Henry v Henry's Transport Solutions Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Henry v Henry's Transport Solutions Pty Ltd [2025] NSWPIC 120
APPLICANT:	Carolyn Henry
RESPONDENT:	Henry's Transport Solutions Pty Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	1 April 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim in relation to death of worker; finding that the deceased worker sustained injury pursuant to section 4(a) when he died of a heart attack while driving his truck; Held – that no compensation is payable because the employment was not a substantial contribution factor to his injury (section 9A); in the alternative, pursuant to section 4(b)(ii) the employment was not the main contributing factor to the aggravation, exacerbation, deterioration or acceleration of the coronary artery disease; in the further alternative, pursuant to section 9B no compensation is payable for the heart attack injury as the nature of the employment concerned did not give rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature; De Silva v Secretary, Department of Finance, Services and Innovation discussed and distinguished on the facts; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 4(a) of the Workers Compensation Act 1987 Robert Henry sustained injury in the course of his employment on 9 August 2022 when he died of a heart attack. 2. Pursuant to s 9A of the Workers Compensation Act 1987 no compensation is payable because the employment was not a substantial contributing factor to his injury. 3. In the alternative, pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 the employment was not the main contributing factor to the aggravation, exacerbation, deterioration or acceleration of the coronary artery disease. 4. In the further alternative, pursuant to s 9B of the Workers Compensation Act 1987 no compensation is payable for the heart attack injury as the nature of the employment concerned did not give rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature. 5. Award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Robert Henry was employed by the respondent as a long haul truck driver. He died of a heart attack on 9 August 2022. His widow, Carolyn Henry, the applicant, is the only dependent making a claim for compensation pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (the 1987 Act). The amount of the lump sum is $862,350. The adult children of the deceased and Carolyn Henry have provided statutory declarations stating they were not dependent on the deceased for support at the time of his death and they do not make a claim for compensation.
The case is brought on two bases:
(a) pursuant to s 4(a) of the 1987 Act, and
(b) pursuant to s 4(b)(ii) of the 1987 Act for aggravation of disease.
The respondent denies liability for the claim in relation to both bases. It issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 30 May 2023.[1] It disputed that the employment was the main contributing factor to contracting the disease, being coronary artery disease. It also relied upon s 9B of the 1987 Act, based upon the opinion of Dr Haber.
[1] Application p 12.
On 10 October 2023 Ms Henry’s solicitors served the insurer with a report from Dr Herman dated 9 October 2023. An internal review was requested.[2]
[2] Application p 17.
On 24 October 2023 the insurer issued its review notice advising that the earlier decision was maintained.[3] The applicant’s solicitors requested a further review on 23 October 2024 serving a supplementary report from Dr Herman dated 23 July 2024 and in their notice dated 6 November 2024 the declinature was maintained, adding that they were not satisfied that the evidence from Dr Herman supported a finding of employment being the main contributing factor to the contraction of, and /or aggravation of, coronary artery disease.[4]
[3] Application p 18.
[4] Application p 28.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded in arbitration hearing on 6 February 2025. Mr Adhikary, counsel, instructed by Ms Almaet, solicitor, appeared on behalf of Ms Henry, who was present.
Ms Goodman, counsel, instructed by Mr Studdert, solicitor, and Ms Dean from icare appeared for the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application in Respect of Death of Worker and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no oral evidence, both counsel made oral submissions, which were sound recorded. A written transcript (T) has been made from the recording.

FINDINGS AND REASONS

Relevant legislative provisions and legal authorities

Section 4 of the 1987 Act defines “injury” as follows:
“(a) means a 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 any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
The applicant has the onus of proof in establishing that the deceased suffered an injury within the terms of s 4 of the 1987 Act.
If the injury comes within the meaning of s 4(a), s 9A of the 1987 also needs to be satisfied.
Section 9A provides:

“(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(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 occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.”

