Kary v Red Metal Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kary v Red Metal Limited & Ors [2024] NSWPIC 250
APPLICANT:	Lala Kary
FIRST RESPONDENT:	Red Metal Limited
SECOND RESPONDENT:	Edward Kary
THIRD RESPONDENT:	Nicholas Kary
FOURTH RESPONDENT:	Alexander Kary
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	14 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for lump sum death benefit and interest on lump sum; worker was a geologist who suffered “heart attack injury” while working on a mineral exploration site in the northern territory; liability disputed; applicant claimed that the worker sustained injury in the course of employment/arising out of employment, or in the alternative a “disease injury”; and sections 9a and 9b were satisfied; evidence that the worker was working in temperature exceeding 42 degrees Celsius and had complained about the heat prior to his death; medical evidence that heat was a substantial contributing factor to heart attack injury; consideration of Fisher v Nonconformist Pty Ltd, Secretary, Department of Communities and Justice v Galea, Seltsam Pty Limited v McGuiness, and Kennedy Cleaning v Petkoska; Held – the worker sustained injury in the course of employment, to which employment was a substantial contributing factor; section 9b satisfied; first respondent liable for payment of lump sum death benefit pursuant to section 25(1); matter listed for further preliminary conference to deal with issues relating to dependency, apportionment and interest.
DETERMINATIONS MADE:	The Commission determines: 1. The worker, Gregory Lawrence Kary, died on 12 December 2018 as a result of injury in the course of his employment with the first respondent. 2. The first respondent is liable for payment of the lump sum death benefit of $798,100, pursuant to s 25(1) of the Workers Compensation Act 1987. 3. The matter is to be listed for further preliminary conference in order to deal with issues relating to dependency, apportionment, and interest.

STATEMENT OF REASONS

BACKGROUND

The applicant, Lala Kary (Ms Kary) is the widow of Gregory Lawrence Kary (the worker/Greg), who was employed by the first respondent, Red Metal Limited (Red Metal) as a geologist.
Alexander Kary, Nicholas Kary, and Edward Kary are the sons of the applicant and the worker. I will refer to them by their given names, to avoid confusion, meaning no disrespect.
The worker, who was employed by Red Metal as a geologist, died on 12 December 2018, from a thrombotic occlusion, while he was working at a camp southeast of Tennant Creek in the Northern Territory (NT).
On 3 July 2019, the applicant completed a Notification Form to Insurance and Care NSW (icare), in which she advised that she was making a claim for death benefits and attached a copy of the Coroner’s Report.
On 7 January 2020, EML, as agent for icare, issued the applicant with a notice pursuant to
s 78 of the Workplace Injury Management and Workers Compensation Act 1998.
EML advised the applicant that the evidence on file did not support that the worker’s employment with Red Metal gave rise to a significantly greater risk of a heart attack injury, as required by s 9B of the Workers Compensation Act 1987 (the 1987 Act).
EML also advised that the evidence on file did not support that the worker’s employment with Red Metal was the main contributing factor of [sic] a heart attack injury, as required by s 4B [sic] of the 1987 Act.
EML finally advised that the evidence did not support that the worker’s death resulted from an injury for the purposes of ss 25 and 26 of the 1987 Act.
By letter dated 25 September 2020, Ms Kary’s solicitors requested on her behalf that EML review its decision, relying on evidence from Associate Professor David Richards, cardiologist.
On 9 October 2020, EML advised the applicant that the decision to dispute liability was maintained.
The applicant lodged an Application in Respect of Death of Worker (the Application) on
31 October 2023.
The Application claimed that on 12 December 2018, the worker passed away in the course of and/or as a result of his employment. The worker performed his employment duties in hot conditions between 7 December 2018 and 12 December 2018, and this triggered thrombotic occlusion.
The Application pleaded a frank injury suffered on 12 December 2018; and in the alternative a disease, pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act.
The applicant claimed the lump sum death benefit of $798,100, and interest on the lump sum.
The third respondent lodged his Reply on 22 November 2023.
The first respondent lodged its Reply on 24 November 2023.
The fourth respondent lodged his Reply on 24 November 2023.
The second respondent lodged his Reply on 8 December 2023.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)     whether the circumstances of the “heart attack injury” were such as to satisfy
s 9B(1) of the 1987 Act;
(b)     whether the injury arose out of employment, such that it fell within s 4 of the 1987 Act;
(c)     whether employment was a substantial contributing factor to the injury, and
(d)     if the injury fell within s 4(b) of the 1987 Act, whether employment was the main contributing factor to the injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation/arbitration hearing on 11 April 2024, on the Teams platform.
Mr Adhikary of counsel, instructed by Ms Parisis, appeared for the applicant. Mr Phillip Perry of counsel, instructed by Mr Myles, appeared for the first respondent. Ms Magee of counsel, instructed by Ms Middleton, appeared for the second respondent. Mr Gaitanis of counsel, instructed by Mr Staninovski, appeared for the third respondent. Mr Ty Hickey of counsel, instructed by Ms Harrison, appeared for the fourth respondent.
The applicant, the second respondent, the third respondent, and the fourth respondent, attended. Ms Avestis from EML also attended.
I was advised in the conciliation phase of the proceedings that a further report of A/Prof Richards, dated 8 April 2024, had been served by the applicant on the other parties.
There was no objection by any party to the admission of A/Prof Richards’ report, a copy of which was emailed to me prior to the commencement of the hearing, and the report was admitted into evidence.
In accordance with my direction, the applicant has lodged and served an Application to Admit Late Documents, dated 12 April 2024, attaching the report of A/Prof Richards dated
8 April 2024.
The parties agreed that, in the event that liability was determined in the applicant’s favour, the matter was to be listed for further preliminary conference, in order to deal with issues relating to dependency, apportionment, and interest.
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 and attached documents;
(b)    Reply by first respondent and attached documents;
(c)    Reply by second respondent and attached documents,
(d)    Reply by third respondent and attached documents;
(e)    Reply by fourth respondent and attached documents;
(f)    Application to Admit Late Documents lodged by the first respondent, dated
5 April 2024, and
(g)    Application to Admit Late Documents, lodged by the applicant, dated
12 April 2024.

Oral evidence

There was no application to cross-examine any party or call oral evidence.

FINDINGS AND REASONS

Evidence of the applicant, Lala Kary

Ms Kary’s statement is dated 7 June 2023.
She officially retired in November 2021, having last worked in January 2020, after which she underwent some surgery. She also has some other health problems. Prior to her retirement, she had worked as a Registered Nurse.
At the time of the incident, Greg was fit and well. He enjoyed cycling and preferred to cycle or walk where possible. He did not have any major health problems and had not undergone any major surgeries.
Greg had suffered from high cholesterol and blood pressure, which were monitored by his GP (general practitioner). She believed he started taking medication aged approximately 55.
Greg was not a smoker, and only drank alcohol on occasion. He occasionally had a beer when he was out with friends. He was not a regular drinker. He did not take any recreational drugs.
At the time of his death, Greg’s GP was Dr (Raymond) Tockar, whom he had been seeing since about 2005.
Greg would exercise often. When he attended his office, he would cycle from their home in Bellevue Hill to Belmore Park. She estimated one trip took him approximately 30 to 40 minutes. He would ride downhill to the office and uphill going home.
Greg would often walk if he was not cycling. He would choose to walk 15 to 20 minutes to Bondi Junction Station, rather than catch the bus, or accept her offer of a lift.
Greg was a member of a gym, but due to long absences for work commitments, it was not financially viable to maintain a membership.
Greg looked very fit and well. He was lean and did not have a stomach. She estimated that he weighed approximately 82kg and was approximately 178 cm tall. In all the time she knew him, he never complained of having any issues in relation to his heart.
Greg’s parents were both extremely fit and well throughout most of their adult life. His mother died at 86, and his father at 92, both of “old age”. His two older brothers were alive and well. She was unaware of any health issues they may have.
Greg could fix almost everything, or find out how. He did everything around the house.
She worked on Monday and Tuesday evenings, when Greg would cook dinner. He helped regularly around the house and attended to their large garden, vegetable patch, chicken coop, fruit trees, and lawn mowing/yard maintenance.
Three weeks before Greg’s death, they did a strenuous five day horse ride in Margaret River. This entailed riding for five hours a day. Greg managed to ride fine and made no complaints. She observed him to be managing well. She did not observe him looking unwell.
On completion of the ride, they cycled around Rottnest Island. She found it strenuous, but Greg cycled with ease.
Greg was employed as a full-time exploratory geologist with Red Metal. He had been employed for approximately 15 years. His job required him to travel to remote areas around Australia. He had also travelled to Indonesia and Papua New Guinea.
Greg would go away for four to six weeks and work every day. He would otherwise work in the office in Central.
As part of his work, Greg would go away for two to four weeks at a time. This was usually weather dependent. He went away on average six to eight times a year, usually to South Australia, NT, and Queensland.
She and Greg often travelled. Their travel consisted of participating in activities like kayaking, skiing, horse riding, cycling, and sightseeing. They trekked through Nepal, Kashmir, Ladakh, Cuba, Mexico, Canada, and New Zealand. They horse trekked in Mongolia in 2016 and in Iceland in 2017.
Greg never complained of any heart conditions, nor did she notice him struggle with anything heart related. He did not complain about any health conditions.
Approximately seven months before his death, Greg had a cardiac test with a Holter monitor for 24 hours. He passed it, as far as she was aware. He never took any cardiac medication.
Greg left about 13 days after they returned from Western Australia. He seemed completely healthy and in good spirits, having made no complaints or comments about being unwell.
On 6 December 2018, Greg travelled by plane to Alice Springs. He told her he had purchased supplies there and driven to Tennant Creek.
On 7 December 2018, Greg and the contractors travelled to the drill site, approximately 85km southeast of Tennant Creek. They set up camp, with Greg’s camp approximately 250m from the contractors’ camp.
She understood that between 7 December 2018 and 12 December 2018 it was extremely hot. According to the Bureau of Meteorology (BOM), the average maximum temperature was 41.2 degrees Celsius. On 11 December 2018, the maximum temperature in Tennant Creek was 42.4 degrees Celsius.
On 10 December 2018, she spoke to Greg at approximately 11:30am. She recalled him telling her it was very hot, “up in the 40s”. She asked if he should be working in that heat. He was never one to complain, so she knew he would have persisted in the heat. This was the last time she spoke to him.
Greg was very vigilant about being in the sun. When he worked, he wore a long-sleeved shirt, long pants, enclosed shoes, and a cricket hat with a wide brim.
She understood that at the end of the day on 11 December 2018, Greg spoke to the contractors or supervisor and asked to sit in the caravan office with the air-conditioning on. He then returned to his camp. She was informed of this by his boss, Robert (Rob) Rutherford.
She understood that at approximately 7pm, when Greg failed to show up for dinner, the contractors conducted a search. They were unable to find Greg or his vehicle. She was informed of this by Robert Rutherford.
She understood that the police were contacted at about 11pm. They commenced a search at first light on 12 December 2018. She was informed of this by NT police.
On 11 December 2018, Rob Rutherford left her a voicemail stating, “Greg is lost in the bush.” She had three missed calls from him. She did not listen to the voicemail until 5:30am on
12 December 2018.
She returned Rob’s call. She was not too alarmed because she knew Greg was very bush savvy. Rob asked her to phone the NT police.
The police told her they would send up a drone at first light to look for Greg.
Rob phoned at about 7:15am and said they had found Greg in his vehicle. She was in disbelief because of the nature of his work.
The NT police rang approximately half an hour later and told her that her husband had been found deceased in his vehicle.
An autopsy was conducted.
She took approximately six weeks off work after Greg died. It was hard for her to accept how he died when he was not a smoker, drank very little, and was so fit. He was in the prime of health.
Edward was studying environment science and “lost the plot when Greg died”. He was doing really well and gave it all away. She asked him to restart, and he studied for another six months before he gave up again. He was now working as a parks supervisor and was happy with his job.
Alexander had finished studying medicine but had suffered enormously. He had put on a lot of weight. He suffered from sleep apnoea.
Nicholas was working for a logistic company. He is a type 1 diabetic. His blood sugars became unstable as he was grieving.
Greg’s body was flown back to Sydney. It took approximately 10 days for his body to be returned, and 3.5 months for the death certificate to be issued.
Red Metal paid for the cost of transporting Greg’s body and the funeral expenses.
At the time of Greg’s death, they were living in Bellevue Hill. The property was purchased in both names and had been paid off.
The “kids” had moved out and were largely independent. Alexander was studying in Canberra, and they gave him $800 per fortnight for his living expenses. After Greg’s death, she increased this to $1,000 per fortnight. They also supported Edward while he undertook studies.
Her wages were paid into her own account, but she did not use any of her income to pay bills. She used it for petrol, vet expenses, and groceries. Greg did not use the money she earned.
Since retiring, she received income protection. That would cease in October 2023.
She and Greg shared an account, which she did not use. It was used primarily for paying bills, which Greg managed.
She and Greg had four investment properties, which were rented. One apartment was rented to Nicholas, for an amount that did not cover the full mortgage repayment. Nicholas paid the bills. She paid the water and strata fees. There had been instances when Nicholas had not paid rent, when he had not had a job or had been struggling.
Another investment property had been paid off. The rent she received covered the mortgage. She paid an agency to manage the property.
They had two properties in Victora, one of which was paid off. The rent on the other paid the mortgage.
She and Greg each had their own credit cards. He used his card to pay bills, accrue airline points, and when he did the grocery shopping.
Since Greg’s death, she had paid for her outgoings with her savings and superannuation. She provided details of her outgoings.
She employed people to complete the tasks Greg would do.

