Miller v State of New South Wales

[2018] NSWCA 152

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Miller v State of New South Wales [2018] NSWCA 152
Hearing dates:	8 June 2018
Decision date:	12 July 2018
Before:	McColl JA; Meagher JA; Leeming JA
Decision:	Appeal dismissed with costs
Catchwords:	WORKERS COMPENSATION – death of worker – disease injury – pre-existing medical condition – where deceased suffered severe asthma attack leading to anoxia and fatal cardiac arrest – whether employment a substantial contributing factor to aggravation, acceleration, exacerbation or deterioration of asthma condition – Workers Compensation Act 1987 (NSW), s 4(b)(ii), s 9A, s 25 WORKERS COMPENSATION – appeal from Arbitrator to Acting Deputy President pursuant to Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 – death of worker – disease injury – where Arbitrator found cause of deceased’s injury a pre-existing medical condition not aggravated by her employment – failure to make a finding not sought at first instance or on appeal – whether error in point of law
Legislation Cited:	Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	Miller v The State of New South Wales [2017] NSWWCC 66.
Category:	Principal judgment
Parties:	David Miller (Appellant) State of New South Wales (Respondent)
Representation:	Counsel: D Hooke SC and J Wilson (Appellant) P Morris SC and L Morgan (Respondent)   Solicitors: Stacks Law Firm Southern (Appellant) Moray & Agnew Lawyers (Respondent)
File Number(s):	2017/295372
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Workers Compensation Commission Jurisdiction: Presidential Member Citation: [2017] NSWWCCPD 38 Date of Decision: 1 September 2017 Before: Acting Deputy President Geoffrey Parker SC File Number(s): A1-5831/16

Judgment

1. THE COURT: By notice of appeal filed on 29 September 2017, the appellant, Mr David Miller, appeals pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act) against a determination by Acting Deputy President Parker SC (ADP) of the Workers Compensation Commission (WCC),[1] made on the papers on 1 September 2017, dismissing an appeal against a decision of the Commission constituted by an arbitrator. [2]

   1. Miller v State of New South Wales [2017] NSWWCCPD 38.

   2.    Miller v The State of New South Wales [2017] NSWWCC 66.

Introduction

2. The factual background to the appeal may be stated succinctly. The appellant claimed compensation under the Workers Compensation Act 1987 (NSW) (1987 Act) following the death of his wife, while at work, on 15 April 2011. She had been employed by the State of New South Wales, in its “Home Care Services Division” based in Brewarrina, as a community transport driver. Mrs Miller’s normal duties with the respondent involved organising drivers for the Home Services Division’s clients, which she did from an office in Brewarrina. Almost on a weekly basis, however, when drivers were not available, Mrs Miller was required to undertake driving duties herself,[3] which she was doing on the day she died. [4]

   3. Arbitrator’s reasons at [21].

   4. ADP’s reasons at [64].

3. On 15 April 2011, Mrs Miller had driven three patients from Brewarrina to Dubbo. On the return journey, tragically, she suffered a severe asthma attack and died in the following circumstances.

4. Mrs Miller began to experience symptoms (“coughing consistently” and “gasping for air” [5] ) on the return trip while the van was leaving Nevertire. About 25 minutes later she was persuaded by passengers in the van to pull over to the side of the road, in a remote location, approximately 10 to 15 kms outside Nyngan. She was still conscious when she pulled over. She took puffs on her inhaler, but continued coughing. [6] However, “she could not get any air into her lungs and slumped over the steering wheel and passed out.”[7] Other passengers were unable to lift Mrs Miller from the driver’s seat and a car was flagged down to help her from the bus. At that point, two nurses who were travelling on the bus, and a qualified and experienced off-duty paramedic, Mr Holman, who happened to be following the vehicle, began administering CPR while a call was made to triple zero. [8]

   5. Arbitrator’s reasons at [23].

   6. Ibid at [24].

   7. Ibid at [90]; ADP’s reasons at [66].

   8. Arbitrator’s reasons at [23].

5. Despite the nurses’ and paramedic’s efforts, and those of police who arrived at the scene roughly 30 minutes later accompanied by a doctor equipped with defibrillator and resuscitation equipment,[9] Mrs Miller was declared dead at Nyngan Hospital, approximately two hours after having lost consciousness, having suffered a fatal cardiac arrest. [10]

