Muirden and Australian National University (Compensation) - [2021] AATA 4560

Muirden and Australian National University (Compensation) [2021] AATA 4560 (8 December 2021)
Division:GENERAL DIVISION
File Number(s): 2020/1859
Re:Linda Muirden
APPLICANT

AndAustralian National University
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:8 December 2021
Place:Canberra

The Reviewable Decision is set aside and in substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 and s 17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The Tribunal awards the Applicant costs in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
.................................[sgd]......................................
Senior Member Linda Kirk
Catchwords
WORKERS’ COMPENSATION – condition resulting in deceased’s death – whether condition properly classified as an injury or disease – whether compensation payable for injury resulting in employee’s death – decision set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A-B, 14, 17, 59, 62, 67.
Cases
Australian Postal Corporation v Burch (1998) 156 ALR 483
Baranski v Comcare (2013) FCAFC 31
Comcare v Power (2015) 238 FCR 187
Dover Navigation Co Ltd v Isabella Craig [1940] AC 190
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
March v E & MH Stramare Pty Ltd [1991] HCA 12
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397
Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29
Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Prain v Comcare [2016] AATA 459
Repatriation Commission v Law [1980] FCA 92
Repatriation Commission v Law [1981] HCA 57
St Helens Colliery v Hewitson [1924] AC 59
Telstra Corporation Ltd v Bowden [2012] FCA 576
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
Senior Member Linda Kirk
8 December 2021
APPLICATION FOR REVIEW

Linda Muirden (‘the Applicant’) is the wife of the late Andrew Muirden (‘the Deceased’). The Deceased was employed by the Australian National University (‘the Respondent’) as a Night Watchman Grade 3 commencing in a casual role on 2 February 2004 and assuming a permanent full-time position on 16 December 2004.[1]
[1] Mr Andrew Muirden’s Timesheets from 17 June 2004 to 14 September 2011, 5.
The Deceased died at home on 29 August 2011. A post-mortem concluded that his death was caused by ‘sudden unexpected death in epilepsy (SUDEP)’.[2] The Deceased was survived by the Applicant and their four children who were then aged 7, 15, 19 and 22.[3]
[2] Ibid.
[3] T6F, 58.
On 15 March 2013 the Applicant completed a Claim for Compensation for a work-related death on 29 August 2011 due to ‘sudden unexpected death in epilepsy (SUDEP)’. [4] A copy of the Deceased’s death certificate was attached to the claim form.[5]
[4] T6.
[5] T6F.
On 31 May 2013, Comcare informed the Applicant by letter of its Determination disallowing her claim for compensation under section 14 of the SRC Act in relation to the Deceased’s death.[6]
[6] T36, 362, Letter from Comcare to Mrs Muirden dated 31 May 2013.
On 14 August 2018 the Applicant submitted a further application for compensation under the SRC Act for the death of the Deceased.
The decision under review is the Reviewable Decision dated 19 March 2020 that affirmed a determination dated 14 February 2020 that the Respondent is not liable to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) in respect of the Applicant’s claim for the death of the Deceased.
The review application was heard by the Tribunal at a hearing in Canberra on 7 June 2021. The following witnesses gave oral evidence at the hearing:
·the Applicant
·Dr Craig McColl
·Associate Professor Brian Chambers
The following documents were before the Tribunal:
·Applicant's Statement of Issues, Facts and Contentions dated 19 January 2021;
·Respondent's Statement of Issues, Facts and Contentions dated 4 February 2021;
·Respondent’s s 37 documents (T1-T49) filed on 30 April 2020;
·Statement of Linda Muirden dated 17 December 2018 (‘Exhibit A1’);
·Further Statement of Linda Muirden dated 24 May 2021 (‘Exhibit A2’);
LEGISLATIVE FRAMEWORK
Subsection 14(1) of the SRC Act relevantly provides that compensation is liable to be paid in accordance with the SRC Act as follows:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 17 of the SRC Act sets out the compensation which is payable for an injury resulting in an employee’s death:
(3) Subject to this section and to sections 16 and 18, if the employee dies leaving dependants some or all of whom were, at the date of the employee’s death, wholly dependent on the employee, Comcare is liable to pay compensation in respect of the injury of $400,000[7] and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of all of those dependants.
[7] This amount is indexed by reference to the Wage Price Index as set out in section 13AA of the SRC Act. At or around the time of Mr Muirden’s death in August 2011, this compensation amount was approximately $458,980.51.
…
(5) If:
(a) a prescribed child was, at the date of the injury or at the date of the employee’s death, wholly or mainly dependent on the employee;
…
Comcare is liable to pay compensation at the rate of $110[8] a week and that compensation is payable to, or in accordance with the directions of, Comcare for the benefit of that child from the date of the employee’s death or the date of the birth of the child, whichever is the later.
…
(8) Where an amount of compensation is payable under this section for the benefit of 2 or more dependants of the deceased employee, Comcare shall determine the shares of those dependants in that amount as Comcare thinks fit, having regard to any losses suffered by those dependants as a result of the cessation of the employee’s earnings.
(9) A reference in this section to a dependant of a deceased employee shall be read as a reference to a dependant by or on behalf of whom a claim is made for compensation under this section.
[8] This amount is indexed by reference to the Wage Price Index in section 13AA of the SRC Act. At or around the time of Mr Muirden’s death in August 2011, this amount was approximately $126.22.
“Injury” is defined in s 5A of the SRC Act:
(1) …
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
A “disease” is defined in s 5B of the SRC Act:
(1) …
(a) an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
In determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment s 5B(2) provides that the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”
Sub-section 5B(3) of the Act provides that ‘significant degree’ means ‘a degree that is substantially more than material.’
An ‘ailment’ is defined in s 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
‘Aggravation’ is further defined in s 4 to include ‘acceleration or recurrence’.
ISSUES FOR DETERMINATION
The issues for determination in this application for review are as follows:
1)What condition resulted in the Deceased’s death?
2)Is this condition properly classified as an ‘injury (other than a disease)’ or a ‘disease’ for the purposes of the Act?
3)If an ‘injury (other than a disease)’ was it ‘arising out of’ the Deceased’s employment?
4)If a ‘disease’, was it contributed to or aggravated, to a significant degree, by the Deceased’s employment?
5)If so, is the Respondent liable to pay compensation to the Applicant under s 14 and s 17 of the Act with respect of the Deceased’s death?
PRELIMINARY ISSUE
The Applicant requested that the Senior Member recuse herself from hearing the review application for reason of a continuing professional relationship with the Respondent by way of her Honorary Associate Professorship at the Crawford School, College of Asia and the Pacific of the Respondent. The Deceased, worked in the Crawford School when he was employed as a Night Watchman by the Respondent. The Applicant’s application for recusal is on the basis that there is an apprehension of bias in relation to the Senior Member for reason that her Honorary position is supported and in part funded by the Respondent. The Applicant claims that from the viewpoint of the bystander there is an ongoing collaboration and important professional benefits for the Senior Member which give rise to a perception of bias.
The Tribunal dismissed the application and gave oral reasons for the decision which can be summarised as follows.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] (‘Ebner’) the High Court outlined the two stages of the test for apprehended bias:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
The Applicant asserted the Senior Member’s professional connection with the Respondent amounted to an interest in the review application, but did not articulate r how it may lead her to determine the matter ‘other than on its legal and factual merits’. Nor did the Applicant explain the connection between this alleged interest and the ‘possibility of departure from impartial decision-making.’ Accordingly, as the two-stage test in Ebner required for apprehended bias is not satisfied in these circumstances, the application for recusal is dismissed.
EVIDENCE BEFORE THE TRIBUNAL
Deceased’s employment
On 16 December 2004 the Deceased became a permanent full-time employee of the Respondent.[9] The Contract of Employment[10] stated the following in relation to his hours of work and leave entitlements:
Security Staff – 24 Hour Rotating shift / Extra leave
Your ordinary hours of work are 35 per week and are worked on a 24 hour, 7 day rotating shift basis with specified recreation leave. Your actual hours are determined by your supervisor and you must attend the University during these times except when you are on approved leave or your supervisor has agreed to alternative working arrangements.
Staff of the University are entitled to 20 working days Annual Leave for each completed year of service. A staff member employed in areas of the University which close between Boxing Day and New Years Day will be entitled to those days as additional leave.