Evidence of Edward Simon Kary

Edward was born in 1991 and is 32 years old. His statement is dated 8 December 2023.
He is employed by City of Sydney Council as a supervisor in the parks operations team. He has no ongoing medical needs.
His family was close-knit, and his father was a “hands-on Dad”. He and his brothers spent time with him camping, doing farmwork, and he had been to the outback with his father while he was working.
His father taught him and his brothers many things. He gave them advice about finances, careers, relationships, and other responsibilities.
His father almost always paid for meals and drinks.
His father helped him with his cars, including paying for parts and maintenance, and lent a hand setting up technology. He had now had to engage contractors for such issues.
The family often went on holidays together, and his father often paid the majority of expenses.
After his father passed away, he intended to relocate to Canada, and sold most of his belongings. COVID-19 struck, and he was unable to relocate. He started living with his mother. This change of life plans caused him a lot of anxiety. His living costs had increased significantly, which had caused significant stress.
Prior to the worker passing, he had enrolled in environmental science. He deferred after one semester as he was not focusing properly. He went back a few months later but decided to quit. There were many subjects where he could have gone to the worker for help.
The family does not go on holidays as they are unable to afford them.
The worker had indicated that he was happy to help him and his brothers pay for a house deposit or wedding. He knew he would have helped with the cost of children and looked after them where possible.
Since his father had passed, he believed he had put on weight, and experienced anxiety.
His father was very fit and healthy, and always chose walking/cycling to commute to work or places close by.

Evidence of Nicholas Richard Kary

Nicholas was born in 1988 and is 35. His statement is dated 17 November 2023.
He moved out of home in 2018 and lived with his partner in an apartment owned by his parents.
His father subsidised his rent and helped pay other related expenses. His living costs had now increased significantly.
His father had done activities such as comprehending the owners’ fees, and other matters relating to the apartment. He also helped with general maintenance and helped set up his internet and TV.
His father assisted with domestic duties and did his laundry every week, as he did not have facilities.
His father drove him to appointments. If he was ill, his father would cook healthy food and bring it to his house. His father would pay for his treatment and medical supplies.
His father helped him pay for car servicing and furnishing his house.

The worker paid for family holidays. These were very expensive. He covered flights, accommodation, car hire, food, and activities.
The worker told him he would help pay for events such as his wedding, honeymoon, and house deposit, and his children’s education.
They went on regular weekend trips to Bunnings, and the worker would pay for supplies he needed for his projects. He would then help him learn the skills to complete them.
The worker always paid for family dinners, breakfasts, and coffees.
He and his father frequently went away together. They did construction work together. They watched rugby at the family home or attended matches.
He relied on the worker for advice and guidance.
The worker took them fishing and taught them how to fly fish. He also taught them to play golf and to ski, taking them on yearly ski trips.
The worker helped him fix up an old boat he had bought.
They frequently took the dogs to the park, or for a swim.
The worker taught him to drive, and to ride a motorbike and bicycle. They often went for rides.
The worker was a very good cook, and often made meals. He was very good with gardening, and they worked together on this.
He had gained weight and experienced hair loss, for which he was taking medication, due to the stress of the worker’s passing. His partner had noticed he was irritable and emotionally unstable. His diabetes management had worsened significantly.

Evidence of Alexander D’arcy Kary

Alexander was born in 1987 and is 37. His statement is dated 24 November 2023.
He was employed as a registrar at the Canberra Hospital. At the time of his father’s death, he was studying medicine at the Australian National University (ANU).
He lived with his parents until about the age of 18. In about 2006, he moved to Armidale to study at the University of New England. His parents had set up a scholastic fund, which he used for his expenses. When the funds were depleted, they paid his rent of about $800 per fortnight. They also paid for his textbooks and other expenses.
Between 2013 and 2016, he moved back to his parents’ house. They paid for his expenses. He did not pay rent or board. He assisted his mother sometimes in her dog walking business, being paid about $50 per walk.
His father provided guidance with his assignments and advice on which units to take.
In about 2016, he commenced his medical degree at ANU. He received about $800 per week from his parents for living expenses. From about August 2020, he received about $1,000 per week. It was only when he started working as an intern in 2021 that he was in a position to pay rent.
He benefited from his parents’ health care until he was 25, and they also paid his phone bill until he was 25.
He knew he could reach out to his father for extra funds, which he did a few times. He received numerous cash gifts of about $100 for Christmas and birthdays.
He called his father weekly. His father was extremely supportive of him and his brothers in all aspects of life. He and his father spent most birthdays and special events together.
In about 2010 and 2014, the whole family went to Japan for a skiing holiday. His parents paid all expenses. They had not been on a family holiday since his father’s death.
His father helped him move to Armidale. When he visited, he would garden and do general handyman work.
He and his father occasionally met at the family farm, where they would work maintaining the property.
He spent the summer after his father’s death at home, returning to ANU in January 2019.
He threw himself back into study and work. He was not exercising, eating well, or taking care of his mental health. He ended up gaining about 30kg, lost his hair, and developed sleep apnoea.
He was undertaking his specialty training and was concerned about how his father’s death would impact him and his career.
He struggled with feelings of abandonment and avoided close relationships due to a fear that an intimate partner or friend would suddenly leave.
He purchased a house in Canberra in May 2022. He was financially struggling, spending about 50% of a month’s wages on the mortgage. He expected that his father would have assisted with the payments from time to time.
He expected that his father would have provided childcare and support when he had children.
He had anticipated that his father would help with renovations and work on his house.
He had anticipated support from his father in the form of family holidays, weddings, birthdays, and meals out.

Evidence of Robert Rutherford

Mr Rutherford’s statutory declaration, provided to the NT Police, is dated 13 December 2018.
He described himself as a colleague of the worker for 15 to 20 years. They started Red Metal 15 years ago. It is a mineral exploration company. They were both geologists.
He believed he knew Greg better than most people. They were very close friends. They worked together for 8 to 12 hours a day, every day for over 15 years. They saw each other socially on occasions.
Greg was a fit person. He walked a lot, rode a bike, and was very active. Their work required them to maintain fitness. He had not known Greg to be sick, or if he had any illnesses.
Less than a week ago, Greg went to Tennant Creek to supervise drilling in the Gosse River region. He was with four others, who were running the drilling rig.
The last time he spoke to Greg was at about 3pm to 3:30pm, Sydney time, on
11 December 2018. He provided a detailed update on the geology, and they decided to cancel the program. They spoke about the heat. The worker said it was hot, but this was not out of the ordinary. He certainly was not complaining about the heat.
At about 10:30pm that night, the driller’s foreman contacted him. He was in Mount Isa and was the drillers’ point of contact. He put him in contact with Peter (Tyrell), the driller.
Peter told him Greg was missing and his vehicle was not in his camp. They had been unable to locate him.
He informed the NT Police. This was so out of character for Greg that he knew something had happened.
The next morning, he received a call from Russell Chard, another drilling foreman. He was informed that Greg had been found and was deceased. He informed Lala Kary.
At this time, he was at the airport and boarded a flight to Alice Springs. He drove to Tennant Creek and attended the police station to make this statement.
He was driven to the Tennant Creek morgue and identified Greg.
On 26 May 2022, Mr Rutherford responded to a request for information from the applicant’s solicitors.
The worker was a senior project geologist. His duties included, but were not limited to:
·        all aspects of exploration project management;
·        access negotiations with land holders and native title claimants;
·        designing work programs and budgets, and implementation within budget;
·        engaging suitable contractors to complete exploration tasks;
·        supervision of geophysical surveys and drill programs;
·        geological logging;
·        employing and training field staff;
·        technical report writing;
·        new project generation and evaluation of joint venture proposals, and
·        maintaining a safe working environment.

