Mananquil v Truserv Pty Limited & Ors
[2024] NSWPIC 28
•23 January 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mananquil v Truserv Pty Limited & Ors [2024] NSWPIC 28 |
| APPLICANT: | Girlie Mananquil |
| FIRST RESPONDENT: | Truserv Pty Ltd |
| SECOND RESPONDENT: | Gurveer Singh |
| THIRD RESPONDENT: | Ishleen Singh |
| FOURTH RESPONDENT: | Manmohan Singh |
| FIFTH RESPONDENT: | Amrinder Singh |
| SIXTH RESPONDENT: | Harmeet Singh |
| SEVENTH RESPONDENT: | Jasmeen Kaur |
| EIGHTH RESPONDENT: | Ekempreet Singh Sahni |
| NINTH RESPONDENT: | Gurjot Kaur |
| TENTH RESPONDENT: | Arjunpal Singh Sahni |
| PRINCIPAL MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 23 January 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; death claim; heart attack injury; issues as to whether the deceased was a deemed worker of the first respondent; whether the first respondent has a liability to the dependents of the deceased under section 20; whether section 4A precludes payment of compensation to the dependents of the deceased in relation to any liability of the first respondent and whether section 9B precludes payment of compensation to the dependents of the deceased; Held – in relation to deemed worker issue, Morgan v 45 Flers Avenue Pty Ltd applied and finding deceased not a deemed worker; in relation to section 20, issue Shao Wen Zheng v Guo Yong Yang & Ors applied and inference drawn that the deceased was an employed working director of his uninsured company, Devman Logistics Pty Ltd; finding made Devman Logistics Pty Ltd was uninsured and had contracted with the first respondent to supply the driving services of the deceased; finding made that the first respondent was liable to pay compensation as a section 20 principal; in relation to section 4A issue, Hadfields Steel Works v Meyer and Sinanian v Eks Carpentry Ltd and Anor distinguished and finding section 4A did not apply to liability of a section 20 principal; in relation to section 9B issue, Da Silva v Secretary, Department of Finance, Services and Innovation, Renew God’s Program Pty Ltd v Kim and UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer applied; finding made that the nature of the employment concerned gave rise to a significantly greater risk of the deceased work suffering the injury than had he not been employed in employment of that nature, such as sedentary work. |
| DETERMINATIONS MADE: | The Commission determines: 1. Pursuant to s 20 of the Workers Compensation Act 1987 the first respondent is liable to pay compensation in respect to the death of Harjinder Singh on 20 January 2021. 2. Section 9B of the Workers Compensation Act 1987 does not preclude the payment of compensation to the dependents of Harjinder Singh. 3. The matter is listed for a preliminary conference at a date to be appointed to deal with any issues relating to dependency, apportionment, interest and fund management. |
STATEMENT OF REASONS
BACKGROUND
On 20 January 2021 Harjinder Singh (the deceased) was a multi combination line haul driver of a Ken Worth K200 vehicle owned by Truserv Pty Ltd, the first respondent, and was making a delivery to a site run by Real Pet Food in Dubbo. He collapsed at that site, suffering a “heart attack injury” and subsequently died.
The Application in Respect to Death of a Worker (Application) has been filed by Girlie Mananquil the ex-spouse of the deceased. The orders sought relate to apportionment of the lump sum of $834,200 amongst those parties found to be dependents of the deceased, interest, and, in the alternative, if no persons are found to be dependent then an order for payment of the lump sum to the deceased’s legal personal representative is sought.
The other persons alleging dependency are the second to tenth respondents to the proceedings.
There were two amendments made by the applicant and the second to tenth respondents to rely in the alternative on s 20 of the Workers Compensation Act 1987 (the 1987 Act) and an order for fund management in relation to the minor children, if found to be dependents of the deceased.
The first respondent is the company that the applicant and second to tenth respondents allege was the employer of the deceased at the time of his death or in the alternative the s 20 principal liable to pay compensation in respect of the death of the deceased. The insurer of the first respondent, icare, issued a dispute notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The issues in dispute to be determined in this part of the proceedings are:
(a) whether the deceased was a worker employed by or a deemed worker of the first respondent at the date of his death?
(b) If not, does the first respondent have a liability to the dependents of the deceased under s 20 of the 1987 Act?
(c) Does the operation of s 4A of the 1987 preclude the dependents of the deceased from obtaining compensation under the 1987 Act?
(d) If not, does s 9B apply to preclude the payment of compensation?
If the dependents establish a liability for the first respondent to pay compensation in respect of the death of the deceased, further submissions will be sought regarding which of the parties are dependents and in relation to apportionment.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
This matter proceeded before me in arbitration hearing on 11 August 2023. The legal representatives appeared in person and some of the parties attended via MS Teams. The appearances are as follows:
(a) For the applicant, Girlie Mananquil, the deceased’s ex-spouse, is Lyn Goodman, counsel, instructed by Ann Parnell, solicitor, from Parnell Legal.
(b) For the first respondent, Truserv Pty Limited, the alleged deemed employer/ s 20 principal of the deceased, is Paul Stockley, counsel, instructed by Stephen Harris, solicitor from Moray & Agnew and Mr Payne from the insurer.
(c) For the second respondent, Gurveer Singh, the son of the deceased, is John Gaitanis, counsel, instructed by Ann Parnell.
(d) For the third respondent, Ishleen Singh, the daughter of the deceased, is Ross Hanrahan, counsel, instructed by Hong Liu, solicitor from HY Solicitors.
(e) For the fourth respondent, Manmohan Kaur, the mother of the deceased, is Bill Carney, counsel, instructed by Peter Li, solicitor, from Schreuders Lawyers.
(f) For the fifth respondent, Amrinder Singh, the brother of the deceased, is Owais Shaheen, solicitor, from Shaheen Legal.
(g) For the sixth respondent, Harmeet Singh, the cousin of the deceased, is Ross Stanton, counsel, instructed by John Matthews, solicitor, from Brydens Lawyers Pty Limited.
(h) For the seventh respondent, Jasmeen Kaur, the sister-in-law of the deceased, is Stuart Grant, counsel, instructed by Aleisha Nair, solicitor, from Carroll & O’Dea Lawyers.
(i) For the eighth respondent. Ekampreet Singh Sahni, the nephew of the deceased being the son of Jasmeen Kaur, is Dewashish Adhikary, counsel, instructed by Jasmine Ang, solicitor, from AJB Stevens Lawyers, assisted by Jagwinder Singh.
(j) For the ninth respondent, Gurjot Kaur, the wife of the deceased, is Stephen Hickey, counsel, instructed by Phillip Watson, solicitor.
(k) For the tenth respondent Arjunpal Singh Sahni, the nephew of the deceased, is Eraine Grotte, counsel, instructed by Carmine Santone, solicitor from Santone Lawyers.
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 dated 25 February 2022;
(b) Reply filed by first respondent dated 15 March 2022;
(c) email from applicant to the Commission dated 16 March 2022;
(d) Reply filed by second respondent dated 17 March 2022;
(e) Reply filed by sixth respondent dated 17 March 2022;
(f) Reply filed by third respondent dated 24 March 2022;
(g) Reply filed by seventh respondent dated 5 April 2022;
(h) Reply filed by fourth respondent dated 5 April 2022;
(i) Reply filed by eighth respondent dated 5 May 2022;
(j) Reply filed by fifth respondent dated 18 May 2022;
(k) Reply filed by ninth respondent dated 8 June 2022;
(l) Application to Admit Late Documents filed by sixth respondent dated 27 June 2022 attaching a statement from Harmeet Singh dated 9 June 2022;
(m) Reply filed by tenth respondent dated 14 July 2022;
(n) Application to Admit Late Documents filed by the applicant dated 4 August 2022;
(o) Application to Admit Late Documents filed by the ninth respondent dated 16 January 2023 attaching correspondence to Dr Gutman and his report dated 8 December 2022 and report of Eva Honeyman dated 10 November 2022;
(p) Application to Admit Late Documents filed by the third respondent dated 8 February 2023;
(q) Application to Admit Late Documents filed by the third respondent dated 10 February 2023;
(r) Application to Admit Late Documents filed by the fourth respondent dated 8 March 2023;
(s) Application to Admit Late Documents filed by the first respondent dated 31 March 2023;
(t) Application to Admit Late Documents filed by fourth respondent dated 5 May 2023;
(u) Application to Admit Late Documents filed by the applicant dated 25 May 2023 attaching records from SafeWork NSW;
(v) Application to Admit Late Documents filed by the ninth respondent dated 22 May 2023 which had documents attached as well as links two pieces of video evidence which I could not open;
(w) a thumb USB drive containing the above mentioned video evidence which is of events on the day of the deceased’s death;
(x) DVD disc tendered by first respondent being a demonstration by Mr Gavin Graham of the movements involved to unbuckle the curtain on a truck operated by the first respondent, and
(y) four colour photographs tendered by the ninth respondent of the deceased’s truck which has white Tautliner curtains on its sides. These were subsequently filed in Application to Admit Late Documents dated 15 August 2023 which also attached the draft report of Dr Gutman dated 29 November 2022.
Regulation 44 objection
The first respondent objected to the other parties relying on the forensic opinions from Dr Raftos as well as from Dr Gutman submitting that Regulation 44 of the Workers Compensation Regulation 2016 is offended by them relying on more than one specialist. Regulation 44(1) relevantly provides that “in any proceedings on a claim…in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to the proceedings.” There is no issue that the reports of Dr Raftos and Dr Gutman are “forensic medical reports” in the definition in regulation 44(4)(a). Dr Raftos is an accident and emergency physician and Dr Gutman a cardiologist.
However, the first respondent’s counsel submits that the interests of the applicant and second to tenth respondents coincide and it is unfair if they are permitted to rely upon the opinion of more than one expert and the first respondent can only rely on one opinion. I found at the hearing that even though all of the alleged dependents’ interests coincide in relation to establishing liability for the first respondent to pay compensation under the 1987 Act on the death of the deceased, they were nonetheless separate parties to the proceedings.