In accordance with clause 35.2.1(b) you will be entitled to an additional 5 days annual leave whilst on rotating shifts.
[9] T7, 59 titled: Timeline for Comcare Concerning Andrew Muirden; T7B, page 66 titled: Offer of Appointment to The Australian National University; T4, 18-23 titled: Contract of Employment between The Australian National University and Andrew Muirden.
[10] T4, 18-23 titled: Contract of Employment.
The Deceased worked a three-week rotation roster as follows:[11]
·two days of 8am to 4pm;
·seven days of 4pm to midnight;
·two days off;
·seven days midnight to 8am; and
·three days off.
[11] Exhibit A2, [3].
According to the Applicant, the Deceased ‘often had to work on his rostered day off especially if it was a public holiday’.[12] He ‘was regularly remade to work his RDOs and Rostered days off so he often worked over 18 days without a break’.[13] When the Deceased commenced his role, he was trained by a senior staff member named Grant Reebeck who advised him that he ‘could not take sick days unless in hospital’ and that ‘leave could not be taken over the Christmas holiday period’.[14] The Deceased ‘abided to [Mr Reebeck’s] rules for 3 years, not a sick day taken and worked every Christmas day and holiday period’.[15]
[12] Transcript of proceedings, 7 June 2021, 17.
[13] Transcript of proceedings, 7 June 2021, 17-18.
[14] Ibid.
[15] Transcript of proceedings, 7 June 2021, 17-18.
Previous episodes and treatment for epilepsy
According to a Timeline prepared by the Applicant, the Deceased began experiencing partial seizures in early 2007:
[The Deceased] began to have partial seizures upon wakening in January after the holiday period. The seizures were short and undiagnosed. He just had to lie down again and rest after wakening. These seizures occurred usually at the end of midnight-8am shift roster, every 3^rd week and worsened each time.[16]
[16] T7, 59 titled: Timeline for Comcare Concerning Andrew Muirden.
On three consecutive days from 4 to 6 July 2007, the Deceased worked the 12.00am to 8.00am shift.[17] His timesheets indicate that he was also rostered to work four additional 12.00am to 8.00am shifts from 7 to 10 July 2007.[18]
[17] T33, 355, titled: ‘Summary of Hours and Days Worked for specified periods’, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
[18] T5, 26, Mr Muirden’s ANU Timesheets.
Grand mal seizure – July 2007
On 6 July 2007, the Deceased experienced a grand mal seizure and was taken to the Emergency Department of Calvary Hospital. A ‘CT’ (computed tomography) scan of his brain did not identify a ‘definite cause’ for the seizure.[19] He was referred to Dr Craig McColl, Neurologist, by Dr James Christie, Emergency Doctor who reported:[20]
For over 10 years [the Deceased] has had intermittent episodes of ‘déjà vu’, after which he feels somewhat unwell, and if possible arranges to have a sleep afterward … Over the last few months these experiences have been more frequent. He has been somewhat unwell with the flu the last few days, and that plus his work roster meant that he slept less then [sic] 4 hours/day for the 3 days prior to today, although he slept 10 hours today. As he was due to do a night shift this evening, he had spent most of the day in bed. He noticed he wasn’t feeling well about 30 minutes after getting up, and about 15 minutes after that had a grand mal seizure. He was intermittently agitated and had a couple of further brief convulsive episodes during his ambulance trip to the ED.
…
I suspect he has had a partial seizure focus for many years and has now had a grand mal seizure, possibly precipitated by his flu-like illness with sleep deprivation.
[19] T18A, 209, titled: Medical Imaging Department – Examination Report.
[20] T18A, 210, Letter from Dr Christie to Dr McColl dated 6 July 2007.
From 7 to 10 July 2007 (inclusive), the Deceased was on sick leave for his rostered 12.00am to 8.00am shifts.[21]
[21] T25A, 241, Letter from ANU to Comcare dated 23 April 2013.
On 25 July 2007, Dr Fiona McDonald, General Practitioner, saw the Deceased and referred him to Dr McColl stating: ‘I seek your opinion regarding prob partial seizures for some years, recent grandmal prob precipitated by stress and tiredness’. Dr McDonald noted that the Deceased’s attendance at an ultrasound appointment for a potential hernia ‘interfered with his sleep routines, prob setting of [sic] his grandmal’.[22]
[22] T18A, 197, Letter from Dr McDonald to Dr McColl dated 25 July 2007.
On 14 November 2007, Dr McColl assessed the Deceased and reported to Dr McDonald as follows:[23]
He does shift work and, in July, became severely sleep-deprived during a shift change-over period and following a daytime ultrasound appointment, when he would normally be sleeping. He had an episode of déjà vu progressing to lips-smacking and slow speech and then, after ten minutes, progressing to a generalised tonic clonic seizure. He bit his tongue and had urinary incontinence. The jerking lasted for about two minutes, followed by post-ictal confusion for about 45 min. He attended the Emergency Department where no focal signs were found and he had a normal CT of the brain.
…
…
His history is entirely consistent with temporal lobe epilepsy, and I have explained to him that all of his déjà vu episodes are likely to be partial seizures. His major seizure is likely to have been partly secondary to sleep deprivation, so his risk of recurrence could be lowered by avoiding sleep deprivation where possible. I have ordered an MRI, EEG, and given him a script for Tegretol CR, working up to a dose of 200mg BD.
…
He has been driving, but probably should have avoided driving for at least three months after his major seizure. Provided he remains seizure-free, or has only simple partial seizures, he could probably continue to drive with acceptable risk. He should inform the driving licensing authority of the situation and let them adjudicate on the matter. I have asked him to avoid swimming and bathing.
[23] T21A, 234-235, Letter from Dr McColl to Dr McDonald dated 14 November 2007.
According to the Applicant, in 2008 the Deceased was ‘still having regular partial seizures. Getting worse, lasting longer. Harder to talk him out of them’.[24]
[24] T7, 60, Timeline for Comcare Concerning Andrew Muirden.
On 3 November 2008 the Deceased was admitted for dental surgery. He provided a history including a ‘single epileptic seizure 6 mths ago’ and confirmed ‘nil further grand mal episodes’ since the initial seizure.
In 2009 the Deceased commenced seeing a psychologist. According to the Applicant, he ‘had become very aggressive and angry about work commitments and how he was being treated by work colleagues. His anger would trigger a partial seizure and his family and friends suffered his wrath’.[25]
[25] ibid.
Grand mal seizure – May 2010
For five consecutive days from 28 April to 2 May 2010, the Deceased worked the 12.00am to 8.00am shift.[26] His timesheets indicate that he was also rostered to work two additional 12.00am to 8.00am shifts on 3 and 4 May 2010.[27]
[26] T33, 355, titled: ‘Summary of Hours and Days Worked for specified periods’, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
[27] T5, 29-30, Mr Muirden’s ANU Timesheets.

On 2 May 2010, the Deceased was taken by ambulance to the Emergency Department of Calvary Hospital. The presenting problem was recorded as follows:
Acute onset of confusion, making odd noises associated with tonic-clonic seizures. The patient reports occasional marijuana intake but no other substance abuse. CT brain normal on admission. Patient not well known to me; I only met him briefly in ICU before he self-discharged himself.
The principal diagnosis is recorded as ‘Sleep deprivation seizures’, with an additional diagnosis of ‘Fall 4 days before presentation; had some neck pain following the fall’.[28] Progress notes recorded the Deceased’s history of seizures and that he had:[29]
[28] T18A, 108, titled: Discharge Referral.
[29] T18A, 133, titled: Patient Progress.
worked a midnight shift last night. Came home this morning and went to bed. Had some sleep; woke up with headache, took some panadol ? Endone. At about 17:30 hrs, he became vague
-making abnormal noises
-talkative
-with ? rolling eyes, but was still talking
-These symptoms are similar to those that preceded a seizure 2 yrs ago
An ambulance was called.
Tonic and clonic seizure in the ambulance.
…
? Fall 4/7 ago while “land-kiting”. c/o neck pain then. Not sure whether he had hit his head or not.
From 3 to 4 May 2010 (inclusive), the Deceased was on sick leave following his seizure. The Respondent confirmed that he was on sick leave for the following 12 days commencing 5 May 2010.[30]
[30] T25A, 241, Letter from ANU to Comcare dated 23 April 2013.
