Cochrane v University of Newcastle

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cochrane v University of Newcastle [2022] NSWPIC 447
APPLICANT:	Robert John Cochrane
RESPONDENT:	University of Newcastle
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	9 August 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment in respect of disputed disease injury, as a result of exposure to hot and humid conditions while working in Singapore; applicant claimed to be employed by respondent, which disputed worker and maintained the employer was UON Singapore Pte Ltd; respondent also disputed that employment was connected with New South Wales; lack of taxation records to establish correct employer; the only payslip in evidence was issued by UON Singapore Pte Ltd; consideration of ZG Operations Australia Pty Ltd v Jamsek and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd; Held — the applicant has not established that he was employed by the respondent; the weight of the evidence is in favour of employment by UON Singapore Pte Ltd; unnecessary to consider the other matters in dispute; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Robert John Cochrane (Mr Cochrane), claims to have been employed by the respondent, University of Newcastle (UON) as Pro Vice Chancellor (PVC).
Mr Cochrane claims to have sustained a disease injury, deemed to have occurred in March 2010, due to hot and humid conditions to which he was exposed at UON’s Singapore campus, resulting in hyponatremia.
On 19 November 2018, the respondent’s workers compensation insurer, Employers Mutual NSW Limited (EML) issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act).
EML disputed that the applicant had given notice of injury or made a claim within the periods required by sections 254 and 261 of the 1998 Act; that his injury was connected to New South Wales; that he was a worker or deemed worker; that he had sustained injury arising out of or in the course of his employment; that employment was a substantial contributing factor to his claimed injury; that he was entitled to weekly benefits; and that he was entitled to payment of medical expenses.
By letter dated 9 December 2019, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation pursuant to section 66 of the Workers CompensationAct 1987 (the 1987 Act) in the sum of $204,600 in respect of 71% whole person impairment (WPI) as a result of injury deemed to have occurred on 1 June 2010. The applicant asked whether it was conceded that he was over the 15% threshold for the purposes of a work injury damages claim. He also claimed medical expenses.
On 17 December 2019, EML issued the applicant with a further dispute notice. It disputed that he was entitled to permanent impairment compensation, referring to the notice dated
19 November 2018. It asserted that, as his claimed injury was not compensable, he had no entitlement to lump sum compensation.
The applicant lodged an Application to Resolve a Dispute (the Application) on
4 February 2022.
The applicant claimed that on the deemed date of 1 June 2010, he sustained a disease injury. He claimed that he was employed by the respondent, working between the Newcastle and Singapore campuses.
The applicant claimed that, due to the hot and humid conditions in Singapore, he experienced health problems, including severe muscle cramps and low sodium levels. He went on to develop hyponatremia and suffer a series of hyponatremic seizures, which resulted in damage to his tongue and throat, vertebral fractures, and hypoxic episodes. Following the seizures his condition deteriorated and he experienced significant autonomic impairment, to the point where he was diagnosed with an unclassifiable/atypical akinetic syndrome.
The applicant claimed weekly benefits compensation from 1 June 2018 to 1 June 2019; medical expenses of $6,988.40; and $204,600 for 71% WPI as a result of injury to his thoracic spine and nervous system on 1 June 2010.
The respondent lodged its Reply on 28 February 2022.
EML issued a further dispute notice, dated 22 March 2022. It disputed that the applicant was a worker or deemed worker; that his injury was connected to New South Wales; that he had sustained injury; that his employment was a substantial contributing factor to any injury; that employment was a contributing factor to either the contraction or aggravation, acceleration, exacerbation or deterioration of a disease injury; and that he was entitled to either weekly payments, medical or related treatment or payment for WPI.

ISSUES FOR DETERMINATION

The parties agree that the issues in dispute are:
(a)    whether the applicant was a worker or deemed worker;
(b)    whether the applicant has sustained injury arising out of or in the course of employment;
(c)    whether employment was connected with the State of New South Wales, and
(d)    whether employment was a substantial contributing factor to injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was listed for conciliation/arbitration hearing by telephone on 20 April 2022.
Ms Goodman of counsel, instructed by Ms Davis, appeared for the applicant; and Mr Grimes of counsel, instructed by Ms Bray and Ms McCoy, appeared for the respondent. The applicant and his support person, Ms Roland, attended. Ms O’Grady of EML attended initially to provide instructions but was later excused from attendance.
The Application was amended by consent to claim that the date on which the applicant claims to have sustained injury is March 2010; and to delete the claim for weekly benefits and medical expenses.
Due to the time taken in conciliation and preliminary matters, it was not possible to conclude the matter on 20 April 2022. Counsel for the applicant made oral submissions; and directions were made for the provision of written submissions. The parties provided submissions in accordance with those directions.
As neither party had made submissions that addressed the decisions of the High Court in ZG Operations Australia Pty Ltd v Jamsek [2002] HCA 2 (Jamsek) and Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 (Personnel), they were asked to advise whether they wished to do so, and if so, to agree on a timetable.
The parties provided further submissions in accordance with their agreement.
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)     the Application and attached documents;
(b)     Reply and attached documents, with the exception of pages five to eight inclusive, to which objection was taken and which were withdrawn;
(c)     Application to Admit Late Documents dated 13 April 2022 and attached documents, filed by the respondent, and
(c)     Application to Admit Late Documents, dated 5 May 2022 and attached documents, filed by the applicant in compliance with a direction made on
20 April 2022.

