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

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”.
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.
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…

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: [2024] NSWPICPD 55
Decision Date: 2 September 2024

CaseChat Overview and Summary

The case of Goh v Zetciti WP Pty Ltd involves an appeal against a decision regarding the eligibility of a deceased worker for compensation under Section 9B of the Workers Compensation Act 1987. The appeal was heard by the NSW Civil and Administrative Tribunal, focusing on the nature of the deceased’s employment and the associated risks. The central issue was whether the deceased's employment involved activities that significantly increased the risk of heart attack, specifically running after shoplifters. The third appellant argued that the Senior Member of the tribunal had erred by not considering all aspects of the employment, particularly the risk associated with chasing shoplifters, when determining if the employment gave rise to a significantly greater risk of heart attack.

The court examined the Senior Member's reasons, particularly paragraph [446], where it was noted that there was no evidence that shoplifting at the store was a regular occurrence, and thus the deceased's employment did not involve dealing with shoplifters. The tribunal found no factual error in this assessment. The court applied the principles from Secretary, Department of Communities and Justice v Galea [2021] NSWWCCPD 1 and Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 to assess the evaluative judgment exercised by the Senior Member. The tribunal concluded that the Senior Member's factual finding regarding the nature of the employment was not disturbed on appeal, leading to the dismissal of the third appellant's argument.

The tribunal confirmed that the deceased's employment did not include chasing shoplifters, and therefore, the risk of heart attack was not a result of the employment. The appeal was dismissed, and the Certificate of Determination dated 20 September 2023 was upheld.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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) 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. I would remark that there is no issue raised by any appellant that the statement is factually incorrect. There is no error of the House type. Ground Two of the third appellant’s appeal is dismissed. 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]. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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