On 4 May 2010, the Crisis Assessment and Treatment Team at the Canberra Hospital reported to Dr Peter Ragg, General Practitioner, regarding the Deceased’s presentation to the Mental Health Crisis Team, following his admission to Intensive Care as a result of his seizure.[31] The report stated:
[31] T27A, 292-294, Facsimile from Crisis Assessment and Treatment Team to Dr Peter Ragg dated 4 May 2010.
BIB [Brought in by] ambulance yesterday with seizure history. Sedated and intubated as had become very agitated and aggressive. CT brain and EEG done, apparently normal. Previous admission 2-3 yrs ago for seizure but nil cause found. Team are considering sleep deprivation as primary cause for his seizure.
…
He was able to express some stress he felt in his night shift work and the terrible roster (3 weeks of 2 days, 5 nights, one day off) and juggling family commitments. He was dismissive that he had a potential seizure disorder and did not wish treatment, feeling he could manage it himself. He became very intimidating and hostile and I was some-what relieved when he decided to end the discussion.
He would not consent to me talking to his wife Linda and in the process of me talking with ICU staff about next options he self-discharged with his family in tow.
…
Phone call to landline at 21:30.
…
Linda said that the concern about seizures is not resolved and they are frustrated about this. They have been to a neurologist before with no success. He did not have any seizures before he started doing shift work.
…
She stated that in a family with four children it is very difficult for him to get to sleep during the day and that as a consequence he is sleep deprived.
Advice to employer about Deceased’s condition
On 18 May 2010, Dr Ragg wrote an open letter following the Deceased’s appointment with him on 11 May 2010, stating:[32]
This is to confirm that Andrew is not to work the 12.00am until 8.00am shift as this increases the risk of Grand Mal seizures. This advice is for the long term.
[32] T7E, 72, Letter from Dr P.J. Ragg dated 18 May 2010.
On 22 February 2011, nine months after Dr Ragg’s letter, the Deceased worked his last 12.00am to 8.00am shift.[33]
[33] T5, 31, Mr Muirden’s ANU Timesheets; T25A, page 241, Letter from ANU to Comcare dated 23 April 2013
According to the Applicant, in March 2011 the Deceased ‘continued to have partial seizures’.[34] It was around this time that the Deceased provided to his employer a copy of Dr Ragg’s letter stating that he should not work the 12.00am to 8.00am shift.[35]
[34] T7, 61, Timeline for Comcare Concerning Andrew Muirden.
[35] T25A, 242, Letter from ANU to Comcare dated 23 April 2013.
In March 2011 the Deceased ceased performing the midnight to 8am shift, and he ‘was allowed to take the midnight shift as sick leave until his death’.[36]
[36] Transcript of proceedings, 7 June 2021, 17-18.
In late March 2011, the Deceased’s direct supervisor, Ms Sue Lawrence, emailed a Human Resources Manager at ANU regarding his sick leave and stated that:[37]
Andrew first talked to Tony [James, Facilities Coordinator at ANU] and I on Tuesday 15 March and said that he had a Doctor’s appointment the coming Thursday but that he expected the Doctor would tell him that he should not work the midnight shift because he thought it was too stressful. He explained that in addition to that his partner did not what [sic] him to work it and him continuing to do it was causing more stress at home. He also said that he had a certificate sometime ago but had not acted on it and had thrown it out. I told him that if he did not want to work the midnight shift that he would have to either have to have to have a doctor’s certificate or look for another position because the position of nightwatchman included the midnight shift and he was not going to work he was not fulfilling the role. He recognised this.
He said he felt that things would improve once an issue with his partner’s family was over and that if the doctor decided he could not work the midnight shift he would take that on personal leave.
When the doctors certificate arrived I was surprised at the reason and that it was a permanent restriction on working the midnight shift. It was then that I gave the certificate to Sarah and suggested she should discuss it with you. I talked to Andrew when he came on shift and told him I was surprised and that given the certificate said permanent that he might have to be medically retired. He said he realised it would cause him problems.
[37] T25B, page 247, Email from Sue Lawrence to Melissa Austin dated 29 March 2011.
On 7 April 2011, the Deceased emailed Ms Lawrence in response to questions from ANU’s Occupational Health and Safety team regarding his condition:[38]
I was taken to hospital by ambulance in July 2007 and diagnosed with having a Grand Mal. Then I was taken to hospital by ambulance on the 2^nd of May 2010 again suffering from a Grand Mal. After seeing Dr McColl (Calvary neurology Clinic) and being tested for Epilepsy by Dr Andrews (Neurologist, Deakin) in between hospital visits it was decided I didn’t have epilepsy but the events were due to sleep deprivation.
[38] T25B, page 244, Email from Andrew Muirden to Sue Lawrence dated 7 April 2011.
According to the Applicant, on 12 May 2011, the Deceased ‘had two partial seizures which developed into Gran [sic] Mal – Ambulance to Calvary Hospital, put into a coma and resuscitated’.[39] As Dr McColl subsequently noted in his 2018 report, there are no medical records from either Calvary Hospital or Canberra Hospital, regarding an admission of the Deceased for any seizures in or around May 2011.[40]
[39] T7, 61, Timeline for Comcare Concerning Andrew Muirden.
[40] T39, 377, Letter from Dr Craig McColl to Capital Lawyers dated 12 February 2018.
On 17 May 2011, Dr Ragg completed a Medical Certificate for Workers’ Compensation and diagnosed the Deceased with ‘adjustment disorder secondary to unreasonable working conditions’ and ‘epilepsy – provoked by unreasonable working conditions’.[41] Dr Ragg certified the Deceased unfit for work from 17 May to 7 June 2011. His timesheets indicate that he was on sick leave or had rostered days off from 17 May to 20 May 2011 (inclusive), however they also indicate that he worked for nine days between 21 May and 29 May 2011, inclusive (being within the period of unfitness for work as certified by Dr Ragg).[42] From 30 May to 10 June 2011 (inclusive), the Deceased was on sick leave or had rostered days off from work.[43]
[41] T7G, 74, titled: Medical Certificate for Workers’ Compensation.
[42] T33, Page 357, titled: Summary of Hours and Days Worked for specified periods attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
[43] T5, 37-38, Mr Muirden’s ANU Timesheets; T33, Page 357, Document entitled ‘Summary of Hours and Days Worked for specified periods’, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
In May or June 2011, the Applicant:[44]
telephoned Comcare and the union in May/June in distress that Andrew wouldn’t hand in the Comcare workers compensation form into work from Dr Ragg advising that he had brain damage and that he had to stop working and try to regulate his stress and sleep levels after a near fatal Gran Mal. We knew Andrew wouldn’t survive another Seizure.
[44] T7, 62, Timeline for Comcare Concerning Andrew Muirden.
From 11 June to 19 June 2011 (inclusive), the Deceased worked his shifts.[45]
[45] T5, 39, Mr Muirden’s ANU Timesheets; T33, page 357, titled: Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
Between 20 June and 1 July 2011, the Deceased was on sick leave or had rostered days off from work.[46]
[46] T25A, 241, Letter from ANU to Comcare dated 23 April 2013; T33, page 357, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
From 2 July to 10 July 2011 (inclusive), the Deceased worked his shifts.[47]
[47] T5, 40-41, Mr Muirden’s ANU Timesheets; T33, Page 357, titled: Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
Between 11 July and 22 July 2011, the Deceased was on sick leave or had rostered days off from work.[48]
[48] T25A, 242, Letter from ANU to Comcare dated 23 April 2013; T33, page 358, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
From 23 July to 31 July 2011 (inclusive), the Deceased worked his shifts.[49]
[49] T5, 42, Mr Muirden’s ANU Timesheets; T33, page 358, titled: Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
Between 1 August and 12 August 2011, the Deceased was on sick leave or had rostered days off from work.[50]
[50] T25A, 242, Letter from ANU to Comcare dated 23 April 2013; T33, page 358, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
From 13 August to 21 August 2011 (inclusive) the Deceased worked his shifts.[51] The 4.00pm to 12.00am shift on 21 August 2011 was his last.
[51] T5, 43-44, Mr Muirden’s ANU Timesheets; T33, page 358, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
Between 22 August and 29 August 2011, the Deceased was on sick leave or had rostered days off from work.[52]
[52] T5, 44, Mr Muirden’s ANU Timesheets and T25A, page 242, Letter from ANU to Comcare dated 23 April 2013; T33, Page 358, titled Summary of Hours and Days Worked for specified periods, attached to email from Amy Seath, Human Resources Manager, to Comcare dated 28 May 2013.