Section 9B of the 1987 Act is relevant in both scenarios, regardless of which limb in s 4 applies to the injury. It provides:
“(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.”
There is no dispute that the deceased suffered a “heart attack injury” within the definition in s 9B(2).
In De Silva v Secretary, Department of Finance, Services and Innovation,[5] Senior Arbitrator Michael Snell (as he was then) dealt with s 9B of the 1987 Act. He found at [105]:
“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. It is necessary that the first of these be ‘significantly greater’ than the second, if compensation is to be payable.”
[5] [2015] NSWWCC 279, De Silva.
Deputy President Snell considered s 9B of the 1987 Act and De Silva again in Renew God’s Program Pty Ltd v Kim[6] and Secretary, Department of Communities and Justice v Galea.[7] Obviously, cases dealing with s 9B are fact sensitive. However, the decisions are instructive as to how one is to apply s 9B. The following passages from Kim are relevant:
“39. De Silvarefers to the exercise under s 9B(1) involving a ‘comparison of the level of risk’. The passage from DeSilva quoted at [10] above describes the nature of the comparison. Neither party suggested it was inappropriate to apply the reasoning in De Silva. There was discussion in DeSilva regarding the meaning of the phrase ‘the employment concerned’, where that phrase is used in s 9B(1). In DeSilva, I concluded that phrase has the same meaning as when the same words are used in s 9A(1), being a reference to ‘what the worker in fact does in the employment that caused or contributed to the injury’. That is, the reference is to ‘the particular employment in which a worker suffered injury’, rather than to ‘a class or classification of employment’. Neither party challenges that aspect of the reasoning in De Silvaon this appeal.
40. The test in s 9B requires that the relevant risk in the employment concerned be ‘significantly greater’ than the risk ‘had the worker not been employed in employment of that nature’. In De Silva I concluded that satisfaction of this test required a risk in the employment concerned that was greater, in a way that was ‘important; of consequence’. This aspect of the reasoning in DeSilva is not challenged on this appeal.” (omitting the endnotes)
[6] [2019] NSWWCCPD 45, Kim.
[7] [2021] NSWWCCPD 1, Galea.
A more recent Presidential decision dealing with s 9B of the 1987 Act is UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare).[8] Snell DP also determined that case. It was confirmed at [201] that the worker has the onus of satisfying s 9B. The employer, UPVC, argued that De Silva, Kim and Galea were wrongly decided submitting that the reference to “the nature of employment” in s 9B required a consideration of “the class of employment as opposed to the employment engaged in by the worker”. However, Snell DP adhered to the statutory construction he had adopted in De Silva, Kim and Galea. In the present case the class of employment is long haul truck driver.
[8] [2023] NSWPICPD 11, UPVC.