The ninth respondent’s solicitor qualified Dr Gutman and filed his correspondence to the doctor and his report dated 8 December 2022 and filed these attached to the AALD dated 16 January 2023, with further reports being filed subsequently. The third respondent’s solicitor qualified reports from Dr Raftos.[1] I accept the submission that as the reports were obtained by different parties and so Regulation 44 does not preclude them both being admitted into evidence. Having been admitted, I accept the argument that any of the parties can make submissions about the entirety of the evidence and rely upon all or part of the evidence in the proceedings including about all of the expert reports.
[1] AALD 8 and 10 February 2023.
I indicated during the arbitration hearing when ruling on this objection I would provide more detailed reasons in my decision. Further to the above reasons, I note that the matter has had a long history before the Commission. I did not conduct the preliminary conferences but I have not been informed that this potential issue was raised earlier. The order made by Member Haddock on 3 April 2023 granted leave to the respective parties to rely upon their AALD which included the reports of Dr Raftos and an order was made that “the ninth respondent is to request a supplementary report from its expert, in order to respond to the first respondent’s evidence attached to its Application to Admit Late Documents dated 31 March 2023.” This is a reference to obtaining a further report from Dr Gutman. If there was to be an objection on the basis of Regulation 44 one would have expected it would have been taken at this preliminary conference held by the Member on 3 April 2023.
In addition, the respondent qualified Associate Professor Haber, cardiologist, who provided a report dated 31 March 2023.[2] He commented on the opinion of Dr Raftos. This was after the ninth respondent had filed the first report from Dr Gutman on 16 January 2023. Therefore, the first respondent had opportunity to obtain an opinion from A/Prof Haber about Dr Gutman’s opinion at the same time or subsequently as the arbitration did not take place until 11 August 2023. At the arbitration hearing, while making the objection, and submitting it was unfair that the first respondent could only qualify one expert cardiologist and be faced with two specialists from the other parties combined, no particular prejudice was averted to.
[2] AALD 31 March 2023 p 15.
For the above reasons, I confirm my ruling that the reports of Dr Raftos and Dr Gutman are admitted into evidence in the proceedings.
Written submissions
The parties were given leave to file written submissions to deal with the application of s 4A of the 1987 Act. The following submissions have been filed:
(a) AALD filed by first respondent dated 18 August 2023;
(b) AALD filed by ninth respondent dated 24 August 2023, and
(c) AALD filed by ninth respondent dated 4 September 2023.
Oral evidence
There was no oral evidence. Various counsel made oral submissions which have been sound recorded. A transcript (T) has been made from the sound recording.
FINDINGS AND REASONS
Worker, deemed worker and s 20 principal issues
Relevant legislative provisions
The legislative provisions referred to by counsel are set out below.
Section 9(1) of the 1987 Act provides that “a worker who has received an injury (and, in the case of the death of the worker, his or her dependents) shall receive compensation from the worker’s employer in accordance with this Act.”
Section 4A of the 1987 Act provides:
“…if an employer that is a corporation had not obtained, or was not maintaining in force, at the relevant time a policy of insurance for the full amount of the employer’s liability under this Act in respect of an injured worker and the injured worker was at the relevant time a director of the corporation, the injured worker is not entitled to any compensation under this Act in respect of that liability.”
“Worker” is defined in s 4 of the 1998 Act. It means:
“…a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied, and whether the contract is oral or in writing). However, it does not include—
…
(b) a person whose employment is casual (that is for a period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer’s trade or business…”
Schedule 1, cl 2 of the 1998 Act provides:
“(1) Where a contract—
(a) to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b) (Repealed)
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.
(2) (Repealed)
(3) A person excluded from the definition of worker in section 4 (1) because of paragraph (d) of that definition is not to be regarded as a worker under this clause.”
Section 4(2) of the 1998 Act gives an extended meaning of injured worker providing that “a reference in this Act to a worker who has been injured includes, if the worker is dead, a reference to the worker’s legal personal representative, or the worker’s dependents, or any other person to whom or for whose benefit compensation is payable”.
Section 20 of the 1987 Act relevantly provides:
(1) If any person (in this section referred to as ‘the principal’) in the course of or for the purposes of the person's trade or business, contracts with any other person (in this section referred to as ‘the contractor’) for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is, if the contractor does not have a policy of insurance or is not a self-insurer at the time a worker employed in the execution of the work receives an injury, liable to pay any compensation under this Act which the principal would have been liable to pay if that worker had been immediately employed by the principal.
(2) If compensation is claimed from or proceedings are taken against the principal in respect of any such injury, then, in the application of this Act, reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed.
(3) Notwithstanding subsection (1), where the contract relates to threshing, chaff-cutting, ploughing or other agricultural work, and the contractor provides and uses machinery driven by mechanical power for the purposes of that work, the contractor (and no other person) shall be liable under this Act to pay compensation to any worker employed by the contractor on that work.
(4) If the principal is liable to pay compensation under this section, the principal is entitled to be indemnified by any person who would have been liable to pay compensation to the worker independently of this section, and all questions as to the right to and amount of any such indemnity shall in default of agreement be determined by the Commission.
(5) Nothing in this section shall be construed as preventing a worker recovering compensation under this Act from the contractor instead of the principal.
(6) This section does not apply in any case where the injury occurred elsewhere than on, in or about premises on which the principal has undertaken to execute the work or which otherwise are under the principal's control or management, but nothing in the foregoing affects the liability of the contractor under any other provision of this Act.”
Schedule 1, cl 2A of the 1998 Act provides:
“(1) In this clause—
‘labour hire services contract’ means a contract or arrangement (not being a contract of service or a training contract) under which a person is provided with services to facilitate the performance of work by the person, such as the following services--
(a) services for finding work for the person,
(b) services for payment for work performed by the person,
(c) services for insurance coverage in connection with any such work.
(2) If--
(a) a person (‘a labour hire agency’) under a labour hire services contract with another person (‘a contractor’) arranges for the contractor to perform work for a third person (‘the host employer’), and
(b) the work performed is not incidental to a trade or business regularly carried on by the contractor in the contractor's own name or under a business or firm name, and
(c) the contractor neither employs any worker, nor subcontracts with any person, to perform any of that work, and
(d) the labour hire agency provides services to the contractor under the labour hire services contract during the performance of that work, the contractor is, for the purposes of this Act, taken to be a worker employed by the labour hire agency while performing that work.
(3) For the avoidance of doubt, this clause applies--
(a) where a labour hire agency and a host employer are related bodies corporate, and
(b) in addition to any other provisions of this Act relating to the employment of workers.”
Evidence
Mr Gavin Graham is the sole director and secretary of Truserv Pty Ltd (Truserv). He identified the body of the deceased on 20 January 2021 at Dubbo Base Hospital and in answer to the question “my relationship to the deceased is” it is written “employer” and that he had known the deceased for four months.[3] However, Mr Graham in a statement dated 14 March 2022 says the police filled out this form and he signed it without reading as he understood it was a formal acknowledgement that he had identified the body. He said had he read it he would have advised the police that neither he nor Truserv were the employer of the deceased. I accept this explanation and place no weight upon the fact he stated in this document that Truserv was the employer of the deceased. The legal relationship between the deceased and Truserv is dealt with later in these reasons. Mr Graham refers to his statements, which I have summarised below.[4]
[3] Application p 18.
[4] First respondent’s Reply p 56.
In the application is a colour photograph of a yellow hi-vis vest that has the name Truserv in black letters on it.[5]
[5] Application p 126.
There are payroll advices on the letterhead of Truserv Pty Ltd for the period 28 September 2020 to 4 October 2020, 5 October to 11 October 2020 for the work performed by the deceased. The hourly rate is $26.50, annual salary is $52,364 and the employment classification is “driver”. There are details of the superannuation fund and payments in relation to the same are recorded as it the PAYG tax withholding amounts and reference to annual leave and sick leave entitlements.[6]
[6] Application p 127 and first respondent’s Reply p 22.
A tax invoice dated 18 October 2020 with the number INV0002 is on the letterhead of Harjinder Singh with ABN 68290534322. The invoice lists the kilometres from 11 October to 18 October 2020 and the pick-up and drop off locations. The payment instructions are to be by bank transfer to Harjinder Singh’s Commonwealth account with BSB and account number given.[7] Invoices INV0003 to INV00011 are in the same terms.[8]
[7] Application p 129 and first respondent’s Reply p 25.
[8] First respondent’s Reply pp 37-47.
INV00012 is for the period 27 December 2020 to 3 January 2021 but has a different bank account listed under the payment instructions and the bank is ANZ.[9] The email sent by Mr Singh to Truserv on Monday 11 January 2021 5:24 PM attaches this tax invoice from the previous week and says to check the account number as it is different and transfer now to the new account number.[10]
[9] First respondent’s Reply p 49.
[10] First respondent’s Reply p 48.
On 18 January 2021 Mr Singh sent an email to Truserv advising his bank account number had changed again which he updated on a new invoice.[11] On another invoice, also numbered INV00012, in which Mr Singh has added to his letterhead “Devman logistic pty Ltd”. It covers the kilometres in the period 27 December 2020 to 3 January 2021. It has different payment instructions and gives a Westpac bank account in the name of “devman logistic pty Ltd” and the account number and BSB, which are different to on previous invoices and the banks for the previous invoices were the Commonwealth and then ANZ.
[11] Frist respondent’s Reply p 50.
Mr Gavin Graham has provided statements dated 2 August 2021[12] and 1 December 2021.[13] He advises that Truserv operates a logistics business and employs and otherwise engages drivers to transport goods in vehicles either owned by Truserv or the drivers. At [6] of his second statement he explains that some drivers are employed by Truserv, some are engaged as sub-contractors to Truserv and the services of some drivers are provided to Truserv by an incorporated company of which the driver is the director and shareholder. He adds that the arrangements are entirely the matter for the driver and it makes no difference to Truserv.
[12] First respondent’s Reply p 12.
[13] First respondent’s Reply p 20.
