Goh v Zetciti WP Pty Ltd

[2024] NSWPICPD 55

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Goh and ors v Zetciti WP Pty Ltd [2024] NSWPICPD 55
FIRST APPELLANT:	Si Ying Goh
SECOND APPELLANT:	Si Rong Goh
THIRD APPELLANT:	Ai Tee Chong
FOURTH APPELLANT:	Hock Meng Goh
RESPONDENT:	Zetciti WP Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W7914/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	2 September 2024
ORDERS MADE ON APPEAL:	1.    The Certificate of Determination dated 20 September 2023 is confirmed.

CATCHWORDS:	WORKERS COMPENSATION – Section 9B of the Workers Compensation Act 1987; Secretary, Department of Communities and Justice v Galea [2021] NSWWCCPD 1 considered and applied – approach on appeal in assessing exercise of evaluative judgment of first instance decision maker; Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 considered and applied
HEARING:	On the papers
REPRESENTATION:	First appellant:
Mr R Stanton, counsel
Longton Compensation Lawyers
Second appellant:
Mr A J Parker, counsel
Carroll O’Dea Lawyers
Third appellant:
Mr B McManamey, counsel
Brydens Lawyers
Fourth appellant:
Mr G Young, counsel
MGL Lawyers
Respondent:
Mr S Grant, counsel
Hall and Wilcox Lawyers
DECISION UNDER APPEAL:	Chong v Zetciti WP Pty Ltd & Ors [2023] NSWPIC 491
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	20 September 2023

INTRODUCTION

1. Mr Jun Liang Goh (deceased) was employed by Zetciti WP Pty Limited (respondent) as a pick packer at its Asian Grocery Store at the Marina Square Shopping Centre at Wentworth Point, in the state of New South Wales. On 27 June 2020, the deceased was present at work when he noticed a group of young men in the store who were shoplifting bottles of alcohol. The deceased pursued the men, collapsing shortly thereafter. The deceased had suffered a cardiac arrest and was taken by ambulance to the Concord Repatriation General Hospital, where he died on 2 July 2020. Upon assessment, the deceased was assessed as suffering from a suspected Brugada syndrome, a genetic disorder that can cause fatal irregular heartbeat and sudden death. This is a syndrome which is of greater risk for men of Asian descent.[1] The Autopsy Report for the Coroner[2] stated that the direct cause of death was:

   “… presumed cardiac arrhythmia which occurred secondary to an underlying genetic cardiac abnormality - suspected Brugada syndrome.”[3]

   [1] See autopsy report, Application in Respect of Death of Worker (ARD), p 26.

   [2] ARD, p 23.

   [3] ARD, p 26, under the heading “Discussion”.

2. The deceased’s dependents (first, second, third and fourth appellants) made a claim for statutory death benefits which was declined by icare in a notice issued under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) dated 25 January 2022.[4]

   [4] ARD, p 4.

3. The appellants commenced proceedings in the Personal Injury Commission of New South Wales with the matter being heard by Senior Member Haddock on 1 August 2023. The issues before the Senior Member were ss 4(a), 4(b)(ii), 9A, 9B, 25 and 26 of the Workers Compensation Act 1987 (1987 Act). By written decision dated 20 September 2023, the Senior Member found in favour of the respondent. The appellants appeal from that decision.

ON THE PAPERS

1. Section 52(3) of the Personal Injury Commission Act 2020 provides:

   “(3)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”

2. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

1. The respondent disputed liability on the basis that the injury did not arise out of or in the course of the deceased’s employment, his employment was not a substantial contributing factor to his heart attack injury, his employment was not the main contributing factor to his heart attack injury, his employment did not give rise to a significantly greater risk of a heart attack injury than had he not been employed in employment of that nature, and that the employment did not result in the aggravation, acceleration, exacerbation or deterioration of the disease nor was it the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.[5] The respondent argued that the nature of the deceased’s duties was confined to stacking shelves[6] and chasing a shoplifter was outside his work duties and contrary to his employment conditions.[7]

   [5] ARD, p 5.

   [6] Transcript of proceedings, 1 August 2023 (T), T 61.1–4.

   [7] ARD, p 7.

2. It should be noted that the CCTV footage of the incident was not in evidence however a document titled “Jun Liang Goh – CCTV footage schedule” was available.[8] The source and origin of the document are unknown. The CCTV footage schedule indicates the following:

   (a)    5.38.45 - the thieves entered the store.

   (b)    Between 5.38.45 – 5.40.40 the thieves are seen hiding bottles of alcohol.

   (c)    5.40.45 one thief is seen leaving the store.

   (d)    5.40.45 Mr Chee Hong Cheng (Mr Cheng) and Ms Jia Eb Cheah (Ms Cheah), who are employees of the respondent, are seen in the entrance and then leaving the store with Ms Cheah on the phone.

   (e)    5.40.57 the deceased is seen “doing some work”.[9]

   (f)    5.41.41 the deceased walks through the store to the office and places his drink on his locker before “quickly heading out”.[10]

   (g)    5.42.25 the deceased is seen running from the back of the store/office area.

   [8] ARD, p 22.

   [9] ARD, p 22.

   [10] ARD, p 22.

3. Mr Carlo Debellis is the partner of the store owner and worked as an operations manager at the store. In his statement dated 18 August 2020[11] Mr Debellis states that the deceased commenced employment with the respondent from 1 May 2020 as a casual pick packer and his exclusive duty was to pack the store shelves with instant noodles and snacks.[12] This involved removing stock from a box (which had already been placed in the relevant area by the delivery company) and putting it onto the shelves.[13]

   [11] ARD, pp 41–53.

   [12] ARD, p 43, [23].

   [13] ARD, p 44, [28].

4. Mr Debellis stated that on the day of the incident he was at his partner’s home who had remote access to the store’s CCTV system, when he checked the CCTV and witnessed two males wearing hooded jumpers, one of whom placed an item into his clothing.[14] Mr Debellis immediately telephoned the store landline and spoke to Ms Cheah. He informed her that he had witnessed a theft and told her to call the shopping centre security.[15] He states that he instructed Ms Cheah to call security from the centre and “do not leave the store”.[16]

   [14] ARD, pp 44–45.

   [15] ARD, p 45, [38]–[39].

   [16] ARD, p 45, [40].

5. After Ms Debellis ended the call, he attempted to call the shopping centre security himself however could not get through. He watched the CCTV system and was no longer able to see Ms Cheah. Approximately 5 minutes later he again spoke to Ms Cheah who informed him that the deceased was unconscious, outside the store and he was in a serious condition.[17]

   [17] ARD, p 45, [42]–[43].

6. Mr Debellis stated that the deceased’s action in running from the store is contrary to the store’s procedure and was not part of the deceased’s duties.[18] He stated “[o]ur staff are all trained not to chase shoplifters or approach them at all. We have a basic rule, we do not leave the store, we call the Shopping Centre security.”[19] Mr Debellis also stated that the store has a Money Handling, Theft and Robbery policy and Emergency Response to Physical Attacks policy which the deceased was trained in.[20] The staff are provided training as part of their induction and the deceased was inducted prior to beginning work by the Manager, Emma Yang, as well as ongoing training.

   [18] ARD, p 48, [66], [78].

   [19] ARD, p 49, [79].

   [20] ARD, p 49, [80].

7. He stated that although the staff do not sign off on the induction or policies and procedures, nor are they given copies of the documents, they are aware of where the policies are kept, which are readily available for any staff member to view at any time.[21] Mr Debellis also stated that both policies are displayed in the office and by the cashier area which includes the contact numbers for the shopping centre security and police.[22]

   [21] ARD, p 49, [81]–[83].

   [22] ARD, p 50, [85].

8. The respondent provided evidence of its policies and procedures in the event of a physical attack, theft and robbery.[23] The objective of the respondent's policy for money handing, theft and robbery policy states “... to provide guidance to workers with the objective of reducing the impact of a theft or hold up incident at the workplace on the health and safety of workers”.[24] The policy notes that the respondent is committed to protecting the health and safety of workers and others.[25] The policy also provides a notification process for when a staff member witnesses a theft which directs the staff member to call shopping centre security, Auburn police and the store manager before making an incident report with the store manager.[26]

   [23] Reply to Application to Resolve a Dispute (Reply), pp 181–189.

   [24] Reply, p 182.

   [25] Reply, p 182.

   [26] Reply, p 185.