Evidence of Peter Tyrell

Mr Tyrell’s statutory declaration, provided to the NT Police, is dated 13 December 2018.
On 7 December 2018, he travelled from Mount Isa to Tennant Creek with four [sic] workmates: Robin Fleming, Ben Waldock, and Brady Coleman.
They met Greg Kary at the BP in Tennant Creek. This was the first time he had met Greg.
They all travelled to the drill site, 85km southeast of Tennant Creek, together.
Over the next few days, they drilled three of the four identified drill pads. Greg was staying about 250m away in a little camp.
At about 5:30pm on 11 December 2018, they were packing up to go home the next day. Greg asked if he could roll his swag up in the little caravan office so that he could pack his gear ready to go in the morning. He agreed.
Around 7:30pm, he had not seen Greg. This was unusual because he normally came over in the evening to have a shower and cook dinner.
Around 8:30pm, he and “the boys” searched the drilling pads. They did not find any signs of Greg.
Around 9pm he called his operations manager, and around 10pm he received a call from Rob, who told him he was going to call the police.
Around 11pm they called it quits. He figured there was not anything else they could do in the dark.
At 3:15am he received a call from the police, who asked if he was available to come into town to show them where the site was. He left camp at 4:45am with Ben Waldock. They got to town at 6:48am.
He called Robin, who told him Greg had not come back to camp. He asked Robin to check Greg’s camp again.
At around 7am he was at the police station when he got a call from Robin. He had found Greg in his car, and Greg had passed away.
He informed the police and travelled with them back to the site.

Evidence of Brady Coleman

Mr Coleman’s statutory declaration, provided to NT Police, is dated 13 December 2018.
On 11 November [sic] 2018, he was working outside Tennant Creek at a drilling site.
They had been at this site for around four days, with a person he had only met at the start of the job. He knew him to be Greg Kary. He was a geologist and was there to collect the rock samples.
They started at 6am and finished drilling at around midday. The worker was checking the samples. The worker called his boss, who informed them to finish up. They began packing up to head home.
He later found out that the worker had asked to sit in the caravan with the “aircon” going, as the heat had “knocked him around a bit this day.”
At around 6pm, they noticed that the worker had left the caravan. They saw that his ute had left, so they thought he had gone back to his camp.
Around 7pm to 7:30pm they noticed the worker had not come back. Over the last few days, he had been coming back, cooking and showering, so they “thought it was a bit off that we had not seen him.”
Peter Tyrell went looking for the worker. Peter told them he was not at the camp and there was no vehicle there.
Peter and Ben tried to locate the worker’s vehicle but said they could not see any tracks leaving the area. They went back to his camp but did not locate him.
Robin stayed up with the phone and he went to bed.
The following morning, Peter woke them at 4am and asked one of them to go to town with him. Ben went with Peter and he and Robin finished packing up.
At around 7am to 8am, Peter called and asked if they could go for a look in daylight.
They walked to the worker’s camp and sighted his ute around 150m to 200m behind it. He sighted the worker leaning forward in the driver’s seat. His head was not on the steering wheel. He did not take any notice whether he had his seatbelt on, but he looked to be in a weird position.
Robin opened the door and saw that the worker had mucous coming from his nose and white froth around his mouth.
Robin told him the worker was dead and went back to the camp to call Tim Turner, their general manager, Peter, and Russell Chard, their boss.
Russell asked them to check to be 100% sure that the worker had passed away. He sighted Robin grab his arm to check for a pulse. He said he could not even move his arm, as it was too stiff.
He sighted a backpack and hard hat that looked to have fallen out of the ute. He and Robin followed the tracks to try and get some idea of what happened.
The ute had [made] a large circle before hitting a tree and stopping.
They went back to the camp and called Tim and Russell. They then waited for Peter, the police, and ambulance, to arrive.
He did not notice anything wrong with the worker. The last chat he had with him, he seemed completely fine. He did not know if he had any medical conditions.
When he sighted the worker, he did not see any injuries, and he appeared unharmed.

Evidence of Robin Fleming

Mr Fleming’s statutory declaration, provided to NT Police, is dated 13 December 2018.
On 11 December 2018, he was working at the drill site.
When they started drilling, there was a geologist from Red Metal there to assess the rocks. He knew him to be Greg. He did not know his last name.
They finished drilling at around midday and began packing up, getting ready for mobilisation.
It took most of the afternoon to pack up. At around 5pm he saw the worker talking to Peter. They walked over to them to have a drink break before continuing to pack the truck. The worker seemed fine.
A while later. Peter came over to help pack up the truck. He said the worker “must be a bit buggered today”. He had asked if he could “sleep humpy with the aircon (Office/Tool shed).” They did not think much of it, as it was a hot day.
The worker took off in his vehicle to head back to his camp.
At around 7pm they realised the worker had not come back. He was coming back every night to cook his dinner and shower. He also said he was coming back after he packed up his camp, to sleep in the humpy.
They “all started stressing a bit.” Peter went to the worker’s camp to try to find him. He could not find him and then tried to contact him on his two way [radio] and sat[ellite] phone.
Peter and Ben went to all three old drill sites to make sure the worker was not still working. When they came back, Peter tried to contact Rob to get the worker’s mobile number, to see if he had gone into town. Peter could not get onto Rob.
They were just told to wait for a call from Russell Chard or Tim Turner. He thought Tim got hold of the worker’s boss and told him he was missing. His boss called the police.
At 3am the next day, Peter got a call from the police. He had to go into town so the police could follow him to the site. Peter left with Benjamin Waldock.
At around 6:30am, he got a call from Peter, who asked if they could have a look at the worker’s camp, and see if they could find him, or any tracks.
He walked over with Brady. They could see the ute around 100m to 150m behind the worker’s camp. It was behind a tree. The worker had hit a tree.
When he got to the car, he saw the worker. He saw “spit and that coming out of his nose and mouth”.
He could not see if the worker was breathing, so he opened the door. His face was really white, and his neck was really blue. He was pretty certain he was dead, so he walked back to camp and let Tim Turner know. He then called Peter and let him know.
He got a call from Russell Chard. He asked if he had checked for vital signs and asked if he would be OK going back to check.
He went back with Brady. The worker was “real cold and stiff”. He could not feel a pulse, so he called the boss back and told him this.
He had only known the worker for four days. He did not see anything wrong with him. He spoke to him a few hours before he went missing, and he was fine.
When he located the worker, he could not see any injuries except a scratch on his right hand.

Evidence of Michelle Gough

Ms Gough is the area manager of the Barkly region (paramedic). Her statutory declaration, provided to NT Police, is dated 14 March 2019.
On 12 December 2018, she departed Tennant Creek around 8am, escorted by police.
She arrived on scene at approximately 10:43am.
She observed a vehicle that had bumped into a tree at low speed. An adult male was slumped over in the driver’s seat. There was mucous from the mouth and nose. His left hand was resting on the steering wheel and his right hand in his lap. The seat belt was worn.
She began an initial assessment. She formed the opinion that the male was deceased. The time was 10:50am.
She assisted police in bagging the body and placing it into the stretcher and into her service vehicle.
At around 11am she departed for Tennant Creek, arriving at around 1:08pm at Tennant Creek Hospital, where the body was transferred to the morgue.

Initial Notification of Death to the Coroner

The date of death was recorded as 12 December 2018.
The worker’s co-workers had confirmed that he took “blood thinners”. He was observed to be exhausted from the heat when they last saw him that afternoon. His backpack contained Valsartan and Hydrochlorothiazide.
The worker’s doctor, assumed to be Dr Tockar, although his name was redacted, had stated that the worker had a prescription for blood pressure and cholesterol, but was a fit person. He considered his death as unexpected. He had last seen the worker on 30 August 2018.

BOM Daily Maximum Temperature (degrees Celsius) – Tennant Creek Airport

The records show that, from 7 December 2018 to 12 December 2018, the maximum temperatures were as follows:
·        7 December 2018: 40.8 degrees;
·        8 December 2018: 40.2 degrees;
·        9 December 2018: 40.7 degrees;
·        10 December 2018: 41.2 degrees;
·        11 December 2018: 42.4 degrees, and
·        12 December 2018: 42.4 degrees.

Medical evidence

Randwick Medical

Dr Tockar recorded in 2000 and 2002 “recall” for cholesterol.
On 7 October 2005, Dr Tockar recorded that the worker was provided with a home monitor for blood pressure, and “may need px”.
On 21 October 2005, Dr Tockar recorded a discussion of lipid management. The worker was prescribed Lipitor.
On 11 August 2007, Dr Tockar recorded that the worker was keeping well, cycling in [sic] the office.
On 4 October 2007, Dr Tockar recorded a discussion of cholesterol results.
On 16 October 2008, Dr Tockar recorded that the worker attended for a check-up. He was to aim for 3kg weight loss and a low salt diet. Dr Tockar would re-check his blood pressure just before Christmas.
On 28 March 2014, Dr Tockar recorded that the worker had lost some weight. He had “tried 5/2 diet.” They repeated his blood pressure readings, “almost certainly will need to start on px”.
On 11 March 2016, Dr Tockar recorded “discuss his lipids”, and blood pressure check.
On 17 June 2016, the worker consulted Dr Tockar about various matters. Dr Tockar recorded that his blood pressure was still borderline. He was to buy an omron and see Dr Tockar in three months to compare readings.
On 10 July 2017, Dr Tockar recorded borderline hypertension. The worker was to be reviewed in two weeks and bring his machine. He must do five readings a week. They discussed doing a CTCA (CT Coronary Angiogram).
On 24 July 2017, Dr Tockar recorded review of the worker’s blood pressure. “His readings are similar to mine.” The plan was for the worker to get a 24 hour ambulatory blood pressure monitor, then a stress echocardiogram. He was then to be reviewed, and a CTCA organised. “Still undecided about bp (blood pressure) management.”
A stress echocardiogram was reported on 8 August 2017 as being a negative test for exercise induced myocardial ischaemia; and elevated resting blood pressure. It recommended risk factor management. The study noted that a negative study does NOT exclude coronary atherosclerosis. (Emphasis in original).
On 10 August 2017, Dr Tockar recorded a follow-up after the stress echocardiogram and 24 hour blood pressure monitor. The worker was to commence valsartan 40mg, “if not down in 2 weeks. self-monitor. increase to 80mg”.
The worker was to have a CTCA. If it showed atheroma, he was to add ezetrol to the Lipitor. He was to see Dr Tockar in six weeks, “may have to add in amiodapine”.
On 13 April 2018, Dr Tockar recorded that the worker’s blood pressure was “too high just now – may need a combination.”
On 30 August 2018, Dr Tockar recorded “to do lipids again” and scripts for blood pressure medication.