He says Harjinder Singh was a multi combination line haul driver and commenced on 30 September 2020 and was employed for one week as a casual employee for which Truserv paid tax and superannuation.
In his second statement Mr Graham says during the second week of his employment Mr Singh advised him that he wished to cease being an employee and wished to work for Truserv as a sub-contractor. Mr Graham said he agreed to this request. He said Mr Singh started as a sub-contractor on 11 October 2020.
In his first statement he says from 19 October 2020 Mr Singh invoiced for 12 October to 17 October and then weekly using his own ABN, and was responsible for his own taxation, superannuation and GST payments. Mr Graham said Mr Singh was advised to have his own insurance for injury. He adds that Mr Singh was paid 57c in the kilometre for his own personal insurances and superannuation and he was responsible for taking the appropriate policies and his own holiday payments.
Mr Graham in his second statement says Mr Singh sent to him invoices by email and Mr Singh was paid by electronic transfer to the bank account on the invoices.
Mr Graham states in his first statement that Mr Singh was granted his company structure on 15 January 2021 and commenced as a contractor on 18 January 2021 under ABN 5364717912 [sic, 536647179128] – Devman Logistics Pty Ltd (Devman). The first respondent’s reply contains the ASIC searches confirming this.[14]
[14] First respondent’s Reply p 51ff.
At [13] of his second statement he states that Mr Singh in January 2021 advised him that he wished to alter his arrangement and he had incorporated a company, Devman Logistics Pty Ltd ABN 53647179128 to provide his services to Truserv and that Devman would submit tax invoices to Truserv and Truserv would pay Devman. At [14] Mr Graham said this request was made to him in a telephone call and Mr Singh said the reason for the request was to assist Mr Singh to obtain a home loan and to assist him with his sponsorship of his mother in relation to her application for permanent residency.
At [18] of his second statement Mr Graham says on 18 January 2021 Truserv received an email attaching documents in relation to Devman together with a tax invoice. On 19 January 2021 Mr Singh forwarded to Truserv an email attaching the “right Invoice” and that tax invoice was paid by Truserv.
However, he then states that Mr Singh passed away on 20 January 2021 in the course of his employment with Truserv Pty Ltd.
He says Mr Singh was assigned his duty by way of a phone call from him on Monday, 18 January 2021 for his final trip. He describes his duties with the pick-up, drop-off, loading and unloading of the freight at various destinations. These duties are referred to later in these reasons.
At [18] of his statement Mr Graham says Mr Singh was driving the insured business vehicle, a Ken Worth K200 and he cites its registration number and says Mr Singh was covered under Truserv’s comprehensive motor vehicle insurance.
Submissions
Mr Hickey made the main submissions upon behalf of the applicant and the second to tenth respondents. He submitted that the deceased at the time of his death was a worker employed by a contractor who had contracted to do work for the first respondent, Truserv. He submitted that the requirement in s 20(6) is met because the injury occurred in or about premises where Truserv had undertaken to execute work, being at Real Pet Food Dubbo. He relies on the statements of Mr Graham to support this submission and recited the evidence I have summarised above.
He submits that Devman Logistics is the contractor as the deceased contracted his own services to that company as a working director and Truserv was the principal.
At T31 Mr Hickey acknowledges that Devman had no policy of workers compensation insurance at the date of the deceased’s death. There are emails dated 7 June 2022 with [email protected] confirming no policy of insurance was found for that company.[15]
[15] Ninth respondent’s Reply p 38.
Mr Hickey submitted that the Commission should find that the deceased was a worker employed by an uninsured[16] contractor, his own corporation, at the date of his death and s 20 is satisfied in terms of the principal, Truserv Pty Ltd, being in a contractual relationship with the deceased’s corporation.
[16] At T33 there is a transcription error referring to an “insured contractor” when the correct transcription is “uninsured contractor”.
Mr Hickey also submitted that a claim was not made on the Nominal Insurer in relation to Devman being an uninsured employer, because s 140(4) of the 1987 Act provides “a claim shall not be made under this Division if the person claiming the compensation is entitled under section 20 to claim compensation against a principal within the meaning of section 20.”
Ms Goodman submitted as an alternative to Mr Hickey’s argument about s 20 of the 1987 Act, that the deceased was in fact a deemed worker in accordance with Schedule 1 of the 1998 Act. She argued that the deceased was driving Truserv’s truck, wearing its uniform, there is no evidence that he worked elsewhere and he did not employ anyone to help with the work. She submits the deceased was totally under the control of the first respondent. the first respondent tells him when he is to work, where he is to work, they provide him with the route, tell him where to pick up and drop off items. Therefore, Ms Goodman says the deceased was a deemed worker of the first respondent.
Mr Gaitanis adopted the submissions of Mr Hickey and Ms Goodman.[17] He made additional submissions about other issues in the case.
[17] T92.
Mr Hanrahan submitted he agreed with the submissions about deemed worker.[18] He submits “that the deemed worker provisions do make allowance for him and they certainly themselves provide a gradient towards either worker relationship or a (separate)[19] employment as they do in” cl 2(1) (a) of Schedule 1 of the 1998 Act. He added that notwithstanding the deceased had a company structure he was contracted to perform work over the value of $10 and there is no evidence of him working for anyone else and so he submitted the deceased should be regarded as a deemed worker.
[18] T95.
[19] T95 the transcript has the word “second”, I listened to the sound recording and the correct word is “separate”.
Mr Carney, Mr Shaheen and Mr Stanton adopted the abovementioned submissions and made no separate submissions on this issue.
Mr Grant also adopted the above-mentioned submissions but added in relation to “deemed worker” the arrangement the deceased had with the first respondent was somewhat artificial referring to the reasons he gave Mr Graham, as set out in Mr Graham’s statement.[20]
[20] T98.
Mr Adhikary submitted that the deceased was a contractor under a labour hire services arrangement.[21] He referred to Schedule 1, cl 2A of the 1998 Act. He submits that Devman Logistics is the labour hire company and it arranged for Mr Singh, the contractor, to perform work for Truserv, being the host employer. However, sub-cl 2 provides in this situation the contractor is taken to be the employed by the labour hire agency. Mr Adhikary later withdrew this submission.[22]
[21] T105.
[22] T117.
Ms Grotte stated she did not wish to add anything to all the submissions made.
Mr Stockley argues that the above submissions fail because of the extended definition of worker includes his dependents (s 4(2) of the 1998 Act) and that coupled with s 4A of the 1987 Act precludes compensation being paid in relation to an injured worker who was a director of the corporation and did not take out a policy of insurance. He argues if the injured person is not entitled to compensation under the Act, his dependents cannot be entitled to compensation.
In relation to the arguments about Mr Singh being a deemed worker, he submitted that applying simple principles of contract law there was an intention to create legal relations with Devman Logistics contracting with Truserv, as evidenced by the issuing of invoices to Truserv. He submitted that Mr Singh cannot be viewed as a deemed worker once he initiated the new legal arrangement. He said it was not at the first respondent’s behest that this was done. He argues there was a definite shift in the legal relationship. He also submitted that there is no evidence as to the relationship of Mr Singh with Devman as to whether he was to retain the accumulated profits of the company, pay himself a wage and so on.
Mr Hickey in reply submitted that the rights of the dependents remain open despite the deceased being uninsured. He referred to Hadfields Steel Works Ltd v Meyer.[23] As he repeated these submissions in his written submissions I have not set them out here. He also submitted that it would be against public policy to exclude dependents of a working director whose company did not have insurance but dependents of a deceased worker who was employed by an uninsured company can bring proceedings and make a claim against the nominal insurer.
[23] (1962) 108 CLR 171, Meyer.
Mr Hanrahan also made a similar public policy submission.[24]
[24] T123-124.
Mr Stockley provided written submissions reiterating that prior to and at the time of his death the deceased had no contract with Truserv. He submits this is established by the uncontradicted evidence of Mr Graham and the tax invoices received by Truserv from Devman. He argues that the amendment made by the dependents at the arbitration hearing to rely on s 20 of the 1987 Act also fails because there is no evidence that the deceased was a worker employed by Devman.
He submits there is no evidence of the relationship between the deceased and Devman Logistics, excepting that the deceased was the sole director of Devman. He adds that while it is well established that a director of a company can also be a worker employed by that company, there must be evidence of a contract of employment, citing Lee v Lee Air Farming Pty Ltd.[25] Mr Stockley submits that there is no evidence of any contract between the deceased and Devman and no evidence of any payments made by Devman to the deceased.
[25] [1961] AC 12, Lee.
Mr Stockley submits even if the elements of s 20 could be satisfied, the fact that the deceased was a director of the uninsured Devman at the date of his death, s 4A of the 1987 Act applies and he is not entitled to compensation. He argues with the extended meaning of “worker” in s 4(2) of the 1998 Act the dependents would also not be entitled to compensation under the Act, noting that s 2A(2) of the 1987 Act provides the 1987 Act is to be construed with, and if it formed part of the 1998 Act.
In relation to Mr Hickey’s submission relying on Meyer, Mr Stockley submitted it involved an earlier version of the workers compensation legislation and that s 4A of the 1987 Act means that the deceased, as the director of the uninsured Devman never had any entitlement under the 1987 Act and so neither does his dependents.
In relation to Mr Hanrahan’s submission relying on Sinanian v Eks Carpentry Ltd and Anor, [26] Mr Stockley submitted that case involved an injury which preceded the inclusion of s 4A into the 1987 Act and so it had no application in that case and Sininain has no application to the present matter. I have now had an opportunity to read that case and it did not involve the application of s 4A because the injury occurred before s 4A was in effect, applying to injuries after 1 January 1996.[27]
[26] [1997] NSWCA 288, Sinanian.
[27] Section 4A was introduced by the WorkCover Legislation Amendment Act 1995 No 89.
Mr Hickey provided written submissions in response to those of Mr Stockley. He argues that Mr Stockley conceded in his oral submissions that s 20 of the 1987 Act applied and, in any event, an inference could be made that there was a contract for services between the deceased and Devman because the deceased was performing the driving work at the date of his death. Reference was made to Stephan v Pacesetter Cleaning Services Pty Ltd & Anor[28] where the ability to draw inferences may be open on the facts of a particular case.
