Fiddes v Secora APII Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fiddes v Secora APII Pty Ltd & Ors [2024] NSWPIC 564
APPLICANT:	Catherine Fiddes
FIRST RESPONDENT:	Secora APII Pty Ltd
SECOND RESPONDENT:	Nathan Fiddes
THIRD RESPONDENT:	James Fiddes
FOURTH RESPONDENT:	Alison Fiddes
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	11 October 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump the lump sum death benefit pursuant to section 25; the deceased travelled to regional New South Wales for work; discussion as to the finding of inferences, which included poor dietary intake and lack of sleep arising from his work duties together with plane travel; discussion of sections 9A and 9B; acceptance of medical opinion so far as causation was concerned, where no competing medical evidence is relied upon; Held – the applicant has satisfied the requirements of both sections 9A and 9B.
DETERMINATIONS MADE:	The Commission determines: 1. The deceased suffered employment injury on 24 May 2023 while in the course of his employment, which resulted in the death of the deceased on that date. 2. The deceased’s employment was a ‘main contributing factor’ to the injury which resulted in his death. 3. The nature of the relevant employment gave rise to a significantly greater risk of injury that had the deceased not been employed in employment of that nature. 4. The matter is listed for further preliminary telephone conference to ventilate issues including any claim in respect of apportionment, weekly benefits, interest and funeral expenses.

STATEMENT OF REASONS

BACKGROUND

Mr Michael Fiddes died on 24 May 2023. At that time, he was away in the course of his employment and unfortunately passed away alone in a hotel in Muswellbrook as a result of a severe coronary atherosclerosis and there was an almost complete occlusion of the proximal left descending artery by calcified atherosclerosis.
The family members seek the lump sum death benefit. There are two limbs upon which the claim is made.
The primary limb is in relation to the effect of plane travel, altered diet and/or impaired sleep on the deceased (which arose out of the requirement to travel in his employment). It was submitted that each of these independently and together gave rise to a significantly greater risk of suffering a heart attack injury.
The second limb is that as the deceased was away from home without any assistance, any chance of survival was taken away from him when he suffered his occlusion. If he had been at home, his wife would have been in a position to be able to assist him and hopefully save his life.
Evidence has been given by the applicant’s wife, Mrs Catherine Fiddes, who describes what she understands to be the nature of his employment whilst away from home.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Was employment a substantial contributing factor to Mr Fiddes death pursuant to s 9A of the Workers Compensation Act 1987 (1987 Act)?
(b) Did employment give rise to a significantly greater risk of suffering a heart attack injury pursuant to s 9B of the 1987 Act?
The first respondent had previously raised an issue regarding whether the deceased was a “worker”. This dispute was not maintained by the first respondent at the hearing of this matter and did not require determination.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

This matter proceeded to hearing on 15 August 2024. The matter was marked part-heard and finished on 18 August 2024. At that time, Mr Perry of counsel who appeared for the first respondent, filed written submissions which were supplemented by oral submissions. There was no objection to these submissions
The dependant parties[1] sought to amend the description of injury so that it was substituted with the following sentence:
[1] Namely the applicant, second and third respondents.
“The deceased suffered a heart attack as a result of work-related travel, altered diet and/or impaired sleep.”
It should be observed that there was no opposition to the amendment made by the first respondent. The amendment was therefore allowed.
The parties agreed that the primary liability issue should be determined before any secondary issues such as interest and apportionment.
The fourth respondent was excused to appear at the hearing of the dispute as they do not seek dependency.
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

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply to the Application to Resolve a Dispute from the first, second, third and fourth respondents;
(c)    late documents dated 5 June 2024, 25 June 2024 and 19 July 2024, and
(d)    submissions from the first respondent dated 19 August 2024.