   9. Ibid at [29].

   10. Ibid at [32].

6. On 5 May 2014, the Coroner entered a verdict of death due to anoxia, in turn due to a severe asthma attack. [11]

   11. ADP’s reasons at [60].

7. In the light of the above facts, the Arbitrator found, unsurprisingly, that the deceased commenced having breathing problems from the time the bus left Nevertire, increasing to the point that in response to a request from one of the passengers, she pulled over to the side of the road. [12] He found that the period of this trip, between Nevertire and Mrs Miller pulling over to the side of the road, was 25‒30 minutes. Despite the presence of the two nurses in the bus, and although the deceased carried Ventolin with her, the Arbitrator found that there was then only a limited window of opportunity, of a few minutes, before the severe asthmatic attack proved to be fatal, by preventing the supply of oxygen to the body (anoxia), leading to cardiac arrest.

   12. Arbitrator’s reasons at [102].

8. An appeal was dismissed by an Acting Deputy President. The appellant’s further appeal to this Court is as of right, but is confined by s 353(1) of the 1998 Act to an appeal “in point of law”. The limited scope of the current appeal means that it is not necessary to summarise the evidence, both lay and expert, which was adduced before the WCC. However, because of the nature of the errors asserted in the notice of appeal to this Court, it is necessary to summarise aspects of the procedural history, and, in particular, the basis on which the appellant put his case before the Arbitrator and the ADP.

Procedural history

9. The appellant’s claim was for compensation pursuant to s 25 of the 1987 Act, which provides for an amount of compensation “[i]f death results from an injury”. The legislation at that time defined injury to mean “personal injury arising out of or in the course of employment” and to include, relevantly, “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration”: s 4(b)(ii). It was accepted, properly, that the requirements of causality in the definition of “injury” in s 4 were subject to s 9A, which precluded any payment of compensation “unless the employment concerned was a substantial contributing factor to the injury”. (Section 4 was amended, materially, with effect from 1 July 2011, such that the employment must now be, in the case of a “disease injury”, the “main contributing factor” to contracting the disease or to the aggravation, acceleration, exacerbation or deterioration of the disease. These reasons concern a form of the legislation which has been repealed for more than 7 years.)

10. Both the definition of “injury” and the further threshold hurdle constituted by s 9A required an examination of a factual question of causation, namely, whether the employment was a substantial contributing factor to the injury. Accordingly, any analysis of an entitlement to compensation under the Act will turn upon the identification of the “injury”.

Proceedings before the Arbitrator

11. Before the Arbitrator, the respondent opened the case on the basis that “the issue is whether or not the relevant passing – unfortunate passing of the deceased is an injury to which the applicant’s employment was a substantial contributing factor”. On no view can that be correct, having regard to the terms of s 25. Compensation is only payable if “death results from injury”. The death cannot be the injury.

12. Counsel for the appellant said that “[t]he applicant relies on s 4(b)(ii) in relation to the fact that the applicant had a disease which was the asthma, there was an aggravation, acceleration or deterioration of that disease”.

13. The importance of identifying the “injury” was appreciated by the Arbitrator, who said:[13]

“However in terms of addressing a causal connection between employment and injury, there must be focus on the injury relied upon by the applicant. The applicant relies on s 4(b)(ii) of the 1987 Act, that is an aggravation, acceleration, exacerbation or deterioration of a disease injury. This happened in the course of employment. It is not in dispute that the driving of the bus on 15 April 2011 did not bring on the asthma attack. This was in accordance with the evidence of Professor Young and Dr Bryant. Dr Bryant says that he had seen no evidence that the work of the deceased as a home care services driver would have been a substantial contributing factor to her developing an asthma attack. He says in his supplementary report that ‘It is more probable than not that the death of Ms Miller was substantially contributed to by the remoteness of her location at the time of her suffering her asthma attack.’ That may well be the case, but the death of the applicant is not the injury she sustained; it followed the suffering of the injury, and may have been avoided if the deceased had been able to obtain the emergency treatment for her attack which was available in Brewarrina.” [Emphasis added.]