[28] [1995] NSWCA 455, Stephan.
In relation to the submissions about s 4A of the 1987 Act coupled with the extended definition of injured worker in the 1998 Act, Mr Hickey submitted that as a matter of statutory construction the plain words in s 4A of the 1987 Act clearly precludes a claim for compensation by the “injured worker”. He suggests the words “injured worker” should not be read as including his dependents by application of the extended definition, again relying on the following passage from the High Court’s decision in Meyer.
"4. According to the appellant's argument the deceased worker was at liberty, in his lifetime, to pursue his remedies both under the Act and independently of the Act but it is said that once he had obtained judgment against his employer independently of the Act he lost any right to compensation under the Act. This, of course, is clearly right. But the argument goes further and asserts that thereupon any rights to compensation to which his dependents might otherwise become entitled were also destroyed. This is said to be the result of taking the provisions of s. 6 (2) into account when considering the extent to which s. 63 (2) operates.
The legislative provisions are difficult but we do not agree with the contention. Section 63 (2) is but one of several provisions contained in s. 63 which are directed against double recovery by a worker in respect of compensable injuries and when the section is read as a whole it is clear enough that the stipulation in sub-s. (2) that a worker ‘may proceed under this Act and independently of this Act’ speaks, primarily, of proceedings to enforce his rights in the circumstances contemplated by sub-s. (1). But the rights of his dependents under the Act where death results from his injuries are separate and distinct rights and it seems to us that when it becomes necessary to consider how far and to what extent dependents of a deceased worker are affected by the provisions of subs. (2) the result of the application of the provisions of s. 6 (2) is, in effect, to 5 accord to
s. 63 (2) a distributive operation. That is to say, it is intended to apply to a worker in his lifetime in relation to his rights and, in circumstances where after his death his dependents have both a right to compensation and a right to damages under the Compensation to Relatives Act, to his dependents in respect of those rights. Accordingly the judgment which the deceased worker obtained in his lifetime is not a bar to the recovery by the appellant of compensation under the Act. This conclusion is, we think, consistent with and, indeed, the result of the views expressed in the Full Court. We agree substantially with those views and in the result the appeal should be dismissed." (at p176)Mr Hickey acknowledged that different legislative provisions applied in Meyer to s 4(2) of the 1998 Act and s 4A of the 1987 Act, however he submitted that the guiding principle from the decision in Meyer is that the rights of the dependents are to be construed as separate and apart from those of the deceased and are derived from the statutory application of the sections of the Act to any dependents of the deceased as at the date of his death. He submitted that s 4(2) of the 1998 Act does not import “dependents” as defined “workers” into s 4A of the 1987 Act. He submits that in s 4A of the 1987 Act the words “that liability” must refer in this case to the liability of Devman. The last phrase of s 4A “the injured worker is not entitled to any compensation under this Act in respect of that liability”. He argues it cannot be construed as affecting the dependents rights against Truserv.
Mr Hickey submits in the event that the Commission does not find that the deceased was working under a contact for service for Devman, it should be found he was a deemed worker of Truserv.
Mr Hickey provided further additional submissions dated 4 September 2023 as follows:
“1. As to the application of s 4 A of the 1987 Act and whether the section has application so as to exclude the claims by the deceased's dependents per force of the application of s 4 (2) of the 1998 Act: I submit that Section 4 A has or would have had specific application for the exclusion of compensation claims which could have otherwise been made by the deceased had he been injured and survived. Section 4 A refers to 'the employer's (Devman's) liability under this Act in respect of ‘an injured worker’' and then provides conjunctively with the use of the word ‘and’ the requirement that ‘the injured worker’ was at the relevant time a director of the corporation (Devman) and if so (noting the opening phrase of the section) 'the injured worker' is not entitled to any compensation under this Act in respect of that liability. (my emphasis)
2. The words 'the injured worker' are used twice together with the preceding use of the words 'an injured worker.' The words 'an injured worker' are used generally and contextually to describe the corporation's requisite omission to have in place a policy of insurance to cover the full amount of the employer's liability under the Act in respect of 'an injured worker' if the section is to operate. Thereafter, the specific exclusionary effect of the section is met if 'the injured worker fits the requisite description as 'a director of the corporation.' The second usage of the words 'the injured worker' refers to that same worker who is excluded from any entitlement to compensation in respect of that liability provided he or she be 'a director of the corporation.'
3. Thus the otherwise liability is specifically excluded in relation to 'an injured worker' who is/ was 'the injured worker' cloaked with the directorship of the uninsured corporation. The section cannot as a matter of construction extend to exclude specific claims made by dependents under s 25 of the 1987 Act upon a transposition of their class 1 as dependents into s 4A per force of s 4 (2) of the 1998 Act as they cannot fit the requisite and specific classification of having had 'directorship’ of Devman as 'the injured worker' as at the date of death.”
Determination
I accept Mr Stockley’s submission that once the deceased initiated the new legal arrangement when incorporating Devman Logistics Pty Ltd, he cannot be viewed as a deemed worker of Truserv. The evidence is clear from Mr Graham’s statements, the ASIC searches, the deceased’s emails to Truserv sent on 18 January 2021 and the second invoice numbered INV00012 that the legal relationship with Truserv was with Devman. I do not accept any of the submissions that he was a deemed worker as they gloss over this legal relationship. While Ms Goodman refers to facts such as the deceased driving a Truserv truck and being under their control, she does not really deal with the fact of the legal relationship between Truserv and Devman. Mr Hanrahan refers to a “gradient” and Mr Grant refers to the reasons the deceased gave Mr Graham for incorporating Devman as “artificial”. However, I find both of these submissions gloss over the fact that the deceased had registered Devman as a company, taken out a new ABN in its name, and had taken out a new bank account in its name. I do not accept that the reasons the deceased gave Mr Graham for creating Devman should be categorised as “artificial”. Mr Graham says the deceased wished to create a corporate entity to assist in obtaining a home loan and to use to sponsor his mother in relation to her application for permanent residency. These two reasons clearly would involve the legal status of Devman being used for these important legal transactions, which are not artificial.
This was discussed in Morgan v 45 Flers Avenue Pty Ltd[29] wherein it was found at [694]-[695]:
“So long as the law permits people to erect structures which have meaningful legal consequences then if a person elects to erect such a structure he must take the consequences of such erection for better for worse for richer or poorer in commercial sickness or commercial health.”
[29] (1986) 10 ACLR 692, Morgan.
In relation to the argument about s 20 of the 1987 Act applying, Mr Stockley submitted at [8] of his written submissions there are three elements that need to be established for s 20 to apply:
(a) the deceased was a worker employed by Devman;
(b) Truserv contracted with Devman for the performance of the work undertaken by the deceased, and
(c) Devman was uninsured.
Mr Stockley agreed that the evidence establishes (b) and (c) above. However, he disputed that there was any evidence of the relationship between the deceased and Devman. In Shao Wen Zheng v Guo Yong Yang & Ors[30] Roche DP dealt with an argument about whether a finding could be made that a worker was employed by an uninsured company when there was no direct evidence of the relationship between those entities. He stated at [81]:
“Where direct proof is not available it is possible to draw an inference from known facts. However, those facts must do more than ‘give rise to conflicting inferences of equal degree of probability so that the choice between them is [a] mere matter of conjecture’ (per Dixon J (as he then was), Williams, Webb, Fullagar and Kitto JJ in Bradshaw v McEwans Pty Ltd (unreported, High Court, 27 April 1951), cited by Williams, Webb and Taylor JJ in Holloway v McFeeters [1956] HCA 25: 94 CLR 470 at 480-481). The law ‘does not authorise a court to choose between guesses’ (per Dixon CJ in Jones v Dunkel[1959] HCA 8; 101 CLR 298 at 305).”
[30] [2008] NSWWCCPD 144, Zheng.
While it is the fact that there is no direct evidence, such as payment from the Devman bank account to the deceased, in this case that may not be determinative given the deceased died five days after Devman was incorporated. It is clear factually that at the time of his death the deceased was driving for Devman and his attendance at Real Pets Foods Dubbo was part of the performance of the contract between Truserv and Devman. In the present case, I am not persuaded that it is a choice between competing choices or guesswork. I accept Mr Hickey’s submission that based on these facts the Commission should draw an inference that at the time of his death there was a contract for services between the deceased and Devman. In the present case the deceased was a working director of Devman and I find it should be inferred that there was a contract for services between the deceased and Devman.
Therefore, I find that the elements of s 20 are present. I find that Truserv is the principal, Devman the contractor, Devman did not hold a policy of insurance, and the injury occurred on premises where the principal had undertaken to execute the work, being Real Pet Food Dubbo. And as I have found above, the deceased was the employee of Devman.
The remaining question is whether s 4A of the 1987 Act applies to disentitle the payment of compensation to the dependents of the deceased.
In his earlier written submissions Mr Hickey submitted as a matter of statutory construction the plain words of s 4A clearly preclude a claim for compensation by the injured worker. He considered whether the extended definition of injured worker in s 4(2) of the 1998 Act can operate so as to defeat a derivative action on the part of a dependent. He submits that the case of Meyer supports the conclusion that even if the deceased is precluded from making a claim, the dependents can make a valid claim.
However, as Mr Stockley submitted the facts and legislative provisions in Meyer are not the same as in the present case. Mr Meyer was employed by Hadfields Steel Works Ltd and in 1952 sustained injury. He brought proceedings in the District Court and recovered damages of 656 pounds. He died two years later as a result of his injuries and his widow applied to the Workers Compensation Commission for compensation for her and their child. It was argued by the employer that the dependents of the deceased were not entitled to compensation because in his lifetime the worker had recovered damages. The case turned on s 63(2) of the then Workers Compensation Act 1926 (1926 Act), which is similar to the current s 151Z(1). There is also an extended definition of worker in s 6(2) of the 1926 Act including a reference where the worker is dead, to his dependents.