Investigations

The worker’s investigation on 3 May 2004 showed abnormal levels of cholesterol, LDL (low density lipoprotein), and triglycerides.
On 7 October 2005, the worker’s results were similar, except that his albumin was also abnormal.
On 2 March 2006, when he was on statins, the worker had abnormal albumin, cholesterol, triglyceride, and LDL.
The worker’s investigations on 8 November 2011 reported no abnormal findings.
The worker’s investigations on 15 January 2013 showed abnormal cholesterol and LDL.
The worker’s investigations on 9 June 2015 reported no abnormal findings.
On 15 August 2017, the worker’s CTCA recorded his clinical details as stable symptoms consistent with myocardial ischaemia. Risk factors for coronary artery disease were family history, hyperlipidaemia, and hypertension.

The report concluded that focal calcification was seen in the proximal to mid LAD (left anterior descending) artery. The epicardial coronary arteries otherwise appeared normal by CCTA (coronary computed tomography angiography). There were no additional cardiac findings of relevance.
The worker’s investigations on 13 April 2018 appear to show high cholesterol, triglyceride, LDL cholesterol, and non-HDL (high density lipoprotein) cholesterol.

Dr Tockar’s report

Dr Tockar reported to the applicant’s solicitors on 28 October 2022, having reviewed the worker’s file.
Dr Tockar noted that he had seen the worker regularly for checkups.
The worker was commenced on statins for his high cholesterol, and antihypertensives. He was always active and cycling everywhere.
Dr Tockar sent the worker for a stress test in 2017. The worker exercised for 13 minutes at a high level, without evidence of ischaemia on the ultrasound or ECG. Every time he got onto his cycle he was effectively doing a stress test. He never complained of shortness of breath or chest pain.
Dr Tockar had reviewed the Coroner’s report and looked at the daily temperatures. He opined that the extreme heat played a role in the worker’s cardiac event, as he was normally asymptomatic when he exercised daily in lower temperatures.
Dr Tockar opined that the nature of the worker’s employment put him at significantly greater risk of a heart attack than had he not been employed in employment of that nature.

Post-Mortem examination report for the Coroner

Dr John D Rutherford reported on 5 March 2019 that in his opinion the medical causes of the worker’s death were:
(a)     acute myocardial ischaemia
(b)     cardiac arrhythmia, and
(c)     severe focal coronary artery atherosclerosis.
Dr Rutherford recorded that the worker had been found dead at about 7:30am on
12 December 2018. He had last been known to be alive at about 5pm on 11 December 2018. Workers had indicated that when they last saw him that afternoon, he was “exhausted from the heat.”
The worker was said to suffer from hypertension, and to be taking “blood pressure and cholesterol” medication.
Dr Rutherford recorded that a section of coronary artery showed severe atherosclerotic stenosis. There was no architectural disturbance to suggest fresh myocardial infarction or long-standing fibrosis.
Dr Rutherford’s main pathological findings were summarised as follows:
·        decomposition;
·        cardiac dilatation (probably decomposition);
·        a single focus of severe coronary artery atherosclerosis in the anterior; descending branch of the left coronary artery;
·        possible pulmonary congestion and oedema, and
·        oesophageal polyp, probable leiomyoma (benign).
The balance of probability favoured a sudden unexpected death as a consequence of a single focus of severe coronary artery atherosclerotic stenosis, the mode of dying likely to have been a sudden abnormality of heart rhythm.
Dr Rutherford concluded that, as far as could be established within the limits imposed by decomposition, death appeared to have been a consequence of severe focal atherosclerotic stenosis of the anterior descending branch of the left coronary artery.

Coroner’s reasons for decision not to hold inquest

Mr Kelvin Currie, Deputy Coroner for the NT, issued his reasons on 9 April 2019.
Mr Currie referred to the autopsy report and cause of death.
Mr Currie noted that the worker’s work required him to work in hot and harsh conditions for extended periods.
The worker maintained a fit and healthy lifestyle, preferring to cycle or walk where possible.
The worker left Sydney on 6 December 2018 and travelled to Alice Springs. He purchased supplies and drove to Tennant Creek.
On 7 December 2018, the worker and contractors travelled to the drill site, approximately 85km southeast of Tennant Creek, where they set up camp. The worker’s camp was approximately 250m from that of the contractors.
From 7 December 2018 to 12 December 2018, the average maximum temperature in the region was 41.2 degrees Celsius. On 11 December 2018, the maximum in Tennant Creek was 42.4 degrees Celsius.
At the conclusion of work on 11 December 2018, the group commenced packing up. The worker requested of the drilling supervisor that he sleep in the caravan office for the night, so he could pack and clean up his camp. He then returned to his camp.
The contractors expected the worker to attend their camp for dinner. When he failed to attend, they commenced searching for him, but were unable to locate him or his vehicle.
Calls were made to the worker’s associate, who contacted police. They commenced a search at first light on 12 December 2018.
At approximately 7.30am on 12 December 2018, the contractors located the worker in his vehicle, which was resting against a tree, approximately 150m from his camp.
At approximately 10.52 am, the Tennant Creek paramedic pronounced life extinct.
The autopsy indicated that the worker died of natural causes.
Mr Currie found that the worker died on 11 December 2018. The cause of death was acute myocardial ischaemia, due to cardiac arrhythmia consequent upon severe focal coronary artery atherosclerosis.