13. At [107].

14. The Arbitrator found that “the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment”. [14] Thus the Arbitrator proceeded on the basis identified by the appellant, namely, that the deceased had been suffering from a disease (her asthma) which had been aggravated or exacerbated when she suffered an asthma attack during the course of her employment.

    14. At [112].

15. The Arbitrator also addressed causation as follows: [15]

    15.    At [113]‒[115].

113. The applicant’s submission is that because of the location of the asthma attack the deceased   lost the opportunity to seek suitable treatment in Brewarrina, either at her doctor’s surgery or the local hospital, or (in accordance with the ‘two-pronged approach’ put forward by the applicant’s counsel), having access to a second inhaler, nebuliser or ventilator. The following matters are relevant:

(a) the deceased gave no indication of the apparent seriousness of her attack to the passengers on the community bus. She did not pull over until asked to do so;

(b) the deceased suffered from a serious asthma condition and was at risk of a severe attack at any time;

(c) the condition was not well controlled, but the deceased was well educated as to how to manage her condition;

(d) the deceased had a long history of treatment for her condition, both in hospital and with her treating doctors;

(e) at the time the deceased was in the course of her employment and not carrying out anything other than normal duties as part of that employment as a community transport coordinator and driver, and

(f) once the very serious nature of the asthma attack became apparent when the bus was between Nevertire and Nyngan, the ‘window of opportunity’ for effective lifesaving treatment to be rendered to the deceased had unfortunately passed.

114.   In order for the applicant to succeed in his claim, on the basis put forward at the hearing, a number of matters would have to be assumed, namely:

(a) that the deceased was in or close to Brewarrina at the time of her attack;

(b) that she immediately recognised the seriousness of the attack;

(c) that the use of an additional puffer, nebuliser or ventolin was insufficient treatment to deal with the attack;

(d) that she was able to get herself to the Brewarrina Hospital in time for the appropriate treatment to be administered to her. In this context, I do not think that, having regard to the opinions of Professor Young and Dr Bryant on the seriousness of the applicant’s condition, attendance at a doctor’s surgery would have been sufficient to receive the necessary treatment, and

(e) that the treatment given at the Hospital would have been adequate to save the deceased’s life.

115. I do not think that there is sufficient evidence to make a finding in favour of the applicant on the basis of these-assumptions.” [Emphasis added.]

16. To anticipate what follows, in this Court, at the forefront of the appellant’s submissions was that the ADP had failed to identify error in the decision of the Arbitrator when the arbitrator himself failed to address whether the injury was the exacerbation of the asthma attack or the anoxia or the cardiac arrest. The short point, as the respondent submitted, was that that case did not form part of any of the 11 alleged errors raised before the ADP or in the written submissions in support (there was no oral hearing). Accordingly, there was no error, still less any error in point of law, in failing to make findings in accordance with a case which was not put to the ADP.

Proceedings before the Acting Deputy President

17. To return to the procedural history of this litigation, an appeal lies to the Commission constituted by a Presidential Member. The appeal is one from error. The error may be of fact or law or discretion, but is not a review or a new hearing: s 352(5). That may be contrasted with the further appeal to this Court from the decision of the Commission constituted by Presidential Member, which, as we have said, is an appeal “in point of law”: s 353.

18. The notice of appeal from the Arbitrator’s determination contained the following 11 grounds (minor grammatical errors have been corrected):

“1. The Arbitrator erred in finding that there was insufficient evidence to make a finding in favour of the appellant on the facts that the deceased was in or close to Brewarrina at the time of her attack. Please see submissions paragraphs 8-20.

2. The Arbitrator erred in finding that there was insufficient evidence to make a finding in favour of the appellant on the fact that the deceased immediately recognized the seriousness of the attack. Please see submissions paragraphs 21-23.

3. The Arbitrator erred in finding that there was insufficient evidence to make a finding in favour of the appellant on the facts that use of an additional puffer, nebulizer or Ventolin was insufficient treatment to deal with the attack. Please see submissions paragraphs 24-26.

