prof Haber having compared the risk of the worker having a heart attack had he not been chasing the offenders down the street to that of him doing so. It submitted that is not the test. The test is not what the worker was doing at the time he sustained an injury. The applicant bore the onus.
The first respondent referred to the decision of Senior Arbitrator Snell, as he then was, in De Silva v Secretary, Department of Finance, Services and Innovation,[8] and the discussion of “employment concerned”.
[8] [2015] NSWWCC 279 (De Silva).
The first respondent submitted that running and chasing or following offenders was not a characteristic of the worker’s employment. He was putting soups and noodles and other like goods on shelves. There was no heavy lifting involved. The first respondent referred to
Mr Debellis’ evidence about the worker’s duties.
The first respondent submitted there was not sufficient evidence to establish that the employment concerned gave rise to a significantly greater risk of the worker having a heart attack than if he was not employed. The doctors say it could have happened at anytime, anywhere. That is certainly Dr Herman’s evidence. A/Prof Haber “doesn’t quite go the distance” but accepted it could have been spontaneous, because of a fever, or anxiety, but he did not evaluate what needed to be done to assist in my conclusion.

The first respondent also referred to Kim, in which Deputy President Snell applied De Silva. It submitted it was not a characteristic of the worker’s employment that he chased offenders, and there was evidence to the contrary. It had not been shown that the employment concerned gave rise to a significantly greater risk of this occurring than had the worker not been employed in this employment.
The first respondent submitted that the worker was in the back of the store, not where the theft was taking place. He got to know through some other source that something was happening. There was a suggestion that he had some romantic interest in Ms Cheah, and he left the store because she had done so, and he did not quite know what was happening. No one had asked him to do anything. He just left the store and went running.
The first respondent referred to Dr Herman’s supplementary report and the conclusions he reached.
The first respondent was asked whether it wished to make submissions on whether the worker had taken himself out of the course of his employment. It did not wish to make specific submissions but said that chasing, following, or running after offenders was not a characteristic of his employment. His employment was stacking shelves and not chasing offenders.

SUMMARY

Section 4 of the 1987 Act provides:

“4 Definition of ‘injury’

(cf former s 6 (1))
In this Act--

‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a
‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

Section 9A of the 1987 Act provides:

“9A No compensation payable unless employment substantial contributing factor to injury

(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note : In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e)the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.

(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.

(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

Section 9B of the 1987 Act provides:

“9B No compensation for heart attack or stroke unless nature of employment results in significantly greater risk

(1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.
(2) In this section--
‘heart attack injury’ means an injury to the heart, or any blood vessel supplying or associated with the heart, that consists of, is caused by, results in or is associated with--
(a) any heart attack, or
(b) any myocardial infarction, or
(c) any myocardial ischaemia, or
(d) any angina, whether unstable or otherwise, or
(e) any fibrillation, whether atrial or ventricular or otherwise, or
(f) any arrhythmia of the heart, or
(g)any tachycardia, whether ventricular, supra ventricular or otherwise, or
(h) any harm or damage to such a blood vessel or to any associated plaque, or
(i) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(j) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(k) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(l) any haemorrhage from such a blood vessel, or
(m) any aortic dissection, or
(n) any consequential physical harm or damage, including harm or damage to the brain, or
(o) any consequential mental harm or damage.

‘stroke injury’ means an injury to the brain, or any of the blood vessels supplying or associated with the brain, that consists of, is caused by, results in or is associated with--
(a) any stroke, or
(b) any cerebral infarction, or
(c) any cerebral ischaemia, or
(d) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(e) any subarachnoid haemorrhage, or
(f) any haemorrhage from such a blood vessel, or
(g) any harm or damage to such a blood vessel or to any associated plaque, or
(h) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(i) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(j) any consequential physical harm or damage, including neurological harm or damage, or
(k) any consequential mental harm or damage.”

Did the worker sustain injury arising out of or in the course of employment?