Legislation

Section 4 of the 1987 Act provides:
“4 Definition of ‘injury’
(cf former s 6 (1))

In this Act--

‘injury’ --
(a) means personal injury arising out of or in the course of employment,
(b) includes a

‘disease injury’, which means--
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note : In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.
(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Section 9B of the 1987 Act provides:
“9B No compensation for heart attack or stroke unless nature of employment results in significantly greater risk
(1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.
(2) In this section--

‘heart attack injury’ means an injury to the heart, or any blood vessel supplying or associated with the heart, that consists of, is caused by, results in or is associated with--
(a) any heart attack, or
(b) any myocardial infarction, or
(c) any myocardial ischaemia, or
(d) any angina, whether unstable or otherwise, or
(e) any fibrillation, whether atrial or ventricular or otherwise, or
(f) any arrhythmia of the heart, or
(g) any tachycardia, whether ventricular, supra ventricular or otherwise, or
(h) any harm or damage to such a blood vessel or to any associated plaque, or
(i) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(j) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(k) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(l) any haemorrhage from such a blood vessel, or
(m) any aortic dissection, or
(n) any consequential physical harm or damage, including harm or damage to the brain, or
(o) any consequential mental harm or damage.
‘stroke injury’ means an injury to the brain, or any of the blood vessels supplying or associated with the brain, that consists of, is caused by, results in or is associated with--
(a) any stroke, or
(b) any cerebral infarction, or
(c) any cerebral ischaemia, or
(d) any rupture of such a blood vessel, including any rupture of an aneurism of such a blood vessel, or
(e) any subarachnoid haemorrhage, or
(f) any haemorrhage from such a blood vessel, or
(g) any harm or damage to such a blood vessel or to any associated plaque, or
(h) any impairment, disturbance or alteration of blood, or blood circulation, within such a blood vessel, or
(i) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(j) any consequential physical harm or damage, including neurological harm or damage, or
(k) any consequential mental harm or damage.”
The applicant’s claim is pleaded as a “disease injury”, pursuant to ss 4(b)(i) and 4(b)(ii) of the Act. If the injury is found to be a disease injury, the applicant must establish that employment was the main contributing factor to the disease or aggravation of the disease.
In either event, the applicant must also establish, in accordance with s 9B of the 1987 Act, that the “nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.”
I will now turn to the evidence filed in this matter.

Medical Evidence

Associate Professor Richard Haber

Associate Professor Richard Haber has provided a report dated 9 March 2024[2] at the request of the applicants’ solicitors. Associate Professor Haber understood the context of the death of the deceased which occurred in a hotel room in Muswellbrook. Before his death
[2] Application page 40.
Mr Fiddes had dinner and drinks with work associates and returned to his hotel room. He then did not feel well and whilst talking to his wife on the telephone he collapsed and died. He was alone in his room so no immediate resuscitation was possible.
Associate Professor Haber described the deceased having an enlarged heart and congested lungs, as well as one coronary artery having almost complete occlusion of the proximal left anterior descending (LAD) coronary artery by calcified plaque.
Associate Professor Haber opined that Mr Fiddes died as a result of a significant single obstruction of the LAD coronary artery, as well as an enlarged heart which was mostly likely due to his hypertension. On the balance of probabilities, Associate Professor Haber explained that the death was due to the fact that he was alone and could not have immediate resuscitation as he was away from home for employment. As he was by himself, he could not be resuscitated straight away, if CPR was successful due to immediate treatment for his single LAD stenosis, he could have survived. Associate Professor Haber explained that if the deceased was in a place where CPR was immediately available, that is within 2 to 3 minutes of the cardiac arrest, then Mr Fiddes had a chance of surviving the cardiac arrest as he would have had a chance of having a stent implant which could have saved his life.
In relation to travelling significant distances, Associate Professor Haber opined that travelling considerable distances daily may have slightly increased the chances of worsening an atherosclerosis but not to any significant degree.
Associate Professor Haber has provided a further report dated 30 July 2024[3]. Associate Professor Haber has provided this report on the basis of assuming that Mr Fiddes’ employment required regular flights was conducive to poor eating habits. He was asked his opinion assuming that as a traveler it is difficult to find appropriate places to eat healthy food and this of course is worse if you travel frequently to different places where you may not be able to find appropriate eating places or an appropriate diet for atherosclerosis. This therefore would aggravate, accelerate or exacerbate coronary artery disease.
[3] Late documents dated 30 July 2024 page 1.
In relation to administering CPR immediately, Associate Professor Haber does acknowledge that he agrees with Professor England that a failure rate is still high even if Mr Fiddes was at home with his wife by his side with a defibrillator, but he then says at least he would have had a chance of survival.
Associate Professor Haber has produced a further report dated 25 June 2024 and in that report he is asked to assume that Mr Fiddes’ employment required him to travel for extensive periods of time by flight, experience lack of sleep and rely upon an unhealthy nutritional diet due to the time-poor nature of his employment. Associate Professor Haber opined that the combination of frequent flights and lack of sleep as well as poor nutritional diet aggravated the tendency for coronary artery disease and as such contributed to aggravation or acceleration of the development of coronary artery atherosclerosis which in turn leads to acceleration or aggravation of development of blockages (stenosis) in arterial tree including coronary arteries.
Associate Professor Haber opined that employment was more likely than not substantially contributing to the deceased’s condition on the basis that there was an unhealthy nutrition diet combined with lack of sleep and extensive travel times which would more likely than not affect his arteries by aggravation or acceleration of the process of atherosclerosis of coronary arteries which led to stenosis of the arteries which in turn may lead to acute closure with resulting death.