Summary of evidence

Ms Henry has provided a statement dated 6 December 2022 in which she describes her husband’s work history including that he would undergo long haul truck driving trips and be on the road Monday to Friday, predominantly. He was the director and employee of his own transport company, being the respondent. She states that because of his work he had limited nutritious food and lack of sleep consistently. She says he would often be stressed as he would need to arrive at the destination at a set time. She says he told her that he was stressed about the price of diesel. He often slept in the truck cabin.
She states at the time of his death he would have been about 100kg, was taking blood pressure medication and had Type 2 diabetes and these conditions were well under control.
Ms Henry describes the activities at home on Sunday 8 August 2022 [sic, should be 7 August 2022]. She says they had a BBQ for her mother’s birthday and her husband was normal with no signs of any health issues. On the Monday 8 August 2022 she relates that he had a dental appointment, blood test and COVID-19 vaccine.
On the day of her husband’s death she said he called her at 7.30am and told her not to call him as she usually did at 8.00am as he was pulling over to have a rest, he said he was at Marulan at the time. Ms Henry said she called her husband at 1.00pm and he sounded normal but told her he had been tired and had a sore arm. He told her that after unloading in Wagga Wagga he would drive to Oaklands and she said she told him she would ring him when she finished work at around 4.30pm. She said when she rang at that time the phone rang out.
The police attended her home and informed her that he had died in the truck and he was found deceased at 2.00pm. She was told the truck was found resting up against a tree by a farmer who contacted police.
She states that her husband had never been diagnosed with any heart condition, nor admitted to hospital for the same and he never complained of any chest pain or shortness of breath.
The Coroner dispensed with holding an inquest and found that the direct cause of death was ischaemic heart disease and the antecedent causes were chronic coronary artery atherosclerosis, hypertension and hypercholesterolaemia.[9] The postmortem examination revealed:
“internal examination revealed an enlarged heart with severe chronic coronary artery atherosclerosis. The right coronary artery was >90% blocked and the left anterior descending was >50% blocked. There was heavy calcification of all coronary vessels. There was evidence of old ischaemia of the left ventricle with mature fibrosis. There were no pulmonary thrombo-emboli. The lungs were moderately congested.”[10]
[9] Application p 36.
[10] Application p 41.
Dr Herman, cardiologist, in his medico-legal report for the applicant dated 13 June 2023[11] sets out the postmortem findings quoted above. He states that the deceased had multiple cardiac risk factors including Type 2 diabetes, hypertension, hypercholesterolaemia and a family history of premature vascular disease and he was moderately obese.
[11] Application p 59.
Dr Herman diagnosed “[a]rrhythmia (probably ventricular fibrillation) secondary to coronary ischaemia in the setting of an ischaemic cardiomyopathy with a prior large posterior myocardial infarction.”
He was asked “on the balance of probabilities, what is the connect between the deceased’s employment and the injury or pathology you have diagnosed?” He replied that on the balance of probabilities the deceased’s employment would have played a minor role in the risk of his death. He advises that while stress can play a role in provoking coronary atherosclerosis and plaque rupture, this would appear to be minor in this case, given the significant other cardiac risk factors and the prior myocardial infarction.
Dr Herman also did not consider employment to be a substantial contributing factor to his death. He was also asked if the employment caused or aggravated the disease process and caused his death. Dr Herman answered that the employment may have played a minor aggravation of the disease process from the stress induced by his work, long hours and poor diet. But he states the overwhelming contributor to his death was his Type 2 diabetes, hypertension, hypercholesterolaemia and the apparently silent prior myocardial infarction. He said the employment was not the main contributing factor to the development or aggravation of disease.
Dr Herman also expresses the opinion that the deceased’s coronary artery disease did result in his fatal heart attack. He explains:
“On the day of his death, he probably had a sudden cardiac arrhythmia (ventricular in origin) secondary to ischaemia (possibly in the right coronary artery territory).
Patients with ischaemic cardiomyopathy (prior damage to the left ventricular myocardium, secondary to a myocardial infarction) are at high risk of a sudden arrhythmic event, which appears to have been the provoker in his circumstance.”
Dr Herman considers the employment contribution being no more that 5-10%.
On 9 October 2023 Dr Herman provided a further report as a response to correspondence from the applicant’s solicitor dated 18 July 2023.[12] He advises that the deceased would have had coronary atherosclerosis for many years, may be for one to two decades and had resulted in prior posterior myocardial infarction. He again repeats that any aggravation, exacerbation or acceleration of his ischaemic heart disease from his employment was approximately 5-10% in his overall profile. But then he adds “this is a material contribution”.
[12] Application p 63.
Dr Herman provides the following responses to further questions asked of him:
“The worker’s employment as an intercity truck driver would have resulted in an aggravation, exacerbation or acceleration of his coronary artery disease/ischaemic heart disease than had he not been employed in employment of that nature.
Specifically, the long hours in a sedentary role with poor diet and inhalation of pollutants (whilst driving) could certainly exacerbate underlying coronary atherosclerosis.”
and
“Mr Henry’s work as an intercity truck driver did give rise to a significantly greater risk of dying as a result of his heart attack injury given that he was not in a position to obtain early assistance for medical therapy for his coronary artery disease.
He had, apparently, complained earlier of pain down his arm, which may well have been an ischaemic manifestation (lack of blood supply to the heart).
Furthermore, ‘time is muscle’ and the longer one has ischaemia, the more heart muscle is damaged.
Moreover, ischaemia-driven arrhythmia would have been effectively managed had he been in a facility able to provide acute treatment.
In summary, had he presented to hospital earlier in the day with ischaemic chest pain, his arrhythmia (which provoked his death) would most likely have been detected and appropriately managed.”
The applicant’s solicitors sought another report from Dr Herman, which is dated
23 July 2024.[13] Dr Herman states that “it was, and remains, my opinion that his truck driving resulted in aggravation, exacerbation or acceleration of his coronary disease”. However, in the paragraph preceding this he expressed that the employment factors provided a minor aggravation:
“Whilst his Type 2 diabetes, hypertension, hypercholesterolaemia, obesity and family history of premature ischaemia all had significant roles, the role of intercity truck driving did provide a minor aggravation by virtue of driving for long hours, maintaining a poor diet, having a sedentary lifestyle and inhalation of pollutants which are known to accelerate pre-existent coronary artery disease.”[14] (my emphasis)
[13] Application p 66.
[14] Application p 66.
Yet, Dr Herman then states “His intercity truck driving was a contribution to the injury and was real and of substance.” He does not explain why.
Dr Herman is then asked about the elements in s 9A, which are listed in the question, and the doctor just repeats them in his answer without explaining anything about each factor.
Question 3 is expressed as follows:
“Are you of the opinion that Dr Haber has indicated Mr Henry’s employment was a material contributing factor to his injury? As indicated above, for the material contributing factor requirement to be established, the factor does not need to be the main factor, sole factor or the predominant factor.” (italic font and bold omitted)