The worker’s death resulted from cardiac arrhythmia in the setting of Brugada syndrome. He sustained a “heart attack injury”.
It is necessary to consider both the matters of medical causation and legal liability.
I accept that the worker was running when he followed, or chased, the shoplifter/s who had left the store after at least one of them was challenged by Ms Cheah. Both the applicant and the third respondent accepted that was the case.
Ms Cheah stated that the worker was running very fast, and she had never seen anybody running that fast. He had followed the thief, who was also running.
Ms Huang stated that she saw the worker running from the back of the store, and he ran outside very quickly.
Mr Debellis stated the worker was seen on CCTV running from the store, although the footage is not in evidence.
I accept the submission that the worker ran more than 20 steps, and it is not clear where that evidence originated, although Dr Maistry referred in the autopsy report to “bystander reports”. A/Prof Haber has placed a question mark after “about 20 steps” in his report.
Ms Cheah stated that the thief had run down the stairs and crossed the road about 10m after that. The worker also crossed the road. The fact that he collapsed closer to the store suggests that he had lost sight of the thief, or given up hope of catching up with him, and returned to the store.
It follows that I accept that what the worker was doing represented “quite severe exertion”, as the applicant submitted.
In Bes, Herron CJ said (at 242):
“…it is not incumbent upon the applicant…to produce evidence from medical witnesses which proves to demonstrate that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connexion between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connexion. But if medical science is prepared to say that it is a possible view, then, in my opinion, the judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connexion that the judge is not entitled in such a case to act on his intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but courts are always concerned to reach a decision on probability and it is no answer, ... that no medical witness states with certainty the very issue which the judge himself has to try.”
The medical evidence on liability in this matter comes from Dr Herman and A/Prof Haber.
Dr Herman has referred to reports of severe and prolonged physical activity causing higher risk of ventricular arrhythmia in predisposed people, but that sudden short sprinting and/or significant emotional stress are not documented risk factors.
As the applicant submitted, and as I accept, what the worker did when he followed the thief from the store was more than “sudden short sprinting”.
In his supplementary report, Dr Herman opined that sudden cardiac death in Brugada patients is rarely related to exercise. (Emphasis added). That admits of the possibility that it may be related to exercise.
A/Prof Haber, on the other hand, opined that the worker’s cardiac injury was the result of the physical and emotional stress brought on by chasing the offender/s down the street.
Dr Herman noted that one of the triggers for arrhythmia in a predisposed person is that he or she has a fever, and there was a history of the worker having a sore throat and being lethargic at or about the time that the incident occurred. His opinion appears to have been influenced by the belief that the worker may have had a fever.
However, as was submitted on behalf of the claimants, there is no evidence that the worker actually had a fever. I have no reason not to accept Ms Cheah’s evidence that Jun was tired, and complained of a headache, nor that of Mr Cheng that he said he had a sore throat, was tired, and had not slept well.
Although no one saw the worker take the Panadol offered by Ms Cheah, it is in my view more probable than not that he took at least one tablet. He may have taken all four missing tablets. That does not establish that he had a fever. If indeed he did take Panadol, he may have expected that it would relieve his headache or help him to sleep. His complaint of a sore throat may have indicated the onset of a cold. All of this is speculation, as is the assumption that he had a fever.
I accept the submission of the third respondent that it would be a remarkable coincidence if the worker had a heart attack, independent of what was occurring at the time, that is that he was “running flat chat” as the applicant submitted, and as confirmed by Ms Cheah.
I prefer and accept the evidence of A/Prof Haber on the issue of medical causation.
Dr Herman conceded the possibility that sudden cardiac death in a person with Brugada syndrome may be related to exercise. The factual matrix of this matter is such that I accept that on the balance of probabilities, the applicant has established that the heart attack suffered by the worker resulted from his swift pursuit of the offender/s out of the store and down the street, as opined by A/Prof Haber.
The applicant must also establish legal liability for the worker’s injury, that is, that his injury arose out of or in the course of his employment.
There is a distinction between injury simpliciter (or personal injury) and injury in the context of the “disease” provisions.
Deputy President Roche considered the meaning of a personal injury in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear.[9]
[9] [2014] NSWWCCPD 47.
Roche DP said:
“The authorities establish that a ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’…In other words, as stated at [81] in [North Coast Area Health Service v Felstead][10] it is ‘a sudden identifiable pathological change’…
The nature of a personal injury is well-illustrated in the authorities, where the following have been held to be personal injuries: a sudden rupture of blood vessels and consequent cerebral haemorrhage arising from a congenital weakness (Accident Compensation Commission v McIntosh))[11] ; a coronary occlusion caused by a piece of lining of an artery having loosened (Hume Steel Ltd v Peart)[12] ; the rupture of an aneurysm (Clover, Clayton & Co Ltd v Hughes[13]), and the rupture of the oesophagus (which was held to be a personal injury by accident) (Kavanagh v The Commonwealth)[14].” (at [38] – [39]).