9. The respondent further relied on its procedure titled “Emergency Response – Action During a Hold Up”[27] which provides various instructions to employees during a hold-up including, inter alia, standing still, not to provoke the offender, allow the offender to leave, “do not chase the offender” (which is noted in bold writing), activate the alarm, call police, be aware of where the offender went and secure the area.[28]

   [27] Reply, p 186.

   [28] Reply, p 186.

10. The respondent relied on evidence listing the deceased’s duties and responsibilities as a Pick Packer Category 3[29] which included:

    [29] Reply, p 100.

    “·      Maintaining store inventory records and ensuring that minimum stock requirement is maintained

    ·        Proper handling and storage of all store inventory / stock

    ·        Regularly replenishing and refilling inventory / stock

    ·        Checking the expiry dates, labels, tags and quality of inventory / stock

    ·        Ensuring that the goods stacked / displayed on the shelves complies with the standards of the store and that they are not damaged

    ·        Efficiently following all the tasks delegated by the supervisors

    ·        Completing all assigned targets within the specified deadline

    ·        Maintaining cleanliness in the store and stockroom

    ·        Adhere to [the respondent’s] workplace health and safety policies and procedures

    ·        Maintains a safe work area

    ·        Performs other duties as assigned

    ·        Specific duties of the Pick Packer Category 3 include:

    oPacking instant noodles and snacks.”

11. Mr Cheng was employed by the respondent in the same capacity as the deceased, being a pick packer.[30] Mr Cheng in his statement dated 18 August 2020[31] states that his work duties involved packing sauce and rice products onto the shelves in the store.[32] He also stated that the deceased‘s normal job was stocking the shelves with Asian snacks.[33]

    [30] ARD, p 55, [12].

    [31] ARD, p 55.

    [32] ARD, p 55, [12].

    [33] ARD, p 58, [41], [42].

12. Mr Cheng was working with the deceased on the night of the incident and provides evidence that he was carrying out his duties as normal when he was approached by Ms Cheah requesting he call the shopping centre security as some people had stolen some things.[34] Mr Cheng noticed one of the people involved standing outside the store and another inside the store.[35] He went up the travellator to the shopping centre’s security office and informed the security guard about the theft.[36] Both Mr Cheng and the security guard went back to the store however were unable to locate Ms Cheah inside the store, so they went outside the entrance to the shopping centre and walked around a corner where they found the deceased lying on the ground unconscious.[37]

    [34] ARD, p 56, [17]–[19].

    [35] ARD, p 56, [20].

    [36] ARD, p 56, [22]–[23].

    [37] ARD, p 56, [24]–[26].

13. Mr Cheng stated that he was ”aware that we are not supposed to chase thieves at all. We are supposed to stay in the store and call security. I learnt this when I first started working here because we had to read some information about safety and that was what it said.”[38]

    [38] ARD, p 59, [54].

14. Ms Cheah was working as a cashier for the respondent and states that she was working on the day of the incident and that the deceased’s role with the respondent was a pick packer, being that he stocked shelves with snack food.[39]

    [39] ARD, p 63, [18].

15. She states that on the day of the incident she received a call from Mr Debellis who informed her there was a theft in the store, to keep watching the offenders and to call security.[40] Ms Cheah noticed one of the offenders pass alcohol to his friend who then left the store. Once she saw this happen, she told Mr Cheng to notify the shopping centre security.[41] She states that Mr Cheng then left the store to look for security and she also left the store to see what direction the offenders went so that she could inform security. She followed the offender out of the shopping centre and up the street.[42] She noticed the offender start to run which is when the deceased ran past her. She states that the deceased was running fast and she had never “seen anybody running that fast”.[43] The deceased followed the offender across the road however she was no longer able to see him after that point because it was dark. She returned back to the store.[44] After approximately 5 minutes she went back outside to try and find security which is when she saw the deceased lying on the ground with Mr Cheng and the security guard around him.[45]

    [40] ARD, p 63, [21]–[22].

    [41] ARD, p 63, [25]–[28].

    [42] ARD, p 64, [29]–[33].

    [43] ARD, p 64, [35].

    [44] ARD, p 64, [33]–[38].

    [45] ARD, p 65, [40].

16. Ms Cheah provided evidence that she was aware and trained as part of her employment not to chase thieves and to instead call security.[46] The policy is also displayed on a chart at the counter and reiterated by the Manager or another team leader at briefings prior to every shift.[47]

    [46] ARD, p 65, [44].

    [47] ARD, p 65, [45].

17. There is evidence from Xiaotong Huang (Ms Huang) dated 28 July 2020,[48] stating that she was at the store at the time of the incident when she witnessed Ms Cheah answer the shop phone and then saw her at the entrance of the store with the alleged thief.

    [48] ARD, p 70.

18. Ms Huang saw Ms Cheah follow the thief outside the store when the deceased came running from the back of the store asking what had happened. Ms Huang replied “[Ms Cheah] and the alleged thief are under Escalator”,[49] the deceased then ran outside the store. It is unclear whether Ms Huang was an employee of the respondent or a customer.

    [49] ARD, p 70.

19. The Autopsy Report[50] noted the cause of death as:

    “DIRECT CAUSE:

    Disease or condition directly leading to death:

    A)   Presumed Cardiac Arrhythmia”.

    [50] ARD, p 24.

20. The Autopsy Report noted the circumstances leading to death as:[51]

    “On 27 July 2020, an incident occurred at the Super Market where items were stolen by three offenders. From bystander reports, the deceased apparently gave chase (about 20 steps), then became dyspnoeic and collapsed. Security guards placed an automated external defibrillator device (AED) on the deceased and two shocks were administered. Paramedics arrived on the scene and commenced cardiopulmonary resuscitation (CPR). There was a down time of approximately 20 minutes. The deceased was transferred to Concord Hospital.”

    [51] ARD, p 25.

21. The Autopsy further noted:[52]

    “The deceased was an apparently healthy young male who collapsed suddenly after engaging in mild physical activity. The cardiology clinical assessment was that the death was the result of hypoxic ischaemic injury, due to out of hospital cardiac arrest, due to a presumed cardiac arrhythmia which occurred secondary to an underlying genetic cardiac abnormality – suspected Burgada [sic] syndrome.

    Brugada syndrome is a genetic disorder that can cause fatal irregular heartbeats (arrhythmias) and sudden death. Individuals who are at greatest risk for the disorder are those of Asian descent (particularly those of Japanese and Southeast Asian heritage) and occurs more often in men than in women.

    …

    In conclusion:

    Based on the circumstances of death, review of medical records, external post-mortem examination, exclusion of trauma and ancillary investigations, I have concluded that death was due to a presumed cardiac arrhythmia.”

    [52] ARD, p 26.

22. Cardiologist, A/Prof Richard Haber in his report dated 22 February 2022,[53] addressed to the third appellant’s legal representative, recorded a history of the deceased chasing offenders out of the store and down the street and collapsing after running about “20 steps(?)”.[54] The doctor noted the cause of death was a fatal cardiac arrhythmia, likely secondary to an underlying genetic cardiac abnormality suspected to be Brugada syndrome.[55]

    [53] ARD, p 13.

    [54] ARD, p 13.

    [55] ARD, p 14.

23. Cardiologist, Dr Mark Herman, in his report dated 18 December 2021,[56] addressed to the respondent’s legal representative, noted a similar history to that of A/Prof Haber that the deceased was in pursuit of three shoplifters and after about 20 steps, became dyspnoeic and collapsed.[57] The doctor opined the cause of death to be sudden cardiac arrest secondary to a ventricular arrhythmia in the setting of a pre-existing Brugada syndrome.[58]

    [56] Reply, p 190.

    [57] Reply, p 191.

    [58] Reply, p 192.

24. The only point of contention between the two medico-legal opinions was what triggered the ventricular arrhythmia and sudden cardiac arrest. A/Prof Haber said that the physical and emotional stress of chasing the offenders down the street released an adrenaline like substance which induced cardiac arrhythmia.[59] Dr Herman on the other hand, was of the opinion that sudden short sprinting and/or significant emotional stress is not a documented risk factor of ventricular arrhythmias in Brugada syndrome[60] and that the trigger was more likely to be fever, given that the deceased had complained of a sore throat and lethargy in the days prior to his collapse which may have induced a fever.[61] Dr Herman also said in his supplementary report dated 27 June 2023, addressed to the respondent’s legal representative, ”[s]udden cardiac death in Brugada patients is rarely related to exercise, which could be a simulator of stress involving chasing an offender.”[62]

    [59] ARD, p 15.