However, Meyer was not concerned with a specific provision such as s 4A of the 1987 Act, which was not introduced into the 1987 Act until 1 January 1996. The High Court’s reasoning in Meyer upholding the Supreme Court decision, finding for the dependents, stated:
“Section 63 (2) is but one of several provisions contained in s. 63 which are directed against double recovery by a worker in respect of compensable injuries and when the section is read as a whole it is clear enough that the stipulation in sub-s. (2) that a worker ‘may proceed under this Act and independently of this Act’ speaks, primarily, of proceedings to enforce his rights in the circumstances contemplated by sub-s. (1). But the rights of his dependents under the Act where death results from his injuries are separate and distinct rights and it seems to us that when it becomes necessary to consider how far and to what extent dependents of a deceased worker are affected by the provisions of sub-s. (2) the result of the application of the provisions of s. 6 (2) is, in effect, to accord to s. 63 (2) a distributive operation. That is to say, it is intended to apply to a worker in his lifetime in relation to his rights and, in circumstances where after his death his dependents have both a right to compensation and a right to damages under the Compensation to Relatives Act, to his dependents in respect of those rights. Accordingly the judgment which the deceased worker obtained in his lifetime is not a bar to the recovery by the appellant of compensation under the Act.”
In Meyer a worker’s rights to compensation were brought to an end by his receipt of common law damages, yet it was held the dependents’ rights remained alive. However, it is not the same situation with s4A because the injured worker had no rights at all to any compensation because he was the director of the uninsured employer.
Mr Hickey’s final submission argues that s4A has or would have had specific application for the exclusion of compensation claims which could have otherwise been made by the deceased had he been injured and survived. To follow his argument, I have set out again s 4A of the 1987 Act below:
“…if an employer that is a corporation had not obtained, or was not maintaining in force, at the relevant time a policy of insurance for the full amount of the employer’s liability under this Act in respect of an injured worker and the injured worker was at the relevant time a director of the corporation, the injured worker is not entitled to any compensation under this Act in respect of that liability.”
Even though the section does not say it only applies if the worker survived his injury, Mr Hickey’s final submission is that this is the effect of the section due to the requirement in the section for the injured worker to be a director of a corporation. He argues that you cannot use the extended definition of “injured worker” to mean dependents because in the context of s 4A the dependents are not directors of the uninsured corporation. Therefore, he argues as a matter of construction the right of the dependents to bring a claim for compensation under s 25 of the 1987 Act cannot be extinguished by s 4A.
One problem with this reasoning is the wording of the extended meaning of injured worker in s 4(2) of the 1998 Act. It does not state that you just substitute the word “dependents” wherever the Act refers to “injured worker”. It states, “a reference in this Act to a worker who has been injured includes, if the worker is dead, a reference to…the worker’s dependents…” (my emphasis). As Mr Hickey demonstrated with his interpretation of s 4A if you only substitute “dependents” for “injured worker” it does not make sense in this case because the ten dependents are not directors of the employer Devman. I find, as it states, s 4(2) of the 1998 Act “extends” the meaning of “worker”, it does operate to restrict it by excluding reference to the deceased worker.
There were also submissions made by the dependents that it would be against public policy for dependents of workers who were employed by uninsured companies, of which they were not directors, to be able to obtain compensation on the death of the worker and disbarring dependents of working directors. However, an argument could be made equally that public policy is in favour of such an outcome to encourage directors of companies to comply with the law and take out workers compensation insurance, otherwise they are not contributing to the fund from which claims are paid and that is not fair to the employers who take out insurance. I have read the second reading speeches in the Legislative Assembly on 6 December 1995 and Legislative Council on 13 December 1995 and they do not mention s 4A. I am not convinced I can make a determination based on “public policy”. Furthermore, the authorities dealing with statutory construction such as Alcan (NT) Aluminium Pty Ltd v Commissioner of Territory Revenue (Northern Territory)[31] state that the text should be considered and only if it is not clear should you resort to extrinsic materials.
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[32]
[31] (2009) 239 CLR 27; [2009] HCA 41, Alcan at [47].
[32] Alcan, [47].
In this matter I find that text of s 4A of the 1987 Act is clear and so there is no need to resort to extrinsic materials. However, even though I do not accept Mr Hickey’s argument about the extended meaning of injured worker, he had submitted earlier that in s 4A of the 1987 Act the words “that liability” must refer in this case to the liability of Devman. The last phrase of s 4A is “the injured worker is not entitled to any compensation under this Act in respect of that liability”. I accept that the reference to “that liability” is to the earlier reference in the section to “the employer’s liability”, which as I have found is Devman. Therefore, the real question is whether s 4A can affect the dependents’ claim against the principal, Truserv. On the plain reading of s 4A I find it is confined to the liability of the employer, Devman.
I find had the dependents’ claims been against Devman s 4A, when read with the extended definition of worker, would have precluded them from obtaining compensation. However, I have found Truserv has liability under s 20 as the principal and s 4A does not apply in respect to Truserv’s liability.
Section 9B of the 1987 Act
Section 9B of the 1987 Act provides:
“(1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.”
There is no dispute that the deceased suffered a “heart attack injury” within the definition in s 9B(2).
In De Silva v Secretary, Department of Finance, Services and Innovation,[33] Senior Arbitrator Michael Snell (as he was then) dealt with s 9B of the 1987 Act. He found at [105]:
“Section 9B(1) does not require a significant risk. It requires a comparison of (1) the risk to which the nature of the employment concerned gives rise and (2) the risk had the worker not been employed in employment of that nature. It is necessary that the first of these be ‘significantly greater’ than the second, if compensation is to be payable.”
[33] [2015] NSWWCC 279, De Silva.
Deputy President Snell considered s 9B of the 1987 Act and De Silva again in Renew God’s Program Pty Ltd v Kim[34] and Secretary, Department of Communities and Justice v Galea.[35] Obviously, cases dealing with s 9B are fact sensitive. However, the decisions are instructive as to how one is to apply s 9B. The following passages from Kim are relevant:
“39. De Silvarefers to the exercise under s 9B(1) involving a ‘comparison of the level of risk’. The passage from DeSilva quoted at [10] above describes the nature of the comparison. Neither party suggested it was inappropriate to apply the reasoning in De Silva. There was discussion in DeSilva regarding the meaning of the phrase ‘the employment concerned’, where that phrase is used in s 9B(1). In DeSilva, I concluded that phrase has the same meaning as when the same words are used in s 9A(1), being a reference to ‘what the worker in fact does in the employment that caused or contributed to the injury’. That is, the reference is to ‘the particular employment in which a worker suffered injury’, rather than to ‘a class or classification of employment’. Neither party challenges that aspect of the reasoning in De Silvaon this appeal.
40. The test in s 9B requires that the relevant risk in the employment concerned be ‘significantly greater’ than the risk ‘had the worker not been employed in employment of that nature’. In De Silva I concluded that satisfaction of this test required a risk in the employment concerned that was greater, in a way that was ‘important; of consequence’. This aspect of the reasoning in DeSilva is not challenged on this appeal.” (omitting the endnotes)
[34] [2019] NSWWCCPD 45, Kim.
[35] [2021] NSWWCCPD 1, Galea.
A more recent Presidential decision dealing with s 9B of the 1987 Act is UPVC Window Solutions Pty Ltd v Workers Compensation Nominal Insurer (icare).[36] Snell DP also determined that case. It was confirmed at [201] that the worker has the onus of satisfying s 9B. The employer, UPVC, argued that De Silva, Kim and Galea were wrongly decided submitting that the reference to “the nature of employment” in s 9B required a consideration of “the class of employment as opposed to the employment engaged in by the worker”. However, Snell DP adhered to the statutory construction he had adopted in De Silva, Kim and Galea. In the present case this distinction is not really relevant as the class of employment is interstate multi combination line haul driver. Inherent in this “class of employment” is the driving but also the loading and unloading processes of the tautliner trailers. The employment engaged by the worker at the time of his collapse, and in the minutes before his collapse, was alighting from the truck, undoing the buckles and straps on the trailers curtains and walking across to the warehouse, some 25 to 30 metres.
[36] [2023] NSWPICPD 11, UPVC.
The medical evidence about the cause of the deceased’s death is contained the autopsy report, ambulance records, the pre-injury clinical notes and the parties’ medico-legal reports from Dr Raftos, Dr Gutman and Professor Haber. There is also lay evidence about the physical tasks the deceased was performing prior to his collapse and his treatment following his collapse before the ambulance attended. As the parties have discussed this evidence extensively in their submissions, to avoid repetition, I have not separately summarised the same.
Mr Hickey submitted the focus is, did the employment concerned give rise to a significantly greater risk?[37] He referred to the autopsy report as revealing that the deceased in his left anterior descending coronary artery and right coronary artery had atherosclerotic thickening of the intima with luminal occlusion up to 90 per cent. He submitted that the deceased had a fairly long history of severe coronary disease. He noted the autopsy report found no features of acute myocardial infarction or scarring in the myocardium.
[37] T34.
Mr Hickey submitted:
“…the test for whether the employment gave rise to a significantly greater risk for the deceased, is a subjective test to be applied to someone with such a susceptibility to the onset of a heart attack as defined upon any exertion or in this case somewhat limited exertion.”[38]
[38] T36.
As to whether the test is subjective, that involves a question of statutory interpretation of s 9B of the 1987 Act. I find the text is clear. It refers to “the worker”. It does not refer to “a worker”. So the question in this matter is, did the nature of the employment give rise to a significantly greater risk of the deceased suffering the injury had the deceased not been in employment of that nature?
The deceased was aged 35 at the time of his death. Mr Hickey referred to his medical history as summarised by Dr Raftos as including hypertension, obesity, hypercholesterolaemia treated with atorvastatin, he smoked and drank alcohol on the weekends and worked as a long haul truck driver, driving 16 hours per day. He had a strong family history of ischaemic heart disease with his father dying at age 48 from myocardial infarction and many family members have been diagnosed with coronary artery disease. Mr Hickey submitted that these facts are not controversial, but what is controversial is the extent of the exertion which he was exposed to immediately before his heart attack.