Dr Mark Herman – consultant cardiologist

Dr Herman was qualified by the first respondent and reported first on 25 November 2019.
Dr Herman recorded that the worker succumbed to “acute myocardial ischaemia” provoking a cardiac arrhythmia due to severe focal coronary artery atherosclerosis on
12 December 2018.
The worker was 61 at the time of his death. He had a family history of premature vascular disease in association with severe hyperlipidaemia and hypertension. His peak cholesterol level prior to effective treatment suggested probable familial hypercholesterolaemia.
Dr Herman noted the results of the CTCA dated 10 August 2017, confirming the diagnosis of coronary artery disease.
The worker had been asymptomatic from a cardiovascular perspective and had been on a combination of a statin and antihypertensive therapy.
On 11 December 2018, the worker sustained a myocardial infarction and subsequent arrhythmic cardiac death.
Dr Herman noted that the worker had been working in hot conditions between
7 December 2018 and 12 December 2018, with temperatures peaking at 41.2 degrees. On the day of his death, the maximum temperature was 42.4 degrees.
On 11 December 2018, the worker requested to sleep in the caravan office. He had not apparently reported any chest pain.
Dr Herman recorded the events leading up to the discovery of the worker’s body. He noted the cause of death found on autopsy.
Dr Herman opined that the worker sustained an anterior myocardial infarction provoking a cardiac arrhythmia (probable ventricular fibrillation) and subsequent sudden cardiac death.
The worker had documented coronary artery disease at CTCA on 10 August 2017. In the setting of multiple risk factors, including severe hypercholesterolaemia, hypertension, and a family history of premature ischaemia, he was found to have atherosclerotic plaque in the LAD coronary artery, although non-obstructive at the time. In August 2017, a stress echocardiogram revealed no evidence of ischaemia at high workload but confirmed hypertension.
Dr Herman confirmed that the worker had suffered a heart attack, according to the definition in s 9B(2) of the 1987 Act. He had a heart attack injury.
Dr Herman opined that the nature of the worker’s employment did not give rise to a significantly greater risk of him suffering a heart attack injury than had he not been employed in employment of that nature. (Emphasis in original).
While the worker was working in a hot environment, that was not unfamiliar to him, did not occur in the setting of significant manual work, provoking significant haemodynamic stressors, and raised temperatures are not a common trigger of myocardial infarction.
Dr Herman opined that the high temperature at the time of the worker’s injury had not had a significant impact. His pre-existent coronary artery disease, in association with hypercholesterolaemia, hypertension, and a family history of premature vascular disease, were a far larger component.
Dr Herman did not think the worker’s death would have been avoided had he not been at work at the time of his injury; and he may well have had a myocardial infarct or alternative coronary event at the same stage in his life had he not been at work at the time.
Dr Herman provided a further report dated 21 February 2024. He noted having reviewed all the relevant documents necessary to provide the report from the file forwarded to him.
Dr Herman was asked if he agreed or disagreed that the worker suffered thrombotic coronary arterial occlusion that caused or materially contributed to his heart attack injury causing death.
Dr Herman responded that he remained of the opinion that the worker suffered a thrombotic coronary artery occlusion, which caused his heart attack injury, ultimately causing a sudden cardiac arrhythmic death.
Dr Herman repeated the worker’s history. The worker had documented severe LAD artery disease at autopsy. Whilst a complete thrombotic occlusion of the vessel was not found at autopsy, the stenosis (blockage) was more than sufficient to provoke ischaemia (lack of blood supply to the heart muscle) and a subsequent fatal ventricular arrhythmia.
Dr Herman reported that sudden cardiac death is usually caused by coronary artery disease, and both myocardial infarction or myocardial ischaemia can provoke a significant arrhythmia and acute cardiac decompensation/sudden death.
Dr Herman was provided with the BOM Daily Maximum Temperature chart for Tennant Creek. He was asked if he considered the heat to which the worker was exposed caused, or materially contributed to, the thrombotic coronary arterial occlusion which may cause a heart attack injury.
Dr Herman responded that most acute coronary syndromes occur due to the lack of integrity of the endothelium, the protective covering [of?] an atherosclerotic plaque. This breach allows blood to come into contact with the thrombogenic material underlying, with subsequent thrombus developing, which may be occlusive or non-occlusive.
The precise mechanism of plaque rupture remained poorly understood, but it was frequently due to inflammation within the fibrous cap. In acute ST elevation myocardial infarctions, 75% are due to plaque rupture, and the remaining 25% are also due to plaque erosion.
Dr Herman noted that there were multiple potential reasons for acute plaque rupture. They included circadian variation; acute life events (such as earthquakes, hurricanes, or terror attacks); chronic stress; anxiety (particularly anger); substance abuse; air pollution; heavy metal exposure; and even day of the week. Peak incidence occurred on Mondays, and holidays such as Christmas and New Year.
The exact mechanism whereby these events provoked plaque rupture was possibly related to increase in blood pressure, heart rate, vascular tone, and platelet aggregability.
Dr Herman reported that despite potential triggers, most myocardial infarctions were not related to an acute trigger.
Dr Herman noted there was evidence that increased air pollution, as well as temperature fluctuations, could serve as potential triggers for sudden acute myocardial events.
Both heat and cold transiently increased the risk of AMIs (acute myocardial infarctions) within a 24 hour period of exposure, with cold related AMI occurring nine hours after exposure and approximately 15 hours after heat exposure in men.
The proposed mechanism was vasodilation due to the heat provoking an increased cardiac output and increased haemodynamic stress, which may lead to plaque rupture and the subsequent ischaemic events.
Dr Herman opined that the worker was a high-risk individual. He was 63, with a family history of premature ischaemia, severe hyperlipidaemia (possible FH (familial hypercholesterolemia) given the extent of his hyperlipidaemia previously) and hypertension. He also had a documented coronary artery disease involving the LAD.
Dr Herman referred to literature that supported that hypertension was a very well-established risk factor for cardiovascular outcomes, including mortality and the lifetime risk of developing CVDs (cardiovascular disease).
Hypertension accounted for 18% of population attributable risk of a first myocardial infarction and in a cohort of over 1.25 million patients aged over 30. Patients with baseline hypertension had a 63.3% lifetime risk of developing cardiovascular disease, compared to 46% for those with normal blood pressures.
Lipids were a major determinant of premature coronary artery disease. The presence of dyslipidaemia was increased in patients with premature coronary artery disease, being 75% to 85%, compared to 40% to 48% in age match controls.
The INTERHEART Study accounted a 49% of the population attributable risk for a first MI due to hyperlipidaemia. Furthermore, Mr Kary already had established coronary disease. He also had a family history of premature vascular disease. All these factors provoked a significant risk of a cardiovascular event, and certainly placed him in a high risk category (i.e. >3% per annum).
Dr Herman was asked whether the worker was likely to have passed away from a heart attack injury even if he had not been so employed. He opined that whilst it was possible that heat exposure increased haemodynamic stress and potentially provoked a plaque rupture, Mr Kary was in a high risk category in any event.
Dr Herman opined that most myocardial infarctions were not precipitated by acute triggering events, and it was very difficult to prove a link between a potential trigger and the actual event, i.e. “because it was hot outside does not necessarily implicate the high temperature as the cause of plaque rupture”.
There was literature to support heat as a potential trigger for acute plaque rupture, but most plaque ruptures occur in the absence of a trigger and in vulnerable plaques, which had nothing to do with ambient temperature. Most acute coronary syndromes occur between 6am and 9am, when no environmental triggers were occurring.
Dr Herman opined that linking the worker’s cardiac event to a hot day, not involving manual work, and in conditions to which he had been accustomed, was speculative. “Feeling bad” had been assigned to the heat by A/Prof Richards, but may equally have been the onset of ischaemia, unrelated to heat.
The worker was a high-risk individual, and his cardiac event could have occurred at any time, whether or not he had been employed and exposed to heat around the time of the event.
Dr Herman agreed with A/Prof Richards that, in cases where thrombus was not seen at autopsy, it was more likely than not that it had been present prior to death and was the cause of death due to myocardial infarction, but it had dissolved spontaneously after death.
Dr Herman opined that, whether or not the worker had a documented complete occlusion of the coronary artery or severe blockage enough to provoke ischaemia (lack of blood supply) to the heart muscle, the mechanism of death was almost certainly arrhythmic and did not change the situation.
The worker sustained a cardiac event due to a probable cardiac arrhythmia secondary to myocardial ischaemia (potential infarction) and Dr Herman agreed with A/Prof Richards in that regard.
Dr Herman opined that the issue was whether the heat to which the worker was exposed was sufficient to provoke enough haemodynamic stress to promote plaque rupture and the subsequent myocardial ischaemia/ventricular arrhythmia/sudden death.
While Dr Herman acknowledged the temperature was high, he was not convinced this was the sole reason for the triggering of the acute plaque rupture. Most occurred without an identifiable trigger. The worker was a high-risk individual who had pre-existent plaque in the LAD, which happened to rupture at the time, possibly aggravated by the heat.
Dr Herman opined that employment was not the main contributing factor to the worker’s heart attack injury. His pre-existent disease, with several risk factors, was the main contributing factor.
Dr Herman felt that employment was a contributing factor to the heart attack injury, agreeing with A/Prof Richards in that regard. He was not convinced that it was the substantial contributing factor. Most acute coronary syndromes were not preceded by triggering events.
Dr Herman did not consider that the worker’s employment created a significantly greater risk of sustaining a heart attack injury than if he had not been so employed. He agreed that heat exposure may contribute to acute haemodynamic stress and potential plaque rupture (in a vulnerable plaque).
The worker was a very high-risk individual with pre-existent disease who happened to have his plaque rupture on the day at work. His vulnerable plaque had nothing to do with his work situation and may have ruptured for many potential reasons. (All emphases in original).

A/Prof David Richards – consultant cardiologist

A/Prof Richards was qualified by the applicant. He has provided five reports, the first of which is dated 24 June 2020.
A/Prof Richards recorded that the worker’s mother died with dementia in 2009, and his father died in 2016. His two siblings were well. The worker had a history of hypercholesterolaemia and hypertriglyceridemia. He had been treated with Lipitor from 2005 to 2018.
Hypertension and hyperlipidaemia are risk factors for ischaemic heart disease (IHD, coronary artery disease, coronary arterial atherosclerosis).
A/Prof Richards referred to the worker’s stress echocardiogram on 8 August 2017. He concluded that in 2017, Mr Kary had asymptomatic ischaemic heart disease. His treatment did not include aspirin (to reduce the risk of coronary thrombosis) or beta blockade (to reduce heart rate and blood pressure).
A/Prof Richards noted the contents of the Coroner’s report dated 9 April 2019, the autopsy report, and Dr Herman’s report dated 25 November 2019.
A/Prof Richards recorded that Dr Herman did not exclude the fact that the high ambient temperature at Tennant Creek exposed Mr Kary to a greater risk of myocardial ischaemia than otherwise, or the fact that the climate may have precipitated myocardial infarction. He noted Dr Herman’s conclusion.
A/Prof Richards commented that the worker was predisposed to IHD. He may have had a family history of premature vascular disease. Coronary calcification and <25% (i.e. not flow-limiting at the time of the CTCA) stenosis of the LAD coronary artery were noted on
15 August 2017.
In the absence of any other likely cause of death, A/Prof Richards agreed that it was probably due to myocardial ischaemia associated with disease in the proximal LAD coronary artery. In the absence of unaccustomed physical exertion, acute (i.e. sudden) myocardial ischaemia was likely precipitated by atherosclerotic plaque rupture and acute occlusive thrombosis of the proximal LAD artery.
A/Prof Richards opined that, in the absence of any other identifiable stressful trigger, thermal stress could not be discounted as the most likely factor to have precipitated atherosclerotic plaque rupture and coronary arterial thrombosis. If life expectancy would otherwise have been 22 years (death at 84), the worker’s life expectancy would have been reduced by coronary artery disease by 30% to 50% (death at 73 to 77).
A/Prof Richards’ next report is dated 14 September 2020. He had been asked to opine on whether the nature of the worker’s employment gave rise to a significantly greater risk of him suffering a heart attack.
A/Prof Richards clarified that he had meant that thermal stress, which was a consequence of the worker’s employment, was the precipitating factor that led to death. Employment led to the thermal stress, which would not have been the case if the worker was not working where he was working. Thermal stress was the only identifiable factor to have precipitated atherosclerotic plaque rupture and coronary thrombosis. Coronary thrombosis caused cardiac arrest; and cardiac arrest caused death.