Oral evidence

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

FINDINGS AND REASONS

Evidence of the applicant, Robert John Cochrane

The applicant responded to a series of questions, which were posed by an investigator, in a statement dated 12 October 2018.
The applicant commenced work for UON on 11 August 2008. His supervisor was Dr Susan Gould, Deputy Vice Chancellor (DVC) Administration of UON, to whom he reported on an “as needs basis”, but he was accountable for his performance on a yearly basis to Vice Chancellor (VC) Prof Nicholas Saunders, who was then the Chairman of the Singapore Board of advisers.
The applicant had remarked informally to Dr Gould that he was very tired at the end of each day, as he really struggled with the incredible heat and humidity in Singapore.
The applicant was in Newcastle for a week for his orientation and visited probably on four occasions, staying one or two nights each time. He was paid $6,167 AUD per week.
The nature of the applicant’s work was that he was to act as Chief Executive Officer (CEO) of UON Singapore (UONS); and be Pro Vice Chancellor (PVC) for UON. This included growing quality research in Singapore, Indonesia and other south-east Asian countries; supervising staff on contracts with UON, but seconded to Singapore; renegotiating TNE contracts with partner academic institutions and negotiating new agreements; assisting with recruitment of fee-paying students from south-east Asia to UON in Australia; handling issues in relation to teaching/tutorial premises and staff accommodation; and incentivising Australian Heads of School to deliver key programs in Singapore.
The applicant did not report to anyone in Singapore because he was CEO of the local operation and controlled all research carried out there. All his PVC responsibilities meant he was accountable to the VC or the Academic Board of UON. He received induction and training in Newcastle, meeting each Faculty PVC; the OHS officer; the CFO; and the Legal Officer.
The applicant did not report or complain about his injury because it did not immediately resemble an “incident”. He was injured because he had to work, often in a suit, in extreme heat and humidity. At the time of his first seizure, he spent many hours working in the open air. The doctors in Singapore had no idea what was causing his seizures; and all the PVCs, DVCs and senior executives at the UON, including the HR Director, knew of his plight.
The applicant believed he sustained his injury because he had the first very severe seizure in Singapore in June [sic] 2010. He was very healthy, with no neurological or other health issues. June is particularly humid, and he did a lot of travelling in taxis and buses to view various sites.
The applicant’s “haven and escape” was where he lived, but in the month before the seizure, his work was quite physically stressful, with premises related travel and at least six outside meetings. He drank a lot of water and when resting at his apartment started to get “quite nasty cramping” in his calves and thighs.
It was a warning that the applicant was developing hyponatremia, where from perspiring and drinking a lot of water, you wash all the sodium from your body, so he suffered the first seizure early in June 2010. It lasted for at least 20 minutes. He cracked four vertebrae, badly lacerated his tongue, and his throat felt displaced. He was taken unconscious by ambulance to Singapore Base Hospital but awoke in the ambulance.
The applicant and his treating doctor believe he suffered from hypoxia of sufficient strength during the six hyponatremia-induced seizures in Singapore to cause brain trauma. His ability to speak was greatly diminished after the first seizure.
The applicant is supported by Dr Robert Murdoch. The Neurology Team at the Austin Hospital (Department of Neurology Specialist Clinic) (Austin Hospital) “have been down various diagnostic paths. After their barrage of tests” showed no abnormalities, they accepted that severe seizures can cause hypoxia, and there are many articles that show hypoxia can cause brain trauma that is not visible on MRI or PET scanning.
Dr Murdoch referred the applicant to neurology specialist Dr Richard MacDonnell, who referred him to Austin Hospital.
The applicant referred to his daily routine, which exposed him to heat stress. His physiology was susceptible to losing sodium and he was therefore at great risk by working in Singapore.
Mr Cochrane’s next statement is dated 17 October 2018. He has attached documents to the statement, to which I will refer below.
Mr Cochrane was employed by UON from 11 August 2008 until April 2013 as PVC. He was mainly based in Singapore, where UON arranged his residency status.
The applicant was required to undertake a lot of travel. He needed to regularly return to Newcastle and then travel to the south-east Asian region. Throughout his employment, he was aware that as part of his role he would be required to travel to Singapore, but he always considered he was employed by UON. The advertisement for the role made it very clear it was for UON and confirmed the Singapore group was owned by UON.
The applicant referred to the attachments to his statement, noting they all described his employment as being with UON. Its logo was on documentation, and he was often in contact with people from Australia, and especially the Newcastle region. He always considered himself employed by UON. The contracts he negotiated were on behalf of UON and representing it was the basis of his role.
The applicant attached a copy of UON’s business profile. It is clear from this document that authorised representatives are present in Lambton, in the Newcastle region. He thinks it is absurd to suggest it was not his employer.
The environment in Singapore was very hot and extremely humid. The applicant usually took a bus to and from work. He was always sweating and drinking a lot of water. He also had diuretic problems that meant he had to pass urine frequently. That meant he was losing a lot of salt. Unbeknown to him, his blood pressure would drop, resulting in night cramping of his lower legs. He started to have cramps at night in about May 2010, while he was in Singapore. He put this down to exercise after work.
One night in about June 2010, the applicant had an extremely severe seizure while he was asleep. It lasted about 20 minutes. His partner called an ambulance. He regained consciousness in the ambulance on the way to Singapore Base Hospital. His throat felt awful, and he had severe mid-back pain.
The seizure resulted in severe cuts to the applicant’s tongue, four fractured thoracic vertebrae and a feeling that the soft tissue of his throat was damaged. The hospital did many tests, including a CAT scan. All the tests were normal, except that his serum sodium was very low on admission.
The applicant was off work for two weeks and could not speak for about 10 days. He and other staff noticed that, following the seizure, he immediately struggled to speak with force and clarity. He could not forcibly make presentations or clearly articulate his position on most of the controversial topics raised at meetings.
In about August 2010, Mr Cochrane saw Dr Li Yung Hua in Singapore. He was advised to do exercises to strengthen his back and prescribed Vitamin D. Dr Hua could not diagnose why he had the seizures but noted his sodium levels continued to be low.
Over the next two years, the applicant’s ability to speak clearly did not improve and he had three more episodes when he was sleeping. He had a serious seizure after a business dinner in Jakarta, and was again hospitalised after his partner called an ambulance.
The applicant’s condition led the VC, Mrs Vicky Drewe, who was also a Board member, to lose confidence in him. In about November 2012, she offered to pay out his entitlements under his payment arrangements with UON. He reluctantly accepted in February 2013, after his last seizure.
Since 2013, the applicant’s ability to speak has deteriorated. His voice became softer, particularly when he was stressed. After leaving Singapore, he worked for six months in Jakarta. He started taking salt tablets and subsequently had only minor leg cramps at night.
The applicant returned to Melbourne in about 2016. He started work as CEO of a new Indian-Australian owned college, where he worked from about September 2017 until about June 2018. To have the college registered with TESQA, documentation of its curriculum and systems had to be presented to TESQA. It was perceived that the applicant could not present effectively, so he could no longer work for the college. He had not been able to work since.
In 2017, the applicant attended speech therapy. He also had three MRI scans and one PET scan of the brain, which showed no abnormality. It was originally thought that he had Parkinson’s disease, but he was diagnosed with multi-system atrophy (MSA). A typical symptom is a marked difference in blood pressure when sitting and standing, but he has no difference at all.
The applicant had a minor seizure in about May 2019, sustaining another laceration of the tongue. He continued to struggle to be heard and understood in social settings. He has listed his injuries and disabilities, to which it is unnecessary that I refer in these reasons, given the withdrawal of the claim for weekly benefits and medical expenses.
The applicant lodged a claim, which was declined on the basis that he was not employed by UON. He provided a statement to an investigator, to which I have referred above.
The applicant’s final statement is dated 14 January 2022.
Part of the statement addresses the issues of “notice” and “claim”, on which the respondent no longer relies.
The applicant entered into his employment contract in Australia. He was paid monthly into a Singaporean bank account and paid taxes in Singapore. He was paid in Australian dollars from Australia, which were then converted and paid in Singapore dollars.
At all times, the applicant considered he was an employee of UON. His human resources representative was Dr Gould, an executive at UON. He had to lodge leave forms with her to take annual leave. He did not lodge any applications through any system in Singapore.
The applicant’s first symptoms, some time in 2010, were cramping in his legs. He does not believe the doctors gave him any explanation of the cause of the seizure in June 2010, nor advise that there was any connection between the seizures and the earlier sensation of cramping.
While the applicant was working in Singapore, an insurance company, which he believes was Chubb, covered his medical expenses. He believed it was like a travel insurance policy, or similar, that covered him as an employee of UON working away. He hadn’t made the connection that his condition was related to work and had incurred expenses which were to be paid.
All accounts for medical expenses were provided to his personal assistant. As far as he understood, she checked and sent them to Dr Gould to approve and send to the insurance company.
As at 2013, when he left his employment, the applicant still did not know what was wrong with him. He had no set diagnosis and no way of connecting his employment with the onset of the seizures and symptoms.
In about 2014, the applicant started taking salt tablets. At the airport, he “got talking to a gentleman that worked in the mining industry”. He told the applicant to try salt tablets, which can help with cramps when working in the tropics.
It was not until about 2014 that the applicant got the diagnosis of hyponatremia for the first time. He was later provided with different diagnoses from his treating doctors. He felt no one could say precisely what was wrong. He was told he had a condition that presented like Parkinson’s disease but was more likely not that condition. He was also told he may have MSA. He had a lot of tests, and none pointed to any specific diagnosis. He does not have a family history of Parkinson’s disease or MSA.
While the applicant was educating himself on the diagnosis, he discovered the connection between tropical humid environments and hyponatremia. He had suspected for some time that his work conditions in Singapore caused his seizures, after which he knew he was not the same. It took some time to understand whether his doctors supported that conclusion.

In approximately 2016, Prof Macdonell told the applicant he could have stopped breathing during the seizures, which would have caused a hypoxic brain injury and the neurological damage that was hard to explain by his other doctors. He said the evidence of the seizures meant they were serious.
The applicant continued to have a lot of tests, including further scans in 2018, which still did not provide a clear diagnosis. As he was learning more about his condition, he became convinced it was all caused by his work for UON in Singapore. He initiated his own research into lodging a claim and did that in 2018.

Attachments to evidence of the applicant

Position advertisement

The position advertisement, placed by a recruitment company, contained UON’s logo and the website The position was described as CEO and PVC, Singapore. UON, “through its wholly owned subsidiary UON Singapore Pte Ltd and in collaboration with its partner PSB Academy”, had “a significant presence in Singapore”. I will continue to refer to the company as UONS, except when it is referred to in a direct quote.
The CEO, as the academic leader with UONS, would have the additional title of PVC, Singapore. Information about the University could be obtained from its website. A Newcastle telephone number and the email address [email protected] were provided.

Offer of appointment

The applicant’s offer of appointment, dated 17 June 2008, also contained UON’s logo. The position offered “[O]n behalf of the UON Singapore Pte Ltd (UONS)” was that of CEO and PVC, UONS. The appointment was for a fixed term of five years, subject to six months’ probation. The applicant would report to the Chair, UONS Board, Prof Nicholas Saunders.
The applicant’s total remuneration package would be the equivalent of $280,000 AUD per annum, packaged in any way suitable to him. The remuneration was payable in $SGD (Singapore Dollars) at the conversion rate effective on the date of commencement. The appointment was subject to the applicant passing a pre-employment medical examination and obtaining the appropriate visa to enter and work in Singapore.
The applicant was to negotiate a performance agreement within three months of commencement, with performance indicators to be set in negotiation with Prof Saunders. He would commence employment with an induction of up to two weeks at UON.
The letter was said to be signed by Dr Sue Gould, Acting Chair, UONS Board, and the applicant was asked to contact her or Mr Ian Pike, Director, Human Resource Services, on behalf of UONS, should he wish to discuss the offer. Both Dr Gould and Mr Pike’s telephone numbers were Newcastle numbers.
The applicant signed the letter, accepting the position of “CEO Singapore Pte Ltd, and PVC Singapore, for the University”.

Position description

The position description once again contained UON’s logo. The role is described as PVC Singapore and CEO, UONS and the immediate supervisor as Chairman of the Board, UONS.
The role statement included that “The Singapore operations are managed through a controlled entity – UON Singapore Pte Ltd (UONS)”. The CEO was the leading academic within UONS, and as such had the additional title of PVC, Singapore.
The role description included to “[I]mplement strategic planning and initiatives…that promote the standing and reputation of the University of Newcastle and its Singapore subsidiary, its courses and its graduates”.
The position required that its incumbent develop and maintain excellent working relationships with the UONS Board, UON executive, UON senior management and staff and PSB Academy to facilitate efficient and effective operations of UONS.

Media release

The media release was dated 2 July 2008 and included UON’s logo. It was headed “University welcomes new Singapore CEO”.
The release referred to the University’s “Singapore operation – UON Singapore Pte Ltd”.
Prof Saunders was quoted as saying the role of PVC and CEO “is vital in providing leadership and strategic direction as we grow our successful Singapore operations”.
The applicant was quoted as saying he was “looking forward to working with PSB Academy to further build the presence of the University… in the region and grow the campus”.