[10] [2011] NSWWCCPD 51.
[11] [1991] VicR p65: [1991] 2 VR 253.
[12] [1947] HCA 34; 75 CLR 242.
[13] (1910) AC 242.
[14] [1960] HCA 25; 103 CLR 547.
The third respondent referred to the decisions in Dimovski and Bindah.
Handley JA concluded in Dimovski that where a frank incident aggravated an underlying degenerative condition, it could properly be regarded as an injury simpliciter within s 4(a) of the 1987 Act.
In Bindah, Meagher JA said at [25]:
“Where, as in the present case, there is an event causing injury within s 4(a), the circumstance that the injurious event and injury included the aggravation of an existing disease does not mean that the injury, or some part of it, is an injury within s 16: Dimovski at [29] (Handley JA) and [68] (Hodgson JA). Rather the exacerbation or aggravation of the existing disease is part of the pathology of the injury within s 4(a).”
I accept the third respondent’s submission that the worker’s injury is to be considered pursuant to the provisions of s 4(a) of the 1987 Act. He suffered a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”, on the background of underlying Brugada syndrome.
The third respondent submitted that the worker’s injury both arose out or and in the course of his employment. He was doing something that was work-related, albeit that he had left the store. There was not enough evidence to establish that he took himself out of the course of his employment.
Snell DP discussed the authorities relating to “arising out of” employment in SB.
Snell DP noted that the Court of Appeal dealt with the test in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited.[15]
[15] [2009] NSWCA 324; 7 DDCR 75 (Badawi).
Their Honours said at [73] – [75]:
“The meaning of ‘arising out of…employment’ is settled. In Nunan v Cockatoo Island Docks & Engineering Co Ltd[16]…the Court (Jordan CJ and Roper J, Nicholas CJ in Eq agreeing) adopted a common sense approach to the application of the phrase, noting that it involved a causative element. In doing so, their Honours, at 123, endorsed the comments of Lord Wright in Dover Navigation Co v Craig[17] at 199 that the Act was a remedial Act intended to give rights to workers that were more extensive than common law rights and which used non-technical language in doing so. As Lord Wright said:
‘Nothing could be simpler than the words ‘arising out of and in the course of employment.’ It is clear that there are two conditions to be fulfilled. What arises ‘in the course’ of the employment is to be distinguished from what arises ‘out of the employment’. The former words relate to time conditioned by reference to the man’s service, the latter to causality. Not every accident which occurs to a man during the time when he is on his employment, that is directly or indirectly engaged on what he is employed to do, gives a claim to compensation unless it also arises out of the employment. Hence the section imports a distinction which it does not define. The language is simple and unqualified.’
Their honours also endorsed the comments of Lord Maugham at 193 in the same case in considering whether the death in that case arose out of the applicant’s employment:
‘The authorities show, if authorities are needed on that point, that the words connote a certain degree of causal relation between the accident and the employment. It is impossible to define in positive terms the degree of that causal connection ...’
Their Honours concluded, at 124, that a worker would have established that an injury arose out of employment:
‘…if it appears…that the fact of his being employed in the particular job caused, or to some material extent contributed to, the injury…’”
[16] [1941] NSWStRp 23; (1941) 41 SR (NSW) 119.
[17] [1994] AC 190.
In Tarry v Warringah Shire Council[18] , Glass JA referred to Nunan, saying:
“…the injury may arise out of the employment, even though at the time it is sustained the deceased or the [worker] is no longer in the course of his employment…the proper test for determining whether the injury arose out of employment has been stated by Jordan CJ in [Nunan], when he describes the employment as causing or contributing to the injury; by Fullagar J…when he states the need for a causal connection between the employment and the injury and by Starke J in South Maitland Railways Pty Ltd v James[19] at 502, when he says ‘the words ‘out of’ require that the injury had its origin in the employment’.” (Emphasis added).
[18] ([974] 48 WCR 1 (Tarry).
[19] [1943] HCA 5; (1943) 67 CLR 496.
Snell DP also referred to Zinc Corporation Ltd v Scarce[20], in which Clarke JA, after discussing the common law test of causation, said:
“…The question of fact is whether there is such a connection between the worker’s personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment. In deciding that question my preferred view is that the test laid down by Jordan CJ in Nunan... – that the fact of his being employed in the particular job caused, or to some material extent contributed to the injury – should be applied. At the very least the test requires that the employment was a contributing factor to the injury.”
[20] (1995) 12 NSWCCR 566.
Snell DP referred to Tarry and Kasim v Busways Blacktown Pty Ltd,[21] each of which involved assaults. He said that, in both cases, it was found that, prior to the injury associated with the assaults occurring, the workers had removed themselves from the course of employment, referring to what Glass JA said in Tarry, and to what Neilson CCJ said in Kasim.
[21] [2003] NSWCC 6.
Kasim was a case involving a bus driver who assaulted a passenger who had been rude to him as he performed his work duties. Neilson CCJ said, “when the [worker] stood up and vehemently slapped the young man on the head he interrupted the course of his employment”.
His Honour said at [38]:
“…in my view the only inference I can draw is that this injury arose out of the employment because the only inference I can draw is that the reason for the young man’s conversation with the [worker] which clearly provoked him was something that arose out of the relationship of driver and passenger.”