Deceased’s death and post-mortem
On 29 August 2011, eight days after his last shift, the Deceased died at home.
On 31 August 2011, a post-mortem examination was performed on the body of Mr Muirden. The subsequent report stated that:[53]
[53] T27A, 308-309, Letter from Dr Lavina Hallam to the Coroner dated 10 December 2011.
TOXICOLOGY REPORT:
…
Screening Analysis: Cannabinoids were detected.
…
This 47 year old man appears to have collapsed while hanging out the washing. He was found face down on the grass below the washing hoist. The deceased was a known epileptic non-compliant with treatment. There were no suspicious circumstances arising from the Police investigations.
At autopsy there were no findings to readily account for death. Formal neuropathology report is appended (Appendix 1). Epilepsy is associated with increased risk of sudden death (Appendix 2).
IN MY OPINION THE CAUSE OF DEATH WAS
1. DIRECT CAUSE:
Disease or condition directly leading to death:
(A)SUDDEN UNEXPECTED DEATH IN EPILEPSY (SUDEP).
The Macroscopic Brain Report dated 5 December 2011 enclosed at Appendix 1 to the post-mortem report concluded: ‘Features consistent with agonal hypoxia/seizures/global ischaemia. No evidence of underlying hippocampal sclerosis’.[54] The post-mortem report also enclosed at Appendix 2 an article titled ‘unexpected death in epilepsy’ by Dr Steven Schachter from the medical resource ‘UpToDate’.[55] The article states:
[54] T27A, 311, Appendix 1, titled: Macroscopic Brain Report, to Letter from Dr Lavina Hallam to the Coroner dated 10 December 2011.
[55] T27A, 312-319, Appendix 2, titled: unexpected death in epilepsy, S.C. Schachter, MD, last literature review version 19.3: September 2011.
Patients with epilepsy have a small risk of sudden unexpected death, a condition referred to as sudden unexpected death in epilepsy (SUDEP). SUDEP is defined specifically as the sudden, unexpected, witnessed or unwitnessed, nontraumatic and nondrowning death in patients with epilepsy with or without evidence for a seizure, and excluding documented status epilepticus, in which post mortem examination does not reveal a structural or toxicologic cause for death.
The cause of SUDEP is uncertain. Observations in individual cases have suggested possible cardiogenic, pulmonary, and primary neurologic etiologies. It may be that SUDEP is a heterogeneous condition.
…
SUDEP causes between 2 and 18 per cent of all deaths in patients with epilepsy.
…
Risk factors for SUDEP include early age of epilepsy onset, frequent generalized tonic-clonic seizures, and intractable epilepsy. Case-control and cohort studies of SUDEP have identified certain clinical and demographic features as potential risk factors:
·     Seizure frequency (>1/month)
·     Medication noncompliance, subtherapeutic AED level
·     Age 20 to 45 years
·     Generalized tonic-clonic seizures
·     Polytherapy
·     Duration of epilepsy (>10 years)
·     Alcoholism
·     Male gender
…
While SUDEP is only rarely witnessed, most observations suggest that SUDEP occurs in the context of a seizure.
…
Possible causes of SUDEP include cardiac arrhythmia, central apnea, neurogenic pulmonary edema, and laryngospasm.
…
SUMMARY AND RECOMMENDATIONS – Patients with epilepsy have a small but significant risk of sudden unexpected death (SUDEP).
·     The most consistently observed risk factors for SUDEP are frequent convulsive seizures.
·     The etiology of SUDEP is uncertain; most cases appear to occur in the context of a seizure. Theories include a cardiac arrhythmia, central apnea or a primary central nervous system event complicating the seizure ictus. It may be that causes are heterogeneous.
·     There are no strategies that have been shown to reduce the risk of SUDEP. Maximizing seizure control is recommended, including timely consideration of epilepsy surgery.
Compensation claim
On 15 March 2013, the Applicant completed, and subsequently lodged with Comcare, a Claim for Compensation for a Work-related death in relation to the Deceased’s death on 29 August 2011, with the cause stated as ‘sudden unexpected death in epilepsy (SUDEP)’.[56]
[56] T6, 45, Claim for Compensation for a Work-related death.
On 18 March 2013, Comcare wrote to the Applicant acknowledging receipt of her claim for compensation.[57]
[57] T8, 81, Letter from Comcare to Mrs Muirden dated 18 March 2013.
On 27 March 2013, Dr Colin Andrews, Consultant Neurologist, provided Comcare with his ‘EEG Report’[58] on the Deceased from 4 December 2009 that was issued to his General Practitioner, Dr Ragg. The EEG Report noted that the test was ‘normal’.[59]
[58] An ‘EEG’ is an ‘electroencephalogram’ test to detect abnormalities in brain waves, or in the electrical activity of the brain ( accessed 14 October 2019).
[59] T14, 98-99, Facsimile from Dr Andrews to Comcare on 27 March 2013 enclosing EEG Report to Dr Ragg dated 4 December 2009.
On 27 March 2013, Comcare wrote to the Applicant acknowledging receipt of a timeline and attachments she had provided and noting that Comcare had requested medical records and reports from various practitioners.[60]
[60] T16, 104, Letter from Comcare to Mrs Muirden dated 27 March 2013.
On 31 May 2013, Comcare informed the Applicant by letter of its Determination disallowing her claim for compensation under section 14 of the SRC Act in relation to the Deceased’s death.[61] Comcare’s Statement of Reasons notes that it was satisfied that the Deceased ‘suffered from a sudden and identifiable change when he suffered from the epileptic fit on 29 August 2011 which resulted in his death’.[62] Comcare was therefore ‘satisfied that the late Mr Muirden suffered from an injury as defined in the SRC Act’.[63] However, the Statement of Reasons states that:
Having regard to the available evidence, I cannot be satisfied that it supports that the late Mr Muirden’s Grand Mal epileptic fits and subsequent death constitutes as an injury arising out of or in the course of his employment. He sustained his injury at his home which is not considered to be his place of work or that he was required to be there in the course of his employment.
For the sake of completeness, I have also assessed whether the Grand Mal epilepsy was contributed by his employment to a significant degree, under the ‘disease’ provisions [of the SRC Act].
…
As required under the disease provisions, it is necessary to be satisfied that on the balance of probabilities as opposed to possibilities that the claimed condition was significantly contributed to by the employment. However, the available evidence does not support that this is the case.
As such, I am not satisfied the late Mr Muirden’s injury resulting in death arose out of or in the course of his employment or that his employment contributed to the condition to a significant degree.
[61] T36, 362, Letter from Comcare to Mrs Muirden dated 31 May 2013.
[62] T36, 364, Statement of Reasons.
[63] Ibid. 364.
The Applicant did not request a reconsideration of Comcare’s Determination within 30 days after the day she received that Determination, as required under section 62(3) of the SRC Act.
On 16 August 2016, more than three years after Comcare’s Determination, the Applicant’s solicitors informed Comcare that they had instructions to act on her behalf and, pursuant to section 59 of the SRC Act, requested Comcare’s documents relating to the disallowed compensation claim.[64]
[64] T37, 370, Letter from Capital Lawyers to Comcare dated 16 August 2016.
On 22 August 2016, Comcare provided the Applicant’s solicitors with a copy of its documents relating to her compensation claim.[65]
[65] T38, 372, Letter from Comcare to Capital Lawyers dated 22 August 2016.
On 14 August 2018 the Applicant submitted a further application for compensation under the SRC Act for the death of the Deceased.
The claim was denied on 14 February 2020 and the denial was affirmed by the Reviewable Decision dated 19 March 2020.
MEDICAL EVIDENCE
Dr Ragg, General practitioner
On 29 April 2013, Dr Ragg provided Comcare with a medical report.[66] He reported that the Deceased and his family had been his patients for approximately 15 years, but the Deceased had first attended his practice on 18 November 2009. At that time, he reported ‘an incident 2 years earlier which fitted the diagnosis of Grand Mal Epilepsy’, although the Deceased ‘was not aware of this diagnosis, had had no similar episodes since, had undergone no investigations and was on no treatment’. Dr Ragg organised an EEG which was ‘reported to be normal’.[67]
[66] T27, 256-337, Medical Report of Dr Peter Ragg with attachments.
[67] T27, 257.