Letter regarding performance payment and remuneration

By letter dated 5 October 2012, signed by Mr John Carter, PVC, Engineering and Built Environment and Chair, UONS, Mr Carter advised “Tricor Singapore” that the Board of Directors had approved a performance payment, a special payment, and increased remuneration for the period from 11 August 2012 to 10 August 2013.

Retirement conditions

These conditions were communicated in a letter to the applicant dated 8 April 2013, addressed to him at an email address at UON. The letter contained UON’s logo. It was signed by Mr Carter.
The letter confirmed that the Board of UONS had reluctantly accepted the applicant’s resignation, effective from 20 April 2013 inclusive.
The applicant was to be paid his full salary until 10 August 2013 (which would have been the last day of his contract) and could be made in Australian or Singapore dollars at his option. His health insurance as an employee of UONS would be maintained until 10 August 2013.
The applicant would not be responsible for payment of lease fees on his apartment, which was leased in the name of UONS, but on which he paid all lease fees, beyond 19 April 2013, but must vacate it by 26 April 2013. He was to be paid an ex-gratia sum of $10,000 SGD by UONS.
The applicant agreed to maintain confidentiality indefinitely in relation to all strategic and operation matters of UONS and UON. He was to make no prejudicial or adverse comments about UONS and UON. The agreement applied unless, as a previous Director of UONS, he was compelled by legislation or government authorities to make comments. He was not to attempt to recruit staff of UONS for two years from 19 April 2013.
Mr Carter thanked the applicant on behalf of the Board of UONS for his contribution to its success and the broader activities of the University in Singapore and south-east Asia.

Amendment agreement legal validation

This document has apparently been included to demonstrate that the applicant had authority to review and suggest amendments to an agreement between UON and PSB Academy Pte Ltd.

Business profile of UON, Singapore Pte Ltd

The company name is “UON, Singapore Pte Ltd”. It was incorporated on 8 March 2006, and was a private company limited by shares. Its activity was described as Educational Support Services N.E.C. (eg Tuition Matching Services); and the description was Education Support Services.
The company appears to have had only two shares, with paid up capital of $100,000 SGD. It had both Singapore citizens and Australians as directors, and its secretary was Malaysian. The CEO was an Australian, who lived in Lambton. UON appears to have been the only shareholder.

Chubb personal injury claim form

The applicant made a claim on Chubb Insurance Australia Limited (Chubb) for temporary disablement as a result of his condition. He named his employer as UON.

Payslips and tax returns

There are no group certificates that are relevant to the issues that remain in dispute. I will refer only to the relevant tax returns. Not all the returns are in evidence.
The Application attaches only one of Mr Cochrane’s pay slips. It is dated 6 May 2013 and refers to the period “Mar 2013”. It is headed “UON, Singapore Pte Ltd”. The applicant’s department is noted as “Academic” and his occupation “CEO”. The category is described as “SGD”.
The applicant’s pay included a housing allowance. A deduction was made for “Payment by TT”. There was an expense claim for $31.59, which was paid.
The applicant’s tax return for the year ended 2008 stated that he was an Australian resident. The tax withheld was $10,928. His total income was $55,030. His taxable income was $52,349, which appeared in an assessment issued on 14 August 2008.
The applicant’s tax return for the year ended 2010 (assessment number 1) stated that he was an Australian resident. His total income was $122,349.
For the year ended 30 June 2010, the Australian Taxation Office (ATO) issued the applicant with a Notice of Assessment on 23 June 2014. His taxable income was $122,349, with tax of $33,942.62.
The applicant’s tax return for 2010 (assessment number 2) stated that he was an Australian resident, and his address was given as Singapore. His tax was $0, “Adjusted as a result of audit or investigation”. His assessable foreign source income and other net foreign source income were also “Adjusted as a result of audit or investigation”.
The ATO issued a Notice of Amended Assessment on 21 October 2014, having “reviewed some of the information” the applicant had provided. It had reassessed his taxable income as $0, so he was entitled to a refund.
The applicant’s tax return for 2012 (Assessment number 1) stated that he was an Australian resident, with an address in Singapore. His total income or loss was recorded as $54,000, as was his assessable foreign source income and other net foreign source income.
For the year ended 30 June 2012, the ATO issued the applicant with a Notice of Assessment dated 19 June 2014. It assessed his taxable income as $54,000, with tax payable of $9,750.
The applicant’s tax return for 2012 (Assessment number 2) recorded his taxable income, or loss as $0 and “adjusted as a result of information supplied”. His assessable foreign source income was recorded as “adjusted as a result of information supplied”; and his other net foreign source income was recorded as $0 and “Adjusted as a result of information supplied”. The balance of the assessment is $0.
Once again, the ATO issued the applicant with a Notice of Amended Assessment, dated
21 October 2014. His amended taxable income was $0, and he was entitled to a refund.

Medical evidence

Dr Kevin Tan – consultant endocrinologist and physician

Dr Tan’s clinical records are handwritten, and the reproduction is so poor that they are virtually illegible.
There is a record on 6 March 2010 of the applicant being a “walk in”. The note appears to read “hyperthyroid 4-5 years”.
On 11 March 2010, Dr Adrian Tan, consultant neurologist and physician referred the applicant to Dr Tan, noting that he had had a nocturnal seizure and was admitted to hospital. His Na (sodium) was very low “? Value”. There is reference to MRI of the brain and EEG, with a tick beside the latter.
Dr Adrian Tan opined that the seizure was very likely due to hyponatremia. He had checked and the applicant’s sodium was 130, and what may be serum osmolality 267 and urine [illegible]. Dr Tan has noted “(? SIADH)” (Syndrome of Inappropriate Antidiuretic Hormone Secretion).
On 11 May 2010, there is reference to physio for right leg cramps, with an arrow to the spine, and what appears to be “TV 11-12 #”, which may be fracture of the 11^th and 12^th thoracic vertebrae.
On 23 July 2010 there is reference to salt tablets.
The medical reports are easier to read, and counsel for the applicant took me to them in submissions.
On 23 March 2020, Dr Tan reported to Dr Adrian Tan.
Dr Tan recorded that the applicant had had a nocturnal seizure and was admitted to hospital. The only possible cause was hyponatremia (abnormally low concentration of sodium in blood), although Dr Tan did not know how low it was. When Dr Adrian Tan saw the applicant and checked, he had hyponatremia and hypochloremia. Paired serum and urine osmolarities seemed to suggest SIADH.
Dr Tan discussed the applicant from the approach of hyponatremia. The other causes did not seem to be present, except that he had a habit of drinking a fair amount of water at night.
Dr Tan had only seen the extreme of this causing hyponatremia in psychogenic polydipsia, which was not the case with the applicant.
Dr Tan had also discussed SIADH and explained there were only two investigations left – to exclude either hypo-cortisolemia or a lung pathology causing SIADH. The applicant reported exposure of quite a number of years to plastering sand dust.
The applicant’s baseline cortisol was 489, rising to 967 on short synacthen (a test to see how well cortisol is produced). A CT scan of the lungs showed some scarring and calcified granulomas, but nothing else.
Dr Tan advised the applicant not to over-drink at night and to check his renal screen and sodium level in a month’s time.
On 11 May 2010, Dr Tan referred the applicant to Prof [illegible].
Dr Tan recorded that the applicant’s problems all started after a nocturnal seizure in early March 2010. Since then, he had been having back pain over the thoracic area at 11-12. He had not been helped by physiotherapy. He also had a problem of hyponatremia, and initial investigations did not reveal a cause.
The applicant had had a CT scan of his thorax. Dr Tan had mentioned he might need an MRI. Dr Tan asked the Prof to see whether there was any pathology there.
On 6 November 2011, Dr Tan addressed “to whom it may concern”, noting that the applicant had been suffering from a chronic low sodium problem that resulted in periods of fainting (?) and unwellness.
The applicant had had an episode of near loss of consciousness just before (this is difficult to read but appears to refer to a flight on 25 December 2010). As a result, he was medically unfit to travel. Dr Tan requested that this be taken into account in considering the circumstances of the applicant’s claim. This suggests that this may have related to a claim for travel insurance.

Singapore General Hospital

On 17 April 2019, Dr Shen Yuzeng reported that the applicant had been brought to the Department of Emergency Medicine on 23 July 2012. He had a history of seizures. His wife had witnessed an episode of general tonic clonic seizures, lasting approximately five minutes, followed by a 20 minute period of drowsiness.
The applicant had mild hyponatremia (sodium level of 128mmol/L). He remained asymptomatic until he discharged himself later that day. He was diagnosed with seizures, discharged with a memo for early outpatient review and given three days medical leave from 23 July 2012 to 25 July 2012.