After referring to Tarry, Neilson CCJ continued at [40]:
“…If this young man upbraided the [worker] because of the route he had taken or the way he had driven his bus then that appears to me to [a]rise out of the [worker’s] employment. That is, it is causally related to it.”
In Kasim, the worker failed in his claim because his Honour found that the injury resulted from his serious and wilful misconduct, pursuant to s 14(2) of the 1987 Act, and he had not suffered serious and permanent disablement.
Snell DP said in SB, at [100]:
“It follows from the above that an injury can arise out of employment notwithstanding that a worker has removed himself or herself from the course of employment…It is not necessary that each link in the causal chain be work-related.” (Emphasis added).
Snell DP also said in SB at [102]:
“In the current matter, the question of whether there was injury arising out of employment involves a consideration of whether, adopting a common sense approach, there was a causative element to the relationship between the deceased’s employment and the fatal injury. Did the employment cause or to some material extent contribute to the fatal injury? As the third appellant correctly submits, an injury may have more than one cause...”
I am satisfied, adopting a “common sense” approach, that the worker’s injury arose out of his employment with the first respondent. His employment caused or to some material extent contributed to the injury; and that may be the case even if he had at the time removed himself from the course of his employment.
The worker was at the store to perform his duties, and for no other reason. As the third respondent submitted, even if he was not acting in the course of his employment at the very moment he was injured, that does not mean the injury was not compensable.
I accept the applicant’s submission that the simple test was what the worker was doing at the time of the injury. He was in pursuit of someone who had stolen from his employer. There was no other reason for him to do what he did. I reject any suggestion that it was prompted by some desire to impress or protect Ms Cheah. Both she and Mr Debellis could only speculate about this motive for his actions.
The first respondent submitted that chasing, following, or running after offenders was not a characteristic of the worker’s employment. However, there was in my view a causal connection between his employment in the store and his injury.
It may not have been a characteristic of the worker’s employment to chase or follow shoplifters, and it may not have been the sensible or considered thing to do, but that does not mean that the injury did not arise out of his employment. Ms Cheah and Mr Cheng also left the store, although their evidence is unequivocally that they had been instructed to remain there, and this was consistently reinforced.
Mr Tarry died as a result of injuries sustained in an altercation with another employee about their respective authorities and duties. Hutley JA said:
“It does not follow that the injury did not arise out of employment because in the course of what he was doing, the deceased was doing acts which were not in accordance with his duties as a foreman. It is, of course, misconduct in a foreman to settle matters of responsibility by engaging in fisticuffs with a man under him. That, however, has really nothing to do with the question.”
It was also not in accordance with Mr Kasim’s duties as a bus driver to slap a passenger on the head. His injury nonetheless was held to have arisen out of his employment.
As I am satisfied that the worker’s injury arose out of his employment, it is unnecessary that I consider whether it occurred in the course of his employment.