Mr Hickey recited the following history contained in Dr Raftos’s report:
“On the morning of 20 January 2021 Mr Singh was at work and drove his truck to the premises of the Real Pet Food Company in Dubbo, arriving there at about 0833 hours. He got out of the cab of the truck and began to unstrap the curtains of the trailer. CCTV footage apparently showed:
0856:23 a male wearing a yellow vest appearing to be the worker walking away from the truck.
0856:38 the worker resting against the front end of the truck for about 7 seconds before walking away from it.
0856:49 the worker walking back and forth from the front end of the truck.
0859:57 the worker crouching down near the truck’s front end for a couple of minutes.
0903:23 the worker reappeared jumping up and down with arms raised for a few seconds.
0910:47 the worker reappeared walking away from the truck’s front end holding his upper torso and chest. He then crouched down for 40 seconds. He was then shown to stand up and hold his chest with the left hand.
0912:12 the worker walking toward a building that appeared to be a warehouse.”
Mr Hickey submitted that when the deceased appeared at 9.03am he was near the front of the trailer behind the prime mover where one would expect he would be undoing the straps. He states that this is not shown on the film. He queried whether some movement of the work has not been recorded. He points out that the time of the film commences at 8.33am and ends just after 9.12am and submits a lot is missing concerning the deceased’s actions.
He submits that the SafeWork material records that the truck was seen with the buckles unclipped. He submits there are 62 buckles on the Tautliner as there are two trailers.
Mr Hickey relies on Dr Raftos’s explanation that the predominant symptoms of acute coronary syndrome is chest pain, often described as tightness, heaviness, or discomfort,
Mr Hickey also cited Dr Raftos’s explanation that:
“…angina and sudden cardiac death are often precipitated by physical exertion because the occluded coronary artery or arteries cannot meet the increased metabolic demand on the heart imposed by exertion. The heart muscle then is deprived of the oxygen it needs and the patient develops chest pain (angina) and may proceed to have ventricular fibrillation/sudden cardiac death.”[39]
[39] Application p 48.
He submitted that given the deceased had occlusion of the two relevant arteries, that the physical exertion undertaken by him precipitated myocardial ischemia and then eventuated the ventricular fibrillation or electrical misfiring.
Mr Hickey then made submissions in relation to the draft report of Dr Gutman, cardiologist, dated 29 November 2022,[40] which was tendered later in the hearing. Dr Gutman sets out the autopsy findings and summarises the deceased’s prior medical history. Mr Hickey submits the fact that the deceased had a pre-existing cardiac susceptibility is not controversial.
[40] AALD 15 August 2023 p 1.
He observed that Dr Gutman’s finding that sedentary employment would contribute to the subsequent development of atherosclerosis would not get over the hurdle, meaning of s 9B.[41] Mr Hickey refers to Dr Gutman’s answer to question 2 posed to him wherein Dr Gutman states:
“Exertion at work or environmental factors were not the main contributing factors contributing complete or substantial arterial occlusion resulting in myocardial infarction and/or ventricular fibrillation.
…
At the time of his collapse, he was not exerting excessively but walking in the loading area. He had just unstrapped his load but it was but it was not clear to me whether that was excessive exertion. Thus, I conclude that the work was not the main contributing factor to a tear in the lumen or release or development of plaque or a thombus.”
[41] T40.
Mr Hickey said these answers were in response to the questions posed to Dr Gutman and that when asked to explain what likely caused the myocardial infarction or ventricular fibrillation Dr Gutman advises that in the deceased’s case “his cardiac arrest may have been related to myocardial ischaemia rather than rupture of the plaque as there was no evidence of a complete occlusion of his coronary arteries in the autopsy report”.
Mr Hickey submits that it is important that Dr Gutman later in this report discriminates between myocardial infarction and myocardial ischaemia and another reason why he discounts infarction is the autopsy report found no such features and no scarring of the myocardium. Mr Hickey noted that in this report Dr Gutman found that the deceased’s “employment was not a significant contributing factor to his ventricular fibrillation which was the cause of his death.”
Mr Hickey submitted in his second report Dr Gutman dated 8 November 2022 was asked to clarify his opinion based on certain assumptions put to him. The letter seeking this report is dated 6 December 2022 and refers to an earlier letter from the solicitor dated 20 October 2022 and a telephone call between the solicitor and Dr Gutman on 1 December 2022[42]. Dr Gutman repeats the facts related to him that the deceased had relieved the tension on the 62 buckles on the trailers and this was performed above shoulder height and was reported by Eva Honeyman, an industrial ergonomist, in a medico-legal report to exceed the safe weight/force limit of 14.69 pounds, being 22 pounds. Dr Gutman gave his opinion that the work outlined was more likely than not to precipitate myocardial ischaemia in that the deceased had an underlying severe coronary blockage of the left anterior descending coronary artery.
[42] AALD 16 January 2023.
Mr Hickey relies on Dr Gutman’s explanation that the blood supply to the heart muscle (myocardium) would be sufficient in the resting state notwithstanding the deceased’s severe stenosis in his left anterior descending coronary artery but with exertion the myocardium requires more blood supply/oxygen. And with the severe blockage in his coronary arteries then it is likely that not enough oxygen would reach the myocardium and this results in myocardial ischaemia. Dr Gutman adds that it is more likely than not any myocardial ischaemia would result in ventricular fibrillation and death. Dr Gutman concluded that it is more likely than not that the causation of the ventricular fibrillation and death was caused by the work the deceased performed on 21 January 2021.
Mr Hickey also relied upon the further report from Dr Gutman dated 18 May 2023.[43] His instructing solicitor sent Dr Gutman letters dated 27 April 2023 and 27 May 2023 enclosing the reports from Dr Raftos and Associate Professor Haber as well as the statement of Mr Gavin Graham dated 25 January 2023 and the CCTV video, statement of Graeme Burke and the four photographs of the deceased’s vehicle. The second letter has an incorrect date for the CCTV video of 20 December 2021, I am assuming it was taken on 20 January 2021 as it shows the deceased’s collapse. Dr Gutman’s attention is drawn to the fact that the deceased unstrapped 62 tensioned buckles, straps and toggles on the curtains of the two tautliner trailers and 24 of those were above shoulder height. It was also noted that the deceased had to climb down out of his cabin of the prime mover by forcefully securing his body weight of at least 93kgs by gripping rails and lowering himself.
[43] AALD 22 May 2023 p 15.
The letter to Dr Gutman asked him to disregard the previous assumptions he was asked to make based on Ms Honeyman’s report. He was asked to take into account the climbing down from the prime mover, the unbuckling of the 62 buckles with 24 above shoulder height and the fact it was a warm to hot morning.[44] A series of six questions were asked of the doctor.
[44] AALD 22 May 2023 p 13.
Dr Gutman in his report dated 18 May 2023 agreed with the first question that such work is likely to have been causative in such an already compromised worker of the onset of an attack of either myocardial ischaemia or myocardial infarction. He added that in Australia out of hospital cardiac arrests occur disproportionately more commonly during exercise and less common while sedentary. He cites literature that even light exercise increases the risk of having a fatal cardiac arrhythmia significantly.
Dr Gutman was asked about the deceased appearing to vomit and he said it was consistent or indicative of an attack of either myocardial ischaemia or myocardial infarction. Question 3 posed to the doctor was to assume that the deceased then continued to unbuckle the buckles and straps including 12 above shoulder height was such work in his already compromised state that in all likelihood was causative of the progression from an attack of either myocardial infarction to ischaemia to a separate and fatal onset of ventricular fibrillation. The doctor agreed this was likely. He answered the next question by advising:
“The onset of ventricular fibrillation due to myocardial ischaemia/myocardial infarction was contributed to by the work performed in the presence of 90% luminal occlusion of the left anterior descending and right coronary arteries.
…
The causative underlying problem is myocardial ischaemia and/or myocardial infarction. The presence of myocardial ischaemia and/or infarction results in ventricular arrhythmia such as ventricular fibrillation. It is a different cardiac injury in that it is caused by an electrical misfiring of the heart muscle, but it is due to the presence of myocardial ischaemia and/ or myocardial infarction.”
Dr Gutman concludes his opinion by agreeing to the last question:
“It is a reasonable and likely hypothesis that in the event that the worker had not engaged in the additional work, which I have been asked to assume he did, then he would not have progressed to the onset of ventricular fibrillation as a result of myocardial ischaemia and/or myocardial infarction.”
Mr Hickey submitted that although the work did not involve significant exertion, for this man it was enough, as he was already a compromised person. Mr Hickey also submitted that Dr Raftos and Dr Gutman have considered additional factors than that considered by Associate Professor Haber. He refers to Associate Professor Haber’s report dated 31 March 2023 in which the doctor states he viewed the CCTV footage and the unbuckling task appeared to him to be fairly easy to do and he relied on Mr Graham’s statement that the buckles were easy to undo and the weight would be one to two kilograms and could be opened with two fingers.
Mr Hickey submits that Mr Graham’s evidence should not be accepted because it was based on a different truck to that actually used by the deceased. He referred to the photographs and submitted there are toggles that attach to the rail beneath the Tautliner curtains which are a completely different fastening device to that on the vehicle used by the deceased.
Mr Hickey submits that Associate Professor Haber’s view that the cardiac arrest was more likely than not due to ventricular fibrillation and that this view is shared by Dr Raftos and Dr Gutman. However, he submits that Associate Professor Haber differs from Dr Gutman because he states that he assumes that the deceased’s “activities just prior to the arrival of the scene of his collapse were not very strenuous”. Associate Professor Haber concluded that the undoing of the buckles was not hard work, which he had been doing for some time in his job and he opined that the cause of death was not work-related being due to his underlying pre-existing conditions.