Bulleen Clinic

The clinical records commence on 12 September 2000.
The applicant submitted that the records do not show any similar problems before he left for Singapore.
On 14 June 2011, Dr Robert Murdoch recorded “Bizarre story of falling from bed? seizure ? assault and fractured thoracic vertebrae x 3. Now has near syncopal episodes in SGP [Singapore] but has never fainted and has not been observed to be pallid”. Neurosurgical opinion was NAD. CT and MRI scans were “all OK”, but sodium was low and the applicant was AC [air conditioning?] intolerant in SGP. He had “no chest pains etc”.
Dr Murdoch recorded “? all stress related or neurocardiogenic syncope”. The applicant was sent for Holter and bloods, and Dr Murdoch discussed with Dr Hamer tilt table testing.
On 17 June 2011, Dr Murdoch recorded that the tilt table test was positive; and the applicant was delighted. He had advice from Dr Hamer about salt and fluid etc in the tropics and was on fludrocortisone daily. The Holter was NAD.
Dr Murdoch noted “lowish B12” and “watch Na+”.
On 23 September 2018, Dr Murdoch completed an Attending Doctor’s Statement in support of the applicant’s claim for total and permanent disability against TAL.
Dr Murdoch recorded a diagnosis of MSA, with possible hypoxic brain damage following hyponatremia and seizures from 2010 to 2013. He noted that the diagnosis was made by
Dr Andrew Hughes, consultant neurosurgeon, in 2016.
In Dr Murdoch’s opinion, the applicant was first aware of his condition between 2010 and 2013, with symptoms first occurring in June 2010.

Professor Jeffrey Zajac – endocrinology and general medicine

Professor Zajac reported to Dr Jarnie French on 13 July 2014.
Professor Zajac recorded the applicant’s problem as hyponatremia. He noted that the short synacthen test at Austin Hospital excluded Addison’s disease and thyroid function tests were normal. The applicant still felt unwell, and Prof Zajac had organised to measure his sodium again.
The applicant was going to Darwin for some weeks and Prof Zajac would measure the sodium when he got back, and organise further investigations. The next set of tests would look for occult neoplasms to explain the hyponatremia and Prof Zajac would do a series of CT scans.
The applicant remained at risk while sodium was low. Prof Zajac encouraged him to drink less fluids. Prof Zajac would continue investigating, including CT of the chest, abdomen and pelvis, and MRI of the pituitary and brain.
On 27 July 2014, Prof Zajac reported to Dr French that he was “delighted to note” that the applicant’s sodium had come up to 135, which was the highest it had been for some time.
On 14 August 2014, Prof Zajac reported to Dr French that the applicant’s CT scans and MRI of the pituitary were normal. The MRI showed only minor changes in the brain.
The applicant was concerned about facial weakness he had had for some time. He had quite a blank expression, which he had not noticed. He had an appointment with neurologist Prof Richard Macdonell, who would review his sodium regularly.

Professor Richard Macdonell – neurologist

Prof Macdonell reported on 14 June 2016 to Dr J Shill at Harp Family Medical.
Prof Macdonell noted that it had been about two years since he saw the applicant, but there are no earlier reports from him. There had not really been much change in the symptoms. The applicant’s main issue was with his speech. He had had no tremor or any particular slowing of walking speed or rolling over in bed.
The applicant looked very similar to where he was two years ago. He attributed his symptoms to “a flurry of seizures” he had in Singapore. He did not think he had really deteriorated greatly since then.
Prof Macdonell “guess[ed] there was a possibility without knowing all the details” that the applicant may have suffered brain hypoxia related to his seizures, which might have produced a brain injury leading to extrapyramidal signs. This became more likely as he had clearly not progressed as would be expected if he had Parkinson’s disease or MSA over two years.
Prof Macdonell prescribed medication and would repeat the MRI, “given the unusual scenario here”.

Austin Health – neuroscience laboratories

Dr Jillian Cameron, neurology registrar, reported to Prof Macdonell on 30 November 2016.
The applicant felt he was well until about 2011. Around that time, he described a six month history of significant leg cramping. He was admitted to [hospital in] Singapore with a number of seizures in the context of hyponatremia. Since then, he had noted a gradual change in his mobility and had a number of falls. He also noted a significantly softer voice and reduced manual dexterity.
Dr Cameron reported that Dr Hughes had had a long discussion with the applicant, who clearly had evidence of parkinsonism. At that stage, he had an unclassifiable akinetic, rigid syndrome on the background of significant autonomic symptoms. He obviously had a number of atypical features that were not in keeping with idiopathic Parkinson’s disease, although he did not have clear diagnostic features of any of the atypical parkinsonian syndromes.
MSA was a possibility, given the autonomic involvement, as was PSP (progressive supranuclear palsy), given the early falls. On examination, the applicant had atypical features, including significant axial rigidity and symmetry of signs.
Dr Hughes reported on 4 December 2017 that the applicant had a four or five year history of gradually emerging parkinsonism, with significant autonomic impairment that had been only partially responsive to levodopa.
The applicant continued to fall backwards perhaps every six weeks, and over the last two to three months had felt hot, lightheaded and could lose consciousness for 20 or 30 seconds, although the events usually lasted only for 10 to 20 seconds, without loss of consciousness. After the events he felt worn out but had no focal neurological symptoms or headache.

Dr Hughes thought it highly likely that the applicant had an alternative cause, other than Parkinson’s disease, for his parkinsonism and he was suspicious that he might have MSA, although he would struggle to satisfy the clinical diagnostic criteria for probable MSA.
Dr Hughes had arranged to review the applicant in four months, following his MRI.
On 5 March 2018, Dr Hughes reported that he had offered to meet the applicant’s wife or any of his family to explain what he thought was going on. He had told the applicant he was reasonably convinced he had MSA, which in his situation was dominated by a parkinsonian and autonomic syndrome.

Harp Family Medical

On 10 January 2019, Dr French referred the applicant to Dr Katrina Reardon.
Dr French recorded that the applicant presented with a five to six year history of atypical parkinsonian symptoms. The onset occurred after a severe episode of hyponatremia while he was working in Singapore. He stated his sodium was 115.
The applicant had attended Dr French first in 2014. He was referred to both Prof Zajac and
Prof Macdonell. “Essentially”, his Austin neurology team believed he suffered from MSA with atypical parkinsonian features.
The applicant would like a further opinion, specifically addressing whether the seizures and hyponatremia in Singapore in 2013 [sic] had contributed to/caused his current presentation.
On 4 June 2019, Dr Susanne Hoggarth reported that the applicant had been a patient since 2014.
The applicant had a neurological condition that dated back to about 2011, when he was working in Singapore. He had had frequent neurological review and had been diagnosed with MSA with atypical parkinsonian features and autonomic instability.