Was the worker’s employment a substantial contributing factor to the injury?

The third respondent submitted that this was a s 4(a) of the 1987 Act case, and s 9A of the Act was satisfied. She submitted that the only relevant factor that aggravated the underlying condition was employment.
The first respondent did not make any submissions on the application of s 9A of the 1987 Act.
Section 9A of the 1987 Act provides examples of matters that may be taken into account in determining whether employment was a substantial contributing factor to injury.
It was held in Badawi, inter alia, that for employment to be a “substantial contributing factor” to the injury, the causal connection must be “real and of substance”; and “employment” for the purposes of s 9A is the same “employment” that is under consideration in ss 4 and 9.
Considering the examples of matters to be taken into consideration, the injury occurred at a time that the worker was at work, at a place outside the store, after he had left the store in pursuit of shoplifter/s; the worker was employed as a pick packer, and his task was to stock shelves; and the duration of his employment is not material.
As to the probability that the injury or a similar injury would have happened anyway, at about the same time or stage, if the worker had not been at work or worked in that employment,
I have already determined that I accept the evidence of A/Prof Haber.
A/Prof Haber specifically said that there was no reason to consider that the worker would have suffered a heart attack irrespective of his activity on 27 June 2020. He pointed out that clinical manifestations of Brugada syndrome frequently occur after the age of 30 or 40.
As to the worker’s state of health before the injury, and the existence of any hereditary risks, he certainly had Brugada syndrome, but I do not accept that he was suffering from a fever when he suffered a heart attack. Once again, A/Prof Haber’s evidence is accepted.
Finally, there is no evidence that the worker’s lifestyle or activities outside the workplace were a factor in the injury. There is no evidence that he had a high carbohydrate diet, an electrolyte imbalance, or was exposed to anti-arrhythmic drugs or anti-psychotic drugs, which were risk factors to which Dr Haber referred.
I am satisfied that the worker’s employment was a substantial contributing factor to the injury. As I have found that he sustained injury within the meaning of s 4(a) of the 1987 Act, it is unnecessary that I consider whether employment was the main contributing factor to the injury pursuant to s 4(b) of the Act.

Did the nature of the worker’s employment give rise to a significantly greater risk of him suffering the injury than had he not been employed in employment of that nature?