This question is poorly phrased and does not represent the correct legal test. Firstly, it states “as indicated above” yet the preceding questions do not indicate that. Question 2 solely relates to s 9A.
The relevant legislation does not use the language “material contributing factor”. If the applicant relies on s 4(a), s 9A applies and refers to “a substantial contributing factor” and s 9B as requires that the relevant risk in the employment concerned be ‘significantly greater’ than the risk ‘had the worker not been employed in employment of that nature’. If the disease provisions are relied upon then “main contributing factor” needs to be addressed and not s 9A.
Dr Herman answers a final question as to whether the employment made a material contribution to his injury and he answers it made a material contribution but was not the substantial cause in the setting of multiple cardiac risks. He concludes that the intercity truck driving and its associated lifestyle risks provided a contribution to his ultimate demise from a myocardial infarction and arrhythmic event.
Dr Haber, consultant physician/cardiologist, provided a medico-legal report for the respondent dated 28 March 2023.[15] He states the deceased was aged 55 and obese with a BMI of 33.7. His mother had coronary artery disease. He notes the past medical history included raised cholesterol and triglycerides, diabetes, hypertension, chronic coronary artery atherosclerosis. Dr Haber had access to the applicant’s statement, coroner’s report, fatality notification from and the Patient Health Summary of My Health North Richmond. He diagnoses “myocardial infarction due to ischaemic heart disease due to chronic coronary artery atherosclerosis with greater than 90% stenosis of the right coronary artery.”
[15] Reply p 1.
In relation to causation Dr Haber states that:
“his employment contributed to his chronic stress of intercity driving trucks as well as irregular meals, but these are so-called risk factors for coronary artery disease but they are not the cause of his heart attack (myocardial infarction).”
He adds that:
“the presence of raised cholesterol and triglycerides as well as diabetes and hypertension are major contributing factors to the development of coronary artery atherosclerosis leading to fatal blockages, as in his case especially of the right coronary artery.”
Dr Haber states that he had an advanced blockage of the right coronary artery greater than 90% which was on the point of causing a heart attack injury.
In a second report dated 19 May 2023 Dr Haber stated:
“Mr Henry died due to acute myocardial infarction (heart attack) due to 90% stenosis of
the right coronary artery as well as 50% blockage of the left anterior descending
coronary artery.
…
In retrospect he had classical 'warning symptoms' of impending heart attack. He did not
realise the significance of his symptoms at that time. He died as the result of his
coronary artery disease.”
Dr Haber opines “In his case the employment factors have contributed only a minor cause, the substantial cause for his fatal heart attack are non-work related factors, as listed above.” He refers to the factors of obesity, raised cholesterol and hypertension. In answer to question 5 he confirms these conditions were pre-existing and unrelated to his employment.
Dr Haber concludes:
“In my opinion the deceased's employment activities with Henry's Transport Solutions
Pty Ltd did not give rise to a significantly greater risk of the deceased's suffering a heart attack injury than had he not been employed in employment of that nature.”
I have read the general practitioner’s records from My Health North Richmond but do not need to summarise them. Dr Herman and Dr Haber have referred to the deceased’s medical history.