Dr John England

Dr John England has been retained by the first respondent in respect of its liability to pay the lump sum benefit. His first report is dated 12 March 2024.[4]
[4] First respondent’s Reply page 105.
Dr England did not think that the nature of employment at the time of death gave rise to a significantly greater risk of a heart attack or stroke than had he not been employed. This was because the deceased used to play squash twice per week and could have died on the squash court or watching a football match on TV. He did think the death could have been delayed if the deceased had been referred to a cardiologist and had treatment such as a stress echo, a CTCA outpatient angiogram. He described Mr Fiddes as having an enlarged heart due to end organ long term damage due to hypertension over a decade.
Dr England has provided a further report dated 5 June 2024.[5] In this report Dr England had read Associate Professor Haber’s opinion and does not agree with it. He explains that out of hospital cardiac arrests have a terrible prognosis. He says there is no relationship between causation and the nature of his work.
[5] First respondent’s Reply page 109.
Interestingly, Dr England comments that he has researched this report very carefully and “ran it past a barrister, personal injury lawyer and MDA mediator and several colleagues” without any further explanation.
Dr England has provided a final report dated 18 July 2024.[6] In that report he addresses Associate Professor Haber’s report dated 11 June 2024. In that report he comments that just because someone is beside you with a defibrillator, there is still a high failure rate.
[6] Late documents dated 19 July 2024.
Dr England comments that the death was not a sudden workplace accident but in retrospect it was inevitable.
It should be observed that Dr England does not seem to engage with primary limb of the applicant’s case.

Lay Evidence

Kathryn Fiddes

Kathryn Fiddes was married to Michael Fiddes and is in a good position to be able to describe his working life with the first respondent.
By way of statement dated 2 February 2024[7] Mrs Fiddes describes her husband as working with the first respondent on a consultant basis for 10 years before his death on 24 May 2023. Mrs Fiddes describes her husband as being influential in winning contracts for the first respondent.
[7] Application page 1.
At the time of his death Mr Fiddes was working on the AGL mills contract for approximately 13 months.
Mrs Fiddes has prepared a statement dated 4 June 2024.[8] In that statement she described her husband’s typical week would be to fly to Muswellbrook on a Monday morning and then fly back on a Thursday or Friday night.
[8] Late documents dated 5 June 2024.
Mrs Fiddes has provided a supplementary statement dated 21 June 2024.[9] Mrs Fiddes third statement supplements her previous statements. This statement provides commentary upon Mr Fiddes lifestyle prior to his passing on 24 May 2023.
[9] Late documents dated 26 June 2024, page 8.
Mrs Fiddes described her husband as always travelling a lot for work and says that he would travel upwards of 8 to 10 flights a month. On occasion Mr Fiddes would comment to his wife that his blood pressure was raised after a flight. She understood that her husband had been told by his general practitioner that his blood pressure was staying elevated due to the excessive flying that he was required to undertake due to his employment.
Mrs Fiddes describes her husband’s health before working with the first respondent as well and he was a non-smoker and social drinker.
Mrs Fiddes describes the work that her husband undertook as stressful and there was a requirement to regularly travel. Mrs Fiddes describes that the travel often meant that he could not prioritise things such as exercise or eating healthily. He was away four to five times a week and was therefore required to eat out of home and often would have to rely upon fast food or food from restaurants to sustain himself.
It is Mrs Fiddes’ belief that had her husband not worked in this role he would have been able to prioritise his health and ensure that he was not placing pressure upon himself or stress that resulted in elevated blood pressure. He also would not have been required to undertake extensive travel.