Mr Hickey says the difficult with accepting that opinion from Associate Professor Haber is that it disregards the evidence of Dr Gutman as to the cause of the ischaemia, the result of the ischaemia, the supply and demand factor of the oxygenated blood. Mr Hickey submitted that the deceased suffered an injury under s 4(a) of the 1987 Act in the context of it perhaps being an exacerbation etc of the underlying coronary artery condition which results from exertion, even if mild, such as raising his arms above shoulder height to undo the 12 toggles, climbing out of his vehicle and undoing the buckles and straps. Mr Hickey contrasts the lay evidence of Mr Graham with that of Mr Bourke, a former truck driver who also states he had occluded arteries and found the task harder to perform, particularly on hot days.
Mr Bourke says that generally the task does not involve a great deal of effort but as the buckles and straps become older they become a little more difficult to tighten up and apply tension. The difficulty I have placing weight on Mr Bourke’s statement is threefold. Firstly, he has not performed the task on the truck used by the deceased, secondly there is no evidence that the buckles and straps were old, and thirdly he is double the deceased’s age and while he refers to his medical condition also having occlusion of his arteries there is no medical evidence to suggest his experience would be the same as the deceased.
Mr Hickey criticises Mr Graham’s statement because his is a reconstruction on a different vehicle yet, to my mind, a similar issue arises with Mr Bourke’s statement with the additional issues that I have referred to above.
Mr Hickey summarised the evidence from SafeWork NSW.[45] Incident report 2-164645 completed by Philip Lalor refers to his observations of the CCTV footage showing the deceased unbuckling the curtains on the near and off side of trailers A and B. He refers to a further reference to Mr Lalor seeing the white unmarked curtain side trailer with the buckles undone and being in apparent good order and condition. Mr Hickey also referred to the police report contained in these records. A description is given from the CCTV footage of the deceased detaching the curtains from the trailer and then leaning against the front of his truck and vomiting, walking to the fence and vomiting again and then walking 30 metres to the warehouse where he collapsed five seconds later. There is also reference to the vehicle being in good order and condition and a “near new Kenworth prime mover”. Mr Hickey conceded that he cannot submit that the trailers or prime mover were not in good order or condition.[46]
[45] AALD 25 May 2023.
[46] T 61.
In summary, Mr Hickey submits that as a result of the work the employment concerned did give rise to a significantly greater risk for the deceased, albeit not work that would cause a significantly greater risk for a healthy individual. He says even without the statement of Mr Bourke the evidence from Dr Raftos and Dr Gutman satisfies s 9B. He clarified that he is relying on s 4(b)(ii) of the 1987 Act to support myocardial ischaemia and then s 4(a) to support the ventricular fibrillation. He emphasised that the draft report of Dr Gutman, concerning which he made lengthy submissions earlier, needs to be understood in the context that the doctor was answering questions put to him but when the further questions were asked his opinion needs to be considered as expressed in his second and third reports.[47]
[47] T 86.
Ms Goodman adopted Mr Hickey’s submissions but added submissions about the legal test in s9B and referred to the cases that I have summarised earlier in these reasons. She then submitted that the deceased was driving for 16 hours per day and that in itself creates a significant risk for the type of injury he suffered. She added that Dr Raftos offered the opinion that once a person goes into ventricular fibrillation the only thing that helps is using a defibrillator within a very short period of time. She reasons truck driving work places him at significantly greater risk as the availability of a defibrillator is usually fairly scarce unlike say work in a warehouse. I do not accept this submission because it is based on speculation. There was a defibrillator at Real Pet Food, but unfortunately they could not get a good connection due to the deceased’s hairy chest and the missing razor blade from the kit. Ms Goodman attempted to draw a parallel with the facts in De Silva. However, as Ms Goodman submits the wife of Mr De Silva was a trained nurse. There is no suggestion that anyone in the deceased’s home had such training. Nor is it certain that even if the defibrillator worked at Real Pet Food that it would have saved the deceased’s life. I am not persuaded by Dr Raftos’s view in that regard as it is speculation.
Mr Gaitanis also adopted Mr Hickey’s and Ms Goodman’s submissions but added that the Commission should not accept the evidence of Mr Graham. He argues that little weight should be given to his evidence as it was a different truck, different person entirely, different health conditions, different heights in relation to the buckles and the persons themselves. He emphasised that what is important is the temporal connection between the ventricular fibrillation and the death. He submits that the police records confirm that the day before the death the deceased had stopped driving and had a 13 hour rest at the Tomingley BP service station, leaving there at 7.00am on the morning of the death to drive to Dubbo to Real Pet Food. Mr Gaitanis submits this fits in with Dr Gutman’s opinion that the blood supply to the heart muscle myocardium would be sufficient in the resting state. He referred to Mr Bourke’s evidence that as you get older the task of unbuckling becomes harder. However, the deceased was 35, many decades younger than Mr Bourke. As I have stated earlier I do not give weight to Mr Bourke’s evidence.
Mr Gaitanis submits that it cannot be accepted that there is no exertion in the task itself and that is in relation to the nature of the employment concerned. He relies on Dr Raftos’s opinion that physical exertion has the effect where the arteries cannot meet the increased metabolic demand on the heart imposed by the exertion, because of the inability of the coronary arteries to supply sufficient blood to the heart muscle to meet the increased demand imposed by the exertion. He says Dr Raftos provides evidence that the deceased getting on the ground clutching at his chest is consistent with pain occurring due to the accumulation of lactic acid in the heart muscle that is deprived of its blood and oxygen supply by acute coronary occlusion. Mr Gaitanis submits the CCTV footage confirms that after the deceased had started unbuckling the curtains he showed signs of distress. He submits there is a real temporal connection between the ventricular fibrillation and the death.[48]
[48] T94.
Mr Hanrahan submits that he agrees with this submission and that it would only take slight provocation in view of the extent of the occlusion present in the deceased’s coronary arteries. He also agreed with Mr Hickey’s submissions and the explanation about the views of Dr Gutman. Mr Carney adopted all of the preceding submissions and Mr Stanton did not make additional submissions. Mr Grant adopted, in particular, Mr Hickey’s submission that s 9B is to be viewed as subjective in its interpretation and it is a question of fact, which does not necessarily require medical opinion because the deceased had a dangerously compromised heart on any view.[49]
[49] T98.
He submitted what would be a significant risk to the deceased, is different to what the risk might be to a healthy young man with a good heart. He added that it was common between Dr Gutman, Dr Raftos and Associate Professor Haber that what caused the deceased to die was in the end result ventricular fibrillation. He submitted that Dr Raftos and Gutman supported the proposition that where effort leads to the need to supply blood to the heart occlusion creates an inability to supply the necessary degree of blood, that leads to ventricular fibrillation. He submitted that as a matter of fact that the deceased in the unbuckling was sufficient to require him to exert a degree of effort and this lead to the need for the blood supply, which was insufficient. He states this effort was significant to the deceased and that satisfies s 9B(1) of the 1987 Act. He also added that the effort that he was applying in his employment was a substantial contributing factor to the injury, satisfying s 9A.
Mr Adhikary also adopted the submissions made by Mr Hickey and the other counsel and he made additional submissions. He submitted that injury had been established pursuant to s 4(a) of the 1987 Act as the temporal connection had been met.[50] He referred to Weston v Great Boulder Gold Mines Ltd[51] and quoted Windeyer J “anything at all that happened to a man while he is at work happens in the course of his employment”. When one reads the whole of Windeyer J’s judgment this sentence is used by him when discussing what the majority held in an earlier case of Kavanagh v The Commonwealth[52] and in that case Windeyer J was in the minority finding that a temporal connection was not sufficient. Nonetheless, the point Mr Adhikary was advancing is not contentious. Section 4(a) has two limbs. The first “arising out of” employment with the second, “in the course of employment”. Both do not have to be satisfied following the use of “or” in the legislation and not “and”. It is settled law that “in the course of employment” does not require a causal connection. Mr Adhikary also relied on the decision in Boccalatte v Burwood Council[53] which he submitted relied on the decision in Weston. In Boccalatte Snell DP overturned the Member’s decision because he had conflated the tests governing injury arising out of the course of employment and injury in the course of employment.
[50] T100.
[51] [1964] HCA 59; (1964) 112 CLR 30 Weston.
[52] [1960] HCA 25; (1960) 103 CLR 547 Kavanagh.
[53] [2022] NSWPICPD 52 Boccalatte.
Mr Adhikary then submitted having established injury under s 4(a) then s 9A of the 1987 Act needs to be satisfied and he cites various cases, which I do not propose to summarise. He made submissions in relation to s 9A (2) that the injury here occurred at a time and place of work, he was performing employment duties at the time of injury. In relation to the fourth factor, the probability that the injury would have occurred at the same time of the worker’s life, he submitted that there is no cogent evidence of this. Mr Adhikary submitted that there are deficiencies in the opinion of Associate Professor Haber.[54]
[54] T104.
He submitted that the main deficiency is that the doctor has not addressed the tasks that the deceased was actually performing at the time of his heart injury.
In relation to the fifth factor in s 9A(2), the state of the worker’s health before the injury, Mr Adhikary acknowledged that “they clearly seem to have some effect upon his injury but in my submission, it doesn’t detract from the fact that employment was a substantial contributing factor to his injury.” He added that without what happened at work such a fatal occurrence would not have happened. So he submits s 9A is satisfied. Mr Adhikary did not make any additional submissions about s 9B.
Ms Grotte relied on the submissions made by the other counsel.
Mr Stockley addressed the medical issues, submitting that the ultimate cause of death was a fibrillation which resulted from either an infarction, being a physical intrusion of a plaque into the artery or alternatively, an ischaemia, which is the narrowing to the point of insufficient capacity for the blood to flow at the required rate.[55] He referred to Dr Gutman’s hypothesis that even the mildest degree of exercise is a precipitant to the symptoms of ischaemia or infarction.
[55] T109.
Mr Stockley submitted if the dependents cannot satisfy s 9B, consideration of ss 4 and 9A become irrelevant. He stated that he does not demur from Mr Hickey’s submissions about the authorities such as De Silva and agrees s 9B requires a consideration of the comparative risk. He submitted that assuming Dr Gutman is correct that some degree of exertion was the precipitant of the fibrillation, he submits that the dependents have to satisfy the Commission that the employment concerned gave rise to a significantly greater risk of the deceased suffering the injury than had he not been employed in employment of that nature.