A/Prof Richards’ next report is dated 4 July 2023. He had been provided with the BOM Daily Maximum Temperature chart for Tennant Creek; photographs of the worker’s vehicle, in which he was found; ambulance record; the evidence of Mr Coleman, Mr Fleming,
Mr Rutherford, Mr Tyrell, Ms Gough, and the police; the toxicology and autopsy reports; the report of the Coroner; Dr Tockar’s report; and the evidence of the applicant.
In reviewing these documents, A/Prof Richards opined as follows:
(a)     Ambulance record: it was more likely than not that cardiac arrest occurred before sundown the evening before Mr Kary was found dead.
(b)     Mr Coleman’s evidence: the description suggested that the worker felt unwell and would prefer to be in the air-conditioned caravan. It was more likely than not that he felt unwell because of the effects of the heat and/or of myocardial ischaemia precipitated by coronary thrombosis, in turn due to the stressful effects of the hot climatic conditions.
It was more likely than not that the white froth around the worker’s mouth was pulmonary oedema fluid, secondary to pulmonary venous congestion, in turn the result of reduced cardiac output due to ventricular tachyarrhythmia/s, or bradycardia asystole resulting from myocardial ischaemia.
A/Prof Richards held this view because at post-mortem, there was no evidence of cardiomyopathy or previous myocardial infarction, and there was evidence of probable pulmonary congestion.
(c)     Mr Fleming’s evidence: this was consistent with that of Mr Coleman, suggesting the worker felt sufficiently uncomfortable to ask to sleep in the air-conditioned caravan.
(d)     Mr Rutherford’s evidence: the worker had worked in the heat previously and did not explicitly complain about the heat during the afternoon, Sydney time, and before he reported being affected by the heat. Several hours later, he requested to sleep in the caravan.
(e)     Toxicology report: no substance that was likely to have caused death was observed.
(f)      Autopsy report: workers had indicated that when last seen that afternoon, the worker was exhausted from the heat.
The fact that Dr Rutherford did not describe the presence of thrombus at autopsy in the LAD coronary artery did not contradict the probability that acute myocardial ischaemia had been precipitated by thrombotic occlusion of the LAD coronary artery. It is common that thrombus present before death dissolves before histologic examination at autopsy.
It remained A/Prof Richards’ view that it was more likely than not that exertion in the heat precipitated coronary arterial thrombosis, which led to myocardial ischaemia, ventricular tachyarrhythmias (or bradycardia/asystole) and pulmonary congestion, ultimately causing cardiac arrest and death.
A/Prof Richards held this view because of the absence of any other explanation for acute myocardial ischaemia; and because the worker felt sufficiently uncomfortable to ask to sleep in the air-conditioned caravan. He agreed with
Dr Rutherford as to the likely cause of death.
(g)     Dr Tockar’s evidence: He concurred with Dr Tockar’s conclusion.
This “new material” confirmed the opinions A/Prof Richards had previously expressed.
A/Prof Richards opined that, although the worker had ischaemic heart disease for which he was treated, he had not been unwell until the day of his death. During the afternoon before his death, he felt sufficiently uncomfortable to ask to sleep in the caravan.
In the course of preparing to break camp, the worker lost consciousness while driving his vehicle, which came to a stop against a tree. By the time he was found the next morning, he was cold and stiff, having died several hours previously.
At autopsy, there was focal disease in the LAD coronary artery and pulmonary congestion, but there was no evidence of old myocardial infarction or cardiomyopathy, or any cause for death other than acute myocardial ischaemia in the presence of suffering from the hot conditions.
A/Prof Richards concluded that it was more likely than not that Mr Kary was adversely affected by working in the heat, and he experienced myocardial ischaemia precipitated by this work, causing him to be sufficiently unwell to request to sleep in the caravan.
It remained A/Prof Richards’ view that it was more likely than not that the worker’s work in the heat was the proximate factor that triggered thrombotic occlusion of the LAD, leading to cardiac arrest and death. Mr Kary complained that he was affected by the heat, and there was no other factor that precipitated his sudden demise.
A/Prof Richards’ next report is dated 20 September 2023.
A/Prof Richards was asked to provide his reasons for indicating that it was common that thrombus dissolves before examination at autopsy. He provided reference to literature, and his own experience. I note that on this, he and Dr Herman agreed.
In Mr Kary’s case, death occurred within several hours of him becoming unwell. Only a small quantity of thrombus would have been necessary to occlude the LAD, because it was already narrowed by “A single focus of severe coronary artery atherosclerosis.”
Mr Kary died during the late afternoon/early evening of 11 December 2017 [sic: 2018]. The autopsy was performed six days later. There was ample time for a small quantum of antemortem thrombus to have dissolved.
A/Prof Richards confirmed that in his opinion, working in the heat was the main contributing factor and the only contributing factor that triggered thrombotic occlusion of the LAD, leading to cardiac arrest and death.
Up until the time of his death, the worker had fixed nonocclusive disease in the LAD. The development of thrombus at the site of the previously nonocclusive disease caused a sudden cessation of blood flow down the LAD, leading to acute ischaemia, cardiac arrest, and death.
A/Prof Richards opined that the nature of the worker’s employment gave rise to a significantly greater risk of him sustaining the heart attack injury than if he had not been employed in employment of that nature.
The worker’s unexpected exhaustion “from the heat” was actually due to acute myocardial ischaemia and pulmonary congestion (as a result of ischaemia, precipitated by acute thrombotic coronary arterial occlusion caused by the heat), in the absence of any other explanation.
A/Prof Richards could identify no other factors that would likely have triggered myocardial ischaemia, other than working in the heat.
A/Prof Richards’ final report is dated 8 April 2024. He had been asked to comment on
Dr Herman’s report dated 21 February 2024.
A/Prof Richards opined that, in the absence of any other trigger to cause plaque rupture, heat exposure in this case was the only relevant likely trigger. “In other words, the stress of the hot environment triggered plaque rupture, coronary thrombosis, cardiac arrest and death.”
A/Prof Richards opined that it did not follow that ambient heat as a trigger of myocardial infarction should be ignored because no particular trigger may be identified in a majority of patients with plaque rupture.
A/Prof Richards opined that the contemporaneous observations indicated otherwise than that “feeling bad” may equally have been the onset of ischaemia, unrelated to heat. There was no record that the worker reported chest or arm discomfort; palpitations; discomfort in the jaw, shoulder, or epigastrium; dyspnoea; or nausea (to suggest myocardial ischaemia as the cause of feeling hot), prior to his description of being affected by the heat.
A/Prof Richards accepted that it was possible that Mr Kary coincidentally experienced plaque rupture and coronary thrombosis after being affected by the heat, but it remained his view that it was more likely than not that they were the consequence of the effects of the heat.
A/Prof Richards noted that, notwithstanding the chronology; the evidence Dr Herman provided for plaque rupture associated with heat exposure; and a mechanism for myocardial ischaemia induced by a hot environment; Dr Herman concluded that he was not convinced that employment was the substantial contributing factor. He asked. “Why was Dr Herman ‘not convinced’ that heat was ‘the substantial contributing factor?’”
Dr Herman’s report did not cause A/Prof Richards to alter his opinion.

SUBMISSIONS

The parties’ submissions have been recorded, and a transcript is available. I will therefore refer to the main points.

Applicant

The applicant “makes this clear” that her claim is not limited to injury “arising out of” employment but would make submissions that the worker’s injury was sustained in the course of employment as well.
The applicant submitted that the worker passed away as a result of a heart attack injury, which was causally related to the duties he was performing in December 2018.
The applicant submitted that it was undisputed that on 11 December 2018, the worker complained about the heat, and needed to rest as a result of its effects. It had been admitted, through Dr Herman’s evidence, that working in the heat was a contributing factor to the worker’s injury and death.
The applicant submitted that Dr Herman’s opinion would not be fatal to her claim. Once contribution had been established, this satisfied the worker sustaining injury pursuant to s 4(a) of the 1987 Act. The applicant need only establish that employment was a material contributing factor. That was established on the opinion of Dr Herman alone, and on the basis of the opinions of A/Prof Richards and Dr Tockar. There could be no doubt that s 9A of the 1987 Act was satisfied.
In the alternative, the applicant relied on the disease provisions in s 4(b) of the 1987 Act. She referred to the evidence of the BOM, and Mr Rutherford’s evidence regarding the worker’s duties. She submitted the worker was undertaking at least part of these duties at the time of the injury.
The applicant submitted there were no cardiovascular issues related to the worker performing his regular exercise activities.
The applicant submitted that the evidence from Dr Tockar, including his clinical notes, recorded no complaints about cardiovascular issues prior to the injury and the worker’s passing. The worker passed a cardiac test six months prior to his death.
The applicant submitted that employment was the contributing factor that led to the injury. The other non-employment-related factors were not the cause.
The applicant submitted that A/Prof Richards’ reports were quite consistent. Unlike Dr Herman, he had considered the factual material, and provided a cogent and well-reasoned opinion, based on admitted facts.
The applicant submitted that A/Prof Richards had regard to the autopsy report and Dr Herman’s report dated 25 November 2019. A/Prof Richards opined that in the absence of unaccustomed physical exertion, the injury was still related to the nature of the employment the worker was performing.
The applicant submitted that A/Prof Richards’ opinion addressing s 9B of the 1987 Act applied equally to causation generally. It was consistent with Dr Herman’s opinion that the heat did contribute to the injury.
The applicant submitted that A/Prof Richards considered employment to be the main contributing factor to the injury, as he used the term “proximate factor”, and made it clear it was the only contributing factor that triggered the thrombotic occlusion of the LAD, leading to cardiac arrest and death. His evidence made it clear that s 9B of the 1987 Act had been established.
The applicant submitted that Dr Herman had considered the matter from a general population-type consideration but had not considered the factual evidence or the GP’s report. The weight that could be placed on his opinion was limited.
The applicant submitted that A/Prof Richards’ question as to why Dr Herman was not convinced that heat was the substantial contributing factor was very important, as Dr Herman had not provided adequate reasons to support his conclusions.
The applicant relied upon the injury being one sustained in the course of employment. It was that injury that A/Prof Richards identified, that ultimately led to the cardiac arrest, and ultimately led to the death.
The applicant referred to the decision of Member Sweeney in Fisher v Nonconformist Pty Limited & Ors.[1] She submitted that, consistent with the evidence, the worker had sustained a sudden injury. That sudden change would lead to the injury being one pursuant to s 4(a) of the 1987 Act. This aspect of Fisher 1 had not been challenged, either before the President of the Commission or the Court of Appeal.
[1] [2022] NSWPIC 201 at [93] to [96] (Fisher 1).
The applicant also referred to the comments of Windeyer J in Weston v Great Boulder Gold Mines Ltd[2] that anything at all that happened to a man while he was at work happened in the course of employment. She submitted that the injury satisfied the “in the course of employment” requirement.
[2] [1964] HCA 59; (1964) 112 CLR 30.
In the alternative, the applicant submitted that the injury was sustained in the course of employment because the worker was required, induced, or encouraged to attend the campsite for dinner. He was found hunched over in his ute.
If her submissions as to injury “in the course of employment” were not accepted, the applicant submitted that the injury arose out of employment. The employment activities caused the injury, having led to exposure to the heat.
The applicant submitted that the nature of the employment was exposure to heat, which ultimately caused the injury (the cardiac arrest) and death. This would comfortably satisfy the requirement of “arising out of employment.” The applicant referred to Secretary, Department of Communities and Justice v Galea[3] and SB v XFPL.[4]
[3] [2021] NSWWCCPD 1 at [79] (Galea).
[4] [2022] NSWPICPD 7.
In the alternative, the applicant relied upon ss 4(b)(i) and 4(b)(ii) of the 1987 Act. She submitted that the main contributing factor to the injury was employment. Employment was the main contributing factor to the development of the disease, and alternatively, the aggravation, acceleration, exacerbation, or deterioration of the disease.
The applicant submitted that underlying issues were of no moment. The main contributing factor need only pertain to the aggravation, acceleration, exacerbation, or deterioration of the disease.
The applicant submitted that, if I were satisfied that a s 4(a) injury had been sustained, the next question was whether s 9A had been satisfied. She referred to Mercer v ANZ Banking Group.[5] The relevant question had to be asked from the perspective of whether the employment concerned, the work activity the worker was engaged in at the time of the injury, was a substantial contributing factor to the injury.
[5] [2000] 48 NSWCA 138.
The applicant submitted that weighing the employment and non-employment factors would be contrary to s 9A – Da Ros v Qantas Airways Limited.[6] The employment activities did not need to be the substantial contributing factor, which was contrary to the section, and the manner in which Dr Herman considered the question.
[6] [2010] NSWCA 89 at [21].
The applicant referred to the factors in s 9A(2). She cited Department of Corrective Services v Clifton.[7] The cause of death was the employment activities and exposure to thermal stress. There was no cogent evidence that any of the worker’s underlying issues caused the injury or death.
[7] [2006] NSWWCCPD 310 at [45].
As regards the application of s 9B of the 1987 Act, the applicant submitted that the worker was required to work in remote locations and very hot conditions. Both A/Prof Richards and Dr Tockar made clear that exposure to the heat and thermal stress would not have occurred had the worker not worked in employment of the nature in which he was employed at the time of the injury. There was no other contributing factor, based on the evidence.
The applicant submitted that I would not accept Dr Herman’s evidence with respect to the application of s 9B of the 1987 Act. A/Prof Richards has provided reasons why, notwithstanding the worker’s familiarity with such an environment, the injury was causally related to his employment. The pathology that was found supported the injury in those circumstances.
The applicant submitted that Dr Herman’s evidence supported that employment was the main contributing factor to the disease injury. She submitted that I would not accept his opinion that the worker may have had an infarct or event at the same stage, had he not been at work. We do not know what evidence he was basing that opinion on. The GP had made it very clear there were no issues prior to the injury and the death, and there were no prior complaints of any cardiovascular issues.
The applicant submitted that Dr Herman’s two reports demonstrated he had not provided an objective opinion. He was acting as an advocate. There was no basis for his opinion that the worker’s complaints to his colleagues were related to ischaemia and unrelated to heat.
The applicant submitted that Dr Herman’s opinion focused upon what he would have expected or what would have occurred in the general population. That was not of utility, particularly in the face of A/Prof Richards’ opinion, which considered the factual and medical evidence; and provided a reasoned basis, analysing and interpreting all that evidence.
In reply to the first respondent, the applicant submitted that each matter is to be dealt with on the evidence and relevant facts. This matter was different to Fisher v Nonconformist Pty Ltd.[8]
[8] [2024] NSWCA 32 (Fisher 2).
The applicant submitted that the requirements of s 9A were satisfied in this matter. A/Prof Richards stated clearly there was a causal connection between employment and the worker’s injury and subsequent death. His opinion was based on the admitted evidence.
The applicant again submitted that Dr Herman had not grappled with the lay evidence, the GPs’ records, and the autopsy records, as had A/Prof Richards. She submitted that I could not assume that an expert had considered documents when his report did not indicate that he had done so, and how he had done so.
The applicant referred to Purkess v Crittenden[9] and Watts v Rake.[10] She submitted that the first respondent bore the onus to establish what the effects of the non-employment related matters were, and that those were the causes that led to the injury and death; and it had not satisfied its onus.
[9] [1965] HCA 34 at [168]; (1965) 114 CLR 164 (Purkess).
[10] [1960] HCA 58; (1960) 180 CLR 158.
The applicant submitted that the first respondent’s submissions as to the natural trajectory of the worker’s pre-existing cholesterol or blood pressure issues ought to be rejected, as they were made without expert evidence.[11]
[11] Strinic v Singh [2009] NSWCA 15.
The applicant rejected the suggestion that because A/Prof Richards may not have dealt with Dr Herman’s hypotheses of the worker passing away in any event, or his underlying issues being the cause of the injury, they were untested or unchallenged. A/Prof Richards had provided a clear opinion as to the cause of the injury. He did not need to “shadow box” and assume what other arguments might be put forward.
The applicant submitted that, reading A/Prof Richards’ reports as a whole, he did not refer to exertion as a particular cause of the injury and death. He said, “in the absence of unaccustomed physical exertion…”, which was consistent with what Dr Herman indicated.
The applicant submitted there was nothing out of the ordinary. The worker was performing his employment duties, that he had performed before, in the heat, and in the absence of a change to the nature of that employment, A/Prof Richards determined there was an injury, a cardiac arrest, and then death causally related to employment. He had indicated why, and by reference to the pathology.
The applicant submitted that there was no actual evidence that the worker went to a cool room and had a rest, and her case was not predicated on that. The case was predicated on complaints of the adverse effects of the heat, of which two witnesses had given evidence, which had not been challenged.