SUBMISSIONS DISCUSSION AND FINDINGS

Section 25 of the 1987 Act provides for a lump sum death benefit to be paid to the dependents of a worker if “death results from an injury”. An injury in respect of which entitlements accrue pursuant to the 1987 Act must satisfy the provisions of ss 4 and 9A of that Act.

In respect of s 9A(1) the “employment concerned” requires that a feature of the worker’s job has contributed to the injury, thus distinguishing a work-related injury from an injury which would have occurred regardless of whether the worker was at work when the injury was received.
The considerations involving s 9A and s 9B are similar in that employment must be the main contributing factor to the disease and that the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.
Once again, the dependents rely on the opinion of Professor Haber who seems to be aware that air travel was part of the deceased’s employment. He also relies upon the assumption that the deceased diet was affected by his requirement to travel.
I must observe that in relation to the frequent travel, it does not appear to be in dispute. If it was a matter in dispute, the first respondent would have been able to provide evidence that Mr Fiddes was seldom required to travel for work, such evidence is not available. I therefore find as a matter of fact that Mr Fiddes was indeed required to regularly travel for work.
Mrs Fiddes also provides evidence that her husband was away some four to five times per week. Once again, the first respondent was in a position to provide contradictory evidence if it so wished. It has not done so and as such, I accept Mrs Fiddes evidence as to the frequency of her husband’s absence from home and requirement to travel.
That then leads us to the question of eating out of home and its effects. Mrs Fiddes evidence is that her husband would often have to rely on fast food or food from restaurants to sustain himself.