4. The arbitrator erred in finding that there was insufficient evidence to make a finding in favour of the appellant on the fact that the deceased was able to get herself to the Brewarrina Hospital in time for the appropriate treatment to be administered to her. Please see submissions paragraphs 27-37.

5. The arbitrator erred in finding that there was insufficient evidence to make a finding in favour of the appellant on the fact that the treatment given at the hospital would have been adequate to save the deceased’s life. Please see submissions paragraphs 38-45.

6. The arbitrator erred in failing to find that employment was a substantial contributing factor to her injury and death applying the factual circumstances of the deceased passing and applying the “common sense” test to the circumstances and taking in to account the time line. Please see submission paragraph 46-49.

7. The arbitrator erred in law in finding that the deceased had not suffered an injury within the meaning of s 4 of the 1987 act. Please see submissions paragraphs 50-59.

8. The arbitrator erred in failing to find that the deceased's employment was a contributing factor to the aggravation of the deceased's the underlying asthma for the purposes of s 4(b)(ii) of the 1987 act. Please see submissions paragraphs 61-64.

9. The Arbitrator erred in failing to considered and make findings as to whether the factors were ‘real’ and ‘of substance’ in the sense discussed in Badawi. Please see in submission paragraph 65-72.

10. The arbitrator erred in failing to provide adequate resources, please see submissions paragraphs 73-75.

11. The arbitrator erred in failing to have any regard to or to make any findings with or to make any findings with respect to the injury expressed by Dr Bryant, Dr Jennings and Dr Heyns. Please see in submissions paragraph 6(I)(m)(n).”

19. The ADP identified those 11 grounds at the outset of his reasons, and that not all of them were pursued in the appellant’s extensive written submissions. It will be seen that nowhere was any challenge made to the approach taken by the Arbitrator that the “injury” was the deceased’s asthma which had been aggravated or exacerbated when she suffered the asthma attack around the time her bus was leaving Nevertire.

20. The ADP addressed each of the 11 grounds at [86]‒[146]. Before doing so, he referred to [112] and [113] of the Arbitrator’s determination, of which he said at [83]:

“The essential reasoning was contained in paragraphs [112] and [113]. The finding that the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment (paragraph [112]), in my view, was fatal to the applicant’s success. It was fatal because that finding meant that the applicant could not satisfy either s 4(b)(ii) or s 9A.”

21. The ADP accepted a submission made by the respondent that [114] “did not form an essential part of the Arbitrator’s reasoning”.

Proceedings in this Court

22. The further amended notice of appeal to this Court was as follows:

“1. The Acting Deputy President erred in finding that the relevant ‘injury’ causing death was the ‘aggravation, acceleration or exacerbation of the asthma condition leading to the acute asthma attack’, rather than the aggravation, exacerbation or deterioration of the asthma attack and/or the cardiac arrest, each having been substantially contributed to by the unavailability of necessary medical treatment at the remote location at which the acute asthma attack occurred by reason of the deceased’s employment.

2. The Acting Deputy President erred in failing to find error on the part of the arbitrator in misidentifying the relevant ‘injury’ as the pre-existing asthma condition.

3. The Acting Deputy President erred in failing to determine the dispute committed to him in failing to address the case that the injury causing death was the aggravation, exacerbation or deterioration of the asthma attack and/or the cardiac arrest, each having been substantially contributed to by the unavailability of necessary medical treatment at the remote location at which the acute asthma attack occurred by reason of the deceased’s employment.

4. The Acting Deputy President erred in failing to find error on the part of the arbitrator in failing to address the case that the injury causing death was the aggravation, exacerbation or deterioration of the asthma attack and/or the cardiac arrest, each having been substantially contributed to by the unavailability of necessary medical treatment at the remote location at which the acute asthma attack occurred by reason of the deceased’s employment.

5. The Acting Deputy President erred in failing to apply the Workers Compensation Act 1987, s 9A, to the relevant ‘injury’, and in failing to find that the section was satisfied in relation to that or those injury or injuries.