(i) any occlusion of such a blood vessel, whether the occlusion is total or partial, or
(j) any consequential physical harm or damage, including neurological harm or damage, or
(k) any consequential mental harm or damage.”

The applicant’s claim is pleaded as one of personal injury, pursuant to s 4(a) of the 1987 Act or, alternatively, as a “disease injury”, pursuant to ss 4(b)(i) and 4(b)(ii) of the Act.
If the worker’s heart attack is characterised as a personal injury, rather than a “disease injury”, the applicant must establish that the worker’s employment was a substantial contributing factor to the injury, pursuant to s 9A of the 1987 Act, in order to recover compensation. If the injury was a disease injury, the applicant must establish that employment was the main contributing factor to the disease or aggravation of the disease.
In either event, the applicant must also establish, in accordance with s 9B of the 1987 Act, that 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.”

Injury

In Fisher 1, Member Sweeney referred to Kennedy Cleaning v Petkoska,[18] in which the case law before and after Zickar v MGH Plastic Industries Pty Ltd[19] was considered.
[18] [2000] HCA 45 (Petkoska).
[19] (1996) 187 CLR 310.
In Petkoska, Gleeson CJ and Kirby J said at [39]:
“…All of those cases require that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidence of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word. If such an injury happens within the protected period of employment, it is ordinarily compensable without proof of a specific causal connection with the worker’s employment. If the propounded ‘injury’ is distinct from the underlying pathology that constitutes a ‘disease’ that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.”
The above passage was quoted with approval in Military Rehabilitation and Compensation Commission v May.[20]
[20] [2016] HCA 19 at [45] (May).
The plurality held in May that physiological change or “disturbance of the normal physiological state” may be internal or external to the worker’s body. While suddenness of physiological change is not an essential ingredient, an injury may be “sudden and ascertainable” or “dramatic” or the worker’s condition might simply be a “disturbance of the normal physiological state”.
Dr Herman opined that Mr Kary succumbed to acute myocardial ischaemia, provoking a cardiac arrhythmia (probable ventricular fibrillation), due to severe focal coronary artery atherosclerosis.
A/Prof Richards agreed that the worker’s death was probably due to myocardial ischaemia associated with disease in the proximal LAD coronary artery. Both doctors agreed that there was plaque rupture.
In my view, this could be described as a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”, as “distinct from the underlying pathology”. The worker therefore sustained an “injury” in the course of his employment with the first respondent.
The applicant is therefore obliged to establish that employment was a substantial contributing factor to the injury.