Dr Paul Teychenné – consultant neurologist

The applicant has qualified Dr Teychenné, who reported first on 20 March 2019. He has referred to and quoted from numerous reports that are not before me. I have noted where that is the case.
Dr Teychenné noted a report from Dr Murdoch that indicated the applicant was convinced that hyponatremia in 2010 to 2013 caused a number of seizures. The first lasted about one hour and he thought he had hypoxic brain damage. Dr Teychenné also noted the applicant was originally thought to have MSA.
The applicant provided a history of having lived in Singapore between 2008 and 2013. He was always sweating and thought he was sweating out sodium. He has his first seizure in June 2010. He had about five seizures in Singapore, each of which was associated with low sodium levels. He had not had any seizures since leaving Singapore in April 2013.
The applicant did not have memory disturbance or difficulty solving problems after the seizure. He noted some imbalance two years after. Dr Teychenné noted it was stated he had hyponatremia secondary to SIADH. He had a decreased sodium level. He had been in normal health before the seizure, except for cramping in the left and right calves for about three weeks before. It was questioned whether this was secondary to hyponatremia.
Dr Teychenné has recorded his findings on examination, but the report before me contains no conclusion.
Dr Teychenné next reported on 28 April 2019. He recorded a history that the applicant was mainly assigned to Singapore, where very hot and humid conditions “apparently led to the onset of seizures and an injury” on 1 June 2010. “Apparently”, a blood test at Singapore Hospital showed his sodium level after his first seizure was 115.
Dr Teychenné recorded that the applicant was PVC for UON. His place of work was mainly in Singapore, with a requirement to regularly return to Newcastle and travel to the south-east Asian region.
In 2010 the applicant was exercising regularly and started to get leg cramps at night. In June 2010 he had an extremely severe seizure while he was asleep. Over the next two years he had four more seizures, the last being in Singapore in February 2013. He was “fairly thoroughly investigated”, and all investigations were normal, except for his sodium level, which was lower than average.
The applicant stated that Singapore was very hot and incredibly humid. He took a bus to and from work and exercised when he could. He drank a lot of water, was flushing salt out of his body and his blood pressure dropped so low it resulted in the onset of seizures. After leaving Singapore he worked for six months in Jakarta, where he started taking salt tablets and only had minor leg cramps at night.
Dr Teychenné noted that it was originally thought that the applicant had Parkinson’s disease but it was subsequently considered he had MSA. The applicant wondered whether his current state may have been caused by hypoxia causing brain injury, resulting in his symptoms. He questioned whether the seizures between June 2010 and February 2013 resulted in hypoxia. There was no family history of Parkinson’s disease or MSA.
Dr Teychenné referred to a report of Prof Macdonell dated 12 August 2014, which is not before me.
This report apparently included the history of the development of leg cramps in 2010 and the nocturnal seizure. The applicant was found to have low sodium and had seizures in 2011 and 2013. He had had persistently low sodium, which had proved resistant to treatment. He was prescribed Keppra for seizures but did not take it as it made him feel too sedated.
Prof Macdonell considered he was suffering from MSA. He recognised that hyponatremia is a recognised complication of MSA.
Dr Teychenné considered Prof Macdonell’s assessment of the applicant was quite accurate. He noted there were several publications that indicate the clinical manifestations of MSA are parkinsonism, cerebellar ataxia and autonomic dysfunction. They indicate MSA may affect the hypothalamus and related fibres, resulting in inappropriate ant-diuretic hormone secretion and thus hyponatremia.
Dr Teychenné recorded that the claim was declined on the basis that the applicant had neurally mediated hypotension (NMH), and the cause could be genetic or caused by everyday activities, including exercise, heat, standing in crowds or dehydration. The applicant noted he did not have this condition prior to his employment in Singapore.
Dr Teychenné reviewed a report by Dr Murdoch, referring the applicant to Dr Hughes. It indicated the applicant had MSA and was convinced that hyponatremia in Singapore caused seizures and subsequent hypoxic brain damage. The applicant believed this was the source of his condition and deep brain stimulation (DBS) would make a difference, despite opinions to the contrary.
Dr Teychenné referred to a letter from Dr French to Prof Proietto, dated 24 April 2014, which is also not before me. It apparently stated that the applicant had been admitted in Singapore in 2013 with seizures that were found to be secondary to hyponatremia. His most recent sodium level in Australia was 131 (Dr Teychenne noted this is quite low).
Dr French was apparently concerned that the hyponatremia was a symptom of an underlying condition such as SIADH or adrenal insufficiency. The applicant also had a positive tilt table test, suggesting neurocardiogenic syncope. Dr French’s review was quite consistent with MSA.
Dr Teychenné also noted a letter from Dr Roodenburg to Dr Hughes, which is also not before me. It apparently indicated that the applicant had MSA with parkinsonism. Mr Cochrane was keen to discuss DBS and other treatment options.
A later report (apparently from Dr Aonit, and which is also not before me) indicated that the applicant was on Kinson, which indicated he was being reviewed for his Parkinson-like syndrome. His reaction to this treatment was “quite typical of an extrapyramidal syndrome such as parkinsonism”. It was still indicated that he had MSA.
Dr Teychenné referred to a “note” from Dr Schill to Prof Macdonell dated 21 April 2016 (also not before me) that indicated the applicant had a seizure in early 2015.
Dr Teychenné referred to the applicant’s tilt table test by Dr Hamer, which I have discussed above. There is apparently a report from Dr Hamer, which is also not before me. The applicant denied having syncope, but for the past 12 months (the test was in June 2011), he had had quite frequent near syncopal episodes. Mr Cochrane related this to the time he had several fractures of his vertebrae and personal stress related to his current job in Singapore.
Dr Hamer apparently considered there was a strong possibility that the applicant suffered from neurocardiogenic pre-syncope. He was advised to continue with appropriate fluid intake and salt tablets.
Dr Murdoch’s referral note to Dr Hamer, dated 16 June 2011 (again not before me) apparently indicated that the applicant’s sodium level was 132. His B12 was slightly low.
Dr Teychenné believed the results of the tilt table test were more likely related to neurogenic orthostatic hypotension, which may produce an early but progressive decline in blood pressure.
Dr Teychenné reported that neurogenic orthostatic hypotension can be classified into disorders with either primary or secondary causes of autonomic failure. Secondary causes include most diseases that have a peripheral neuropathy that can affect the peripheral small fibres, including the autonomic nerves. Examples [sic] of primary autonomic failure are MSA, and the cause of secondary autonomic failure is Parkinson’s disease.
Dr Teychenné noted that neurocardiogenic syncope is classified as a dysautonomia, one of 15 types. Triggers for neurocardiogenic syncope include dehydration; stress; alcohol consumption; very warm environments; and tight clothing.
Another cause of dysautonomia is MSA, and another cause of neurocardiogenic syncope is Parkinson’s disease. Dysautonomia is not a specific diagnosis, but an umbrella term for malfunction of the autonomic nervous system, and this includes MSA and Parkinson’s disease.
Dr Teychenné also referred to a note from Dr French to Prof Macdonell dated
27 August 2015, which is not before me. It apparently indicated that Prof Macdonell had diagnosed the applicant with MSA with parkinsonian features. The applicant had presented some weeks before 27 August 2015 with a seizure that had occurred while he was asleep in Singapore.
Dr Teychenné referred to the applicant’s investigations in 2014, 2015 and 2016. He had one of the findings of SIADH, that is hyponatremia, in June 2014. SIADH is the result of excess water and not a deficiency of sodium. It should be diagnosed when there is hyponatremia; inappropriately elevated urine osmolality; and decreased serum osmolality in a euvolemic (having a normal amount of bodily fluids) patient.
SIADH should be diagnosed in the setting of otherwise normal cardiac, renal, adrenal, hepatic and thyroid function. There should also be an absence of diuretic therapy and other factors known to stimulate ADH (anti-diuretic hormones) secretions, such as hypotension, severe pain, nausea and stress. MSA is one syndrome that can cause SIADH.
MSA may present with some of the same symptoms as Parkinson’s disease (MSA-P) or may be characterised by cerebellar dysfunction (MSA-C). The former presents with predominantly parkinsonian like symptoms, and the latter with progressive ataxia.
Dr Teychenné has referred to reports by Austin Health and Dr Lee-Archer, both dated
1 October 2018, and neither of which is before me. Austin Health apparently indicated that the applicant had had numerous MRI scans and a PET scan, none of which pointed to a specific diagnosis. Dr Lee-Archer indicated it was difficult to pinpoint the exact time of onset of the applicant’s akinetic-rigid syndrome. The applicant attributed it to a flurry of seizures eight years ago (that is, in 2011).
Dr Lee-Archer felt there was enough to call the applicant’s condition probable MSA. The main differential diagnosis was PSP, but there were indicators against this. Dr Lee-Archer’s description of the applicant was consistent with Dr Teychenné’s assessment of him. He considered it was “quite a reasonable report” and “fairly consistent with” his assessment.
Dr Teychenné has recorded the history of a seizure in early June 2010 and the applicant having four more seizures over the next three years.
Dr Teychenné referred to Prof Macdonell’s report of 14 June 2016, and his conclusion, which “seemed a reasonable assessment”.
Dr Teychenné opined that, based on the applicant’s notes, it appeared that after each seizure, his very low sodium levels were the only clinical feature that may have caused them. He referred to an examination on 14 November 2014, when it was noted that the applicant was convinced his symptoms were purely due to his salt deficiency and hypoxia from seizures. It was explained that MSA may cause salt deficiency and as such may cause seizures. There was a comment in regard to “query” acute brain injury following hypoxic brain damage from seizures secondary to hyponatremia.
Dr Teychenné had reviewed the applicant on 20 March 2019. This was a very difficult clinical problem, but it was apparent that he had an extrapyramidal syndrome associated with autonomic dysfunction and hyponatremia, “query” secondary to SIADH. It is probable that as a result of hyponatremia, he had a series of seizures, which were severe. Cerebral hypoxia is a complication of prolonged seizure activity, and if the damage is microscopic, it may not be apparent on MRI of the brain. PET scanning did not appear to show any evidence of cerebral damage, but Dr Teychenné did not see the full report.
Dr Teychenné has referred to his examination of the applicant. His picture was consistent with an extrapyramidal syndrome manifesting predominantly as parkinsonism. Dr Teychenné suspected he had some response to Madopar, which would point towards idiopathic parkinsonism.
A factor against MSA was that some seven years after its apparent initial manifestations, the applicant had not shown any significant motor or autonomic deterioration. While he could have a slower progressing MSA with parkinsonism, Dr Teychenné suspected he probably had idiopathic parkinsonism, which is a recognised cause for dysautonomia, with autonomic manifestations.
Dr Teychenné opined that it appears the initial manifestation of hyponatremia was cramping some three weeks before the first seizure. The applicant indicated he had been sweating excessively while in Singapore between 2008 and 2013. The applicant reasonably considered he had been sweating sodium. The first evidence of autonomic dysfunction was in the tilt table test some 12 months after his first seizure.
Dr Teychenné referred to an article about a patient who presented with parkinsonism after hypoxic/ischaemic insult. He concluded that, based on his assessment of the applicant and “this report” (assumed to mean the article), there is a reasonable proposition that
Mr Cochrane’s contention is quite feasible.
While there was reasonable evidence that the applicant had dysautonomia, it was not to the major extent that might be seen in MSA. It was more likely the degree that would be seen in Parkinson’s disease.
It was considered that the applicant’s hyponatremia could be due to SIADH. The applicant’s contention that his decreased level of sodium was due to him drinking excess water and exercising, sweating excessively in a very hot environment may well be a reasonable explanation for his hyponatremia, which in all probability resulted in seizure activity, as his sodium level had dropped to 115.
MSA with parkinsonism was a possible diagnosis, but Dr Teychenné would have expected more rapid progression, and progression in the applicant’s autonomic manifestations if the underlying diagnosis was MSA.
Dr Teychenné opined that a potential hypoxic mechanism for the applicant’s parkinsonism could not be ruled out, in view of the clinical history where he appears to have deteriorated after seizure activity in June 2010. It appears that his parkinsonism features commenced after that episode of seizures. The cramping he experienced three weeks before was probably due to hyponatremia.
A review of the applicant’s clinical notes did not indicate evidence suggestive of parkinsonism, MSA or orthostatic postural hypotension. There appeared to be a significant gap in the family practitioner notes between 2008 and 2011. As best could be adjudged, it appeared the applicant was in good health and had not sought medical assessment during that period. This would suggest his neurologic problems developed after the period of seizure activity that occurred in June 2010 associated with hyponatremia.
Dr Teychenné noted that the applicant’s sodium level was 133 in April 2007. This was below the lower level of normal of 136. While he did not apparently have any evidence of MSA or extrapyramidal disease at that time, it appears he was susceptible to lower than normal sodium. This would probably put him at risk of an acute lowering of sodium level with exercise and excess water intake in a hot environment such as Singapore.
Dr Teychenné considered it was feasible that the applicant’s employment was a substantial contributing factor to his impairment as it appeared he was not impaired until some three weeks prior to the series of seizures.
Dr Teychenné has referred to publications that he opined add evidence to the applicant’s contention that he suffered ischaemic hypoxic brain injury as a result of a series of seizures in June 2010, and as such developed evidence of parkinsonism subsequent to the seizure activity, which would be consistent with his review of the clinical notes supplied.
Dr Teychenné assessed the applicant with 46% WPI as a result of injury to the central and peripheral nervous system
On 30 June 2019, Dr Teychenné provided a further report, in which he increased his assessment of the applicant’s WPI to 7% for bladder impairment. He suggested further assessment after the applicant’s handwriting, speech and gait had been tested and recorded.
On 14 October 2019, Dr Teychenné reported that the applicant’s WPI was 71%.
Dr Teychenné provided a final report dated 19 April 2022. The applicant’s solicitors’ letter of instruction dated 13 April 2022 has been provided.
Dr Teychenné repeated that the applicant was a very difficult clinical problem. He repeated the history he had previously recorded and his previous conclusions. He reiterated his conclusion that the applicant’s contention he had subsequently developed parkinsonism as a result of prolonged hypoxia secondary to a prolonged seizure was a reasonable proposition.
Dr Teychenné opined that it was apparent that the applicant’s parkinsonian features came on after the episodes of seizures, and the cramping he experienced three weeks prior was probably due to hyponatremia. The seizures were probably secondary to hyponatremia.
Dr Teychenné thus considered the applicant fulfilled the criteria of s 9A of the 1987 Act that his employment was a substantial contributing factor to the injury.
Dr Teychenné considered the applicant was covered by s 4 of the 1987 Act in that he had a disease that was contracted in the course of employment; and he considered employment was a main contributing factor to contracting the disease. That is, his employment in Singapore resulting in excess fluid intake to combat the sweating resulted in hyponatremia. The hyponatremia resulted in a prolonged initial seizure, and Dr Teychenné considered it probable that Mr Cochrane had hypoxic damage as a result of that seizure.
Hypoxic damage within the cerebrum has been reported to result in parkinsonism.
Dr Teychenné opined that it was apparent on his assessment of the applicant that he did have Parkinson’s disease.