    [60] Reply, p 192.

    [61] Reply, p 193.

    [62] Application to Admit Late Documents dated 26 July 2023, p 2.

THE SENIOR MEMBER’S REASONS

1. The issues for determination identified by the Senior Member for determination were:[63]

   (a)    whether the worker’s injury arose out of or in the course of his employment (s 4 of the 1987 Act);

   (b)    whether the worker’s employment was a substantial contributing factor to injury (s 9A of the 1987 Act);

   (c)    whether the worker’s employment was the main contributing factor to his heart attack (s 4(b)(ii) of the 1987 Act);

   (d)    whether the worker’s employment gave rise to a significantly greater risk of the heart attack than had he not been employed in employment of that nature (s 9B of the 1987 Act), and

   (e) whether the worker’s death resulted from a work-related injury for the purposes of ss 25 and 26 of the 1987 Act.

   [63] Statement of Reasons (Reasons), [14].

Submissions made by second appellant

1. Counsel for the second appellant submitted that the issues in the case relate to liability on two bases, medical liability and legal liability.[64] Counsel submitted there is insufficient evidence to say the deceased was chasing anyone and even if he was, it would not be enough for liability to be denied.[65] The relevant question is not the nature of the underlying condition itself, but whether the injury that occurred materially contributed to the aggravation to that injury.[66] Counsel submitted that the injury falls within the confines of s 4(a) which gives rise to 9A, but if it were not the case, the worker would satisfy the relevant provisions of s 4(b)(ii).[67]

   [64] T 4.5–10.

   [65] T 4.20.

   [66] T 5.12.

   [67] T 5.17.

2. Counsel submitted that the relevant test as to whether the injury falls under s 4(b)(ii) or s 4(a) is to consider what the relevant factor is that aggravated the underlying condition, which counsel submitted was the deceased’s employment.[68] Counsel noted the opinion of Dr Herman that there are case reports of severe and prolonged physical activity provoking a higher risk of ventricular arrythmia in predisposed individuals, but sudden short sprinting and/or significant emotional stress is not a documented risk factor for ventricular arrythmias in Bruguda syndrome. Counsel submitted that to accept Dr Herman’s opinion, the Senior Member would have to ignore the obvious mechanism of injury, that is that the deceased fell or had some sort of injury whilst he was running, directly following the larceny that was occurring.[69] Counsel stated that it is well-known for sudden short sprinting and/or emotional stress to at least be a factor in heart attacks[70] and it would be a remarkable coincidence if the deceased had a heart attack when he did, in the way that he did, independent of what was occurring.[71]

   [68] T 6.30–7.6.

   [69] T 7.11–20.

   [70] T 9.16.

   [71] T 8.28–32.

3. Counsel referred to the opinion of Dr Herman that whilst inherited arrhythmic syndromes may be sensitive to catecholamine surges, there is no evidence that Brugada syndrome is triggered by such events. Counsel then referred to the decision in EMI Australia Limited v Bes[72] and submitted that Dr Herman did not say that it is impossible for Brugada syndrome to be triggered by the catecholamine surges.[73] Counsel also referred to the decision of Sea Coatings (Australia) Pty Limited and Anor v Pascoe & Ors[74] and submitted that the expert evidence of A/Prof Haber is far more logical and consistent with what occurred on the day, that is, the injury occurred following a high stress situation.[75] Dr Herman’s alternative theory was speculative. Having a sore throat and lethargy is not indicative of a fever[76] and consuming Panadol did not mean that the deceased had a fibral illness or any other matter referred to by Dr Herman.[77]

   [72] [1970] 2 NSWR 238, 242.

   [73] T 12.30.

   [74] [2008] NSWCA 54, [47].

   [75] T 14.5–8.

   [76] T 14.27.

   [77] T 16.9.

4. When making submissions in relation to s 9B of the 1987 Act,[78] counsel for the second appellant referred to the decision in Renew God’s Program Pty Ltd v Kim[79] and submitted that the application of s 9B involves an assessment of comparative risks and is not a test of true causation.[80] Counsel highlighted that this was a case where the deceased died while doing something at work. Counsel referred to A/Prof Haber’s opinion to the effect that it is the main contributing factor accelerating the Brugada syndrome. Counsel stated there was a significantly greater risk of the heart attack whilst he was giving chase to the offenders and that clinical manifestations ordinarily start to occur after the age of 30 or 40.[81] Counsel submitted that the only causative factor in this case are the duties that the deceased was doing on the day of the incident and that the deceased was carrying out his duties by following the offenders out of the store.[82] Counsel submitted that the relevant risk was that the deceased was in a shop setting when assailants were there.[83]

   [78] T 17.

   [79] [2019] NSWWCCPD 45 (Kim), [37]–[53].

   [80] T 17.1–11.

   [81] T 17.20–26.

   [82] T 17.28–18.2.

   [83] T 18.8.

5. Counsel submitted that the relevant legal test was the actions of the deceased on the day and whether that falls within the meaning of s 4, that is, in the course of or arising out of his employment.[84] Counsel submitted that there is not enough evidence to establish that the deceased took himself outside the course of his employment in the circumstance as asserted by the respondent.[85] Counsel submitted that the policies relied on by the respondent do not apply as they refer to situations of armed robbery or physical attack.[86] Counsel also submitted there is no evidence to show that the deceased was trained or inducted.[87] Counsel referred to the statement of Ms De Belis and submitted that the statement highlighted hat there is no evidence of the nature of the training or the induction that was specifically given to the deceased.[88]

   [84] T 18.16–19.

   [85] T 19.9–12.

   [86] T 19.25–29

   [87] T 19.30.

   [88] T 21.9–11.

6. Counsel submitted that even if the deceased was somehow not acting in the course of his employment, it does not mean that his injury is not compensable. Counsel referred to the decision of SB v XFPL[89] and noted the proper test for determining whether the injury arose out of employment was the need for a causal connection between employment and the injury.[90] It is not enough for the deceased to have taken himself out of employment because the reality is, it was employment-related[91] and as a result, there was no impediment under s 9B of the Act.[92] The activity of following or chasing offenders out of the store was connected to his employment which is a factor the Senior Member was bound to consider under s 9B.[93]

   [89] [2022] NSWPICPD 7, [97], [100]–[102].

   [90] T 22.

   [91] T 23.32–24.5.

   [92] T 24.22.

   [93] Reasons, [325].

Submissions made by third appellant

1. Counsel for the third appellant referred to Dr Herman’s original report dated 18 December 2021[94] where the doctor said that there are case reports of severe and prolonged physical activity provoking a high risk of ventricular arrythmia in predisposed individuals. Counsel submitted that the lay evidence of Ms Chia supported that the deceased was in fact undertaking severe and prolonged activity at the time of the injury.[95] Counsel also referred to Dr Herman’s supplementary report dated 27 June 2023[96] where the doctor gives his opinion that whilst Brugada syndrome patients have been advised to avoid high intensity competitive sports, there is no suggestion exercise increases the risk of a cardiac arrest in patients with Brugada syndrome.[97] Counsel submitted that Dr Herman got the history wrong and shifted what he says is the empirical basis for his opinion.[98]

   [94] Reply, p 190.

   [95] T. 25.27–29.3.

   [96] AALD dated 26 July 2023, p 2.

   [97] T 29.5–13.

   [98] T 29.26–29.

2. Counsel submitted that Dr Herman did not rule out the possibility of sudden cardiac death in Brugada patients due to exercise and the only other explanation offered was due to the deceased having a fever of which there was no evidence.[99]

   [99] T 30.1–31.6

3. Counsel submitted that the question of whether the deceased was in the course of his employment or his death arose out of his employment comes down to what he was doing at the time, and by being in pursuit of someone who had stolen from his employer he was clearly acting in his employer’s interests. As the deceased had returned back to the shopping centre when the incident occurred, counsel submitted that he was doing no more than what Ms Chia did, which appeared to be encouraged by the employer.[100]

   [100] T 31.16–32.2.

Submissions made by first appellant

1. Counsel for the first appellant adopted the submissions of the second and third appellant. Counsel also submitted that when applying s 9B of the 1987 Act, a broad approach should be taken. Confining the deceased’s role to stacking shelves was too narrow and consideration should be had to the deceased working in a retail environment which involved having to deal with shoplifters which gave greater risk to the deceased suffering the injury.[101]

   [101] T 65.14–66.5.