The Deceased next attended on 11 May 2010, at which time he reported ‘another Grand Mal Fit’ and that ‘due to shift work, he had not slept for over 24 hours’.[68]
[68] Ibid.
Dr Ragg referred to the letter he wrote to the Deceased’s employer suggesting that ‘on a longterm basis, [he] should not work the midnight to 8AM shift as it increased his risk of further epileptic fits.’[69]
[69] T27A, 275.
On 17 May 2011, the Deceased reported to Dr Ragg that ‘he was continuing to work night shift [which] resulted in his being sleep deprived and having further fits’. He was also ‘having other conflict in the workplace and felt his job was at risk’. On that occasion Dr Ragg prescribed medication for the Deceased’s epilepsy (noting ‘he had previously refused any prescription’) and referred him to a psychologist.[70]
[70] T27A, 264.
Dr Ragg concluded:
Mr Muirden, despite his normal EEG, suffered from Grand Mal Epilepsy. He also had an Adjustment Disorder. He was not keen to accept either of these diagnosis.
…
I do not believe that [the Deceased’s] Epilepsy was caused primarily by his employment. However, both he and his wife strongly felt that the sleep disturbance secondary to shift work was a trigger to most of his fits and this is quite likely.
I understand he actually stopped the shift work several moths (sic) prior to his death but his five previous fits all occurred (sic) at a time of sleep deprivation.[71]
[71] T27, 256.
Dr Craig McColl, Neurologist
In a medical report dated 12 February 2018,[72] Dr McColl outlined a chronological history of the Deceased’s epilepsy based on his clinical notes and hospital records. He noted that ‘[e]xamination in November 2007 was essentially normal’, but in light of the Deceased’s history he recommended anticonvulsant medication.[73] In relation to the 2007 seizure, Dr McColl stated:
I suggested to [the Deceased] and his local doctor that sleep deprivation was likely to have played a significant role in lowering his seizure threshold and converting his tendency to have mild focal seizures into a more severe epileptic tendency with a secondarily generalised seizure. I advised him that his risk of similar events could be reduced by avoiding sleep deprivation, including shift work.[74]
[72] T39, 373-377.
[73] T39, 374.
[74] Ibid, 375.
Dr McColl noted that he did not treat the Deceased in relation to 2 May 2010 seizure, but that he had read the notes of the emergency room doctor and felt that the ‘pattern of events is consistent with a focal seizure progressing to a secondarily generalised GRCS’.[75] At that time, the ‘working diagnosis was a secondarily generalised tonic-clonic seizure, induced by sleep deprivation, on a background of temporal lobe epilepsy’.[76]Dr McColl noted that the Deceased appeared to have suffered a further seizure on 3 May 2010, and he had read the notes from that attendance at hospital. He had no further involvement in the Deceased’s care.[77]
[75] Ibid.
[76] Ibid.
[77] Ibid, 376.
Having been briefed with relevant documents, Dr McColl noted that the death certificate identified SUDEP as the cause of death. He considered there were ‘insufficient details available for [him] to know if this diagnosis is likely’.[78] He noted that the briefing letter from the Applicant’s solicitors advised the Deceased was admitted to Calvary Hospital on 12 May 2011 after suffering a third grand mal seizure, but Dr McColl was unable to find any record of this admission.[79]
[78] Ibid, 377.
[79] Ibid.
In response to specific questions, Dr McColl concluded:
Sleep deprivation is a well-known risk factor for seizures. Many patients present with their first convulsive seizure after a period of sleep deprivation, and patients with epilepsy are routinely advised to avoid sleep deprivation.
Most textbooks list sleep deprivation as a common factor lowering the seizure threshold. For instance, the handbook “Fast Facts: Epilepsy”, 3^rd Edition, by Martin Brodie et al…includes a table that lists 9 common factors for lowering seizure threshold, with sleep deprivation listed as the first: “sleep deprivation, alcohol withdrawal, television flicker, epileptogenic drugs, systemic infection, head trauma, recreational drugs, antiepileptic drug con-compliance, and menstruation”. [80]
[80] Ibid, 378.
…
In [the Deceased’s] case, it is almost certain that sleep deprivation played a key role in producing his GTCSs.
Both of the known presentations to the Emergency Department with GTCSs followed periods of greater-than-usual sleep deprivation. For the GTCS leading to his appointment with me, the sleep deprivation occurred as a result of shift work in combination with a daytime ultrasound appointment. An additional provoking factor was a flu-like illness.
For the second presentation, which led to his Intensive Care admission, he was described as having had severe sleep deprivation, although I do not know the precise details. An additional factor was the lack of any ongoing anticonvulsant medication.
The risk factor of sleep deprivation cannot be considered to be the sole cause of his GTCSs, because other risk factors were also present, and he almost certainly had underlying temporal lobe epilepsy, that is likely to have been caused by an underlying structural abnormality of one temporal lobe.
…
It is unclear whether his history of minor focal seizures was caused, in part, by chronic shift work. On balance, this appears probable, so that mild chronic sleep deprivation caused chronic focal seizures which perpetuated and enhanced his epileptic tendency, and more severe acute sleep deprivation precipitated more severe events with secondary generalisation.
…
Sleep deprivation increases a patient’s overall seizure tendency, which affects both the frequency and severity of seizures. On balance, it is more likely than not that chronic sleep deprivation contributed to his chronic mild focal seizures, and highly likely that acute severe sleep deprivation contributed to the increase in severity that led to his two known episodes of secondarily generalised tonic-clonic seizures. If he died of sudden-unexpected death in epilepsy (SUDEP), and if he experienced more than his usual sleep deprivation prior to his death, it is also more likely than not that sleep deprivation contributed to his death.
I do not know the precise circumstances of his death, and therefore do not know whether sleep deprivation played a specific role in his case. The published epilepsy literature reports that SUDEP is more likely in subjects with poorly controlled epilepsy, and sleep deprivation is a known risk factor for poor epilepsy control, but other factors such as not being on antiepileptic medication also contribute to the risk.[81]
[81] T39, 379.
In his oral evidence at the hearing, Dr McColl was asked ‘whether sleep deprivation of some amount a known risk factor in triggering epileptic seizures?’ He stated that it is ‘universally accepted that sleep deprivation is a token factor to triggering epileptic seizures’.[82] However, ‘how much sleep deprivation produces how much risk that curve is not well understood.’[83]
[82] Transcript of proceedings, 7 June 2021, 23.
[83] Ibid.
Dr McColl was asked whether ‘the history of epileptic seizures a known risk factor in triggering future epileptic seizures’. He stated:
most epilepsy specialists [accept] that seizures change the landscape and make further seizures more likely.[84]
[84] Ibid.
In relation to whether a ‘single bad bout of epilepsy or a single bad seizure can permanently increase the risk of further bad seizures’ he stated that from his experience it is ‘definitely the case.’[85] He has ‘seen patients permanently undergo a change in the frequency of their seizures, the severity of their seizures after one single bad bout of under-managed status epilepticus.’[86] In his experience, ‘a single seizure or a bad bout of a cluster of seizures can permanently change someone's tendency both to have mild seizures but also more severe seizures.’[87] He added that it is not just generalised tonic-clonic seizures that have this effect: ‘a severe focal seizure can make that particular epileptogenic zone permanently or … for a very long time more seizure prone than it had been, even if it didn't generalise to the rest of the brain.’[88] Dr McColl stated that in his view, in the Deceased’s circumstances, ‘his two hospital admissions with more severe epilepsy are likely to have had a long lasting impact on his risk of further seizures, including both the mild seizures and the more severe seizures.’[89]
[85] Ibid, 24.
[86] Ibid.
[87] Ibid.
[88] Ibid.
[89] Ibid.
Dr McColl was asked ‘whether the shift work from 12 o'clock midnight to 8 am in the morning the kind of sleep deprivation that falls within known risk factors?’ He stated that this is an ‘unequivocal yes’.[90]
[90] Ibid.
Dr McColl was asked whether ‘the shift work from 4 pm to midnight the kind of sleep deprivation that falls within the known risk factors?’ He said that he has had patients for whom working until midnight was enough to cause seizures. He noted that if a person works until midnight, they probably don’t get home and settled until 1am at the earliest and if they are stressed it might take even more time to get into sleep mode. If the rest of the household gets up early, the person probably does not get enough sleep on those nights.[91]
[91] Transcript of proceedings, 7 June 2021, 26.