Mr Kenneth Brearley – general surgeon

Mr Brearley was qualified by the applicant and reported on 9 August 2019.
Mr Brearley recorded a history that the applicant was mainly based in Singapore. The conditions were hot and humid. As a result, he drank a lot of water, which apparently led to sodium loss and the onset of night seizures. He first had a seizure in early June 2010, which was so severe he suffered fracture of several thoracic vertebrae and a severe laceration of the tongue. He had never had seizures before June 2010.

Mr Brearley noted that the applicant had been diagnosed by Dr Teychenné with Parkinson’s disease with dysautonomia. He indicated that the applicant’s neurologic problems developed subsequent to the period of seizure activity that occurred in June 2010 and was associated with hyponatremia.
The applicant felt he had suffered an ischaemic hypoxic brain injury as a result of the seizures, and as such developed evidence of parkinsonism subsequent to the seizure activity. Dr Teychenné considered this was consistent with his review of the clinical notes. He considered it was feasible that the applicant’s employment was a substantial contributing factor to his impairment, for he had not been impaired before the seizures.
The applicant’s thoracic fractures had been treated conservatively. He had orthopaedic review in August 2010 by Dr Li Yung Hua in Singapore and was advised to do exercises, and prescribed vitamin D.
Mr Brearley recorded that the applicant’s last seizure was about three months ago. He suffered another laceration of the tongue and aggravation of his back pain. The back pain had settled again, but he had some difficulty if he had to bend or stoop. He had no leg pain.
Mr Brearley opined that the applicant had seizures associated with hyponatremia and resultant ischaemic hypoxic brain injury and extrapyramidal syndrome of parkinsonism and associated dysautonomia; and compression fractures of the T5 and T7 vertebral bodies. His employment was a substantial contributing factor to the workplace injury. Accordingly, the thoracic fractures sustained during the very severe seizure would be considered work related.
Mr Brearley assessed WPI of 15% as a result of injury to the thoracic spine. He combined this with Dr Teychenné’s (then) assessment of 46% for a total WPI of 54%.

SUBMISSIONS

The parties have provided some submissions in writing, some have been recorded, and a transcript is available. I will therefore refer to the submissions only briefly.