Substantial contributing factor

The first respondent submitted that this was a case about causation, and s 9A was central.
The first respondent submitted extensively on the decision of the Court of Appeal in Fisher 2, and in particular the decision of Kirk JA, with whom Meagher JA and Simpson AJA agreed.
Kirk JA said, at [66], after referring to the Attorney-General’s second reading speech (Legislative Council 26 November 1996, Hansard at 6509-6510), “The section [s 9A] was thus intended to introduce a stronger test than was provided for in s 4, in situations where it applies…”
Kirk JA referred to Badawi. He said that three aspects of the decision were pertinent. Firstly, all the members of the Court agreed that the notion of “substantial contributing factor” involved a causal connection between the employment concerned and the injury. Insofar as the appellants asserted that s 9A did not establish a test of causation, “the argument must be rejected.”
Secondly in Badawi, there was a question as to whether the causal requirement in s 9A applied only to the second limb of s 4(a) (“in the course of employment”), or whether it also added to the existing requirement in the first limb (“arising out of…employment”). The joint judgment in Badawi held that it applied to both limbs of s 4(a), even though “there is an incongruity in having a double causation test, one in s 9 and one in s 9A”. Basten JA was of the same view.
Thirdly, an issue arose in Badawi as to the stringency of the causal requirement. The judgment clarified the sense conveyed by the word “substantial”, saying it meant a causal connection that “was real and of substance.”
Kirk JA went on to say, at [70] – [72], that the understanding that s 9A imposes a more stringent causal requirement than that involved in the first limb of s 4(a) is consistent with the Attorney’s reference to the “weaker test” in s 4 in his second reading speech. “And it reflects a deeper point”.
Kirk JA stated that the causal standard for the “arising out of employment” notion in workers compensation legislation had long been accepted to involve consideration of whether the employment “caused, or to some extent contributed to the injury”.[21] That is relevantly the same approach taken at common law for tort, for example, March v E & M H Stramare Pty Ltd.[22]
[21] Nunan v Cockatoo Docks & Engineering Co Ltd [1941] NSWStRp 23; (1941) 41 SR (NSW) 119.
[22] [1991] HCA 12; (1991) 171 CLR 506.
There were various aspects to the notion of “material contribution.” Kirk JA observed that in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd,[23] Kiefel JJ said (citations omitted):
“The law’s recognition that concurrent and successive tortious acts may each be a cause of a plaintiff’s loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is ‘caused or materially contributed to’ by a defendant’s wrongful conduct. It is enough for liability that a wrongdoer’s conduct be one cause. 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.”
[23] [2013] HCA 10; (2013) 247 CLR 613.
Kirk JA said:
“The citation for the last sentence referred to Gould v Vaggelas[24] where Wilson J said that a relevant cause ‘is sufficient so long as it plays some part even if only a minor part in contributing to’ the relevant consequence (at 236). The statutory language in s 9A of ‘substantial contribution’ is obviously intended to increase the required degree of causal significance beyond this.”
[24] [1984] HCA 68; (1984) 157 CLR 215.
As regards factual matters, it may be accepted that on 11 December 2018 and 12 December 2018, the temperature at the site where the worker was working exceeded 42 degrees Celsius. I accept the submission of the third respondent that the heat was extreme.
I am satisfied on the evidence that the worker complained about the effects of the heat.
Mr Tyrell did not state this, but Mr Coleman and Mr Fleming did, and Dr Rutherford and the Coroner recorded it.
Dr Herman opined that the worker “feeling bad” may equally have been the onset of ischaemia, and unrelated to the heat. However, A/Prof Richards has explained why he did not believe this to be the case. I prefer his evidence on this point. Mr Coleman said the heat had “knocked [the worker] around a bit”, and Mr Fleming said that the worker “must [have been] a bit buggered.”
It does not appear to me that the worker had spent the night before his death in the air-conditioned caravan. Mr Coleman’s evidence is that the worker asked to sit in the caravan, and they later noticed he had left the caravan and his ute was gone, so they assumed he had gone back to his camp.
The sequence of events appears to have been that Mr Kary sat in the caravan for a time; he had asked to sleep in the caravan; he returned to his own camp, was expected back at the other workers’ camp for dinner (after which it is assumed he would have spent the night in the caravan); and failed to appear, having unfortunately sustained the heart attack that resulted in his death.
The first respondent submitted that there is no evidence that the worker was involved in physical exertion, as submitted by the third respondent.
Mr Rutherford’s description of the worker’s duties does not suggest that his work involved physical exertion. Mr Rutherford stated that the worker’s job at the Tennant Creek site was to supervise the drilling, which was done by others.
The only reference to Mr Kary being involved in physical exertion is the Coroner’s observation that his hands were dirty, “commensurate with a physical job”. However, the Coroner also recorded that the worker’s fingernails were clean and unbroken, which does not suggest a physical job.
Mr Coleman stated that the worker was checking the rock samples, and Mr Fleming stated that the worker was there to assess the rocks. Handling the samples may have caused the worker’s hands to be dirty.
I am not prepared to draw the inference that the worker’s job involved physical exertion. I will return to this issue in discussing the medical evidence.
The first respondent referred to the decision in Seltsam.
The headnote in Seltsam includes the following under the heading “Causation: General”:
“1. Epidemiological evidence that exposure to a substance is a possible cause of an injury may be used to establish that exposure is the legal cause of the injury.
2. The balance of probabilities test is not satisfied by evidence which fails to do more than establish a possibility: St George Club Ltd v Hines[25] ; Tubemakers v Fernandez[26]; Fernandez v Tubemakers of Australia Ltd.[27]
3. Causation is not established by showing that a defendant’s act or omission increased the risk of injury to a plaintiff when the risk had not eventuated: Chappel; Naxakis v Western General Hospital[28]; McGhee v National Coal Board[29] considered.
4. Causation in an individual case can be established by a process of inference from circumstantial evidence which combines primary facts like ‘strands in a cable’. Epidemiological evidence of the effects on populations of exposure to a substance is circumstantial evidence which may form part of the process of inference.”
[25] [1961-62] 35 ALJR 106.
[26] (1976) 50 ALJR 720.
[27] (1975) 2 NSWLR 190.
[28] (1999) 73 ALJR 782 (Naxakis).
[29] (1972) UKHL 7; [1973] 1 WLR 1.
In Seltsam, Spigelman CJ said, at [83]:
“The law in Australia is, in my opinion, as stated by Glass JA in this Court in Fernandez v Tubemakers of Australia Ltd at 197:
‘The issue of causation involves a question of fact upon which opinion evidence, provided it is expert, is receivable. But a finding of causal connection may be open without any medical evidence at all to support it: Nicolia V Commissioner for Railways (NSW)[30], or when the expert evidence does not rise above the opinion that a causal connection is possible: EMI (Australia) Ltd v Bes[31]; appeal dismissed[32]. The evidence will be sufficient if, but only if, the materials offered justify an inference of probable connection. This is the only principle of law. Whether its requirements are met depends upon the evaluation of the evidence’.”
[30] (1970) 45 ALJR 465.
[31] [1970] 2 NSWR 238.
[32] (1970) 44 ALJR 360N.
Spigelman CJ also referred to the decision in Bendix Mintex Pty Ltd v Barnes.[33] He noted that in that matter:
“Mason P has concluded that the law does not regard an increase in risk as satisfying the legal requirements of causing, or materially contributing to, injury.”
[33] (1997) 42 NSWLR 307.
Spigelman CJ also referred to the observation by McHugh J in Chappel (noting that his Honour’s was a dissenting judgment, but referred to with approval in Naxakis):
“If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contribute to that injury occurring. If, however, the defendant’s conduct does not increase the risk of injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered by the plaintiff.”
The applicant relied on the evidence of A/Prof Richards and Dr Tockar. The respondent relied on the evidence of Dr Herman.
I will state at the outset that I reject the applicant’s submission that Dr Herman had become an advocate. There are areas of agreement between Dr Herman and A/Prof Richards, although they ultimately came to different conclusions on the issue of causation.
A/Prof Richards concluded that, when the worker underwent stress echocardiogram in August 2017, he had asymptomatic heart disease. He initially opined that thermal stress could not be discounted as the most likely factor to have precipitated plaque rupture and coronary arterial thrombosis.
In my view, this opinion fell short of establishing that the worker’s exposure to heat made a material contribution to the injury he sustained.
However, A/Prof Richards subsequently provided further evidence, addressing specific questions put to him. He then opined that thermal stress was the precipitating factor that led to the worker’s death. It was the only identifiable factor to have precipitated plaque rupture and coronary thrombosis, which in turn caused cardiac arrest and the worker’s death. (Emphasis added).
A/Prof Richards opined in his next report that it was more likely than not that exertion in the heat precipitated coronary arterial thrombosis, with the ultimate consequence of cardiac arrest and death. He explained why he held that view. (Emphasis added).
In his final report, A/Prof Richards opined that it was more likely than not that Mr Kary was adversely affected by working in the heat. (Emphasis added). He again explained why he held that view.
I do not believe that A/Prof Richards’ use of the word “exertion” means that his opinion may not be accepted. I have considered his evidence as a whole. He also referred to the worker “working” in the heat, and he has provided his opinion as to causation.
Mr Kary was certainly working in the heat. He was not working in the air-conditioned caravan. He mentioned the heat to the applicant, and to some of those working with him. The applicant asked him if he should be working in the heat.
Dr Tockar reported that the worker never complained of shortness of breath or chest pain. He was normally asymptomatic when he exercised daily in lower temperatures. While he is not a cardiologist, he did have the benefit of treating the worker over some years and seeing him on a regular basis.
The first respondent made submissions about the worker’s medical investigations and inferences that could be drawn from that. I do not believe I am in a position to draw any inference, without the benefit of expert evidence that specifically addressed it.
Dr Herman was aware that the worker was working in hot conditions. He noted that the worker’s heart attack did not occur in the setting of significant manual work. He did not believe that the high temperature had a significant impact.
Dr Herman referred to a number of potential triggers for myocardial infarction but opined that most were not related to an acute trigger. Both heat and cold transiently increased the risk of AMIs within a 24 hour period of exposure.
Dr Herman opined that the worker was in a high risk category for a cardiovascular event. It was possible that heat exposure increased haemodynamic stress and potentially provoked a plaque rupture. (Emphasis added).
Dr Herman was not convinced that the high temperature was the sole reason for triggering the acute plaque rupture. He agreed that the heat was a contributing factor, but not the [sic] substantial contributing factor to the worker’s heart attack injury. Read as a whole, I would accept that his opinion was that the heat was not a substantial contributing factor. He was asked whether employment was “a substantial contributing factor” and was responding to that question.
Turning to the provisions of s 9A(2):
(a)     The time and place of the injury:
The injury was at a site outside Tennant Creek, and the worker’s death occurred on either 11 December 2018 or 12 December 2018. The Coroner recorded the date of death as 11 December 2018, but the death certificate recorded the date of death as 12 December 2018. Dr Herman and A/Prof Richards both believed the date of death was probably 11 December 2018.
(b)     The nature of the work performed and the particular tasks of that work:
Mr Rutherford and the witnesses who were working with Mr Kary have described the nature of the work. I have already said that I do not accept that Mr Kary’s work involved physical exertion, but I do accept that he was performing his tasks in extreme heat.
(c)     The duration of the employment:
The worker was on the work site for six days, but I do not believe the duration of employment is significant in this matter.
(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 had not been at work or had not worked in that employment:
Dr Herman described the worker as a high-risk individual. A/Prof Richards opined that he was predisposed to IHD. It may be accepted that the worker had a condition that may have caused him to sustain a heart attack, even had he not been at work or worked as a geologist.
However, the lay and medical evidence, particularly that of A/Prof Richards, persuades me that the worker’s employment was a substantial contributing factor to the injury and death.
I have discussed the evidence in detail above. Dr Herman agreed that heat was a contributing factor to the heart attack injury. His opinion was that the worker may well have suffered a heart attack even had he not been exposed to the heat.
Dr Herman appears to have based his opinion at least in part on the fact that most acute coronary syndromes are not preceded by a triggering event.
However, as A/Prof Richards opined, and as I accept, it did not follow that heat should be ignored as a trigger in this case because in the majority of patients with plaque rupture, no particular trigger may be identified.
The factual matrix of this case is set out above. A/Prof Richards has explained why, on that background, the effect of the heat on the worker, albeit that he was a “high-risk” worker, was a substantial contributing factor to the heart attack injury and subsequent death. I accept and prefer his evidence.
(e)     The worker’s state of health before the injury and the existence of any hereditary risks:
To some extent, this subsection overlaps with subsection (d). The worker had a hereditary risk, but both his father and mother lived a long life and died of “old age”. He was a high-risk individual who gave the appearance of being in good health before the injury.
(f)      The worker’s lifestyle and his activities outside the workplace:
The worker maintained a healthy lifestyle, including walking and cycling where possible. He was not overweight, and had engaged in adventurous travel, as well as travelling for work. That is probably of less significance than the fact that he did have an underlying condition.

Taking into account the above, and the evidence, I am satisfied that the worker’s employment was a substantial contributing factor to the injury that resulted in his death. I am satisfied that the causal connection was “real and of substance”.

Significantly greater risk

The applicant must also satisfy the provisions of s 9B of the 1987 Act, it having been accepted that the worker sustained a “heart attack injury”.
In Galea, Deputy President Snell discussed both De Silva and Kim, and said 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 judgment, 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.”
The nature of Mr Kary’s work was that he was a geologist. Mr Rutherford and the applicant have given evidence about the nature of his work and its particular tasks. It required that he work on site in sometimes remote locations, in extreme temperature.
Section 9B requires that the employment concerned gave rise to a significantly (“important; of consequence”) greater risk of the worker suffering a heart attack than had he not been employed in employment of that nature. It is not a true test of causation.
The worker was exposed to extreme heat while working on site in December 2018. In my view, the evidence of A/Prof Richards, which I have said I accept, established that the nature of the worker’s employment gave rise to a significantly greater risk of him suffering a heart attack than had he not been employed in employment of that nature.
The applicant has therefore satisfied the requirement of s 9B of the 1987 Act.
I determine as follows:
(a)     the worker sustained a personal injury (heart attack injury) on 12 December 2018, in the course of his employment with the first respondent;
(b)     the worker’s employment was a substantial contributing factor to the injury;
(c)     the nature of the worker’s employment gave rise to a significantly greater risk of him suffering the injury than had he not been employed in employment of that nature, and
(d)     the worker’s death resulted from the injury.
My findings are as follows:
(a) the worker, Gregory Lawrence Kary, died as a result of injury on
12 December 2018, in the course of his employment with the first respondent, and
(b) the first respondent is liable for payment of the lump sum death benefit of $798,100, pursuant to s 25(1) of the 1987 Act.
The orders are set out in the Certificate of Determination.

[2024] NSWPIC 250

14 May 2024