Fisher v Nonconformist Pty Ltd - [2023] NSWPICPD 12

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Fisher v Nonconformist Pty Ltd [2023] NSWPICPD 12 (Clifford No 4)
FIRST APPELLANT:	Kerry Lillian May Fisher
SECOND APPELLANT:	Mark Barry Clifford
THIRD APPELLANT:	Nicole Megan Clifford
RESPONDENT:	Nonconformist Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A2-948/20, A3-948/20, A4-948/20
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	22 March 2023
ORDERS MADE ON APPEAL:	1. The third appellant’s time to appeal the Member’s decision of 6 May 2022 is extended to 8 June 2022. 2. The Member’s Certificate of Determination dated 6 May 2022 is confirmed.

CATCHWORDS:	WORKERS COMPENSATION – heart attack injury – whether injury sustained in accordance with section 4 of the Workers Compensation Act 1987 – whether employment is a substantial contributing factor to the injury – section 9A of the Workers Compensation Act 1987 – consideration of the test in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324 – decision makers not confined to the statutory matters at s 9A(2) – epidemiological studies – Seltsam Pty Ltd v McGuiness [2000] NSWCA 29 referred to – approach to expert evidence – Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 applied and considered – alleged error in failure to reply to a clearly articulated argument not established – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; Wang v State of NSW [2019] NSWCA 263 applied and considered
HEARING:	On the papers
REPRESENTATION:	First appellant:
Mr D Adhikary, counsel
Shanahan Tudhope Lawyers
Second appellant:
Mr A J Parker, counsel
Stacks Goudkamp Lawyers
Third appellant:
Mr A Pryor, solicitor
Slater & Gordon Lawyers
Respondent:
Mr S McMahon, counsel
Hicksons Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr P Sweeney
DATE OF Member’s DECISION:	6 May 2022

INDEX TO DECISION

INDEX TO DECISION

INTRODUCTION

BACKGROUND AND EVIDENCE

Report of Dr Helprin dated 5 December 2019

Scientific literature referred to by Dr Helprin

Report of Dr Helprin dated 17 February 2020

Report of Dr Helprin dated 17 January 2021

Reports of Dr Herman

Mr Prezant’s report dated 28 July 2020

Scientific Literature referred to by Mr Prezant

Mr Strautins’ report dated 11 September 2020

Mr Prezant’s report of 4 October 2020

Mr Strautins’ report of 23 October 2020

Chronology

Clifford No 1

Clifford No 2

Clifford No 3

THE MEMBER’S REASONS

ON THE PAPERS

TRANSITIONAL MATTERS

THRESHOLD MATTERS

Application for extension of time to file appeal

Consideration

LEGISLATION

GROUNDS OF APPEAL

First appellant

Second appellant

Third appellant

PRINCIPLES ON APPEAL

DISCUSSION

First appellant’s appeal

As to Ground One: The Member committed errors of law by misapplying the legal test pursuant to section 9A of the 1987 Act
As to Ground Two: The Member committed an error of law by applying a more onerous standard of proof
As to Ground Three: The Member committed an error of fact by failing to address Dr Helprin’s opinion
As to Ground Four: The Member committed errors…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPICPD 12
Decision Date: 22 March 2023

CaseChat Overview and Summary

Fisher v Nonconformist Pty Ltd was a workers compensation case before the court. The deceased, Mr Clifford, had a heart attack while driving for work, resulting in a car crash and his death. The issue was whether this injury was sustained in accordance with section 4 of the Workers Compensation Act 1987 and whether the deceased's employment was a substantial contributing factor to the injury under section 9A of the Act. Dr Helprin's expert reports suggested that the nature of the deceased's employment, particularly his exposure to environmental air pollution and stress, significantly contributed to the injury. The court needed to decide if the injury arose out of, or in the course of, the deceased's employment and whether the nature of the employment was a substantial contributing factor to the injury.

The court examined the statutory matters and the expert evidence provided. It applied the test in Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd, noting that decision makers are not confined to the statutory matters. The court also referred to epidemiological studies and expert evidence, applying the approach from Seltsam Pty Ltd v McGuiness and Hancock v East Coast Timber Products Pty Limited. The court considered whether there was an error in the failure to respond to a clearly articulated argument but found no such error, applying principles from Dranichnikov v Minister for Immigration and Multicultural Affairs and Wang v State of NSW.

The court concluded that the deceased's employment was a substantial contributing factor to the injury of ventricular fibrillation, which occurred while he was driving his car for work. The court confirmed the Member's Certificate of Determination dated 6 May 2022 and extended the third appellant's time to appeal to 8 June 2022.

Orders

Orders of the court

1. The third appellant’s time to appeal the Member’s decision of 6 May 2022 is extended to 8 June 2022.

2. The Member’s Certificate of Determination dated 6 May 2022 is confirmed.

Background

Background to the litigation

Dr Helprin provided two reports dated 5 December 2019[15] and 17 February 2020.[16] In Dr Helprin’s report of 5 December 2019, he neatly propounds the circumstances of the deceased’s death and the appellants’ claim in the following manner:“Agreed Facts1. At autopsy, Mr Clifford had an old anterior myocardial infarction with severe narrowing of the left anterior descending artery. This was not the direct cause of death but a contributing or underlying factor.2. Mr Clifford most likely had a ventricular fibrillation cardiac arrest on the basis of his pre-existing coronary disease. Ventricular fibrillation is a highly lethal abnormal rhythm of the heart and this occurred while he was driving and this caused him to crash his car. In other words, it was not the car crash that caused Mr Clifford's death, it was the ventricular fibrillation which is a new condition or injury on the basis of preexisting old coronary artery disease.I think the thing to focus on in this case is the fact that Mr Clifford developed ventricular fibrillation which he’d never had before while he was at work driving his car.”[17] (emphasis in original)[15] ARDW, p 56.[16] ARDW, p 116.[17] ARDW, p 57. Dr Helprin deals with the question raised by s 9B, being whether the nature of employment gave rise to a significantly greater risk of injury had he not been employed in employment of that nature, as follows:“Question 2‘Whether the nature of the deceased’s employment 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.’This is really the key question. Everyone agrees that Mr Clifford suffered a ventricular fibrillation cardiac arrest in the context of driving his car at work. Mr Clifford’s work place is prone to environment air pollution especially around the airport. Mr Clifford had never had ventricular fibrillation before.There’s certainty from the scientific literature that I’ve described that ambient air pollution in metropolitan areas is a direct cause of ventricular fibrillation, particularly in the vulnerable heart. Therefore, the nature of the employment, i.e. Professional Driver, gave rise to significant greater risk of the worker suffering the injury, i.e. ventricular fibrillation, than had the worker not been employed in employment of that nature. There’s obviously significantly greater risk in the work-related environment of exposure to pollutants which can be the main factor in a case of ventricular fibrillation as well as stress.Therefore, it’s my contention that Mr Terry Clifford’s work as a Professional Driver in which he was undoubtedly exposed to environmental air pollution as well as stress was the predominant factor in the causation of the injury of ventricular fibrillation which was the causative factor in death.”[18][18] ARDW, p 58. There is no doubt that the deceased suffered a ventricular fibrillation cardiac arrest whilst driving his car in the course of his employment. Dr Helprin is of the opinion that the injury of ventricular fibrillation was as a result of the deceased’s exposure to environmental air pollution, as well as stress, whilst performing his occupation as a courier driver.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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