Huang v Noni B Holdings Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Huang v Noni B Holdings Pty Ltd & Ors [2024] NSWPIC 671
APPLICANT:	Hsing-Huei Huang
FIRST RESPONDENT:	Noni B Holdings Pty Ltd
SECOND RESPONDENT:	Maggie Yin Shao Lu
THIRD RESPONDENT:	Mobeen Hassan
FOURTH RESPONDENT:	Yuntin Lu
FIFTH RESPONDENT:	Jolin Jin-Yan Lu
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	5 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim pursuant to section 25 (lump sum death benefit); the worker was exposed to nuts at her place of employment and suffered a fatal allergic reaction; the claim was defended on the basis that section 9A was not satisfied; Held – the death occurred in circumstances satisfying both sections 4 and 9A; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited.
DETERMINATIONS MADE:	The Commission determines: 1. Ms Angela Lu (the worker) died on 27 January 2023. 2. Her injury and subsequent death occurred in circumstances satisfying both s 4 and s 9A of the Workers Compensation Act 1987 (the 1987 Act). 3. The first respondent is liable to pay the lump sum death benefit in the sum of $871,200 pursuant to s 25(1)(a) of the 1987 Act. 4. The claim is to be listed for further preliminary conference with respect of apportionment of the lump sum benefit. 5. I make an order for the de-identification of [BNN] as a witness in these proceedings in accordance with Rule 132 of the Personal Injury Rules 2021

STATEMENT OF REASONS

BACKGROUND

Ms Angela Lu (the worker) died on 27 January 2023. A lump sum death benefit pursuant to s 25(1)(a) of the Workers Compensation Act 1987 (1987 Act) is claimed by various parties claiming to have been dependent for support on Ms Angela Lu at the time of her death.
Ms Lu was employed by the first respondent, Noni B Holdings Pty Limited as an assistant buyer.
Ms Lu arrived at work on 25 January 2023 at around 8.15am. Shortly thereafter she went to the Bloomfield Café with her co-worker [BNN] with the intention of purchasing coffees for themselves and other team members. Bloomfield café was close to her place of work, but not the same premises. Ms Lu ordered cake and coffee which she paid for herself. [BNN] ordered multiple coffees for co-workers.
Ms Lu and [BNN] then returned to their desks between 8.30am and 8.40am. Ms Lu commenced to eat the piece of cake and told [BNN] that she noticed a reaction in her mouth.
[BNN] then inspected the cake and noticed small pieces of walnuts and was concerned that Ms Lu was allergic to nuts.
Ms Lu then took an antihistamine tablet however after being asked whether she wanted her EpiPen she said that she was fine.
The events that followed are tragic in that they involve the onset of a severe allergic reaction which was ultimately fatal. Ms Lu died after leaving the respondents premises.
It is clear and not in dispute that Ms Lu had experienced allergic reactions to walnuts from a young age and since that time she carried an EpiPen on her.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) was employment with the first respondent a substantial contributing factor to the injury which resulted in death as required by s 9A (1) of the 1987 Act?
The parties agreed that the primary liability dispute should be determined prior to filing submissions in relation to apportionment of the lump sum benefit together with any entitlement to interest and other matters.

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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents, and
(b) Replies to Application to Resolve a Dispute dated 28 March 2024, 3 April 2024, 12 April 2024, 7 May 2024 and 21 May 2024.
The dispute has been determined on the papers. The parties helpfully filed submissions which have been taken into account in this determination. Those submissions were:
(a)    applicant’s submissions dated 16 July 2024;
(b)    Mobeen Hassan’s (third respondent) submissions dated 16 July 2024;
(c)    first respondent’s submissions dated 31 July 2024;
(d)    applicant’s submissions in reply dated 23 August 2024;
(e)    first respondent’s supplementary submissions in response to the applicant’s submissions in reply dated 30 August 2024;
(f)    the first respondent’s submissions in response to the third respondent’s submissions dated 5 September 2024, and
(g)    applicant’s further submissions dated 9 September 2024.
I will now turn to the evidence in this dispute.