Snell DP discussed the application of s 9B of the 1987 Act in Kim. He referred in that decision to his own arbitral decision in De Silva.
The facts of De Silva are, briefly, that Mr Fernando, the deceased worker, was employed as a principal engineer. His work required him to travel around New South Wales, both to undertake projects and for business development and marketing purposes.
It was while Mr Fernando was working in Ballina, where he was staying overnight in a motel, that he suffered a fatal heart attack during the night.
In considering the application of s 9B of the 1987 Act, Senior Arbitrator Snell, as he then was, discussed the meaning of the “employment concerned”.
Senior Arbitrator Snell said at [66]:
“In my view, the ordinary and grammatical sense of the phrase ‘nature of the employment concerned’, where it appears in section 9B of the 1987 Act, is a reference to the employment concerned with the heart attack or stroke injury which is at issue. That is, it is a reference to the particular employment in which the injury was suffered, rather than to ‘the nature of the class or classification of employment’ as that description is used in Bourne[22] and Connair.”[23]
[22] Commonwealth v Bourne [1960] HCA 26; 104 CLR 32.
[23] Connair Pty Ltd v Frederiksen [1979] HCA 25; 142 CLR 485.
Senior Arbitrator Snell went on to say, at [70]:
“The nature of the tests in section 9A and section 9B is not the same. Section 9A involves a ‘causative element’: Badawi at [80]. Section 9B involves an evaluation of risk, it does not involve a true test of causation. Be that as it may, sections 9A and 9B are both provisions in the same legislation which impose a statutory precondition for the payment of compensation. The statement in Badawi that the ‘employment concerned’ refers to ‘what the worker in fact does’ in the ‘employment that caused or contributed to the injury’ is consistent with the view I have formed. The passage of Harrison[24] quoted above is consistent with the phrase ‘employment concerned’ having the same meaning in both section 9A and section 9B.”
[24] Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380.
Senior Arbitrator Snell concluded that Mr Fernando’s duties involved business travel to locations away from home, and staying alone was an inherent part of such travel. Performing such duties was an inherent part of his employment. It was also what he was doing at the time of his death.
Senior Arbitrator Snell would have in any event have been satisfied that the “class or classification” of Mr Fernando’s employment was such that one of its incidents was to travel away from home. The nature of his occupation was not simply carrying out the technical duties of an engineer in an office. It involved regular travel with overnight stays.
Senior Arbitrator Snell described in De Silva the requirement of s 9B as:
“Section 9B(1) does not require a significant risk. It requires a comparison of (1) the risk to which the nature of the employment concerned gives rise and (2) the risk had the worker not been employed in employment of that nature. It is necessary that the first of these be ‘significantly greater’ than the second, if compensation is to be payable.” (at [105]). (Emphasis added).
Snell DP said in Kim at [39] – [40]:
“Neither party suggested it was inappropriate to apply the reasoning in De Silva. There was discussion in De Silva regarding the meaning of the phrase ‘the employment concerned’, where that phrase is used in s 9B(1). In De Silva, I concluded that phrase has the same meaning as when the same words are used in s 9A(1), being a reference to ‘what the worker in fact does in the employment that caused or contributed to the injury’. That is, the reference is to ‘the particular employment in which a worker suffered injury’, rather than to ‘a class or classification of employment’. Neither party challenges that aspect of the reasoning in De Silva on this appeal.
The test in s 9B requires that the relevant risk in the employment concerned be ‘significantly greater’ than the risk ‘had the worker not been employed in employment of that nature’. In De Silva I concluded that satisfaction of this test required a risk in the employment concerned that was greater, in a way that was ‘important; of consequence’. This aspect of the reasoning in De Silva is not challenged on this appeal.”
In the matter of Secretary, Department of Communities and Justice v Galea[25] Snell DP discussed De Silva and Kim and stated at [111] that the following may be taken from those decisions:
“(a)    the worker carries the onus of establishing that the test in s 9B is satisfied;
(b)     where the words ‘an injury’ first appear in s 9B(1), this refers to an injury asserted by a worker, in respect of which compensation is otherwise payable, subject to the test in s 9B;
(c)    where s 9B(1) refers to ‘the nature of the employment concerned’, it refers to ‘what the worker in fact does in the employment that caused or contributed to the injury’;
(d)     s 9B(1) requires that the relevant risk of suffering the injury in the employment concerned be significantly greater than the risk had the worker not been employed in employment of that nature. ‘Significant’ in this context means ‘important; of consequence’. The comparison involves an assessment of comparative risks and is not a true test of causation. The test involves an evaluative judgement, and