Determination

As the submissions have been sound recorded and a written transcript has been made, I will not recite the submissions verbatim. I will summarise the main thrust of each parties’ submissions when making my determination where relevant.
The applicant has run her case on two bases. The first is that the deceased suffered an injury that falls within s 4(a) of the 1987 Act, satisfies s 9A and s 9B. In the alternative, the applicant asserts the injury comes within s 4(b)(ii) of the 1987 Act and satisfies s 9B. I find that it is logical, and necessary, to consider each legislative provision separately in that order so to ensure the various tests applicable to each provision are not conflated with each other.

Section 4(a)

The applicant submitted:
(a) it is not in disputed that the deceased was in the course of his employment when he sustained a heart attack and died;
(b) the following facts are not disputed by any contrary evidence:
(i)he was undertaking long haul truck driving;
(ii)he worked long hours, and
(iii)he experienced a lack of sleep, poor diet and was exposed to pollutants.
I accept these facts have been established from the evidence of Ms Henry with the exception of pollutants. There is no evidence as to the type of any pollutants he would have been exposed to and there is no evidence as to the configuration of his truck, the air-conditioning system or filtration etc. The experts do not analyze the effect of pollutants.
The applicant submits that both experts have found that these facts made a “material contribution” to his injury. He said once that element is accepted one turns to consider s 9A.[16]
[16] T5.5.
The respondent’s counsel submitted that the applicant’s counsel has not identified what the injury is when he considered s 4(a).[17] She referred to the Coroner’s report that the deceased had an enlarged heart with severe chronic artery atherosclerosis and the right coronary artery was more than 90% blocked and the left descending more than 50% blocked. She submitted that there was heavy calcification of all the coronary vessels and evidence of old ischemia of the left ventricle with mature fibrosis, and Dr Herman states that the deceased had a heart attack at an unknown time. It is submitted that Dr Herman supports that the ischemic cardiomyopathy is the underlying condition which has led to arrythmia which has caused death. The respondent submits that death is the result and the injury is the heart attack.[18] She later refers to Dr Haber’s opinion that the deceased had a myocardial infarction and submits this is the heart attack and the arrythmia is a different rhythm that if it is not corrected straightaway leads to a heart attack. The respondent submitted that the Commission would not be satisfied that there was a s 4(a) injury.[19]
[17] T21.24.
[18] T25.24.
[19] T44.15.
Section 4(a) refers to “personal injury”. Many authorities have considered the meaning of personal injury such as in Petkoska Kennedy Cleaning Services Pty Ltd v Petkoska[20] the High Court stated at [39] “a personal injury is a ‘sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. In my view, the fact that Mr Henry died meets the requirement of “personal injury” because clearly death is a disturbance of his normal physiological state. To satisfy s 4(a) the applicant does not have to prove both limbs of “arising out of” and “in the course of” because the legislation does not use “and”, as it uses “or”. The phrase “in the course of” requires a temporal connection rather than being a question of causation. It is common ground that when the deceased died, he was in the course of his employment as a long-haul truck driver.
[20] [2000] HCA 45; (2000) CLR 286, Petkoska.
In Castro v State Transit Authority[21] Judge Armitage considered the meaning of “injury in s4 of the then 1987 Act”. However, the facts and medical evidence in Castro are quite different to that in the present case. In Castro at [119] Judge Armitage concluded that the applicant did not in fact suffer a myocardial infarction when he was driving his bus, that all he suffered was an episode of atrial fibrillation which was found on the balance of probabilities was not contributed to by employment. The Judge found a temporary physiological change in the body’s function such as atrial fibrillation, irregular rhythm of the heart, without pathological change did not constitute injury. At [123] in Castro Judge Armitage when referring to an earlier High Court case[22] stated it was clear in that case the Court was “dealing with a case where pathological change had undoubtedly occurred. Of course it had, the worker had died”.
[21] [2000] NSWCC 12; (2000) 19 NSWCCR 496, Castro.
[22] Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 317.
The applicant’s counsel stated at the outset he was relying on “in course of employment” aspect of s 4(a) and he repeated this later in his submissions.[23] For the reasons, as explained above, I find that s 4(a) of the 1987 Act has been satisfied. Section 9A can now be considered. The applicant’s counsel made repeated references to “material contribution” such a concept of causation is relevant when considering the phrase “arising out of employment” in s 4(a). However, I find I do not need to consider this when determining s 4(a) as I have found the injury occurred “in the course of employment”.
[23] T13.1-6.