Lay evidence

[BNN]

[BNN] has provided a statement dated 26 June 2023.
Before discussing [BNN]’s evidence I make an order for the de-identification of her name as a witness in these proceedings in accordance with Rule 132 of the Personal Injury Rules 2021.
The basis of the non-identification of the witness is clearly articulated in the first respondent’s submissions dated 31 July 2024 at paragraph 39 and do not need to be repeated. The de-identification of this witness will ensure her anonymity while still allowing the decision and its details to be understood and further if she was to be identified by name in the decision it may have foreseeable implications for her safety, health and wellbeing.
[BNN]’s evidence is important as it describes what she saw on 25 January 2023.
[BNN] describes that she arrived at work at approximately 8.00am with Ms Lu arriving at work at about 8.15am.
She describes that Ms Lu and herself proceeded to the Bloomfield Café with the intention of purchasing coffees for themselves and other team members. Upon arriving at the café, [BNN] placed coffee orders for herself and some team members which she paid for. Ms Lu ordered a coffee as well as a piece of cake which she paid for herself.
[BNN] says that it was common practice for the team to buy coffees for one another and pay personally for those coffees and not seek reimbursement from Noni B.
At approximately 8.30 to 8.40am, [BNN] and Ms Lu arrived back at their desks where Ms Lu commenced to eat the piece of cake. She then advised [BNN] that she had noticed a reaction in her mouth.
[BNN] then inspected the cake and noticed small pieces of walnuts, she then tasted the cake and confirmed to herself that it did contain walnuts. [BNN] was aware that Ms Lu was allergic to nuts and as a result she threw the cake in the bin.
[BNN] says that Ms Lu then took an antihistamine tablet. [BNN] asked Ms Lu about her EpiPen and offered to take her to the doctor however Ms Lu declined on the basis that she had already taken an antihistamine tablet.
[BNN] then offered Ms Lu water and was advised by Ms Lu that she was fine. [BNN] asked Ms Lu to leave her EpiPen on the table just in case she needed it and once again Ms Lu said that she would be fine.
At approximately 9.15am, [BNN] noticed Ms Lu leaving her desk and advised that she was going for a walk. Ms Lu had advised [BNN] that she had vomited up the cake however was still feeling nauseous.
By about 9.20am Ms Lu returned to the office and advised that she was still feeling nauseous, that she had spoken to her mother and her mother advised seek medical attention if she was feeling any worse.
[BNN] says that she, together with others in the office encouraged Ms Lu to go to the doctor but Ms Lu advised that she would be alright.
Shortly after, Ms Lu changed her mind and decided that she would go to a doctor. [BNN] offered to drive Ms Lu to the doctor on several occasions however Ms Lu declined and said that she was fine to drive.
[BNN] observed Ms Lu leaving work at approximately 9.30am to seek medical assistance.
At about 9.43am, [BNN] sent a text message to Ms Lu reminding her to message her as soon as she arrived at the doctors. Further communication went unanswered from Ms Lu.
[BNN] described that between the time that Ms Lu first mentioned that she had suffered a reaction to the cake to the time she left work she was responsive and did not exhibit any distress that suggested to [BNN] that she required first aid treatment or emergency services to be called.

Sonia Miller

Ms Sonia Miller has provided a statement dated 23 June 2023.[1] She worked for the first respondent and was the line manager for Ms Lu at the time of the relevant events.
[1] Application page 23.
Ms Miller describes Ms Lu approaching her at around 9.00am on 25 January 2023 and advised that she had eaten walnuts and further that she was allergic to nuts.
After enquiring whether Ms Lu had an EpiPen, Ms Lu said that she had had an antihistamine tablet and as such there was no need to use the EpiPen and that her symptoms were mild.
At around 9.40am Ms Miller checked on Ms Lu to see how she was feeling and understood that Ms Lu was feeling nauseous, had vomited and had contacted her mother who told her to seek medical assistance.
Ms Miller once again offered to administer an EpiPen but Ms Lu declined.
Ms Miller also offered to drive Ms Lu to a doctor or to arrange for [BNN] to drive her to a doctor but Ms Lu declined. A few minutes after that conversation, Ms Lu left work.

Other evidence

Due to the obvious difficulties in relevant evidence being obtained in a death claim, the applicant sought particulars from the first respondent in respect of certain matters by way of correspondence dated 8 July 2024.
By way of reply dated 10 July 2024, the first respondent gave the following response as to certain matters:
(a)    employees were able to take coffee breaks, including attending a coffee shop outside the employer’s premises from time to time and at their own discretion. There were no designated coffee breaks and no records were kept. The same number of breaks are not taken by each employee.
(b)    There was no requirement for employees to put in leave for any coffee breaks during the day.
(c)    Whilst the employer has no details of whether staff would discuss work matters whilst taking coffee breaks, it was conceded that common sense would suggest that matters connected with work could be discussed on such occasions.
(d)    It is possible that the deceased did, from time to time purchase coffee for herself and other members of staff but the first respondent kept no details of such occasions.
(e)    The deceased did not purchase anything other than for herself on the relevant day and transported her own coffee back to the office.