Mr Stockley noted the CCTV footage that is available is incomplete but by the time the police attended all the straps on the trailers had been undone and he accepts that it is a reasonable inference that the deceased had undone them. He submitted that walking around the truck and attending to each of those clasps, no doubt involved some degree of exertion. He submits that Mr Graham has given evidence that the clasps were brand new and relatively easy to undo with one or two fingers, a couple of kilos of force. He submits that Mr Graham is really the only witness who has knowledge of the Tautliner used by the deceased and how it operated. He dismissed the evidence of Ms Honeyman as calculations based on her best guess. In relation to Mr Bourke’s statement he deals with the aging of the equipment but Mr Graham had given evidence that they were almost brand new and very easy to operate.
Mr Stockley acknowledged getting out of the truck and walking around would involve some physical effort, but he says this needs to be considered in the terms of s 9B. Mr Stockley says the section requires a balancing assessment of degrees of risk. He suggests work such as a library assistant putting away books or petrol station worker putting drinks on a shelf all involve some physical exertion. He said is one were to consider if the deceased was not working at all then, do you consider the normal activities of the deceased such as mowing the lawn or doing the shopping? In my view one does not consider such “domestic” activities when dealing with s9B because it is concerned with employment activities, being a comparison of the risk to which the nature of the employment concerned gives rise and the risk had the worker not been employed in employment of that nature.
He submitted that in other reported cases the work involved was found to be very heavy but in the present case it is a very low level of exertion. He submitted that even on Dr Gutman’s opinion and taking the dependents’ evidence at the highest, it does not satisfy the requirements of s 9B.
Mr Stockley rejected the submission of Mr Hickey that the worse that the pre-existing atherosclerosis or other cardiac condition might be the easier it is to satisfy s 9B. He submits that this cannot be the appropriate balancing of the risk of exercise that the section demands because otherwise every heart attack case would qualify. He said workers encounter exertions in almost every job. Mr Stockley submits Associate Professor Haber assumed that the deceased’s activities just before his collapse were not very strenuous and Mr Stockley submits that the doctor’s assumption is made out by the evidence. It was submitted if the doctor’s opinion is accepted then the dependents’ case fails.
In relation to any submissions about Dr Raftos’s opinion and the proximity of a defibrillator, Mr Stockley submits that nothing turns on that argument. He says there was a defibrillator and if it was not expertly applied is not a feature of his employment that in any way gave rise to a significantly greater risk of injury. He argues that the dependents’ doctors seem to have back away from that argument and, in any event, there is no convincing evidence as to whether the result would have been different even if the defibrillator had been used earlier. He submits ineffective treatment is not an injury itself, just the response to an injury if there is one.
Mr Hanrahan submitted in reply that it is wrong to dismiss Ms Honeyman’s evidence as purely guesswork and to rely on Mr Graham when there is no evidence that he has ever attempted to do the task of pushing down the buckles.[56]
[56] T118.
Determination
All of the medico-legal experts in this matter agree that the fatal cardiac arrest suffered by the deceased was more likely than not caused by ventricular fibrillation. Associate Professor Haber cites this cause on page 3 of his report dated 31 March 2023.[57] Dr Raftos explained that cardiac death is often precipitated by physical exertion because the occluded arteries cannot meet the increased metabolic demand imposed by the exertion and so the heart muscle is deprived of oxygen and may proceed to ventricular fibrillation.
[57] AALD 31 March 2023 p 17.
This is essentially the same explanation given by Dr Gutman. Dr Gutman added that the blood supply to the heart muscle would be sufficient in a resting state, notwithstanding the occlusion in his arteries. Dr Gutman in the unsigned draft dated 29 November 2022 stated that the deceased was not exerting excessively but walking after unstrapping the vehicle. However, Dr Gutman in that draft report says it was not clear to him whether this was excessive exertion. I accept Mr Hickey’s submission that it is relevant that Dr Gutman in his later second and third reports clarifies his opinion; and it is the later reports that are relevant. Mr Stockley did not submit that Dr Gutman’s final opinions were somehow unreliable because of the views he expressed in the draft report.
I accept that the views about whether the defibrillator had been properly or more quickly used are not relevant to the determination of the application of s 9B. Unfortunately because Dr Raftos had dealt with the same, Associate Professor Haber’s focus was directed to this opinion. Associate Professor Haber does not really engage with the opinions of Dr Gutman as he seems to have misread question 3 that was put to him, wherein he was asked to accept the information provided by Mr Graham to any assumptions rather than any inconsistent assumptions underlying Ms Honeyman and Dr Gutman’s opinion. His response was to disregard Dr Gutman.
All the doctors have a consistent history of the deceased’s pre-injury health, family history and the findings found on autopsy.
The difference of opinion between Dr Gutman’s final opinions and that of Associate Professor Haber is their understanding of the exertion experienced by the deceased prior to his collapse. Associate Professor Haber states:
“I assume that Mr Singh’s activities just prior to the arrival at the scene of his collapse, were not very strenuous. His undoing buckles on a trailer was not hard work. This is the sort of work that he has been doing for quite some time in his job.
One can therefore conclude that the cause of his death was not work related being due to underlying/pre-existing conditions.
…
The work activities performed by the deceased on the morning that he died would not have given rise to a significantly greater risk of the deceased suffering the heart attack than had he not engaged in those activities.”
Dr Gutman in his final report was asked to disregard Ms Honeyman’s evidence and he stated that cardiac arrests are less common while sedentary and even light exercise increases the risk. He concluded that in the event the deceased had not engaged in the additional work then he would not have progressed to the onset of ventricular fibrillation as a result of myocardial ischaemia and/or myocardial infarction. I accept Mr Hickey’s submission that Dr Gutman has considered more material than that of Associate Professor Haber and Associate Professor Haber does not deal with the supply and demand for oxygenated blood with exertion, particularly as the deceased was compromised with occluded arteries. I prefer the opinion of Dr Gutman to that of Associate Professor Haber because it is more detailed and reasoned and provides more assistance when applying s 9B.
As was stated in De Silva, s 9B(1) does not require a significant risk. It requires a comparison of the risk to which the nature of the employment concerned and of the risk had the worker not been in employment of that nature. And the first risk has to be significantly greater than the second risk. Associate Professor Haber does not consider other employment, he just finds as the work tasks required little physical exertion that did not give rise to a significantly greater risk than had he not done them. Dr Gutman states that cardiac arrests are disproportionately more common during exercise and less common while sedentary and even light exercise increases the risk of having a fatal cardiac arrythmia significantly.
Mr Stockley rhetorically posed scenarios of workers involved in putting books away in libraries or putting stock on shelves in petrol stations. However, had the deceased been in a sedentary desk job it follows from Dr Gutman’s opinion his risk would have been much less, or as s 9B requires, the employment as an interstate multiline truck driver, with the undertaking of light exertion such as getting out of his cabin and unbuckling the buckles and straps poses a significantly greater risk than the risk in a sedentary job.
I have not placed weight on Mr Bourke’s evidence for the reasons given earlier. Mr Graham’s reconstruction is based on a different vehicle so I find caution must be exercised considering that. Although he states the vehicle used had identical specifications Mr Hickey did point out some apparent differences.
However, Mr Graham’s evidence is not just the reconstruction as he has provided evidence in his statement dated 25 January 2023.[58] He says the buckles on the Tautliner trailers are all essentially the same, and are of the same height. He said the photos used by the dependents give a distorted view and the height of the buckles are below shoulder height for the lower buckles and around shoulder to head height for the higher buckles, depending on how tall you are. I accept this evidence because of his familiarity with Truserv’s fleet of vehicles. I also accept his evidence that the buckles on the deceased’s vehicle were less than 12 months old as this is consistent with the observations in the SafeWork material.
[58] AALD 31 March 2023 p 13.
I do not place any weight on Ms Honeyman’s evidence and note Mr Hickey did not urge acceptance of her opinion. Also Dr Gutman was informed to disregard it. Mr Graham acknowledged there were around 62 buckles on the trailers and he estimates the force required to unbuckle one is less than two kilograms.
I find that to unbuckle each buckle required light exertion however this was done repeatedly while walking around the vehicle and after having alighted from the cabin of the truck. I find that Dr Gutman had a consistent understanding that the work engaged in was light but nonetheless required exertion. I am satisfied that even though this is a less clear case than that of a worker lifting furniture, nonetheless the risk of the deceased performing work of this nature was a significantly higher risk than had he performed sedentary work. I am satisfied that the requirements of s 9B are established.
Mr Hickey also relied upon the argument that the risk has to be considered subjectively. Because the deceased had severe occlusion in both arteries, the risk for him doing employment with light exertion was greater than had he not been employed in work of that nature. I have not found a decision dealing specifically with this argument. At [95] above I found that the text of s 9B is clear, referring to “the worker” rather than “a worker”. This lends support to Mr Hickey’s argument that the comparison of risk in relation to the nature of employment as described in De Silva involves a consideration that the nature of the employment gave rise to a significantly greater risk of the deceased in this case suffering the injury with his severely occluded arteries than had he not been employed in work involving even light exertion, such as sedentary work. Mr Stockley argued that the section cannot be read that way because then anyone who died of a heart attack injury would come within the section. I do not accept this submission because had the worker been performing a sedentary job at a desk and had a heart attack s9B would operate to prevent compensation being paid.
In summary, I find that the alleged dependents have established the requirements in s 9B and find there is an entitlement to compensation for those that are found to be dependent. The first respondent’s submissions focused on s9B and did not urge a finding in relation to whether the requirements of s 4 and s 9A had been met. I find the injury of ventricular fibrillation and the death occurred in the course of employment satisfying s4(a). The first respondent did not demur from Mr Adhikary’s submissions about s9A. As I have found Truserv has liability as the s 20 principal, I find they have a liability to pay compensation in this matter.
The matter is listed for a preliminary conference at a date to be appointed to deal with any issues relating to dependency, apportionment, interest and fund management.
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