Submissions made by the fourth appellant

1. Counsel for the fourth appellant adopted the submissions made by the second and third appellant but also submitted that if the respondent was seriously raising the issue that the deceased was on some sort of frolic or bravery, or action where it had taken himself out of the course of his employment, then s 14 of the 1987 Act would have been raised, although the death of the deceased provided an obvious exception.[102]

   [102] T 32.15–30.

Submissions made by the respondent

1. Counsel for the respondent referred to the reports of A/Prof Haber and Dr Herman and noted the similarities in the history obtained by both doctors in terms of the 20 steps before the deceased collapsed and the diagnosis of Brugada syndrome.[103] Counsel noted the only difference between the doctors was in relation to the trigger for a predisposed individual with Brugada syndrome.[104] Counsel referred to the evidence of Mr Cheng and Ms Cheah and submitted that an inference can be drawn that the deceased had taken Panadol in the days prior to the incident and that Panadol is taken not just for headaches but for fever, aches and pains[105] and that follows Dr Herman’s opinion that a fever can be a trigger for arrhythmia in a predisposed individual.[106]

   [103] T 36.19–25.

   [104] T 37.25.

   [105] T 37.33–38.24.

   [106] T 38.26–34.

2. Counsel noted that while A/Prof Haber was of the opinion that it was more likely than not the deceased’s employment was the contributing factor to the aggravation of his pre-existing genetic cardiac abnormality and the Brugada syndrome was more likely than not accelerated by the workplace event, the doctor does not provide any reasoning for his opinion.[107]

   [107] T 44.29–45.30.

3. Counsel submitted that the lack of explanation should result in A/Prof Haber’s opinion not being accepted.[108]

   [108] T 45.32–35.

4. Counsel referred to the case of De Silva v Secretary, Department of Finance, Services and Innovation[109] where Senior Arbitrator Snell (as he then was) noted the relevant test in establishing what is the employment concerned, is looking at the ordinary and grammatical sense of the word. It is a reference to the particular employment in which the injury is suffered, rather than to the nature of the class or classification of that employment.[110]

   [109] [2015] NSWWCC 279 (De Silva).

   [110] T 46.17–48.16.

5. Counsel again referred to De Silva where Senior Arbitrator Snell considered the application of s 9B(1) and noted:

   “Section 9B(1) does not require a significant risk. It requires a comparison of, (1), the risk to which the nature of the employment concerned gives rise and (2), the risk had the worker not been employed in employment of that nature.”[111]

   [111] T 51.19–23.

6. Counsel submitted that the appellant’s case fails as there is insufficient evidence to establish that the employment gave rise to a significantly greater risk of him having a heart attack at work than if he was not employed. Dr Herman was of the opinion that it could have happened at anytime, anywhere. A/Prof Haber accepted that it could have been spontaneous.[112] In applying s 9B(1) what needs to be looked at is the employment concerned. It was not a characteristic of the deceased’s employment to chase offenders. His employment was to stack shelves.[113]

   [112] T 51.32–52.10.

   [113] T 53.24–28; 60.32–61.4.

Was the injury arising out of or in the course of employment?

1. The Senior Member first turned to the question of whether the deceased sustained injury arising out of or in the course of employment with the respondent. The Senior Member was ultimately satisfied that the deceased’s injury arose out of his employment.[114]

   [114] Reasons, [418].

2. In coming to this determination, the Senior Member noted that it was necessary to consider both medical causation and legal liability.[115] She considered the lay and medical evidence and accepted that the deceased was running for at least 20 steps when he followed the offender, which involved quite severe exertion.[116]

   [115] Reasons, [371].

   [116] Reasons, [372]–[378].

3. The Senior Member then turned to the question of the medical evidence on liability and referred to the report of Dr Herman and his opinion that sudden cardiac death in Brugada patients is rarely related to exercise and one of the triggers for arrhythmia in a predisposed person is a fever. Dr Herman had noted a history that the deceased had a sore throat and was lethargic at or around the time the incident occurred.[117]

   [117] Reasons, [380]–[385].

4. The Senior Member noted and accepted the appellants’ submissions that there was no evidence that the deceased had a fever at the time of the incident. Even if the deceased took Panadol, it did not establish that he had a fever.[118] The Senior Member found that there was no reason to accept Ms Cheah’s evidence that the deceased was tired and complained of a headache, or Mr Cheng’s evidence that the deceased had a sore throat, was tired and did not sleep well.[119]

   [118] Reasons, [387].

   [119] Reasons, [386].

5. The Senior Member accepted the submissions of the second appellant that it would be a remarkable coincidence if the deceased had a heart attack, independent of what was occurring at the time.[120]

   [120] Reasons, [388].

6. The Senior Member considered the report of A/Prof Haber and accepted his opinion on the issue of medical causation and that the sudden cardiac death in a person with Brugada syndrome may be related to exercise.[121] The Senior Member also noted that despite Dr Herman’s opinion that sudden cardiac heath in Brugada patients is rarely related to exercise, he alluded that it was a possibility.[122]

   [121] Reasons, [389].

   [122] Reasons, [383].

7. The Senior Member determined that on the balance of probabilities, the appellants had established that the heart attack suffered by the deceased resulted from his pursuit of the offenders out of the store.[123]

   [123] Reasons, [389].

8. Once the Senior Member made this finding, she turned to the question of whether the injury arose out of or in the course of his employment.

9. The Senior Member referred to the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear[124] and also the decisions referred to by the second appellant in Rail Services Australia v Dimovski & Anor[125] and Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd.[126] The Senior Member noted the conclusion of Handley JA in Dimovski that where a frank incident aggravated an underlying degenerative condition, it could properly be regarded as an injury simpliciter within s 4(a) of the 1987 Act[127] and also the conclusion in Bindah where Meagher JA said:

   “... in the present case, there is an event causing injury within s 4(a), the circumstance that the injurious event and injury included the aggravation of an existing disease does not mean that the injury, or some part of it, is an injury within s 16 ... [r]ather the exacerbation or aggravation of the existing disease is part of the pathology of the injury within s 4(a).”[128]

   [124] [2014] NSWWCCPD 47.

   [125] [2004] NSWCA 267 (Dimovski).

   [126] [2014] NSWCA 264 (Bindah).

   [127] Reasons, [392]–[395].

   [128] Reasons, [396]; Bindah, [25].

10. The Senior Member accepted the second appellant’s submissions that the injury is to be considered pursuant to the provisions of s 4(a) of the 1987 Act and that he suffered a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” on the background of underlying Brugada syndrome.[129]

    [129] Reasons, [397].

11. The Senior Member referred to the submissions of the second appellant that the deceased’s injury both arose out of and in the course of his employment and that although he had left the store, he was doing something that was work-related and there was insufficient evidence to establish that he took himself out of the course of his employment.[130]

    [130] Reasons, [398].

12. The Senior Member referred to various decisions and authorities relating to “arising out of” employment and ultimately found that a “common sense” approach be adopted and that the deceased’s injury arose out of his employment.[131]

    [131] Reasons, [399]–[411].

13. The Senior Member was satisfied that the employment caused or to some material extent contributed to the injury and that may be the case even if he had at the time removed himself from the course of his employment.[132] The Senior Member found that the deceased was at the store carrying out his duties and she accepted the second appellant’s submission that even if the deceased was not acting in the course of his employment at the very moment he was injured, it did not mean the injury was not compensable.[133]

    [132] Reasons, [411].

    [133] Reasons, [412].

14. The Senior Member found that there was a causal connection between the deceased’s employment in the store and the injury. She found that the injury arose out of his employment, and accordingly, it was unnecessary to consider whether it occurred in the course of his employment.[134]

    [134] Reasons, [414], [418].

Was the employment a substantial contributing factor to the injury?

1. The Senior Member referred to the decision in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[135] and noted that for employment to be a ‘substantial contributing factor’ to the injury, the causal connection must be “real and of substance” and “employment” for the purposes of s 9A of the 1987 act is the same “employment” that is under consideration in ss 4 and 9.[136]

   [135] [2009] NSWCA 324.

   [136] Reasons, [422].

2. The Senior Member noted the matters to be taken into consideration were that the injury occurred at a time that the deceased was at work, at a place outside the store, after he had left the store in pursuit of shoplifter/s and the deceased was employed as a pick packer which required him to stock shelves.