LEGISLATION

Section 4 of the 1987 Act provides:
“WORKERS COMPENSATION ACT 1987 - SECT 4
‘injury’ --
(a) means personal injury arising out of or in the course of employment,”
Section 9A of the 1987 Act provides:
“(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.”

General Discussion

Section 25 of the 1987 Act provides for a lump sum death benefit to be paid if “death results from an injury”.
An injury must satisfy the provisions of s 4 and s 9A of the 1987 Act.
In respect of s 4, the deceased suffered an injurious event whilst she was at her desk and in the course of her employment thereby satisfying the provisions of s 4 of the 1987 Act.
Somewhat more contentious, and the focus of the dispute in this case is whether the provisions of s 9A of the 1987 Act have also been provided.
Extensive written submissions have been provided by the applicant and respondents in these proceedings and have been taken into account in the determination of this dispute. When referring to the ‘applicant submissions’ in this decision, I am including the parties that seek orders regarding payment of the lump sum benefit, that is those that claim dependency.
Before discussing and determining this matter it is important that the relevant evidence is set out.
We have a statement from [BNN] and Ms Miller in respect of what occurred on 25 January 2023.
From that evidence and also the first respondent’s correspondence dated 10 July 2024, I make the following findings of fact:
(a)    the first respondent allowed its employees to take coffee breaks, including attending a coffee shop outside the employer’s premises from time to time at the employee’s own discretion.
(b)    It was practice for items to be purchased on behalf of several employees, usually coffees, and these items were then taken back to the premises of the employer for the employees to consume during work hours and usually at their desks.
(c)    It was more likely than not, and a matter of common sense that whilst purchasing coffee, that matters connected with work would be discussed on occasions.
(d)    The first respondent did not provide and/or pay for the piece of cake consumed at work on 25 January 2025.
(e)    The deceased knew she suffered from a severe allergic reaction to walnuts and usually carried an EpiPen with her.
(f)    The deceased attended the coffee shop with [BNN]. [BNN] placed coffee orders for herself and some other team members whilst the deceased separately ordered and paid for the coffee and cake by herself.
(g)    Ms Lu consumed the cake when she returned to the office.
(h)    Ms Lu’s co-workers were concerned for her welfare and offered her assistance.
(i)    Ms Lu left the office by herself in her car.

THE APPLICANT’S SUBMISSIONS

The applicant’s submissions were that s 9A of the 1987 Act has been satisfied. The applicant pointed out that the starting point analysis should be whether the worker was at work during a period in her contract of employment which in this case obviously the deceased was in the course of her employment when she received her injury.
The applicant referred to Basten JA in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[2] who relied on the judgment of Kitto J in Federal Broom Co Pty Limited v Semlitch[3] in finding that employment as a matter relevant to the determination of liability for workplace injury, extends beyond the duties of employer … employee. In particular, at [126] of that judgment the following is said:
“The same approach should be adopted with respect to the application of 9A. The concept of ‘the employment concerned’ is not to be restricted to the activities in carrying out the actual duties required of the employee, nor is it to be constrained by an assessment of the benefits which might be obtained by the employer from the question in action.”
[2] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324.
[3] Federal Broom Co Pty Limited v Semlitch [1964] HCA 34.
So far as the various provisions of s 9A(2) of the Act were concerned, they said that the time and place of the injury is of material relevance. The applicant referred to the admission in the first respondent’s correspondent that employees were permitted to attend a coffee shop outside the employer’s premises from time to time at their own discretion which it is submitted, confirms that the employment concerned included coffee breaks.
The applicant referred to [BNN]’s evidence to the extent that it was practice for items to be purchased on behalf of several employees and taken back to the premises of the employer to be consumed during work hours by employees at their desks. The applicant said this constituted a benefit or allowance available to any employee who wished to have something to eat or drink whilst at work, it was an arrangement or practice which was a regular feature of the employment of those working at the premises of Noni B Holdings at Rosebery.
The first respondent then explains that if such an arrangement and practice had not been in place that Ms Lu would not have consumed a piece of cake during her work hours on 25 January 2023 and not suffered the tragic anaphylactic reaction she experienced.
It was submitted that it follows that the employment concerned, which included this regular arrangement and practice, played a crucial role in contributing to the injury received by the worker on 25 January 2023, it was a substantial contributing factor to the injury as required by s 9A of the 1987 Act.
In respect of s 9A(2)(d), the applicant argued that a reaction would not have been suffered by the worker anyway, at 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. The applicant explained that the worker suffered the reaction that day because she worked for that particular employer, at those particular premises, in proximity to the particular café and because there was no arrangement in place and a practice observed by that employer which provided by employees to eat and drink items purchased from that café at their desks whilst attending to her duties. It was submitted that it simply cannot be seriously argued that if the worker had not worked that day she would have suffered an anaphylactic reaction that morning. That is, the injury she sustained was peculiar to the arrangement and practice observed by the employer and its employees.
In relation to s 9A(2)(e), that is the worker’s state of health before the injury and the existence of any hereditary risks, the applicant points out that there is no evidence that the worker was in poor health when she attended work on 25 January 2023 or that her death was due to a gradual process of poor and deteriorating health. Likewise there was no evidence that there was an hereditary inevitability of death occurring regardless of whether she was in the employment of Noni B Holdings and working at their Rosebery premises.
The applicant concedes that Ms Lu had a serious allergy and that her condition is akin to a worker with an eggshell skull. That is, she had a vulnerability which predisposed her to the reaction which she experienced on 25 January 2023. The applicant then submitted that as with any underlying condition or vulnerability, the issue to be considered in order to determine liability is whether, acknowledging that background, there had been a relevant work-related trigger, causing the sudden identifiable pathological change that would constitute an injury as contemplated by the legislation.