Mrs Fiddes evidence considered

The importance of Mrs Fiddes evidence is that she provides the basis upon which Associate Professor Haber has formed his opinion in relation to the first limb of causation.
The applicant says that she is in a perfectly placed position to be able to give evidence as to reports that she would receive from her husband. Further, Mrs Fiddes says that if her husband had not been in this role he would have been able to prioritise his health and ensure that he was not placing pressure on himself or stress that resulted in elevated blood pressure and he would not have also had to undertake extensive travel.
The applicant says that an inference that should be made that if he was not required to repeatedly travel and fend for himself in terms of obtaining meals out of home, his circumstances would have been less stressful and ‘more healthy’.
It was submitted generally that there was no countervailing version of evidence which would put the evidence that Mrs Fiddes has put forward in dispute. I should therefore have no difficulty in accepting the reliability of what she has said in accounting for her discussions with her husband.
The family members refer to the evidence provided by the applicant in respect of his travelling a lot for work. She says that he travelled up to 8 to 10 flights a month which I agree, in any circumstances, would be considered to be substantial air travel.
Mrs Fiddes provides evidence in relation to high blood pressure and relates a conversation that she understood from her husband that his general practitioner had told Mr Fiddes that his blood pressure was staying elevated due to excessive flying which he was required to do in his employment.
I was taken to the general practitioner’s notes, particularly in relation to the entry of
17 March 2017.[10] In that entry, there is a history of:
“presents for blood pressure check. Recently in Sydney, medical for work. blood pressure elevated” and then a further entry says “works as a consultant … travelling ++ … discussion re managing blood pressure and health. Booking for health check.”
[10] Application page 61.
It was submitted that this entry is consistent with conversations that are said to take place between the deceased and his wife. I agree to the extent that there was an issue in relation to blood pressure and I accept that conversations would most likely have taken place between the married couple regarding same. Those entries by themselves in the treating notes do not lead me to a conclusion that the general practitioner was indicating that increased travel was causing blood pressure by itself. I infer, and it’s not an issue in dispute, that the deceased suffered from hypertension before his death.[11]
[11] As observed by Dr England.
In relation to that evidence, I do agree that it is not of a requisite level of expert evidence on this issue. It may be that that was the assumption that Mr Fiddes held and told his wife, however, such evidence should be adduced from the general practitioner or a relevant expert in relation to what he understood the evidentiary foundation upon which he prepared his opinion.
The first respondent puts its case that the applicant should fail as the relevant evidence has not been obtained. That is, the applicant requires the following evidence:
(1)    That when engaged in employment activities, including staying at places other than his home, he was obliged by the nature of his employment to consume and did indeed consume foodstuffs of the type that would cause or aggravate or accelerate the severe coronary atherosclerosis.
(2)    That Mr Fiddes changed his dietary habits when travelling to increase significantly his consumption of unhealthy foods.
(3)    That the consumption of unhealthy foods was the main contributing factor to the development of the disease or to its aggravation.
The first respondent complains that the evidence provided by Mrs Fiddes is not specific enough. In its submissions[12] the first respondent indicates that evidence needed to be specific such as “Michael said to me I have not been eating cheeseburgers”. There is no direct evidence that Mr Fiddes would choose high fat foods from a restaurant or an outlet.
[12] Paragraph 48.
In death cases such as these, it is obvious that direct evidence cannot be obtained. What can be obtained is evidence what was observed and discussed at relevant times. I am also aware that the rules of evidence do not apply in the Personal Injury Commission.[13] The Commission may inform itself on any matter and such matters as it thinks appropriate, and as the proper consideration of the matter before it permits. Moreover, the Commission is to act according to equity, good conscience and the substantial merits of the matter without the regard to technicalities or legal form. That however does not negate the requirement that for evidence to have any value it must be probative and reliable[14].
[13] Personal Injury Commission Act section 43.
[14] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11.
Bradshaw v McEwans Pty Ltd[15] involved a claim by a plaintiff in respect of the death of her husband, who was killed in a motor accident when he was riding a bicycle home. The High Court said;
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] UKLawRpAC 47; [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”
The High Court further said;
“All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.”
[15] Bradshaw v McEwans Pty Ltd (1951) ALR1.
The High Court, in Fuller-Lyons v New South Wales[16] referred to the need for an inference of fact to involve “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts.”
[16] Fuller-Lyons v New South Wales [2015] HCA 31.
In this dispute, a decision-maker can use experience, human experience and common sense to determine what happens when people travel, that is, that they do eat out. This is also confirmed by the uncontradicted evidence of what occurred on the night that the deceased did die. He had been at a pub that night and had had dinner, Mr Fiddes consumed a ribs and rump combo, a schooner of Stone & Wood and two glasses of red wine at dinner.
In relation to the drawing of inferences, the Personal Injury Commission’s expertise can be used to interpret and draw inferences from acceptable evidence. It cannot be used to create evidence. Findings must be based on the evidence, or reasonable inferences open to be drawn from the evidence. It is quite clear that a tribunal of fact is entitled to find causation as a matter of common sense from the sequence of events, although medical evidence does not support an affirmative answer, provided it does not exclude such a finding.[17]
[17] Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 410.
I think it’s important to articulate what the applicant has established factually. It is clear from the evidence before me that the deceased travelled for work. He would fly some 8 to 10 flights per month and be away for four to five times a week.
So far as inferences are concerned, I believe that Mrs Fiddes evidence is probative and does lead me to making inferences which I will now outline. I also observe the nature of their relationship was where they would talk on the telephone when he was away “every night”.[18] In making these inferences, I am relying upon my experience and common sense.
[18] Statement dated 4 June 20024 paragraph 9.
Mrs Fiddes is in a unique position to have understood what her husband’s diet was when he travelled. Such conversations are germain to a married couple, particularly a couple who spoke every night when apart due to work. Whilst I agree that her evidence could have been more specific, she can describe when she understood her husband’s diet to be. I accept her evidence without reservation and make findings in accordance with her evidence. She described her husbands diet as relying on fast food or from restaurants whilst traveling.
I accept that when one is travelling that the human experience is to eat out at restaurants, pubs, and takeaway food outlets. It is common experiences that such meals are usually cooked with more oil, fat and salt and the like. I make the inference that when travelling to regional NSW it is likely that the food eaten is not as healthy as would have been cooked at home.
The first respondent complains that evidence would have been available to the applicant to provide evidence as to what type of meals her husband ate on the basis that her husband was reimbursed for meals he paid for whilst on business. I observe that such information may have been in the possession of the first respondent as well. I have not been provided with any of these receipts and I cannot criticise Mrs Fiddes for that while I do not criticise the first respondent either.
I also accept that due to the nature of regional travel, and the variety of accommodation, that sleep is more likely to be impaired that that would have happened at one’s home. This is also aggravated by the usual early flight times (a matter which is common experience with regional travel). I must say however that this is the weakest link of the three branches proposed in the first limb of causation as Mrs Fiddes has not addressed this issue in her evidence. I observe however that Associate Professor Haber does not appear to rely on sleep exclusively as a single causative matter in his opinion.
I therefore find that the applicant has established the factual matrix as pleaded, that is poor diet and regular travel and to a lesser extent poor sleep. I make these findings based on human experience, common sense and Mrs Fiddes evidence.