Applicant

The applicant submitted there is no challenge to his evidence about his employment, and I would accept that UON organised his residency status in Singapore. He was required to undertake a lot of travel and needed to regularly return to Newcastle.
The applicant submitted that he negotiated contracts on behalf of UON and representing it was the basis of his role.
The applicant referred to the annexures to his second statement, including documents with UON’s logo and website; and the offer of employment on the letterhead of UON. He conceded that the offer is a bit equivocal because it refers to both UON and the Singapore entity. He referred to his performance indicators being set by the Chair, UONS Board, submitting that this sounds like the Singapore campus has a board, but it is actually UON.
The applicant submitted that when the letter of offer is considered as a whole, it is apparent that it is UON, and also refers to the Singapore Board as being part of UON. The acceptance of the offer is with respect to CEO Singapore Private Limited and PVC, Singapore, for UON. He referred to the website and email address. He submitted that, if there was a separate entity from UON, the letter of offer should have come from it.
The applicant submitted that, at end of the day, the only conclusion available is that it was UON that was employing him to work in Singapore, in effect at its direction and in the role that was offered to him.
The applicant submitted that what we have is him representing, in his role as PVC, certain activities; and on the other hand, representing University Singapore Private Limited as the CEO of that company. The academic programs and professional activities must meet UON’s standards, not anything to do with Singapore quality assurance standards.
The applicant submitted that quite clearly there were two roles, and it was UON’s activities, culture and everything else that the PVC’s role had to support. There is the other role, which was CEO of the UON Singapore Private Limited, which was wholly controlled by UON in any event.
The applicant referred to the media release announcing his appointment, and submitted it was clearly generated from UON, not in Singapore. The letter terminating his contract referred to both UONS and/or UON and the University of Newcastle Singapore Private Limited. He submitted it clearly referred to UON and its activities in Singapore and south-east generally.
The applicant referred to his first statement. He reported to no one in Singapore, as he was the CEO of the local operation, which he submitted was the local operation of UON, and controlled all research carried out in Singapore. His performance as PVC in Singapore was reviewed by the new Chair of the Board of UON, which he submitted was very clear that his performance was controlled by UON.
The applicant submitted that he had referred to his employer as UON in his claim to Chubb, and if he was paid in accordance with the policy, it would confirm it was the superannuation insurer of the employer.
The applicant conceded there are no PAYG statements or anything else that specifically says by whom he was employed. The tax returns show that he disclosed the income he received in Singapore, and it looks as if they were amended in accordance with what the tax office told him, because he didn’t receive any income in Australia at that time.
The applicant then referred to his evidence about experiencing cramps and the first seizure, which he submitted should be read as occurring in March 2010, not June 2010.
The applicant referred to the medical evidence, which I have discussed above. He submitted that his general practitioner’s records don’t show any similar problems prior to the seizures in 2010. He submitted that Prof Macdonell was in effect saying he didn’t have Parkinson’s disease or MSA but had some problems and it was quite possible he had some brain damage at the time of his seizures.
The applicant submitted that what Dr Hughes and Dr Cameron were diagnosing was in fact Parkinson’s disease, but he didn’t have all the usual signs. Dr Teychenné and Mr Brearley deal with that.
At this stage, time constraints required that the applicant complete his submissions in writing.
The applicant subsequently provided written submissions. He relies upon in particular the opinion of Dr Teychenné.
The applicant submitted that in Dr Teychenné’s report dated 20 March 2019, the date of his first seizure should be read as March 2010. Dr Adrian Tan opined that the seizure was very likely due to hyponatremia. Dr Teychenné noted he had five seizures between 2010 and 2013, with decreased sodium level noted after each. He had not had any seizures since he left Singapore.
The applicant submitted that Dr Teychenné had reviewed Prof Macdonell’s report dated
12 August 2014, when Prof Macdonell diagnosed MSA, of which hyponatremia is a recognised complication. Dr Teychenné considered Prof Macdonell’s assessment to be quite accurate.
The applicant submitted that Dr Teychenné had carefully reviewed a number of reports. Dr Teychenné considered that his contention that he developed parkinsonism as a result of prolonged hypoxia secondary to a prolonged seizure was a reasonable proposition.
The applicant submitted that Dr Teychenné opined that a potential hypoxic mechanism for parkinsonism could not be ruled out, in view of the history where he appeared to have neurologically deteriorated after seizure activity in June 2010. He therefore considered that s 9A of the 1987 Act was satisfied.
The applicant submitted that I would have no difficulty accepting Dr Teychenné’s opinion, particularly in circumstances where it has not been challenged by the respondent. There is no competing medical opinion in evidence.
The applicant submitted I would be satisfied that he suffered an injury in the course of or arising out of his employment with the respondent, as a result of having spent considerable time in Singapore; and his employment was a substantial contributing factor, in particular that it was the very hot and humid conditions that led to hyponatremia, which then caused the seizures resulting in his condition.
As regards section 9AA of the 1987 Act, the applicant submitted that the respondent being in New South Wales, is sufficient connection with the State, pursuant to section 9AA(3)(c), relying on Pioneer Concrete Group Pty Ltd v Workers Compensation Nominal Insurer [2021] NSWPIC 293.The applicant also relies on section 9AA(2) and Helicopter Aerial Surveys Pty Limited v Duff [2020] NSWWCCPD 50.
The applicant finally submitted that the Commission would be satisfied he was employed by UON, although based in Singapore. He sustained injury as a result of the hot and humid conditions, and to which his employment was a substantial contributing factor.
The Commission would be satisfied of the connection with New South Wales in accordance with section 9AA(3)(c) of the 1987 Act; and that it would enter an award in his favour for WPI as assessed by Dr Teychenné, there being no evidence against his assessment.
In reply to the respondent, the applicant repeated his oral submissions that, although he was employed by UON, he spent most, if not all, his time in Singapore. He had previously submitted that the substantive employment relationship required an understanding that at all material times he was employed by UON, and the conditions of his employment were entirely controlled by UON and managed by its personnel.
The applicant submitted that UON owned and controlled its Singapore Group. The respondent has described UONS as “The University of Newcastle’s Singapore operation”. The materials relied on by the respondent in its submissions were drafted by University personnel and display the University logo.
The applicant submitted that his statement provides that any contracts he negotiated while in Singapore were on behalf of UON. The Board of UON was required to accept his retirement, and that correspondence was sent from the respondent.
The applicant submitted that all communication regarding his employment was made by employees of the respondent, all of whom had contact and email addresses in Newcastle.
The applicant submitted that the fact that he was paid in Singapore dollars and did not pay taxes in Australia does not preclude him from receiving compensation pursuant to the 1987 Act. He has stated he was paid in Australian dollars from Australia, and it was converted and paid into a Singapore account; and he at all times considered he was an employee of UON. His wages were coming from Australia, as far as he was aware.
The applicant submitted that the respondent had not adduced any medical evidence to support its submissions regarding injury, which were completely unfounded and without merit. Even if the applicant had a pre-existing condition, the law is that the respondent takes him as it finds him.
The applicant submitted that the respondent’s contention that the seizures were unrelated to his employment, as they did not always occur during the employment, is inconsistent with the medical evidence and undermines the provisions of the legislation at large. His position is that the seizures were a result of his employment, and not always during his employment, and he has led his evidence on this basis.
As regards the respondent’s submission that Dr Teychenné has recorded an incorrect history relating to subsequent seizures, the applicant submitted that it has not led any medical evidence that indicates any ongoing seizures after the employment were not due to the injury.
The applicant submitted that the only medico-legal evidence is that of Dr Teychenné. He relies on that evidence. The history recorded by Dr Teychenné is not inconsistent with the applicant urinating frequently. The need to pass urine frequently contributed to the hypernatremia condition. He submitted that there is no medical evidence to support that simply taking salt tablets cured, for all time, a hypernatremia-related condition. The applicant relied not only on Dr Teychenné’s evidence, but also on the opinions of the treating doctors.
In response to my request for submissions regarding the decisions in Jamsek and Personnel, the applicant submitted that the employer was the UON, and it was controlling the successful candidate for a CEO and PVC for its operation in Singapore.
The applicant repeated his submissions about the offer of employment. The “terms” lend weight to the submission that his employer at all times was the UON, despite the fact that he performed his work at UONS. The fact that his salary was set in Australian dollars demonstrates that he was employed by UON.
The applicant submitted that, however the letter dated 17 June 2008 is looked at, he is an employee. The question is really “whose employee is he?”. He submitted he was an employee of UON but was to perform the duties of CEO and PVC of its “branch” in Singapore.
The applicant submitted that the contracts between the parties in Jamsek were completely different. The High Court held that the parties were bound by the contract. The applicant’s “contract” was in his own name. There is not even an ABN that is used on invoices. He provided the services required by the contract.
The applicant finally submitted that, in all the circumstances, the Commission would be satisfied that he was “employed” by UON.

Respondent

The respondent has provided written submissions. In respect of the onus, it referred to Nguyen v Cosmopolitan Homes (NSW) Pty Limited [2008] NSWCA 246 at [44].
As regards section 9AA of the 1987 Act, the respondent submitted that the onus rests with the applicant: Merrick v Nationwide Transport Solutions and Workers Compensation Nominal Insurer [2010] NSWWCCPD 106 at [58].
The respondent submitted that in Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 at [61]-]77] (Martin) Deputy President Roche appeared to approve of a submission that “usually works” means “habitual or customary” or “in a regular manner”. The respondent also referred to Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27. The place where a person usually works is where they habitually or customarily work or work in a regular manner. It does not mean where the person works for a majority of the time: Workers CompensationNominal Insurer v O’Donoghue [2014] NSWWCCPD 1 at [57] (O’Donoghue).
The respondent submitted that the applicant’s employment is not connected with this State due to the following:
(a)     his statement dated 17 October 2018 contains no evidence of his employment being connected to New South Wales by frequency of travel there (s 9AA(1));
(b)     the alleged injury occurred outside New South Wales (s 9AA(2));
(c)     his statement that his place of work was mainly based in Singapore (s 9AA(3)), Martin and O’Donoghue);
(d)     his statement that UON arranged his residency status in Singapore (Martin and O’Donoghue);
(e)     the contract was with the UONS, rather than the respondent;
(f)     the offer of employment sent on behalf of UONS dated 17 June 2008;
(g)     the position description;
(h)     the media release;
(i)     the retirement conditions;
(j)     the Singapore company search reveals that UONS is a registered local company;
(k)     the letter from Mr Carter noting that the Board of Directors had approved the applicant’s pay rise;
(l)     his statement that he was paid monthly into a Singaporean bank account and paid taxes in Singapore;
(m)    a supplementary offer of employment included a housing allowance and family Singapore health cover provided by UONS;
(n)     a letter from Dr Gould, Acting Chair of UONS Board, noting the applicant’s package was revised to include the health cover;
(o)     his email dated 19 October 2018 that stated “In respect to my activity after I left the employment of UON…”;
(p)     the position description indicates the applicant was employed by UONS at the time of the alleged injury, and the documents indicate he reported to the Chairman of the Board of UONS;
(q)     the tax records from 30 June 2008 to 30 June 2018 reveal the applicant was employed by UONS and did not pay any tax to the Australian Government;
(r)     the notice of assessment for the year ending 30 June 2010, in respect of which an amended notice of assessment was issued, and
(s)     the applicant has failed to provide tax returns for the year ending 30 June 2009.
As regards whether the applicant was a worker or a deemed worker, the respondent submitted that there was no intention to create an employee and employer relationship between it and the applicant. The applicant accepted the position as PVC of UONS. The respondent relied on its submissions with respect to the application of section 9AA of the 1987 Act. It submitted that none of the categories of “deemed worker” apply to the applicant, pursuant to section [sic] 1 of the 1998 Act.
As regards injury, the respondent submitted that the applicant commenced work for UONS on 11 August 2008. He alleged the first seizure was in March 2010. He had been residing in Singapore for 19 months before the first seizure.
The respondent submitted that this does not support the allegation that the injury was due to the “hot and humid conditions in Singapore” causing “severe muscle cramps and low sodium levels”, with the applicant going on to develop hyponatremia and suffer a series of hyponatremic seizures, resulting in damage to his tongue and throat, vertebral fractures and hypoxic episodes.
The respondent submitted that the applicant had pre-existing diuretic problems which are not related to employment. They are more likely to be the cause of the alleged “severe muscle cramps and low sodium levels”, rather than employment with the respondent. The respondent submitted that leg cramps following exercise after work have no causal connection with employment.
The respondent submitted that the following evidence does not support that the seizures had no [sic] temporal relationship with employment:
(a) the applicant’s statement that in about June 2010 he had an extremely severe seizure while asleep, and
(b) the applicant’s statement that his ability to speak did not improve and he had more episodes while sleeping alone in his apartment in approximately August 2012.
The respondent submitted that the applicant ceased work with UONS in April 2013. His statement is silent on where he worked or resided from October 2013, when he ceased six months work in Jakarta, and 2016, when he returned to Melbourne.
The respondent submitted that Dr Teychenné reported on 28 April 2019 that a seizure “occurred on the first night of a business trip to Jakarta”, and this does not support the allegation that the seizures were due to the alleged employment with the respondent.
If the seizure in Jakarta was sustained during the period of alleged employment, the respondent submitted that it does not support that the injury was due to the “hot and humid conditions in Singapore”.
The respondent referred to the applicant’s evidence that he had a minor seizure in about May 2019 and Dr Brearley’s history in August 2019 that he last had a seizure about three months ago. It submitted a further seizure in the Melbourne winter does not support the allegation that the injury was due to the conditions referred to earlier in its submissions.
The respondent submitted that ongoing seizures in early 2015, early August 2015 and
May 2019 do not support the allegation referred to earlier in its submissions.
The respondent submitted that Dr Teychenné had an incorrect history of the applicant only having seizures in Singapore; his pre-existing urinary problems; and taking sodium tablets after he left Jakarta. It referred to Paric v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844. It submitted the incorrect history undermines Dr Teychenné’s entire opinion.
In addition, the respondent submitted that Dr Teychenné’s opinion does not meet the onus of proof due to the following non-definitive opinions on causation:
(a)     “Based on my assessment… there is a reasonable proposition that
Mr Cochrane’s contention is quite feasible”;
(b)     “While MSA with parkinsonism was a possible diagnosis I would have expected more rapid progression and more marked progression over a 9-year period…”;
(c)     “A potential hypoxic mechanism for his parkinsonism cannot be ruled out in view of the clinical history where he appears to have deteriorated subsequent to seizure activity in June 2010”;
(d)     “there was a reasonable proposition that Mr Cochrane’s alleged injury resulted in an extrapyramidal syndrome of parkinsonism with mild response to Levodopa therapy and associated with dysautonomia”, and
(e)     “He had evidence of hyponatremia, which was consistent with his history of exercise, drinking excess water and sweating excessively…Thus I would consider that it is feasible that his employment was a substantial contributing factor to his impairment as it appears he was not impaired...”