(e)     the test requires satisfaction on all the evidence. It does not necessarily ‘require that there be medical evidence to some particular effect.’ In cases raising s 9B it is desirable that there be medical evidence addressing the requirements of the section.”
[25] [2021] NSWWCCPD 1.
In considering the application of s 9B of the 1987 Act, I am required to consider the nature of the worker’s work and its particular tasks.
I am then required to consider whether the nature of the worker’s work and its particular tasks gave rise to a significantly greater risk of him suffering the injury than had he not been employed in employment of that nature. The risk must have been greater in a way that was “important; of consequence”.
The worker was employed as a pick packer. The nature of his work and its particular tasks were to replace the stock on the shelves of the store. The stock consisted of such items as instant noodles and snacks. He removed the goods from the boxes in which they were delivered and placed them on the shelves.
The first respondent submitted that running and chasing, or following offenders, was not a characteristic of the worker’s employment. It was what he did in the course of his employment, rather than any classification that may be given to him, that was to be considered, in accordance with what Snell DP said in De Silva.
According to Mr Debellis’ evidence, the worker never changed roles. Mr Cheng also stated that the worker’s normal job was stocking snacks on the shelves. He had been performing his normal duties on the date of the injury. Unlike Mr Fernando, his actual duties did not extend beyond this.
What the worker did in the course of his employment was not to chase or follow shoplifters. The evidence suggests that the nature of his employment was not even to serve customers. He was not a cashier like Ms Cheah. He ran from the back of the store or office area, having apparently seen the theft on the monitor in the office.
I do not accept the second respondent’s submission that the employment concerned was working in a retail environment, which involved having to deal with shoplifters, which in turn gave rise to a greater risk of the worker suffering injury. The work involved was as I have described it. There is no evidence that shoplifting at the store was in any event a regular occurrence.
Section 9B (1) does not require that the nature of the employment concerned gave rise to a significant risk of the worker suffering a heart attack. It requires that the nature of the employment concerned gave rise to a significantly greater risk of him suffering a heart attack than had he not been employed in employment of that nature. The risk must have been important, or of consequence.
The employment concerned did not involve heavy lifting or exertion, which in any event do not appear to be risk factors for a heart attack in a person with Brugada syndrome, on the evidence of Dr Herman and A/Prof Haber.
Did the nature of the worker’s work and its particular tasks then give rise to a significantly greater risk of him suffering the injury than had he not been employed in employment of that nature?
Dr Herman opined that the nature of the worker’s work did not give rise to a significantly greater risk of him suffering a heart attack than had he not been employed in employment of that nature. That was even in the context of him considering the worker’s pursuit of the shoplifter/s.
A/Prof Haber opined that the attacks are often spontaneous but may be brought on by factors such as stress, fever, and certain drugs. He compared the employment activity of chasing offenders down the street to a situation where the worker was not doing so and opined that it gave rise to a significantly greater risk of heart attack.
As I have noted, the nature of the worker’s employment was essentially stacking shelves. The medical evidence does not suggest that it gave rise to a risk of heart attack that was significantly greater than had he not been so employed.
According to Dr Herman, the triggers for sudden cardiac arrest, secondary to a ventricular arrhythmia in those with Brugada syndrome, include fever, high carbohydrate diet, electrolyte imbalance, exposure to certain medications, and severe and prolonged physical activity.
A/Prof Haber referred to stress (physical and emotional), fever, and anti-depressant and other drugs as potential factors in bringing on attacks of cardiac arrhythmia.
Given the nature of the worker’s work and its particular tasks, I do not accept that it gave rise to a significantly greater risk of him suffering a heart attack injury than had he not been employed in employment of that nature.
It follows that I have determined that the worker’s death did not result from an injury, pursuant to s 25 of the 1987 Act.
My determination is as follows:
(a)    the worker sustained a frank injury (heart attack injury) arising out of his employment with the first respondent;
(b)    the worker’s employment was a substantial contributing factor to the injury;
(c)    the nature of the worker’s employment did not give rise to a significantly greater risk of him suffering the injury than had he not been employed in employment of that nature, and
(d)    the worker’s death did not result from an injury.
The order is set out in the Certificate of Determination.

[2023] NSWPIC 491

20 September 2023