Expert opinion discussed

Now that the factual assumptions have been established it is necessary to look at the expert opinion in this case. The applicant relies on an opinion of Professor Haber to the extent that the factual matrix both individually and cumulatively of diet (being away from home, therefore reliance on takeaway food and restaurant food), travel, and/or the lack of sleep, aggravate a tendency to coronary artery disease and as such contribute to the aggravation or acceleration of the development of atherosclerosis which in turn leads to acceleration or aggravation of development of stenosis in arterial tree including coronary arteries. The applicant says this is the opinion of an eminent cardiologist providing the necessary causal relationship between the aggravation of that condition and those underlying circumstances.
The applicant is also very skeptical of the first respondent’s basis on which it disputes this claim. Firstly, Dr England really has not turned his mind to the second limb of the applicant’s case, that is, that of poor sleep, travel and/or unhealthy eating requirements and I agree with that supposition. The other concern relates to Dr England’s commentary in his report dated 5 June 2024 where he provides the following commentary:
“I have researched this report very carefully and ran it past a barrister, personal injury lawyer, MDA mediator and several colleagues”.
This leaves the reader speculating on the extent to which his opinions are the product of his own experience and knowledge or that which has been influenced by other professionals who have not been identified. It does cause me significant concern in relation to his opinion and I share that concern with the family members in this case.
I am left in the position that I receive no meaningful assistance from Dr England in relation to the primary limb of the applicant’s case.
In relation to the first respondent’s expert, the decision of Wiki v Atlantis Relocations (NSW) Pty Ltd[19] has relevance. At paragraph 61 the following was said:
“The issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis and where the experts are properly qualified and none has been found to be dishonest or misleading or unduly partisan or otherwise unreliable a decision based solely on demeanor will not provide a losing party with a satisfactory explanation for his or her lack of success.”
[19] [2004] NSWCA 174.
In relation to the first respondent’s expert, I cannot be satisfied that his opinion is based on his own expert knowledge and experience given his discussion of the issue in dispute with numerous other persons.
In this case there is no reason for me to reject the deceased’s estate’s expert for being duly unpartisan or dishonest. I therefore accept and prefer the evidence of Professor Haber.
In relation to air travel, Professor Haber relies on an article from a scientific journal called “Navigating Air Travel and Cardiovascular Concerns: Is it Sky the Limit”.[20] The first respondent referred me to paragraph 7 of that article which says that air travel for those with stable cardiac disease is usually safe with no need for further evaluation.
[20] Authored by Muhammed Hammadah et al dated 18 May 2017.
I must say that I do not agree that is the tenure of the article. Whilst the article appears to focus on lengthy air travel (such as from London to Colorado) it does express concern that air travel is safe for “most” individuals but air travel can affect cardiovascular health during air travel arising from many factors including decreased atmospheric pressure, decreased humidity, gas expansion, prolonged immobility and increased physical and emotional stress.
Further the article comments:
“On the other hand, passengers with unstable or clearcut vascular symptoms should be prohibited from flying.”
I therefore do not agree that the article is at odds with Associate Professor Haber’s opinion.
The respondent complains the consumption of alcohol on the evening of his death, a “non-work factor” [21]should be considered. The respondent however provides no medical opinion as to the significance of the ingestion of same. I therefore am left with no assistance in relation to the merit of such a submission.
[21] Respondents written submissions paragraphs 63-65.