3. The Senior Member was satisfied that there was no reason to consider that the deceased would have suffered a heart attack irrespective of the incident. She accepted A/Prof Haber’s opinion that the clinical manifestations of Brugada syndrome frequently occur after the age of 30 or 40.[137] The Senior Member noted that there was no evidence that the worker’s lifestyle or activities outside the workplace were a factor to the injury and rejected that the deceased was suffering a fever prior to the injury.[138]

   [137] Reasons, [425].

   [138] Reasons, [426]–[427].

4. The Senior Member found at [428] of the reasons:

   “I am satisfied that the worker’s employment was a substantial contributing factor to the injury. As I have found that he sustained injury within the meaning of s 4(a) of the 1987 Act, it is unnecessary that I consider whether employment was the main contributing factor to the injury pursuant to s 4(b) of the Act.”

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

1. After finding that the injury arose of out the deceased’s employment and the employment was a substantial contributing factor to the injury, the Senior Member then turned to the question of whether the nature of employment gave rise to a significantly greater risk of injury than had he not been employed in employment of that nature as required by s 9B of the 1987Act.

2. The Senior Member carefully considered and referred to several case authorities dealing with the meaning of “employment concerned”,[139] including the decision in Secretary, Department of Communities and Justice v Galea,[140] and noted that the application of s 9B of the 1987 Act requires consideration as to the nature of the deceased’s work and its particular tasks[141] and then whether the nature of the deceased’s work and its particular tasks gave rise to a significantly greater risk of him suffering the injury than had he not been employed in employment of that nature. The risk must have been greater in a way that was ”important; of consequence”.[142]

   [139] Reasons, [430]–[439].

   [140] [2021] NSWWCCPD 1 (Galea).

   [141] Reasons, [439]–[440].

   [142] Reasons, [440]–[441].

1. The Senior Member noted that the deceased was employed as a pick packer and the nature of his work and particular tasks were to replace the stock on the shelves by removing goods from the boxes in which they were delivered and placing them on the shelves.[143] The Senior Member noted the respondent’s submission that chasing and/or following offenders was not a characteristic of the deceased’s employment.[144]

   [143] Reasons, [442].

   [144] Reasons, [443].

2. The Senior Member rejected the first appellant’s submission that the employment concerned was working in a retail environment which involved having to deal with shoplifters which resulted in a greater risk to the deceased suffering injury.[145] The Senior Member found that “[w]hat the worker did in the course of his employment was not to chase or follow shoplifters”.[146]

   [145] Reasons, [446].

   [146] Reasons, [445].

3. The Senior Member found that s 9B(1) of the 1987 Act does not require that the nature of the employment gave rise to a significant risk of the deceased suffering a heart attack, rather it requires that the nature of the employment concerned gave rise to a significantly greater risk of him suffering a heart attack than had he not been employed in employment of that nature.[147]

   [147] Reasons, [447].

4. The Senior Member concluded at [455] of the reasons:

   “Given the nature of the [deceased]’s work and its particular tasks, I do not accept that it gave rise to a significantly greater risk of him suffering a heart attack injury than had he not been employed in employment of that nature.”

5. Accordingly, orders were made in favour of the respondent in the Certificate of Determination issued on 20 September 2023.

GROUNDS OF APPEAL

1. As stated above, this matter involves an application for death benefits by four dependents of the deceased. The Senior Member found in favour of the respondent and the four dependents have all appealed this decision. Each appeal is a separate appeal against the same decision of the Senior Member. I have therefore designated each appellant as the first, second, third and fourth appellants for ease of reference and I will deal with each appeal ground in the order that I have set them out below.

First appellant – Si Ying Goh

1. The first appellant advances the following two grounds of appeal:

   (a)    Ground One – The Senior Member erred in law in interpreting and applying s 9B(1) of the 1987 Act.

   (b)    Ground Two – The Senior Member erred in fact finding with respect to s 9B(1) of the 1987 Act.

Second appellant – Si Rong Goh

1. The second appellant relies upon two grounds of appeal. They are:

   (a)    Ground One – Erroneously applying the legal test under s 9B of the 1987 Act.

   (b)    Ground Two – Erroneously finding that the employment concerned did not involve running or severe exertion.

2. Additionally, this appellant relies upon the submissions made by each of the other appellants.[148]

   [148] Second appellant’s submissions, 12 October 2023, [2]–[3].

Third appellant – Ai Tee Chong

1. The third appellant submits the following three grounds of appeal:

   (a)    Ground One – The Senior Member erred in fact and law when she found that the employment did not give rise to a significantly greater risk of the worker suffering a heart attack.

   (b)    Ground Two – The Senior Member erred when she considered that it was relevant that there was no evidence that shoplifting was a regular occurrence.

   (c)    Ground Three – The Senior Member erred when she failed to consider all of the things that were part of the worker’s employment when determining whether the employment gave rise to a significantly greater risk of a heart attack.

2. The third appellant adopts the submissions of the second appellant.[149]

   [149] Third appellant’s submissions, 17 October 2023, [11].

Fourth appellant – Hock Meng Goh

1. The fourth appellant adopts the submissions and arguments of the first appellant.

LEGISLATION

1. Section 4 of the 1987 Act provides:

   “4     Definition of “injury”

   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.”

2. 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.”

3. 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.

   …”

DISCUSSION

First appellant’s appeal

As to Ground One

1. The first appellant submits that the Senior Member “made an error of law in interpreting and applying s 9B(1) in such a limited way.”[150] The first appellant points to the Senior Member’s findings at reasons [455] and says the following:

   “In referring to ‘particular tasks’ it is reasonably obvious the Member was referring to ‘stacking shelves’ (and one might infer tasks immediately associated with that activity such as getting the goods from a stores area) as the matters which delineated the s 9B(1) phrase ‘the nature of the employment’. As noted … above, she was not prepared to approach the matter on the broader basis that ‘the nature of the employment concerned’ was working in a retail environment, which could involve having to deal with shoplifters.”[151]

   I interpolate that this was the submission put by the first appellant to the Senior Member.[152]

   [150] First appellant’s submissions, 6 October 2023, [1.19].

   [151] First appellant’s submissions, 6 October 2023, [1.18].

   [152] T 65.14–31.

2. The first appellant contends that the nature of employment is not restricted by routine tasks and can include a range of other matters. The appellant relies upon what is said to be the broader approach taken to this question by Deputy President Snell in Galea.[153]

   [153] Galea, [111].

3. In reply, the respondent says the submission that the tasks undertaken by the deceased “should include other causative factors outside the defined nature of the Worker’s employment” is incorrect.[154] The respondent refers to the submissions regarding Galea and says that the Senior Member did perform the evaluative process referred to by Deputy President Snell and this led to the determination that was made without error. The respondent says that the tests in s 4 and s 9A are different to that under s 9B of the 1987 Act, with the s 9B test being a “more reasonable test for an employer to meet” and that “not all of the factors are relevant to her consideration such as actions of the Worker outside what he was authorized, instructed or directed to undertake.”[155]

   [154] Respondent’s submissions, 26 November 2023, [23].

   [155] Respondent’s submissions, 26 November 2023, [28].

Consideration

1. The Senior Member dealt with the s 9B question from reasons [429]–[456]. The Senior Member commenced by reviewing the authorities before summarising the approach that she would adopt to deciding this question at reasons [439]–[441], which I reproduce below:

   “439. In the matter of [Galea] Snell DP discussed De Silva and Kim and stated at [111] that the following may be taken from those decisions:

   ‘(a) the worker carries the onus of establishing that the test in s 9B is satisfied;

   (b) where the words ‘an injury’ first appear in s 9B(1), this refers to an injury asserted by a worker, in respect of which compensation is otherwise payable, subject to the test in s 9B;

   (c)where s 9B(1) refers to ‘the nature of the employment concerned’, it refers to ‘what the worker in fact does in the employment that caused or contributed to the injury’;

   (d) s 9B(1) requires that the relevant risk of suffering the injury in the employment concerned be significantly greater than the risk had the worker not been employed in employment of that nature. ‘Significant’ in this context means ‘important; of consequence’. The comparison involves an assessment of comparative risks and is not a true test of causation. The test involves an evaluative judgement, and

   (e) the test requires satisfaction on all the evidence. It does not necessarily ‘require that there be medical evidence to some particular effect.’ In cases raising s 9B it is desirable that there be medical evidence addressing the requirements of the section.’