As regards substantial contributing factor, the respondent referred to Dr Teychenné’s report dated 19 April 2022. It submitted his conclusion that the injury or a similar injury would not have happened anyway at about the same time or at the same stage of the applicant’s life if he had not been at work or worked in that employment is not supported by the subsequent seizures when he was not in Singapore.
The respondent relied on the above submissions to dispute that the applicant suffered a disease or aggravation of a disease pursuant to sections 15 and 16 [sic] of the 1987 Act.
In response to my request for submissions regarding the decisions in Jamsek and Personnel, the respondent submitted that the terms of the relationship between the applicant and UONS were comprehensively committed to a written contract entitled “Offer of Appointment”, dated 17 June 2008 (the contract).
The respondent submitted there is no allegation by the applicant that the contract was a sham or varied subsequently by conduct. It should exclusively determine the relationship between the applicant and his employer. It submitted that the contract indicated the applicant’s employer was UONS.
The respondent submitted that there is no uncertainty with the relationship between the applicant and UONS. The Commission should give effect to the employment relationship between the applicant and UONS in accordance with the contract.
The respondent submitted that in Personnel, the High Court dismissed the conduct of the parties post-contract, and the bargaining power between them, in determining if there was an employee/employer relationship.
Even if the Commission were to apply the decisions of Gageler and Gleeson JJ in Personnel (contrary to the decision in Jamsek), the respondent submitted that the following post-contract conduct supports a finding that UONS was the applicant’s employer:
(a)     the applicant engaged in the contract with UONS to supply labour for five years in the positions of CEO and PVC, UONS;
(b)     the applicant supplied his labour to UONS from 11 August 2008 until his resignation on 20 April 2013;
(c)     the tax records from 30 June 2008 record the applicant was paid a salary of $280,000 per annum by UONS;
(d)     there is no evidence that the applicant was supplying his labour to the respondent from 2008 to 2013, and
(e)     when supplying his labour to UONS, the applicant was under the direction and control of UONS.

SUMMARY

Worker

Section 4 of the 1998 Act provides:
“‘worker’ means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing). However, it does not include--
(a) a member of the NSW Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or
(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer's trade or business, or
(c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer's ordinary working hours, so far as the employment on those duties is concerned, if the officer's remuneration from the association does not exceed $700 per year, or
(d) except as provided by Schedule 1, a registered participant of a sporting organisation (within the meaning of the Sporting Injuries Insurance Act 1978 ) while--
(i) participating in an authorised activity (within the meaning of that Act) of that organisation, or
(ii) engaged in training or preparing himself or herself with a view to so participating, or
(iii) engaged on any daily or periodic journey or other journey in connection with the registered participant so participating or the registered participant being so engaged,
if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things.”
Schedule 1, cl 2, of the 1998 Act provides:
“(1) Where a contract--
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor's own name, or under a business or firm name), or
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.
(3) A person excluded from the definition of
"worker" in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”
The evidence with respect to the issue of “worker” is unsatisfactory, and I have largely been left to draw conclusions from documentary evidence, including tax returns, in respect of which no explanation has been provided.
The applicant has given no evidence to explain the information, or lack thereof, in his tax returns, which are in any event incomplete. There is no return for the years ending 2009 or 2013. In both those years, the applicant was working in Singapore.
The applicant’s evidence is that he believed he was employed by the respondent, and it is “absurd” to suggest he was not. Unfortunately, the evidence is far from clear in this regard. The applicant of course bears the onus.
The position for which the applicant was successful was advertised as CEO and PVC, Singapore. It stated that the respondent had a significant presence in Singapore, through its wholly owned subsidiary UONS and in collaboration with its partner PSB Academy. It is clear from the business profile of UONS that UON was its only shareholder.
The CEO would be the academic leader of UONS and have the additional title of PVC, Singapore. The applicant’s evidence that he was to be PVC for UON does not appear to be correct. The position description referred to UONS as the entity of which the applicant would be CEO and PVC. His immediate supervisor would be its Chairman of the Board.
The only evidence of the contractual arrangements between the applicant and his employer is the offer of appointment. If the applicant subsequently signed a further contract of employment, it is not before me.
The offer of appointment was made “on behalf of” UONS. The applicant was to report to the Chair of the UONS Board, Prof Saunders. The letter of offer was said to be signed (although the copy in evidence is not signed) by the Acting Chair of the UONS Board, Dr Gould, one assumes on behalf of Prof Saunders.
The applicant was to agree with Prof Saunders a performance agreement and performance indicators. There is no evidence that his performance would be subject to any control or oversight by anyone other than the Chair of the UONS Board. His own evidence is that he was accountable for his performance to Prof Saunders.
I place little weight on the fact that Dr Gould and Mr Pike, the relevant HR contact, appear to have been based in Newcastle. The nature of their duties may not have required their presence in Singapore. What is clear from the offer of appointment is that, wherever they worked, Dr Gould was the Acting Chair of UONS, and Mr Pike was the Director of HR on behalf of UONS.
I also place little weight on the fact that the position advertisement and the offer of appointment contained UON’s logo. What is of importance is the content of the advertisement and the offer.
The media release about the applicant’s appointment referred to UON’s Singapore operation and included the full name of the Singapore company. It referred to the new Singapore CEO. Prof Saunders was quoted.
It was Mr Carter, chair of UONS, who, on behalf of its Board, approved an increase in the applicant’s remuneration on 5 October 2012. This is indicative of UONS being his employer.
When the applicant’s employment was terminated, although the letter to him regarding his exit included the logo of UON, it was signed by Mr Carter, the Chair of UONS. The Board of UONS had accepted the applicant’s resignation. If the applicant’s employer was not UONS, it is difficult to see how it could not only accept his resignation, but also provide for the conditions on which it would take place.
The applicant’s health insurance “as an employee” of UONS would be maintained until
10 August 2013. His apartment was leased in the name of UONS. These are both indicia that UONS was his employer.
The applicant was subject to some constraints that included both UON and UONS, but the restriction on recruiting staff applied only to UONS. Mr Carter thanked the applicant on behalf of its Board, suggesting that his services had been provided to UONS, which was expressing its gratitude for his work.
I place little weight on the fact that Mr Carter was apparently based in Newcastle, and UON’s logo appears on the letters he signed, for the same reasons noted above.
As I have noted, the only pay slip in evidence, which is dated 6 May 2013, but appears to be payment for work performed in March 2013, is headed UONS. It is evidence that the applicant was employed by that entity. There is no evidence from the applicant to explain why it paid his wages, a housing allowance and an expense claim if it was not his employer.
The fact that the applicant’s remuneration was expressed to be in Australian dollars, but would be paid in Singapore dollars at a conversion rate that was fixed at the date of commencement is in my view essentially neutral. It does not tend to establish employment by either the respondent or UONS. The terms of the applicant’s retirement included that he could be paid until 10 August 2013 in either Australian or Singapore dollars, as he chose.
I place little weight on the fact that the applicant described his employer in his claim on Chubb as UON. While he may have believed he was employed by the respondent, the evidence suggests that was not the case.
The fact that the applicant underwent induction in Newcastle and had interactions with staff in Newcastle does not, in my opinion, establish that he was employed by the respondent. He was required to develop and maintain excellent working relationships with, among others, the UON executive and senior management. That does not establish an employment relationship between him and UON.
The only evidence within a “written contract”, as referred to in Personnel, that is before me is the signed offer of appointment. Nothing in that offer is sufficient to persuade me that the applicant was employed by the respondent. The weight of the evidence is against that conclusion.
The applicant did not contend that he was a deemed worker, and there is no evidence that would enable him to satisfy those provisions.
The applicant has failed to establish that he was employed by the respondent. His claim therefore fails.
In the circumstances, it is unnecessary that I determine the other issues in dispute.
There will be an award for the respondent.
The orders are set out in the Certificate of Determination.

[2022] NSWPIC 447

9 August 2022