Dr McColl was asked whether the Deceased’s shift record for the 12 months prior to his death more likely than not made a substantial but not necessarily solely prominent contribution to the epileptic seizures that he suffered in this period. Dr McColl noted that the Deceased saw his GP in the first half of 2011 and he ‘died complaining of seizures and stress and poor sleep, and that was clearly in the GP's notes attributed to shift work.’[92] It is documented in the GP’s notes that the Deceased had mental health problems related to his work therefore he ‘almost certainly … had significant sleep deprivation in that week before he died that was directly due to his work.’[93]
[92] Transcript of proceedings, 7 June 2021, 27
[93] Ibid.
Dr McColl stated that in his view:[94]
on the balance of probability … if [the Deceased] hadn't done the shift work he would not have had the convulsive seizures or the status epilepticus or the general worsening of the epileptic control in the first half of the year he died, and probably would not have died.’
[94] Ibid, 30.
Dr McColl told the Tribunal that ‘on balance … it probably needed both factors, both being off medication and doing shift work to get the outcome that did happen.’[95] Also, ‘30% of patients who do take medication get no real useful benefit from that medication.’[96] So ‘there's at least a 30 per cent chance that [medication] would have made not much difference.’[97]
[95] Ibid.
[96] Ibid.
[97] Ibid.
Dr McColl was asked ‘what is the generally accepted latency period between the existence of sleep deprivation and the subsequent seizure in order for it to be considered that sleep deprivation was a trigger? He stated that ‘the risk of that causing seizures in a moderate - in the next 12 to 24 hours and then drops off and it becomes much less significant after that. There's no sudden time at which it becomes irrelevant.’[98] But more than two days later it would ‘unlikely be directly a trigger for seizures if nothing else has happened in the intervening time.’[99]
[98] Ibid, 30-31.
[99] Ibid, 31.
Dr McColl was asked. ‘if the last reported grand mal seizure prior to 29 August 2011 was 2 May 2010 what, if anything, does that have on your opinions on causation of death? He stated that the interval from May 2010 to August 2011 is quite a long time, and only ‘an unusually severe seizure would lead to that lasting change in epileptic risk’.[100] In the Deceased’s case there is evidence that it was not an unusually severe seizure. However, after the seizure he underwent a personality change which indicates that it ‘was such a significant cerebral insult that it alone could have been a risk factor for ongoing seizures.’[101]
[100] Ibid, 32.
[101] Ibid, 32.
Dr McColl was asked about the phenomenon of ‘kindling’ and how it applies to the Deceased’s history of seizures leading up to 29 August 2011. Dr McColl explained:
kindling is basically an animal model process and when we discuss it in humans it's always by analogy because obviously you can't do the same experiments in humans. But in the animal model there are two main types of kindling. There's electrical kindling and they put electrodes into the animal's brain and they run a current sufficient to cause a seizure and then they might bring the animal back the next day and do the same thing but with less current. And it's been shown that the amount of current needed to produce a seizure gets less and less and less until the patient starts having spontaneous seizures and doesn't need any current at all.[102]
They've done the same thing with pharmacologically induced seizures where they give the drug that promotes seizures and the doses needed are gradually reduced until we don't need to give any drugs and the animal now has epilepsy. So the idea is that seizures themselves create sort of memory circuits that remember how to have seizures that have their own spontaneous tendency to produce seizures and by analogy it's thought that that is likely to happen in humans but it has been debated because the evidence is by nature difficult to obtain. We sometimes accidentally see the effects of this in patients where they go through a period of not taking medication or accidentally missing out on their medication and they have a seizure and then 40 it stirs up their epilepsy. Most epileptologists I've spoken to would repeat the sort of general antics that seizures beget seizures and that recurrence of even one seizure but especially several seizures is likely to change the underlying seizure threshold in the way that that patient is now more likely to have seizures analogous to what has been shown with animals. The basic neurobiology is not that different.[103]
[102] Ibid, 34.
[103] Ibid.
In relation to this concept and the Deceased’s circumstances, Dr McColl stated:
he had well documented association between seizures and epilepsy, both the severe ones that put him in hospital but also the milder ones that he came and saw the GP for, so we know in his case that he was having seizures that were related to sleep deprivation, and in the end he had one that perhaps was not as closely related to sleep deprivation but I'm saying it's just like the animal models where we no longer need the electrode or we no longer need the pharmacological agent. Things have become more spontaneous because it happened so often.[104]
[104] Ibid, 35.
In relation to the factors that contributed to the Deceased’s death, Dr McColl stated:
there are probably three main factors. One is the fact that he had temporal lobe epilepsy to begin with which seems to pre-date his time at the ANU and pre-date his shift work. So that's a major factor. Another major factor is the fact that he chose not to go on medication and therefore he didn't have the chance to have these fairly (indistinct) seizures sort of ameliorated by medication. And then the third factor is the shift work which produced the most severe instances of his epilepsy that we do have documented and were noted to be a regular provoking factor where he saw the GP in May and the lead up to his death of that same year.[105]
…
So then it really is if we had managed to stop the shift work would that alone have been enough to prevent the death? I think it's quite possible but I can't really say. I think it's a major but less important factor than the fact that he wasn't on medication.[106]
[105] Ibid, 35-36.
[106] Ibid, 36.
Dr McColl was asked what contribution he believes the shift work made to the Deceased’s death. He stated:
I guess if I had to put a percentage on it now I would go well above 10 per cent. I mean I would still say it's a minority contributor to the risk but I don't think - having acquired more information and looked at the notes since and seen how he consulted the GP in the same year and everything, I think it is pretty clear that sleep deprivation was an ongoing major factor. And although it wasn't as important as not taking medication, I would say that - I would no longer say that it narrowly exceeds 10 per cent. I'd say it easily exceeds 10 per cent.[107]
[107] Ibid, 38.
Dr McColl said that he had revised upwards the contribution made by the shift work after having reviewed the notes going back to 2007 and considering recent literature on kindling.[108]
[108] Ibid, 35.
Dr McColl was asked about the relative contribution of the shift work and not taking medication to the Deceased’s death. He stated:
My suspicion is that both were necessary, so I suspect that either of those factors - those risk factors in isolation probably wouldn't have been enough to produce (indistinct). … I suspect that if he'd never done shift work he would have continued along much the same as he did in his first 10 years of having epilepsy which was just a bit of déjà vu once a month. It was when he was doing shift work that it all became more severe, he started having convulsive seizures, ended up in ICU and then eventually died. So I think that was a major contributing factor, but I also think that had he accepted the advice to take medication, the shift work by itself would probably not have been enough to be fatal, because I've got many, many patients who do - who are exposed to that risk factor through misadventure or shift work or whatever who don't go on to have a fatal seizure. So, you know, I think both were necessary and probably neither by itself was sufficient.[109]
…
The main difference between his first 10 years of his illness and then the next 10 years was the fact that he was doing the shift work and that seems to have made a big difference to his outcome and his attendance at hospital and everything all started after he had that as a provoking factor.[110]
[109] Ibid, 39.
[110] Ibid, 39-40.
Associate Professor Brian Chambers, Neurologist
In a medical report dated 10 August 2020, Associate Professor Chambers stated:
[The Deceased] was employed by the Australian National University as a security guard from 2004 until the time of his death. This employment involved eight-hour rotating shifts including midnight to 8.00 am.
[The Deceased] suffered from temporal lobe epilepsy. He had multiple deja vu episodes dating back at least as far as 1997. Generalised tonic clonic seizures (referred to as grand mal) occurred on 6 July 2007, 2 May 2010 and 12 May 2011 resulting in ambulance transport to hospital. These were preceded by deja vu and lip-smacking. He may have had further generalised tonic clonic seizures, although these are undocumented. Following the initial hospitalisation in July 2007, a CT brain scan was performed on 6 July 2007 and reported as normal.
. . .
On 17 May 2011 [the Deceased’s] GP prescribed Tegretol but there is no documentation of [the Deceased] taking this medication.[111]
[111] Medical Report of Associate Professor Brian Chambers, 12 August 2020, 3.
He further stated:
[The Deceased] did not work midnight to 8.00 am shifts at least as far back as 9 March 2011, choosing to take accumulated sick leave instead. The last shift [he] actually worked was 21 August 2011, eight days prior to his death.
[The Deceased] died on 29 August 2011 whilst at home hanging washing on the line. It was presumed he had a prolonged seizure although I believe there is no eyewitness account.