   440. In considering the application of s 9B of the 1987 Act, I am required to consider the nature of the worker’s work and its particular tasks.

   441. I am then required to consider whether the nature of the worker’s work and its particular tasks gave rise to a significantly greater risk of him suffering the injury than had he not been employed in employment of that nature. The risk must have been greater in a way that was “important; of consequence”.

2. The Senior Member then examined the “nature of the employment concerned” in a factual sense at reasons [442]–[446]. Given the challenge to the Senior Member’s decision regarding the nature of the employment concerned, I set those paragraphs out in full:

   “442. The worker was employed as a pick packer. The nature of his work and its particular tasks were to replace the stock on the shelves of the store. The stock consisted of such items as instant noodles and snacks. He removed the goods from the boxes in which they were delivered and placed them on the shelves.

   443. The [respondent] submitted that running and chasing, or following offenders, was not a characteristic of the worker’s employment. It was what he did in the course of his employment, rather than any classification that may be given to him, that was to be considered, in accordance with what Snell DP said in De Silva.

   444. According to Mr Debellis’ evidence, the worker never changed roles. Mr Cheng also stated that the worker’s normal job was stocking snacks on the shelves. He had been performing his normal duties on the date of the injury. Unlike [the deceased in De Silva], his actual duties did not extend beyond this.

   445. What the worker did in the course of his employment was not to chase or follow shoplifters. The evidence suggests that the nature of his employment was not even to serve customers. He was not a cashier like Ms Cheah. He ran from the back of the store or office area, having apparently seen the theft on the monitor in the office.

   446. I do not accept the [first appellant’s] submission that the employment concerned was working in a retail environment, which involved having to deal with shoplifters, which in turn gave rise to a greater risk of the worker suffering injury. The work involved was as I have described it. There is no evidence that shoplifting at the store was in any event a regular occurrence.”

3. Having made the finding that the nature of the deceased’s employment did not involve dealing with shoplifters, the Senior Member then was concerned with the s 9B question as to whether, due to the nature of the employment as found, this gave rise to a significantly greater risk of the deceased suffering a heart attack. The Senior Member found that it did not.[156]

   [156] Reasons, [447]–[455].

4. When the Senior Member rejected the submission that the nature of the deceased’s employment did encompass dealing with shoplifters, the Senior Member was performing the exercise referred to at reasons [439] which I have set out above. It was an exercise in fact finding and in this case the making of an evaluative judgement about the true nature of the deceased’s employment.

5. In Australian Air Express Pty Ltd v Langford,[157] McColl JA (Ipp and Tobias JJA agreeing) made the following observation in relation to the exercise of an evaluative judgement by a first instance decision maker:

   “The first [observation] concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.”

   [157] [2005] NSWCA 96 (Langford), [15].

6. The first appellant’s complaint in this ground is, in truth, a complaint about the factual finding that the nature of the deceased’s employment did not include any wider role encompassing dealing with shoplifters. This complaint is clothed in the guise of legal error in terms of what is said to be an erroneous, limited construction of s 9B of the 1987 Act. I do not accept that the Senior Member has made any such legal error. Indeed the legal error as advanced is based upon decisions in other cases, such as Galea, where the member deciding that case made a different factual finding. This does not produce legal error in this matter.

7. The factual finding made by the Senior Member was precisely an evaluative assessment of “fact and degree” of the kind referred to in Langford which cannot be substituted on appeal absent error. This factual finding was clearly available to the Senior Member to make based upon a dispassionate assessment of the evidence. This is not an error of law.

8. Ground One of the first appellant’s appeal is dismissed.

As to Ground Two

1. The first appellant says that when the Senior Member “found the nature of the worker’s employment was limited to physical tasks associated with stocking shelves”,[158] this was an error in fact finding. The first appellant submits that the nature of the deceased’s employment was wider than this.

   [158] First appellant’s submissions, 6 October 2023, [2.1].

2. In response, the respondent says that relevant error has not been established, relying upon Raulston v Toll Pty Ltd.[159]

   [159] [2011] NSWWCCPD 25.

Consideration

1. I have dealt with the Senior Member’s fact finding on this issue in Ground One above. The first appellant’s complaint does not in real terms specify what the asserted error in fact finding was. Rather, the complaint is in substance that the Senior Member should have found in favour of the first appellant’s submission about the wider nature of the deceased’s employment as encompassing the pursuit or chasing of thieves.

2. For the reasons I have set out in Ground One above, Ground Two fails.

3. Ground Two of the first appellant’s appeal is dismissed.

Second appellant’s appeal

As to Ground One

1. The second appellant, like the first appellant’ Ground One, argues that the Senior Member misapplied s 9B of the 1987 Act by interpreting the obligation narrowly, rather than considering the deceased’s employment duties “wholistically”.[160] However the argument advanced by the second appellant is different to that pursued by the first appellant.

   [160] Second appellant’s submissions, 12 October 2023, [22].

2. The second appellant says that while the Senior Member correctly referred to cases like Galea, she misapplied its ratio.[161] The second appellant refers to the Senior Member’s quote from Galea at reasons [439] and argues the following:

   “26.   The Member misunderstood what was meant by [the phrase ‘the nature of the employment concerned’]. She erroneously construed it to mean that she was required to enquire as to the ‘particular’ ([reasons, [442]]), ‘essential’ ([reasons, [452]]) or ‘regular’ tasks/occurrences ([reasons, [446]]), in the deceased’s role.

   27.    That was not what was meant in Galea. Nor is it a natural reading of s 9B. Section 9B says nothing about ‘essential’, ‘regular’, or even ‘common’ tasks. Yet, that is the way the Member approached her task.

   28.    The Member said at [reasons], para [445]:

   “What the worker did in the course of his employment was not to chase or follow shoplifters. The evidence suggests that the nature of his employment was not even to serve customers. He was not a cashier like Ms Cheah. He ran from the back of the store or office area, having apparently seen the theft on the monitor in the office”.

   29.    The Member misdirected herself. It would be rare that a person’s particular, regular, or essential duty, would be to chase offenders.

   30. Section 9B requires a comparative analysis of the risks - i.e on the one hand, the employment concerned and, on the other hand, the other potential causative factors (which the Member found were absent).”[162]

   [161] Second appellant’s submissions, 12 October 2023, [24]–[26].

   [162] Second appellant’s submissions, 12 October 2023, [26]–[30].

1. In terms of the comparative analysis the second appellant says is the correct approach to construing s 9B, the second appellant points to other occupations where the type of event that the deceased was faced with on 27 June 2020 would not happen. The deceased’s employment, it is submitted, placed him in a public situation where “larceny, robbery, and physical attacks could occur”.[163]

   [163] Second appellant’s submissions, 12 October 2023, [31]–[33].

2. The second appellant submits in conclusion that:

   “Whilst foreseeability in the above sense is not required, s 9B does require a comparative analysis. That can only be done by comparing types of jobs, and enquiring whether the type of job gave rise to significantly greater risk.

   The very factors that supported a finding under ss 4(a) and 9A supported a finding under s 9B. The worker was only exposed to the risk due to his employment with the employer in that public retail setting.”[164]

   [164] Second appellant’s submissions, 12 October 2023, [35]–[36].

3. In reply the respondent says the assertion that the Senior Member should take a broader assessment of the nature of the deceased’s employment was rejected after the Senior Member undertook the “evaluative process that she properly undertook”.[165]

   [165] Respondent’s submissions, 26 November 2023, [36].

4. The respondent says that this was an assessment of the facts and not an error of law.[166]

   [166] Respondent’s submissions, 26 November 2023, [37].

Consideration

1. The second appellant criticises the Senior Member for erroneously construing the s 9B obligation, as explained in Galea, by enquiring about “particular”, “essential” or “regular” tasks performer by the deceased.[167] The second appellant specifies three specific paragraphs of the reasons where these words are deployed.[168] This, the second appellant asserts, is a misdirection producing error. The submission is to the effect that these enquiries narrowed the nature of the deceased’s employment duties, which should have been viewed “wholistically”.[169]

   [167] See second appellant’s submissions, 12 October 2023, [26]–[27] which I have set out in full above.

   [168] I will set these three paragraphs out in full below.

   [169] Second appellant’s submissions, 12 October 2023, [22].

2. In terms of the approach to this question I will briefly state a few principles. Firstly, a member’s reasons need to be read as a whole.[170] Secondly, in Roncevich v Repatriation Commission[171] Kirby J warned against “an overly pernickety examination of the reasons”, instead directing attention to whether the real issues presented by the parties were addressed.