First respondent’s submissions

The first respondent disputes liability on the ground that the worker’s employment was not a substantial contributing factor to the injury which resulted in her death as required by s 9A(1).
The first respondent referred to the decisions of Da Ros v Qantas Airways Limited[4] and Badawi v. Nexon Asia Pacific Pty Limited[5] to the extent that they say that employment neither aggravated nor caused the expression of the condition. The first respondent submitted that it was clear based on those authorities that employment is not to be regarded as the substantial contributing factor to an injury merely because the injury arose in the course of that worker’s employment.
[4] Da Ros v Qantas Airways Limited [2010] NSWCA 89.
[5] Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324.
The first respondent states that s 9A(2)(b) refers to the nature of the work performed and the particular tasks of that work which requires a finding of a causal connection between the work performed by the worker as an assistant buyer employed by the first respondent and the particular tasks at work. It does not include activities within the course of employment which are not employment related.[6]
[6] Badawi at [98].
The first respondent’s case is that the real and substantial cause of the worker’s injury and her consequential death was her purchase and ingestion of the carrot cake which contained walnuts. This was a personal decision made by the worker totally unrelated to the nature of her work and her particular tasks with the first respondent. That employment and its particular task neither aggravated nor caused the expression of the condition.
In relation to s 9A(2)(d) and (e), the first respondent observes that the worker had a longstanding anaphylactic reaction to walnuts which is clearly articulated in the available evidence.
In relation to s 9A(2)(d), the first respondent relies on the report of Dr Kaufman dated 30 October 2023[7] whose opinion was that the probability of the worker sustaining the injury at the same or similar time was high and lifelong and could have been sustained at any time or any place the worker inadvertently ingested a cake that included walnuts such as the one that she did that led to her injury and death.
[7] Application page 42.
The first respondent submitted that it was necessary for a worker to establish that “the activity that caused the injury” was specifically required, induced or encouraged by the employer.