The forensic investigation ordered by the Coroner indicated that the body was lying supine after death. There was no evidence of injury, in particular no tongue lacerations. The general autopsy was normal. Neuropathological examination of the brain revealed “features consistent with agonal hypoxia/seizures/global ischaemia”. There was no evidence of underlying hippocampal sclerosis or other brain pathology that would cause epilepsy. A toxicology report indicated the presence of cannabinoids. There was no comment as to whether anti-epileptic medication was detected. The forensic diagnosis was sudden unexpected death in epilepsy (SUDEP).[112]
[112] Ibid.

In response to specific questions, Professor Chambers stated:
[The Deceased] was the victim of sudden unexpected death in epilepsy (SUDEP). This is purely descriptive term. Many, although not all, such deaths occur in the context of epileptic seizure and potential mechanisms include suffocation (e.g. head buried in pillow), choking (e.g. swallowing tongue), or cardiac arrhythmia (so-called ictal arrhythmia). However, sudden death may occur in persons with epilepsy without them having a seizure. These persons are presumed to have an arrhythmia. SUDEP is more likely to occur in persons with epilepsy who have frequent seizures, and in persons with epilepsy not on medication, as is the case with [the Deceased].
In [his] case he had a chronic illness, i.e. temporal lobe epilepsy, which he had suffered at least as far back as 1997, probably longer. The mode of death was a sudden physiological change or disturbance of the normal physiological state, most likely cardiac arrhythmia.
. . .
There is no evidence that employment caused [the Deceased] to have temporal lobe epilepsy. He had symptoms long before he commenced working at Australian National University.
. . .
Most likely sleep deprivation secondary to working night shift was a trigger for generalised tonic clonic seizures. This was also the opinion of Dr McColl, the neurologist [the Deceased] saw in 2007, and Dr Ragg, [his] GP. Sleep deprivation is a recognised trigger of seizures in persons with epilepsy. Rotating shift work is not recommended for persons suffering from epilepsy.[113]
[113] Ibid, 5.
Professor Chambers concluded:
[The Deceased] was complicit with respect to his demise owing to poor compliance. He failed to follow through with investigations recommended in 2007 by the neurologist Dr McColl. He failed to go on treatment with Tegretol as prescribed by Dr McColl in 2007, and by his GP in 2011. He chose not to submit a letter prepared by his GP in 2010 recommending no night shift, presumably for fear of losing his job.[114]
[114] Ibid.
In a supplementary medical report dated 9 December 2020 Professor Chambers stated:
In persons suffering from epilepsy, sleep deprivation is a recognised trigger for seizures. This means that someone who is sleep deprived, for example, through having to work night shift, is more likely to experience an epileptic seizure the following day. Hence the association is temporal not cumulative.
. . .
Most seizures attributable to sleep deprivation occur within 12 – 24 hours of that person experiencing sleep deprivation. If sleep deprivation continues on successive nights, the period of time in which the patient is susceptible to seizures is extended according to the period of time they are sleep deprived.
Whether a person having epileptic seizures is more likely to have more seizures because a seizure already occurred is debatable. There is a phenomenon referred to as “kindling”, analogous to lighting a fire, whereby repeated seizures can result in progressively increasing frequency of seizures. However, this is a rare phenomenon and only occurring in persons having multiple seizures every day. The pattern of seizures in [the Deceased’s] case was sporadic and infrequent. I do not believe kindling was a feature of his illness.[115]
[115] Supplementary Medical Report of Associate Professor Brian Chambers, 14 December 2020, 2.
In relation to an earlier seizure, Professor Chambers stated:
I believe there was no connection between the seizure he experienced on 12 May 2011 and sleep deprivation due to working night shift, since his last night shift was on 9 March 2011, more than two months prior to the seizure.[116]
[116] Ibid.
Professor Chambers concluded:
I do not believe there was any connection between [the Deceased’s] unfortunate death and employment, and in particular, working night shifts. The main reason why [he] continued to experience occasional seizures was the fact he refused to take antiepileptic medication as prescribed by the treating neurologist and his general practitioner. Epilepsy not treated with anti-epileptic medications is a well-documented risk factor for SUDEP.[117]
[117] Ibid.
In his oral evidence at the hearing, Professor Chambers was asked ‘whether sleep deprivation of some amount a known risk factor in triggering epileptic seizures? He agreed that it is a risk factor and added:
that obviously the amount of sleep deprivation that would trigger seizures depends on the patient, the individual. Some people tolerate sleep deprivation better than others and some people require more sleep and better sleep than others. The other variable is the type of epilepsy and there are certain types of epilepsy that are extremely sensitive to sleep deprivation … but also about a quarter of patients with temporal lobe epilepsy will report seizures that are triggered by sleep deprivation.[118]
[118] Ibid, 23.
Professor Chambers was asked whether ‘the history of epileptic seizures a known risk factor in triggering future epileptic seizures.’ He said that he does not disagree that ‘sometimes patients come in with status epilepticus disorder, particularly a bad seizure may go on to have more severe epilepsy after that.’[119] But in the Deceased’s case there is not good evidence of this because the only documented generalised tonic-clonic seizures occurred in 2007 and then May 2010, and it is difficult for him to accept that the May 2010 seizure ‘stirred up his epilepsy beyond that time’.[120] He added that there may be other factors, including increasing age, other health issues, medications, psychological factors, that contribute.[121]
[119] Ibid, 24.
[120] Ibid.
[121] Ibid, 24.
Professor Chambers agreed that ‘shift work from 12 o'clock midnight to 8 am in the morning is the kind of sleep deprivation that falls within known risk factors.’[122] He agreed that shift work from 4pm to midnight also is the kind of sleep deprivation that falls within the known risk factors, but emphasised that it would not be ‘anywhere near as significant as the stress of sleep deprivation associated with night shifts.’[123] This shift would affect some people more than others. For someone who has been doing shift work for over 10 years they would have adapted to it.[124]
[122] Ibid, 25.
[123] Ibid, 26.
[124] Ibid, 26.
Professor Chambers agreed with Dr McColl that the generalised tonic-clonic seizures documented in 2007 and 2010 were linked to the Deceased’s sleep deprivation and shift work. Beyond this there is not good evidence of a link between the two. He has seen the Deceased’s work schedule, but not the dates on which he had seizures so it is difficult for him to draw any conclusions about this.[125] The Deceased had not worked night shift for many months and had not worked at all for eight days prior to his death.[126] In his view, ‘the far greater contribution to [the Deceased’s] ongoing epileptic seizures was the fact that he refused to take anti-epileptic medication.’[127]
[125] Ibid, 27.
[126] Ibid.
[127] Ibid, 30.
Professor Chambers disagreed with Dr McColl about the effectiveness of medication stating that the ‘success rate of medication is probably greater than 90 per cent’ in patients with non-lesional temporal lobe epilepsy.[128]
[128] Ibid.
In relation to the question ‘what is the generally accepted latency period between the existence of sleep deprivation and the subsequent seizure in order for it to be considered that sleep deprivation was a trigger’? Professor Chambers agreed with Dr McColl that the period is 12 to 24 hours.[129]
[129] Ibid, 32.
Professor Chambers queried what evidence there is for the Deceased undergoing a personality change from May 2010 and stated that this ‘may be drawing conclusions … that aren't really substantiated by the data.’[130]
[130] Ibid.
In relation to the Deceased’s cause of death, Professor Chambers stated:
we don't really know what happened to [the Deceased] on 29 August 2011 … there's actually no evidence that he had a seizure. He certainly died, there's evidence for that but there was no witness of a seizure and the pathology, the autopsy report showed no signs of him having a generalised tonic-clonic seizure. There was no tongue biting, there was none of the usual skin changes that you see with a generalised tonic-clonic seizure and I think it is far more likely that he suffered a sudden cardia arrythmia which is one of the accepted mechanism of (indistinct), and we know that those (indistinct) is more likely to occur in people that have frequent seizures which [the Deceased] appeared not to. The other important risk factor for (indistinct) is not taking anti-epileptic medication, which is certainly applicable in [the Deceased’s] case.[131]
[131] Ibid, 33.