Section 9A

In any event, the concepts of causation in “arising out of” differs to that in s 9A as sub-paragraph 3 makes clear.
In Badwai v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[24] the Court of Appeal considered s 9A and stated that for employment to be “a substantial contributing factor” it must be “real and of substance”. The Court affirmed what was found in Department of Education and Training v Sinclair,[25] that the use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors. The Court also acknowledged that the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge, citing Hevi Lift (PNG) Ltd v Etherington.[26] At [51] in Badawi reference was made to Dayton v Coles Supermarkets Pty Ltd[27] that “the word ‘substantial’ was a word of plain English ‘understood by anyone who is not a judge’ … ‘nobody in their senses would regard a cause which could be correctly categorized as very ‘minor’ as ‘substantial’”.
[24] [2009] NSWCA 324, Badawi.
[25] [2005] NSWCA 465, Sinclair.
[26] [2005] NSWCA 42, Hevi Lift.
[27] [2001] NSWCA 153, Dayton.
The applicant also relied on the decision in Department of Corrective Services v Clifton[28] as illustrative how the elements in s 9A(2) are considered. While the principles are those to be applied when considering s 9A, one needs to bear in mind that the facts in Clifton are very different to that in the present case. Mr Clifton was walking to his office from the office meal table when he had a coughing fit and blacked out and fell on the concrete floor. He came to and had pain in his right hip and knee. He underwent surgery to repair his broken right hip. He did have some pre-existing osteoarthritis in the hip.
[28] [2006] NSWWCCPD 310, Clifton
Turning now to consider the factors in s 9A (2) I make the following findings:
(a)    the time and place of injury was at about 2.00pm on 9 August 2022 at Clear Hills Road Oaklands when he was working.[29] The applicant emphasized that he was in the course of employment and injury occurred during normal working hours.[30] I accept this aspect of the submission;
[29] Application p 34.
[30] T15.4.
(b)    the nature of the work performed was as a long-haul truck driver and the particular tasks of the work was driving trucks. These were tasks in the course of his employment. The applicant submitted the task related to his employment caused his death. I do not accept this aspect of the applicant’s submissions, that his death was caused by his employment. I will discuss this further below;
(c)    the duration of employment was for many years and on the day of death since about 3.30am that morning;
(d)    I consider this element below;
(e)     the deceased’s state of health before the injury included having Type 2 diabetes, hypertension, raised cholesterol, obesity, a prior undetected heart attack and atherosclerosis. He also had hereditary risks as his mother had coronary heart disease, and
(f)    his lifestyle and activities outside the workplace included attending family BBQ’s and resting after driving for up to six days at a time.
The factor (d) in s 9A (2) is the contentious aspect of the section in this case, “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 had not been at work or had not worked in that employment”. In Clifton Roche DP found at [45] that there was no evidence Mr Clifton would have fractured his hip because of the presence of degenerative changes in the hip, if he had fallen on a more forgiving surface or from a lower height. It was therefore concluded that both the concrete surface and the height from which he fell were significant factors in causing the injury. This factual matrix can be contrasted with the present case where there is no evidence of physical labour causing the heart attack nor did the truck have a heavy impact with the tree causing the heart attack. The evidence about the absence of skids marks suggests that it is reasonable to conclude the deceased had the heart attack while driving. There was no damage to his body.
Given the state of health of the deceased before the injury, I find that the probability is that the injury would have happened anyway at about the same time in his life. The respondent’s submission, referred to above, references the post-mortem findings that the deceased had an enlarged heart with severe chronic artery atherosclerosis and the right coronary artery was more than 90% blocked and the left descending more than 50% blocked with heavy calcification of all the coronary vessels and evidence of old ischemia of the left ventricle with mature fibrosis, and Dr Herman opining that the deceased had previously had a heart attack at an unknown time. This is not a case where there was the added impost of strenuous physical labour at the time of the heart attack.
The applicant submitted that Dr Haber’s opinion, that there was a probability that the injury would have happened anyway, should not be accepted. The reason offered for that submission was that the deceased had suffered from underlying issues for at least one or two decades and “he didn’t sustain the injury that ultimately led to his death at any point in time”.[31] I find that reasoning does not adequately consider the fact that on postmortem he had greater than 90% blockage in one artery and 50% in the other. Nor has counsel dealt with the fact that the Coroner found signs of a prior heart attack, of which the deceased was unaware. The applicant argued what led to the injury was the exposure to the employment related factors such as eating, sleeping poorly and stress of his job. He argued that whilst the contribution might not have been significant when you compare it to the underlying issue there was a material contribution made by these employment factors.[32] I do not accept this submission for the following reasons.
[31] T15.23-.35.
[32] T16.15.
Dr Herman in his first report provided the opinion that on the balance of probabilities the deceased’s employment would have played a minor role in the risk of his death. He advises that while stress can play a role in provoking coronary atherosclerosis and plaque rupture, this would appear to be minor in this case, given the significant other cardiac risk factors and the prior myocardial infarction. He considered the employment contribution of 5-10%. I find this is a minor contribution consistent with the discussion in Dayton. I do not accept the applicant’s submission at T14 and find that the employment factors, while they may be real in the sense they exist, I find they are of not “of substance”. Even though Dr Herman provided other reports I find he remained of this opinion. For instance in his report dated 23 July 2024 he stated:
“Whilst his Type 2 diabetes, hypertension, hypercholesterolaemia, obesity and family history of premature ischaemia all had significant roles, the role of intercity truck driving did provide a minor aggravation by virtue of driving for long hours, maintaining a poor diet, having a sedentary lifestyle and inhalation of pollutants which are known to accelerate pre-existent coronary artery disease.”[33] (my emphasis)
[33] Application p 66.
Taking into account all of the factors in s 9A(2) I find that the applicant has not discharged her onus of proof that the employment was a substantial contributing factor to the injury. I find that the factors of the deceased’s prior health and the probability he would have suffered such an injury at about the same time lead to this conclusion. I find the employment related factors relied upon by the applicant were “a contribution” to his coronary artery condition but they were not a “substantial” contributing factor to his injury.