6. The Acting Deputy President erred in failing to find error on the part of the arbitrator in failing to apply the Workers Compensation Act 1987, s 9A, to the relevant ‘injury’, and in failing to find that the section was satisfied in relation to that or those injury or injuries.

7. The Acting Deputy President erred in failing to find error on the part of the arbitrator in failing to apply the Workers Compensation Act 1987, s 9A, in respect of the aggravation, exacerbation or deterioration of the asthma attack and/or the cardiac arrest, he having found that the ‘location of events may have been a substantial contributing factor to the deceased’s death; it was not such a factor to her injury.’

8. The Acting Deputy President erred in failing to find that the appellant was entitled to compensation pursuant to the Workers Compensation Act 1987 in respect of the death of the deceased.

9. The Acting Deputy President erred in failing to apply the Workplace Injury Management and Workers Compensation Act 1998, s 352(6):

a. to a consideration based on identification of the correct injury or injuries causing death.”

23. The appellant has used a standard form for appeals by way of rehearing in this Court (it may be that no form has been prescribed for appeals pursuant to s 353 from the decision of a Presidential member). There would be no difficulty with the course taken by the appellant, save that he has failed to pay heed to the limited right conferred by s 353. Not one of the grounds of appeal, even as amended after the hearing in this Court, mentions the requisite point of law on which the appeal is necessarily founded.

24. It will be seen that grounds 2‒7 assert failures to identify the arbitrator’s error in not addressing the correct injury and failures by the ADP himself to apply a relevant provision of the Act to that correct injury. The short answer to each of those grounds is that a failure to make a finding, either at first instance or on appeal, that was not sought cannot be an error, let alone an error of law.

25. Ground 1 is, in substance, no different. Ground 1 asserts error in finding that the relevant “injury” causing death was the aggravation, acceleration or exacerbation of the deceased’s asthma condition, rather than the aggravation, exacerbation or deterioration of the acute asthma attack. The ground correctly records what the ADP found as to the injury, and complains that he failed to find that the acute asthma attack was the injury. In substance, that is the same as the grounds as follow – it is a complaint that the ADP failed to find something he was not asked to find.

26. Ground 8 merely states the ultimate conclusion for which the appellant contends without identifying any discrete error of law.

27. Ground 9(a) concerns a failure to admit fresh evidence. However, it too resolves to the same issue. Ultimately, this ground was articulated as follows:

“we say the discretion miscarried because the Acting Deputy President considered the relevance and the probative value of the reports of Dr Fulde and Dr Jennings and the statement of the nursing unit manager from the hospital, Ms Finlayson, on the basis of a misapprehension as to the case he was considering. That’s the basis on which we press that.”

28. The “misapprehension as to the case he was considering” is the same alleged misapprehension which underlies the other grounds, namely, as to the identification of the “injury”. Hence, this ground may be treated with the other grounds, insofar as it presupposes that a different “injury” had been contended for.

29. The short answer to all grounds of appeal is as was said by the respondent:

“[Injury] wasn’t ever put in a different fashion. It was never put, either to the Arbitrator or to the Deputy President, that there was an injury simpliciter in the form of a cardiac arrest or anoxia which was the injury which was to be determined by the Arbitrator.”

30. That fairly describes the entirety of the proceeding before the ADP. There is ordinarily no error, still less any error of law, in failing to address a case which has not been put.

31. Against the force of this, it was submitted that:

“the nature of the injury was not in fact a matter in issue between the parties. Both parties proceeded on the basis and the Arbitrator might have been expected to proceed on the basis that the injury was anoxia resulting from the deterioration of the asthma condition as the attack progressed.”

32. It was accepted, properly, that this was not advanced before the Arbitrator in the oral submissions, which have been summarised above. It was maintained that it emerged from the s 74 notice, which crystallised the dispute between the parties. It is true that in the appellant’s originating process in the Commission, against the heading “Cause of injury and death”, it is written that:

“The deceased worker’s job role was to organise drivers for clients to be taken to appointments, get groceries and other general duties which required transportation.