   [170] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444.

   [171] [2005] HCA 40, [64].

3. It is apparent that the much of the dispute before the Senior Member involved a consideration of the nature of the employment engaged in by the deceased. This was one of the real issues in dispute between the parties.

4. In terms of the second appellant’s complaints, I set out below the three paragraphs from the Senior Member’s reasons where the offending words appear:

   “442. The worker was employed as a pick packer. The nature of his work and its particular tasks were to replace the stock on the shelves of the store. The stock consisted of such items as instant noodles and snacks. He removed the goods from the boxes in which they were delivered and placed them on the shelves.”

   “452. As I have noted, the nature of the worker’s employment was essentially stacking shelves. The medical evidence does not suggest that it gave rise to a risk of heart attack that was significantly greater than had he not been so employed.”

   “446. I do not accept the [first appellant’s] submission that the employment concerned was working in a retail environment, which involved having to deal with shoplifters, which in turn gave rise to a greater risk of the worker suffering injury. The work involved was as I have described it. There is no evidence that shoplifting at the store was in any event a regular occurrence.” (emphasis added)

5. These three paragraphs are part of the longer discussion by the Senior Member on matters touching upon the s 9B question, which as I have described above commenced at reasons [429] and concluded at [456].

6. It is important to understand that in this longer series of paragraphs and the three paragraphs within this section of the decision where the offending words appear, the Senior Member was in the process of undertaking the evaluative exercise referred to in Galea. It was necessary for the Senior Member to reach a view about the nature of the deceased’s employment in a factual sense for s 9B purposes.

7. I turn to each paragraph at reasons [442], [452] and [446]. With respect to each descriptor used by the Senior Member, “particular”, “essential” and “regular”, each was an available, accurate view to take of the circumstances being dealt with in each paragraph. In reasons [442] the word “particular” is directed to the Senior Member’s assessment of the work the deceased was actually required to perform, his “particular tasks”. At reasons [452] the Senior Member noted that the deceased’s employment was “essentially stacking shelves”. This is a factual and fair observation arising from a consideration of the evidence.[172] Finally at reasons [446], the Senior Member remarked that there was no evidence that shoplifting was a “regular” occurrence. This is an accurate observation of the evidence and is relevant to the evaluative exercise as to whether exposure to “running, physical exertion, larceny etc”[173] as the second appellant has submitted, was part of the nature of the deceased’s employment.

   [172] See particularly reasons, [442]–[445].

   [173] Second appellant’s submissions, 12 October 2023, [23].

8. I do not consider that it is a fair reading of those paragraphs to assert, as the second appellant has, that the Senior Member has misconstrued s 9B by the use of these three discrete words.[174]

   [174] As stated in the second appellant’s submissions, 12 October 2023, [27].

9. I reject the assertion that the Senior Member construed the s 9B obligation narrowly and I also reject the suggested approach that construction of that provision had to be approached “wholistically”.[175] Neither assertion by the second appellant, that is by reference to a narrow or wholistic construction of a statutory provision, reflects the accepted approach to statutory construction. This task “must begin with a consideration of the text itself”.[176] Alcan was cited with approval in Military Rehabilitation and Compensation Commission v May[177] where the plurality said that the “question of construction is determined by reference to the text, context and purpose of the Act.” There is no warrant in reading s 9B “wholistically”, as asserted by the second appellant.

   [175] Second appellant’s submissions, 12 October 2023, [22].

   [176] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 (Alcan), [47].

   [177] [2016] HCA 19.

10. I also reject the second appellant’s submission that because ss 4(a) and 9A were established, this also supports a finding in the second appellant’s favour under s 9B.[178] This submission was not developed in any detail, namely by setting out why the establishment of liability in ss 4(a) and 9A has this effect, rather the submission is asserted as if it were a self-evident legal principle. It is apparent that with respect to s 9B of the 1987 Act, the clear Parliamentary intention was to introduce different requirements for claimants to establish liability in the cases of heart attack or stroke. The requirements to establish liability under ss 4(a), 9A and 9B of the 1987 Act are all different. Establishment of liability in one does not satisfy the other(s). Indeed the test in s 9B of the 1987 Act, namely the existence of a “significantly greater risk” resulting from the nature of employment, is a higher bar to surmount than both appearing in s 4(a), “injury arising out of or in the course of employment” and in s 9A, “the employment concerned was a substantial contributing factor to the injury”.

    [178] Second appellant’s submissions, 12 October 2023, [36].

11. Ground One in the second appellant’s appeal has not been established. Ground One is dismissed.

As to Ground Two

1. The second appellant says that the Senior Member “erred when she found that the deceased’s employment only involved stacking shelves ([reasons] 422, 445, 452, 455 and 448) and did not involve running or severe exertion”.[179] The second appellant makes reference to the respondent’s “Emergency Response – Physical Attack Policy” which advises the worker to run to the nearest safe place, and that running was therefore an “essential” part of the deceased’s work.[180]

   [179] Second appellant’s submissions, 12 October 2023, [39].

   [180] Second appellant’s submissions, 12 October 2023, [41]–[42].

2. The second appellant also asserts that when the Senior Member found that exertion was not part of the deceased’s employment, this was wrong.[181]

   [181] Second appellant’s submissions, 12 October 2023, [43]–[47].

3. In reply the respondent submits the following:

   “It is submitted that the [second appellant] has not established that the [Senior] Member in reaching her ultimate conclusion overlooked material facts or afforded them too little weight or that the available opposite inference was so preponderant to the inferences drawn by her that her reasoning was wrong. (see Raulston v Toll Pty Ltd [2011] NSWWCCPD 25)

   The conclusion reached by the [Senior] Member was open to her on the facts and therefore not an error of fact.”[182]

   [182] Respondent’s submissions, 26 November 2023, [39]–[40].

Consideration

1. There are a number of problems with the second appellant’s submission in this ground.

2. It is asserted that “running” was an essential part of the deceased‘s work and that this flows from the respondent’s “Emergency Response - Physical Attack Policy”. Firstly there was no submission that I was taken to that the second appellant actually put this argument to the Senior Member. I have examined the transcript and cannot see where this submission was put in those terms to the Senior Member. Rather, the argument was that the pursuit of the thieves was work related.[183] This approach or submission was also supported by the other appellants, for example the third appellant.[184] However, in the transcript, the second appellant clearly submitted to the Senior Member that the Emergency Response – Physical Attack Policy did not apply to the circumstances confronting the deceased.[185] Obviously this stands in contradistinction to the submission now put which as a result, cannot be accepted. The Senior Member therefore cannot have been in error.

   [183] T 24.16–24.

   [184] T 31.15–25.

   [185] T 19.25–27.

3. The second appellant argues that the finding that the deceased’s employment did not involve exertion was wrong. This assessment by the Senior Member appears at reasons [448] which says as follows:

   “The employment did not involve heavy lifting or exertion, which in any event do not appear to be risk factors for a heart attack in a person with Brugada syndrome, on the evidence of Dr Herman and A/Prof Haber.”

4. This finding appears after the Senior Member’s conclusion that the deceased’s employment did not encompass dealing with shoplifters.[186] From reasons [447], the Senior Member, having established the nature of the employment, was examining in light of that finding, whether the employment as found gave rise to a significantly greater risk of heart attack. In light of the finding of the nature of the deceased’s employment being that of stacking shelves, the subsequent finding that this did not involve “heavy lifting or exertion” was a conclusion plainly available on the facts. I would remark that the description of the stacking activities, which appears at reasons [442], has not been challenged (other than to say that the deceased’s duties involved in addition dealing with shoplifters).

   [186] Reasons, [446].

5. In terms of this challenge to the factual findings made by the Senior Member, I also refer to my remarks (above) with respect to the first appellant’s challenge to factual findings and the passage I have referred to from Langford. For those reasons, in addition to what I have set out in answer to this appeal ground, this ground must fail.

6. Ground Two is dismissed.

Third appellant’s appeal

1. The third appellant states that reliance is placed upon the submissions of the second appellant, Si Rong Goh and that the third appellant’s submissions are in addition thereto. For the reasons set out above, I have rejected the second appellant’s appeal grounds, so to the extent that reliance is placed upon those grounds, the third appellant’s appeal also must fail. The question that I will consider is whether, based upon the additional matters submitted by the third appellant, the grounds as formulated by the third appellant have merit.