Applying the legislation

Turning to s 9A of the 1987 Act, the applicant must show that employment was the main contributing factor the injury.
In Da Ross v Qantas Airways Limited,[22] Basten JA said as follows:
“25. It does not follow from this approach that whenever an injury occurs in the course of employment there will be a substantial causal connection between the employment and the injury. For example, a worker who suffers injury as a result of a congenital condition, where the employment neither aggravated nor caused the expression of the condition may not satisfy the test in section 9A: cf Zickar v. MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310. (There may be other kinds of circumstances where no substantial contributing factor is established).”
[22] [2010] NSWCA 89.
In Badawi v Nexon Australia Pty Ltd [2019] NSWCA 324 the plurality (Allsopp, Beazley and McColl JJA) said as follows:
“91. The starting point for the President’s determination was that the appellant had sustained injury in the course of her employment. That was a matter that had been conceded, but its relevance remained fundamental to the task that the President was required to undertake under s 9A. It remained fundamental because, as we have already explained, “employment” for the purposes of s 4 and s 9 is the same employment that is under consideration in s 9A. By that, we are not saying that the tests under the two sets of provisions, that is, s 9 and s 4 on the one hand and s 9A on the other, are the same. We have already explained that s 9A involves a different test than that which arises under the earlier provisions.”
Section 9A(2)(b) refers to “the nature of the work performed and the particular tasks of that work”. It is therefore necessary for a finding of a causal connection between the work performed by the worker and the particular tasks at work. It does not include activities in the course of employment which are not employment related. Differing tests are found within s 9A. Section 9A(2) requires there to be a substantial contributing factor to the injury however s 9A(3) makes it clear that employment is not to be regarded as a substantial contributing factor to an injury merely because the injury arose in the course of the worker’s employment.
What is required is a careful analysis of what the worker was doing at the time of the injury and the strength of the causal link between the employment concerns and the injury. The probability that the injury could have occurred anyway at the same stage of the worker’s life must be considered, as must the lifestyle of the worker. The determination is an evaluative one, needing a broad area for the personal judgment of the decision-maker (Heavy Lift at [105]-[106]).
It is quite clear that the onus of proof for the commonsense test of causation is at all times on the applicant. In Flounders v Millar [2007] NSWCA 238 Ipp JA said:
“It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree or probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture. If the Court is left to speculate about the possibilities as to the cause of the injury, the plaintiff must fail. As I have attempted to demonstrate, there are many cases in this Court that follow and adopt these principles. I would explain Binks simply on the basis that the Court in that case was not referred to the relevant authorities.”

There are no competing inferences in this dispute, the only inferences that can be drawn all align with the applicant’s submissions.
In this case, it is clear that the applicant was required to travel on a regular basis for his employment and that there was a negative effect upon his diet and sleep due to being away from home. The unchallenged opinion of Associate Professor Haber is one that I accept as previously outlined. His opinion is that the combination of multiple flights a week, lack of sleep and an unhealthy nutritional diet would have contributed to the acceleration or aggravation of atherosclerosis and thus to the acceleration or aggravation of the development of coronary artery disease, which in turn leads to stenosis of arteries.[23]
[23] Late documents page 12.
There is no medical evidence that support any finding that if the applicant had not been required for work the death would have occurred in any event. The unchallenged opinion of Associate Professor Haber is to the contrary. Quite clearly, plane travel, eating away from home and staying away from home are all factors that are wrapped in the requirements of his employment. The requirements of s 9A are therefore satisfied.
It then become obvious that s 9B is also satisfied as these factors resulted in a greater risk of injury as they are factors that were not present if the deceased remained at home.

Conclusion

In this case it appears to me as in all death cases, it is impossible to get precise evidence of what occurred in the deceased’s life before he passed away.
Such evidence necessarily needs to be provided by those that were around him, such as the evidence is that of the deceased’s wife.
What is not in dispute is that the deceased was required to travel by plane regularly for work. I have made findings in relation to diet on the basis that he was staying in remote locations, and the additional branch being sleep deprivation which makes sense with travelling to and from regional locations at various times, obvious interruption to sleep and sleeping in different places.
The applicant’s case has been run on the basis of a primary submission, that is, that the deceased sustained an injury as a result of work-related travel, altered diet and/or impaired sleep. The applicant has been successful in relation to those issues and therefore I find in favor of the applicant family.
In this case, I feel a reasonable satisfaction that the deceased did indeed have a poorer diet than he would have had but for his employment together with poorer sleep and frequent travel. The unchallenged evidence provided by Associate Professor Haber is that these aggravated his disease condition. I therefore find as matter of common sense that employment was the main contributing factor to the aggravation of the disease.
A similar analysis occurs in relation to s 9B of the 1987 Act which provides that no compensation for heart attack or stroke unless nature of employment results in significantly greater risk. Associate Professor Haber has provided expert opinion in relation to this, which is unchallenged.
The applicant’s family has succeeded on the primary submission so far as causation is concerned, it is therefore unnecessary to determine the second limb of argument (regarding location and being alone).
The application should be listed in relation to other issues such as apportionment and/or any claim for interest.

[2024] NSWPIC 564

11 October 2024