Section 4 (b) (ii)

The applicant brought her case in the alternative on the basis of s 4(b)(ii) of the 1987 Act. Section 9A does not apply to a disease injury. She needs to prove that the employment was the main contributing factor to the aggravation. I consider that the evidence does not support this conclusion. I accept that the injury can be categorized as a disease as both Dr Herman and Dr Haber have found that the deceased suffered from coronary artery disease. While
Dr Herman in the passage above says the employment factors did provide an aggravation of that disease he states they are a minor aggravation of the disease.
The coronary artery disease was caused by the fact that he had diabetes, hypertension, high cholesterol, was obese and he had a family history of cardiac disease. The disease manifest itself by the blockages in his arteries of 90% and 50%. This disease was aggravated by sometime in the past of him having a heart attack, of which he was not aware. The disease obviously was not static as logically blockages of this magnitude do not occur when the disease was first contracted. It is a progressive disease and the general practitioner’s records show that the deceased was being treated for all these conditions up to the time of his death. I find they are the main contributing factor to the aggravation of disease and as
Dr Herman stated the employment factors were minor contributing factors to the aggravation. Just because Dr Herman was asked to advise if the employment factors were a “material contribution” to the aggravation of the disease does not mean they were the main contributing factor to the aggravation of disease. It was the wrong question to ask him.
Therefore, I find there should be an award for the respondent on either basis that the case was argued. The applicant has not satisfied s 9A if the injury falls within s 4(a) and if it comes within s 4(b)(ii) the employment was not the main contributing factor to the aggravation of the disease.
In the event I am regarded as incorrect in coming to these findings, I will deal with s 9B of the 1987 Act which applies to both bases upon which the case was run.
As was stated in De Silva, s 9B(1) does not require a significant risk. It requires a comparison of the risk to which the nature of the employment concerned and of the risk had the worker not been in employment of that nature and the first risk has to be significantly greater than the second risk.
In the matter of Mananquil v Truserv Pty Limited & Ors[34] I found that the dependents were not precluded from receiving compensation because of the operation of s 9 B of the 1987 Act. Both counsel in this matter of Henry were in Mananquil representing dependents of the deceased. The respondent’s counsel in Henry argued that in Mananquil the applicant satisfied s 9B because the deceased worker in that case was in the process of performing uploading his truck, involving physical exertion, when he collapsed. There was medical evidence in that case from Dr Raftos that sudden angina and cardiac death are often precipitated by physical exertion because the occluded coronary artery or arteries cannot meet the increased metabolic demand on the heart imposed by exertion. The facts in the Henry case are different, there is no evidence of exertion. However, every case is fact sensitive and need to be determined on the evidence in each case.
[34] [2024] NSWPIC 28, Mananquil.