Consideration

In relation to the eggshell skull concept as referred to by the applicant and the third respondent, I do not think that it has any particular relevance to this case. There was an exposure to an allergy, and concepts of reasonable foreseeability and the like do not have any place in an argument not related to negligence.
The first respondent submitted that for employment to be a substantial contributing factor, it is necessary to show that the activity that caused the injury was one that the worker was reasonably required, encouraged or induced by the employer as part of or incidental to the employment duties.
The first respondent submitted that it is necessary for the applicant to show that the activity causing the injury must be one that has been induced or encouraged by the employer and in this case the highest that the applicant can put is that it was a practice that the first respondent permitted. It was simply an activity of her own choosing that did not have an employment characteristic. It submitted that mere encouragement or permission is not sufficient.[8]
The first respondent pointed out that Hatzimanolis v ANI Corporation[9] and Comcare v PVYW[10] are cases relating to a compensable injury during an interval between work. This case does not fall in that category. It is rather in relation to a worker receiving an injury during work hours at the premises of her employer and in the course of her employment.
[9] Hatzimanolis v ANI Corporation [1992] HCA 21.
[10] Comcare v PVYW [2013] HCA 41.
I observe in this dispute that the deceased worker was in the process was engaging in a practice which was permitted by the employer, observed by the employees and was exposed to an anaphylactic reaction to a cake purchased from a café, a hazard to which she would not have been exposed if she had not been employed by the first respondent.
I find that the deceased did not have a spontaneous experience to a toxic episode, all that happened was her pre-existing condition or allergy was triggered by an incident which occurred as a direct result of her presence at work and whilst engaging in a practice which was permitted and observed at that workplace. To that extent, the ‘employment concerned’ due to the regular practice of attending the café and purchasing products would include consumption of same at the desk.
I therefore do not agree with the first respondent’s submissions that for an injury to be compensable, the injury needs to be received as a result of performing particular tasks specified (almost) in the contract of employment.[11] In this case, the factual circumstances are quite compelling leading to a finding that the worker consumed that carrot cake by reason of her employment on that particular day.
[11] Anita Smith v Woolworths Limited [2019] NSWWCC 290.
I find that the nature of the deceased worker’s employment, included an observed and allowed practice for workers to go to a café close to the workplace and buy coffee and sometimes cake and consume same at their desk. On the relevant day the deceased worker purchased a cake which unfortunately proved to be fatal in light of her allergic condition.
Liability for an employer to pay compensation is limited by the requirement under s 9A that employment is a substantial contributing factor to the injury. It is interesting to note that s 9A was introduced shortly after the High Court’s decision in Zickar v MGH Plastic Industries Pty Limited.[12] Mr Zickar at that time collapsed at work after suffering a rupture of a cerebral aneurysm which resulted in severe brain damage. The aneurysm was a congenital weakness and had no relationship to work.
[12] [1996] HCA 31.
The High Court looked at the construction of “injury” as defined by s 4 and held that the rupture may be a “personal injury”, despite the existence of disease. If a worker receives a “personal injury” in the course of employment, that worker will have satisfied the definition of “injury” in s 4. All that is required as a case of “personal injury” is a temporal connection with employment and not a causal connection.
The Workcover Legislation Amendment Bill 1996 was introduced in Parliament including the proposed s 9A. The then New South Wales Attorney General and Minister for Industrial Relations, the Hon Jeff Shaw QC MLC, said that s 9A was introduced to limit compensation coverage to situations where employment is a substantial contributing factor to the worker’s injury rather than compensating workers whose injuries have only a remote or tenuous connection with work.
In this case, I reject the proposition that there is a remote or tenuous connection to work fo reasons I have outlined in the body of this decision. It is clear that the authorities provide that whether employment is a substantial contributing factor to an injury is a question of fact and a matter of impression and degree.[13]
[13] Dayton v Coles Supermarkets Pty Limited [2001] NSWCA 153; McMahon v. Lagana [2004] NSWCA 164.
In Muscat v Woolworths Limited,[14] Neilson CCJ held that “employment” included matters incidental ancillary to the employment. In that dispute, his Honour was satisfied that the making of a cup of tea in the employer’s staff room immediately prior to commencing work was incidental to employment in the sense of ancillary to the worker’s work.
[14] Muscat v Woolworths Limited [2000] NSWCC 16.
In Badawi, the Court of Appeal set out the propositions in Mercer v ANZ Banking Corporation[15] that the Court had previously accepted as correct and uncontroversial …
“(1) The strength of the causal linkage between the employment concerned and the injury is the question in issue: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 at [106] 299 per McColl JA (Mason P and Beazley JA agreeing).
(2) The fact of the injury arising out or in the course of employment is relevant but not determinative of itself: Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [36] per Santow JA (Beazley and Ipp JJA agreeing).