As to Ground One

1. The first ground says that the Senior Member was in error when she found that the employment did not give rise to a significantly greater risk of the worker suffering a heart attack. This ground effectively challenges the Senior Member’s findings as to the nature of the deceased’s employment under s 9B of the 1987 Act as the Senior Member decided that the nature of the employment as found did not significantly increase the risk of heart attack.[187]

   [187] Reasons [450]–[452].

2. The third appellant submits that in considering what constitutes “the employment concerned”, the following is what the Senior Member should have done:

   “That requires an enquiry into the full range of tasks that a worker could be required expected or authorised to do in order to carry out his duties.”[188]

   [188] Third appellant’s submissions, 17 October 2023, [15], citing Humphrey Earl Ltd v Speechley [1951] HCA 75 (Speechley).

3. The third appellant continues:

   “16.   The Member had found that there was a sufficient connection with the employment for the injury to have arisen out of employment and that employment was a substantial contributing factor.

   17.    The basis for that finding must be that when the worker ran out after the shoplifter he was engaged in an activity that had sufficient connection with his employment to satisfy the causal test involved in a consideration whether the heart attack arose out of the employment.

   18.    In other words it was an inherent part of the finding that the action of running after the shoplifter satisfied the test in Speechley.

   19.    It necessarily follows that the action of running after a shoplifter was something that could happen as part of the worker’s employment.

   20.    If the Member had considered whether the heart attack occurred in the course of employment the only correct conclusion is that it did. At the time of the action which caused the heart attack the worker was acting in the interests of his employer by chasing the shoplifter and seeking to recover the stolen bottle. The member rejected the suggestion that the worker had any other motive.

   21.    The Member found that the employment concerned, which included the running after the shoplifter, satisfied the test for the employment to be a substantial contributing factor.

   22. The test was not satisfied by the duties of stocking snacks on the shelves yet when applying the test for section 9B the Member limited the enquiry to those matters.

   23.    Further the Member limited employment to matters that are a regular occurrence. There is no reason to make such a limitation. For example in Galea the evidence did not establish that harassing actions from a fellow employee was a regular part of her employment. It was sufficient that it occurred and her employment exposed her to it.

   24.    There is no reason why a matter that occurs rarely could not mean that the employment gives rise to a greater risk than if the worker was not engaged in that employment. There are many employments were [sic] there is a significant risk even if the materialisation of that rarely occurs.

   25.    The proper enquiry was to ask whether the employment in its entirety gave rise to a significantly greater risk of heart attack.”

4. Contrary to these submissions, the Senior Member did indeed embark upon an enquiry about what constituted the nature of the deceased’s employment.[189] This involved considering the work the deceased undoubtedly performed as a pick packer and whether in addition, the nature of this employment also included running after a shoplifter. The Senior Member did not limit her enquiry to “stocking snacks” as is asserted.[190] The Senior Member clearly considered this question, but on the facts found contrary to the appellant’s submission. It is not correct to assert that the Senior Member failed to consider the entirety of what was said to be the nature of the deceased’s employment.

   [189] Reasons, [440]–[446].

   [190] Third appellant’s submissions, 17 October 2023, [22].

5. In dismissing Ground One of the third appellant’s appeal, I also rely upon the remarks I have set above from Langford in terms of the approach to examining a first instance exercise of an evaluative judgement.

6. Ground One of the third appellant’s appeal is dismissed, no error on the part of the Senior Member has been established.

As to Ground Two

1. Ground Two essentially alleges an error in the exercise of discretion. Namely, that the Senior Member considered that it was relevant to note that there was no evidence that shoplifting was a regular occurrence. Unfortunately, the submission does not identify where in the decision this issue was dealt with nor does it develop any argument in support of this ground although one might consider that the submissions appearing in paragraphs [23]–[24] of the third appellant’s submissions set out above may be somewhat relevant.

2. It seems to me that the real complaint here is of a House v King[191] type. That is, this consideration was either not something that should have been taken into account or the fact that shoplifting was not a regular occurrence did not mean that responding to such a rare event automatically excluded that activity from forming part of the nature of the deceased’s employment.

   [191] [1936] HCA 40; 55 CLR 499 (House).

3. Having reviewed the decision, it appears that the offending paragraph of the Senior Member’s reasons is [446], which I set out below.

   “I do not accept the [first appellant’s] submission that the employment concerned was working in a retail environment, which involved having to deal with shoplifters, which in turn gave rise to a greater risk of the worker suffering injury. The work involved was as I have described it. There is no evidence that shoplifting at the store was in any event a regular occurrence.” (emphasis added)

4. Reasons [446] is the terminus of the Senior Member’s reasoning process on the question of what was the nature of the deceased’s employment for s 9B purposes. The statement that “[t]here is no evidence that shoplifting at the store was in any event a regular occurrence” is part of the Senior Member’s exercise of a broad evaluative judgement in assessing whether dealing with or running after shoplifters was part of the nature of the deceased’s employment. This was clearly a relevant consideration to the determination of this question.

5. I would remark that there is no issue raised by any appellant that the statement is factually incorrect.

6. There is no error of the House type.

7. Ground Two of the third appellant’s appeal is dismissed.

As to Ground Three

1. The third appellant asserts that the Senior Member erred when she failed to consider all the things that were part of the worker’s employment when determining whether the employment gave rise to a significantly greater risk of heart attack. The third appellant has asserted that chasing the shoplifter was part of the deceased’s employment and at paragraph [26] of her submissions, put the following:

   “The cause of the heart attack was the action of running after the shoplifter. That action was part of the worker’s employment and it was that action that gave rise to the risk of heart attack. If the worker had not been engaged in the employment that he was he would not have been exposed to that risk and would not have been engaging in prolonged physical exertion at that time. It was the employment that created the risk. If the worker had not been engaged in his employment performing his duties at the time and place that he was the risk would not have materialised. He would not have been exposed to that risk in employment of a different nature. That is employment that did not include prolonged physical exertion.”[192]

   [192] Third appellant’s submissions, 17 October 2023, [26].

1. There are a number of problems with this submission. The Senior Member has made a factual finding as to the nature of the deceased’s employment that it did not encompass chasing or running after the shoplifter(s). For the reasons I have set out above, this factual finding has not been disturbed on appeal.[193] This appeal ground, based upon the deceased’s duties encompassing chasing the shoplifter, cannot succeed in light of the Senior Member’s factual finding to the contrary which has not been disturbed on appeal.

   [193] See my decision above rejecting the first and second appellant’s Ground One arguments.

2. This submission also asserts that the deceased was involved in “prolonged physical exertion”. There was no evidence regarding any prolonged physical exertion. The evidence about the theft was to the effect that it occurred relatively quickly and that the distance that the deceased ran was short, although he did run quite fast.[194] The description of the CCTV footage, which I have set out in paragraph [8] (above), also reveals the brief period of time involved. The Autopsy Report set out above, describes “mild physical activity”.[195] Ms Cheah describes the deceased running very fast but reading her statement in full, she does not suggest witnessing prolonged physical activity on the part of the deceased. Rather, the sense of her statement was that she saw the deceased sprinting after the thief and the event did not last long.[196] The factual basis for the assertion of “prolonged physical activity” has not been established.

   [194] T 26–29.

   [195] ARD, p 26.

   [196] See ARD, p 64, [35]–[37]; p 65, [39]–[40].

3. Additionally, the appeal ground itself says that the Senior Member failed to consider all things that were part of the deceased’s employment. I do not accept this submission. The Senior Member examined the nature of the deceased’s employment[197] and determined that chasing shoplifters was not part of the employment. This submission is really a complaint about the merits rather than identifying where the Senior Member was in error.

   [197] Reasons, [441]–[446].

4. Error has not been established. Ground Three of the third appellant’s appeal is dismissed.

Fourth appellant’s appeal

1. The fourth appellant, whilst appealing the Senior Member’s decision, has not advanced any separate appeal grounds, instead relying upon the appeal submissions of the first appellant. As is evident above, I have dismissed the first appellant’s appeal. As a consequence, the same result will apply to the fourth appellant.

2. As a matter of formality, I dismiss the fourth appellant’s appeal for the reasons that I have dismissed the first appellant’s appeal.

DECISION

1. The Certificate of Determination dated 20 September 2023 is confirmed.

Judge Phillips
PRESIDENT

2 September 2024