In the present case the evidence is that the deceased called Ms Henry at 7.30am on
9 August 2022 as he was pulling over to have a rest at Marulan. She spoke to him again at 1.00pm and she says he appeared to sound normal. He told her he had been tired and had a sore arm. The deceased was found in the truck which had come to rest against a tree and the police estimated he had likely run off the road between 1.00pm and 2.00pm. She says there was no motor vehicle accident, no skid marks. The evidence from the Coroner’s report is there was no significant damage to the truck or the deceased.
Dr Haber provided the opinion that in retrospect the deceased had classical warning symptoms of an impending heart attack, he did not realize the significance of his symptoms at that time. I find this evidence is relevant because Ms Henry in her statement does not say that when her husband told her he was tired and had a sore arm that those matters alerted her to the possibility he was having a heart attack. Nor does she say her husband suspected this. I find this is a significant factual difference to the case of De Silva upon which the applicant relies. The applicant submitted that had the deceased not been a long-haul truck driver, away from home, he could have sought medical attention. However, I regard that as mere speculation because the fact is that neither he nor his wife recognized the symptoms suggesting he was having a heart attack. The deceased had a prior heart attack without him being aware. In De Silva the applicant succeeded in satisfying s 9B because the deceased’s spouse was a nurse and the argument was accepted that she would have known to call an ambulance with the onset of symptoms. I find that I cannot conclude that had the deceased been at home he would have recognized his symptoms and sought medical assistance.
The applicant also argued that s 9B was satisfied because the matters that the deceased was exposed to as a long-haul truck driver posed a significantly greater risk than had he not been in that employment. However, I do not accept that employment as a long-haul truck driver posed a significantly great risk of him having a heart attack than had he been in other employment not of that nature. The nature of being a long-haul truck driver and having less sleep, poor diet and stress of driving to delivery deadlines did not pose a significantly greater risk of him having a fatal heart attack. The employment factors contributed in a minor way to his heart attack so I find they do not equate to “a significantly greater risk” than had he been not in that employment.
I find s 9B precludes the applicant from receiving compensation for the heart attack injury to her husband.
The applicant referred to cases such as Gould v Vaggelas[35] and Hunt & Hunt Lawyers v Mitchell Morgan Nominees[36] in relation to the concept of causation. In Hunt & Hunt at [45] the High Court stated “the relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.” At [47] the High Court refers to the essential nature of the enquiry at that point being one of fact. However, the workers compensation regime is a statutory scheme and s 9A, s 4(b)(ii) and s 9B of the 1987 Act have their own particular requirements that need to be addressed and satisfied. I find it is not sufficient to ask a doctor if certain events were “a material contribution” to an injury and then to rely upon an affirmative response, which provides no reasoning, to meet these sections. As I have attempted to explain above, I find when reading Dr Herman’s reports he really has not deviated from the opinion he provided in his first report that the so-called employment factors played a minor role in the heart attack injury.
[35] (1984)157 CLR 215: [1984] HCA 68, Gould.
[36] [2013] HCA 10, Hunt & Hunt.
I summary I find:
(a) pursuant to s 4(a) of the 1987 Act Robert Henry sustained injury in the course of his employment on 9 August 2022 when he died of a heart attack;
(b) pursuant to s 9A of the 1987 Act no compensation is payable because the employment was not a substantial contributing factor to his injury;
(c) in the alternative, pursuant to s 4(b)(ii) of the 1987 Act the employment was not the main contributing factor to the aggravation, exacerbation, deterioration or acceleration of the coronary artery disease;
(d) in the further alternative, pursuant to s 9B of the 1987 Act no compensation is payable for the heart attack injury as the nature of the employment concerned did not give rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature, and
(e) award for the respondent.

[2025] NSWPIC 120

1 April 2025