(3) Both s 4 and s 9A require independent satisfaction: McMahon v Lagana (t/as The Vessel ‘Nimble II’) [2004] NSWCA 164; 4 DDCR 348 at [25] 355 and [33] 356 per Hodgson JA (Santow JA and Stein AJA agreeing) and Larson v Commissioner of Police [2004] NSWCA 126; 3 DDCR 365 at [38] 378 per Tobias JA (Mason P and Santow JA agreeing).
(4) Section 9A requires that the employment concerned be ‘a substantial contributing factor to the injury’. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors: Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [49] 216 per Spigelman CJ (Hodgson and Bryson JJA agreeing); and Dayton at [22] per Giles JA.
(5) Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge: Hevi Lift at [105]- [106] 299 per McColl JA (Mason P and Beazley JA agreeing).
(6) Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact: Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158; 4 DDCR 634 at [56] 646 per Basten JA (Giles and McColl JJA agreeing); WorkCover Authority of NSW v Walsh [2004] NSWCA 186 at [99]; McMahon v Lagana at [32] per Hodgson JA (Santow JA and Stein AJA agreeing), Dayton at [22] per Giles JA and Murray v Shillingsworth [2006] NSWCA 367 at [65] per Einstein J.
(7) The phrase ‘employment concerned’ in s 9A(1) bears the same meaning as ‘employment’ in the phrase ‘arising out of or in the course of employment’: Mercer at [13] 745 and Federal Broom at 632-633. We agree.” (at [48])
[15] Mercer v ANZ Banking Corporation [2000} NSWCA 138.
I do not agree that it is necessary for a worker to establish that “the activity that caused the injury” was specifically required, induced or encouraged by the employer. The first respondent relied upon Hatzimanoulis and PVYW in support of its submissions on this point, I do not find those authorities persuasive on this argument, as the worker suffered the injury whilst at work during work hours.
I agree with the applicant that the ‘employment concerned’ extends beyond a specific activity performed in accordance with the contract and for this type of injury, which takes place at the employers premises, for an activity that was a permitted regular practice, that the particular relevant activity does not need to be induced or encouraged.
I will now address each of the matters articulated in s9A directly.
(a)    the time and place of the injury
Considering the time and place of the injury, it does have material bearing on the injury received by the deceased. The first respondent’s submission that the consumption of the carrot cake was a personal decision made by the worker and is unrelated to the nature of her work and particular tasks fails to acknowledge that it was a regular practice for the workers to attend at the local café during work hours and consume what they purchased at their desks while working. The deceased’s death was causally related to that practice.
In this dispute the worker was exposed in the course of her employment to walnuts, to which she would otherwise have not been exposed. The time and place of injury has a close correlation to her work- the exposure took place from a particular coffee shop. If the worker had not attended work that day, it is highly likely, almost certain, that she would not have been exposed.
(b)   the nature of the work performed and the particular tasks of that work
The worker was employed as an assistant buyer for the first respondent. It is trite to say that the ingestion of cake whilst at her desk was not an essential part of her employment contract.
The attendance at the coffee shop, to buy coffee and/or cake, appears to be something that was regularly engaged in by employees of the first respondent. The visit to the coffee shop often involved some discussion about work. The practice was known by the employer and permitted.
It is also relevant, though not determinative, that the worker was consuming the cake    whilst back at her desk, presumable attending to her work duties.
(c)    the duration of the employment
This not a relevant consideration in this determination.
(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
In relation to s 9A(2)(d), it seems to me that that whilst the section does contemplate an injury resulting from a constitutional progress of underlying pathology, this case does not fall into that category of events.
I cannot see how it could be said that it is likely that the deceased would have suffered an injury anyway on that day or at that stage in her life. The deceased was attending at work on that particular day at those particular premises where that particular cake was served which caused the ingestion of walnuts.
The risk of exposure for her if she had not been at work was extremely low, she was aware of her allergy. If she had not been at work she would not consumed that particular cake.
(e)    the worker's state of health before the injury and the existence of any hereditary risks
The workers state of health was good before the exposure, though she was aware that she had an allergy to walnuts.
(f)    the worker's lifestyle and his or her activities outside the workplace.
This is not a relevant consideration in this determination.
After considering all the submissions made in this dispute, I find that the worker’s employment was a substantial contributing factor to the injury. The practice of getting cake and coffee was part of the incidental work experience for the worker. It was a practice that was permitted by the employer.
I have considered the respondents concerns that the ingestion of the cake was a personal decision that was unrelated to her employment. After considering all the submissions in this dispute, I find on balance, that the provisions of s9A of the 1987 Act have been satisfied for the reasons I have outlined.
I want to add, though not relevant to this decision, the evidence before me indicates that the respondent’s employees appear to have supported Ms Lu and tried their best to assist her whilst she was at the respondent’s premises. There is no doubt that they expressed concern for her welfare and on multiple occasions tried to get her to seek medical assistance and treatment. Their conduct can not be criticised in any manner.

[2024] NSWPIC 671

5 December 2024