On the date of her death, the deceased worker went to work as usual. One of the regular drivers was not available to undertake transport duties for a client, and the deceased worker was required to driver the client herself. This was not part of the deceased worker’s usual duties.

The deceased work [sic, worker] was driving the Community Transport bus from Dubbo to Brewarrina when she experienced breathing difficulties. The deceased worker was an asthmatic. She pulled the vehicle over on the side of the road, approximately 10kms from Nyngan where she suffered an asthma attack.

As a result of suffering the asthma attack, the deceased worker suffered cardiac arrest and died due to the remoteness of the location and critical medical attention not being received, which was in the realms of her employment as a Home Care Service driver.”

33. That is insufficient. That introductory section of the form narrates the way in which the deceased died, but without squarely identifying the particular “injury” which, so it was alleged, caused the death. It is one thing to describe the mechanism of death; it is another thing entirely to identify the “injury” for the purposes of a claim under s 25 of the Workers Compensation Act. As noted above, this was clarified in the parties’ oral addresses to the Arbitrator.

The difficulty in establishing causation in any event

34. However, it should not be thought that the outcome in this Court would be otherwise if the appeal were less narrowly confined than it is.

35. The issue of causation required a counterfactual analysis as to what could have occurred if the asthma attack had commenced while the deceased was in Brewarrina. The critical matter in the present case was that, on the unchallenged findings of primary fact, the deceased continued to drive the vehicle for 25‒30 minutes after the onset of the asthma attack, and only pulled over when asked to do so by one of the passengers. At that stage, there was a very short period, of a matter of a few minutes, within which her life could be saved. Throughout the previous 25‒30 minutes, the deceased had taken no steps to address her condition, and in particular, had not sought to administer Ventolin (which she had in the vehicle with her). There were also two nurses in the vehicle with her. Hence the force of the conclusion by the Arbitrator that he could not be satisfied that the assumptions that the deceased immediately recognised the seriousness of the attack and would have been able, had she been in Brewarrina, to get herself to the hospital in time, could be made out. Those assumptions were reproduced in [114] and the conclusion that there was not sufficient evidence to make a favourable finding was made in [115].

36. True it is that the ADP disregarded what was said in [114]. No real attempt was made in this Court to defend that aspect of the ADP’s reasons. To the contrary, the rejection of the counterfactual was sufficient to determine the entirety of the dispute.

37. On no view of the meaning of s 9A could the deceased’s employment be causally connected with any formulation of the injury unless the deceased would more likely have rapidly appreciated that she was suffering a severe asthmatic attack. It is plain from the reasons of the Arbitrator that he could not make any such finding. That was the subject of ground 4 of the appeal to the ADP, and part of his resolution of it was his reliance on the fact that her initial response to an asthma attack was to seek to treat it otherwise than by attending a hospital and that she attended the hospital in Brewarrina when suffering pneumonia, but not for asthma. It was submitted in this Court that the Arbitrator’s conclusion was wrong, and the submission is not without force. However, the point goes nowhere, because at [102]‒[103] the ADP addressed the point squarely and concluded that it was open to the Arbitrator to draw (or more precisely, fail to draw) the inference that he did:

“102. The difficulty with the appellant’s proposition is that it required the deceased to recognise that:

(a)   The attack was more serious than those she may have usually experienced.

(b)   It would not be relieved by use of the puffer or her nebuliser at home.

(c)   She would need emergency medical treatment at the Brewarrina Hospital before she experienced severe anoxia or cardiac arrest.

103. Those matters are entirely conjectural and it was open to the Arbitrator, in my view, to draw the inference that he did.”

38. The ADP then made it plain, at [104], that his reasoning was independent of whether or not the attendances by the deceased at the Brewarrina Hospital were to respond to pneumonia, not to acute asthma attacks:

“But even if the assertion at paragraph [42] of the submissions were correct, this would not overcome the absence of evidence capable of supporting an inference as to the likely conduct of the deceased in the circumstances.”

39. There is no error, let alone error in point of law, in that dispositive reasoning by the ADP.

Orders

40. For these reasons, the appeal must be dismissed. There is no reason for costs not to follow the event.

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Endnotes

Decision last updated: 12 July 2018