Professor Chambers told the Tribunal that the phenomenon of kindling ‘is a controversial topic and there seems to be no really scientific evidence, [and] it's just purely anecdotal the phenomenon exists in humans.’[132] In the case of the Deceased being someone who had ‘infrequent sporadic generalised tonic-clonic seizures’ he found it difficult to accept that kindling was relevant to his epilepsy over the last 12 months of his life.[133]
[132] Ibid, 35.
[133] Ibid.
In relation to the factors that contributed to the Deceased’s death, Professor Chambers stated:
I think the number one factor is that he refused to go on medication. I don't think working late shifts 4 pm to midnight till eight days before he died had anything to do with it and I absolutely don't think working night shift from midnight to 8 am had anything to do with his demise, irrespective of the mechanism of death.[134]
[134] Ibid, 36.
In relation to the contribution of sleep deprivation, Professor Chambers stated:
the contribution from sleep deprivation would be 10 per cent or less, particularly as [the Deceased] had not worked any late shifts for eight days prior to his death and no night shifts for five months prior to his death. By far the overriding reason for his death was his failure to take medication.[135]
SUBMISSIONS
[135] Ibid, 42.
Applicant
Following May v Military Rehabilitation and Compensation Commission,[136] (‘May’) an ‘injury’ and a ‘disease’ are not mutually exclusive concepts. The condition that led to the Deceased’s death is in the middle ground and may be both an injury or a disease.
[136] (2015) 233 FCR 397.
The causal test for an injury is whether it ‘arises out of’ employment. This requires no more than a ‘material’ contribution by the work events that need not be of any particular quantitative size: Treloar v Australian Telecommunications Commission.[137] The medical experts agree that the condition that led to the Deceased’s death satisfies this test.
[137] (1990) 26 FCR 316.
If the condition is regarded as a ‘disease’ then the question is whether employment was a significant contribution. Of the two factors that contributed being not taking medication and the sleep deprivation, Dr McColl’s evidence is that the latter was a necessary contribution to the Deceased’s death and if it is necessary it must be a substantial contribution.
Respondent
The Deceased’s pre-existing condition is properly classified as an ‘ailment’ for the purposes of the SRC Act.[138] Accordingly, the Applicant must establish on the balance of probabilities a significant contribution to the Deceased’s death by his employment through an ‘aggravation’ of his pre-existing temporal lobe epilepsy.[139] The question would then become whether the Deceased’s pre-existing condition was ‘aggravated’, to a significant degree, by his employment, for the purposes of section 5B of the Act.[140] For the Deceased to have suffered an ‘aggravation’ of his pre-existing condition, there must also be evidence of an accompanying ‘physiological change or disturbance’.[141] In this regard, the Respondent contends the principles enunciated by the High Court in May extend to claims involving an ‘aggravation’ of an ‘ailment’.[142]
[138] Respondent's Statement of Issues, Facts and Contentions dated 4 February 2021, [4.7].
[139] Ibid,[4.8].
[140] Ibid, [4.9].
[141] Ibid, [4.10].
[142] Ibid.
In the alternative, if the Tribunal accepts that the Deceased did suffer an ‘aggravation’ of his pre-existing condition, the Respondent contends that any such ‘aggravation’ was not significantly contributed to by his employment.[143] There is very little, if any, evidence upon which the Tribunal could be positively satisfied that the Deceased was sleep deprived on 29 August 2011, or even if he was that it had any relationship to his employment at ANU.
[143] Ibid, [4.13].
CONSIDERATION AND REASONS
The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.  
1)What condition resulted in the Deceased’s death?
It is agreed that the Deceased suffered from a chronic illness, namely temporal lobe epilepsy, and that this condition pre-dated his employment with the Respondent. The Coroner’s report records that the Deceased was the victim of sudden unexpected death in epilepsy (SUDEP). As Professor Chambers explained, many SUDEPs occur in the context of an epileptic seizure. In the Deceased’s case, there is no concrete evidence that he had a seizure prior to his death. There was no witness of a seizure and the autopsy report showed no signs of him having a generalised tonic-clonic seizure.Professor Chamber’s evidence is that SUDEP may also occur in persons with epilepsy without them having a seizure. These persons are presumed to have an arrhythmia. In his opinion the mode of the Deceased’s death was ‘a sudden physiological change or disturbance of the normal physiological state, most likely cardiac arrhythmia.’[144] Dr McColl’s evidence is that there is no proof either way as to whether the Deceased had a seizure when he died, but as he was a person who had ‘quite frequent seizures and was found dead, on the balance of probability those two are very likely to be related.’[145]
[144] Medical Report of Associate Professor Brian Chambers dated 10 August 2020, 4.
[145] Transcript of proceedings, 7 June 2021, 33.
Whereas there is no clear proof that the Deceased suffered an epileptic seizure that resulted in SUDEP, the Tribunal finds that the expert medical evidence supports a finding that his death was precipitated by an epileptic seizure. In Baranski v Comcare,[146] the Full Federal Court outlined the circumstances in which an inference may be made about the happening of an event where direct proof of its occurrence is unavailable:
[W]here direct proof of an event is not available, it is enough that the circumstances appearing in the evidence give rise to a reasonable and definite inference. The evidence must do more than give rise to conflicting inferences of equal degrees of probability so the choice between them is a mere matter of conjecture. If circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.
2) Is this condition properly classified as an ‘injury (other than a disease)’ or a ‘disease’ for the purposes of the Act?
[146] [2013) FCAFC 31 at [20].
The next issue for the Tribunal’s consideration is whether the Deceased’s death for which the Applicant seeks compensation can be considered an ‘injury (other than a disease)’ or a ‘disease’ for the purposes of the SRC Act.
Distinction between an ‘injury simpliciter’ and a ‘disease’
The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is important because, for an injury that is not a disease (often referred to as an ‘injury simpliciter’ – see May, French CJ, Kiefel, Nettle and Gordon JJ),[147] the injury must arise out of, or in the course of, the employment (s 5A(1)(b) of the SRC Act). That is, ‘… the physical or mental injury has to have a causal or temporal connection with the employee’s employment’.[148]
[147] (2016) 257 CLR 468 at [42].
[148] Ibid per French CJ, Kiefel, Nettle and Gordon JJ at [44].
An ‘injury simpliciter’ is contrasted with a ‘disease’, which must be contributed to, to a significant degree, by the employee’s employment (s 5B(1) of the SRC Act). The latter requires a stronger causal connection between the employment and the ailment: Australian Postal Corporation v Burch[149] (‘Burch’); Prain v Comcare.[150]
[149] (1998) 156 ALR 483 at 486.
[150] 2016] AATA 459 at [7]-[8].
Whether a claimed condition is an injury simplicter or a disease must be determined on a case-by-case basis. As Gleeson CJ and Kirby J observed in Kennedy Cleaning Services Pty Ltd v Petkoska (‘Kennedy Cleaning’),[151] ‘Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case’.[152] Therefore, the question of whether an applicant has a disease or injury must be determined with reference to ‘… precise evidence … concerning the nature and incidents of the physiological change…’[153]
[151] (2000) 200 CLR 286 at [22].
[152] Ibid per Gleeson CJ and Kirby J at [22].
[153] Kennedy Cleaning per Gleeson CJ and Kirby J at [39].
What is an ‘injury simplicter’?
In May French CJ, Kiefel, Nettle and Gordon JJ observed that whether there is an ‘injury’ in the primary sense ‘will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’.[154] Similarly, in Kennedy Cleaning, Gleeson CJ and Kirby J stated that ‘… a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state … may qualify for characterisation as an ‘injury’….[155] In Burch, the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was ‘… a disturbance of the normal physiological state … or an ascertainable lesion or dramatic physiological change’.[156]
[154] May at [52].
[155] Kennedy Cleaning at [39].
[156] Burch at 488.
French CJ, Kiefel, Nettle and Gordon JJ in May emphasised that ‘suddenness’ will not always be necessary for there to be an ‘injury (other than a disease)’. Their Honours stated that suddenness may nevertheless be ‘useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease’.[157] Their Honours cited the following passage from the Full Federal Court’s decision in May v Military Rehabilitation and Compensation Commission[158] with approval:
The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.”[159]
[157] May at [47].
[158] (2015) 233 FCR 397.
[159] May at [34] citing (2015) 233 FCR 397 at 444 [205]-[207].
An injury can include a ‘sudden physiological change resulting from a disease’.[160] In Kennedy Cleaning, Gleeson CJ and Kirby J stated, ‘the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case.’[161]
[160] Kennedy Cleaning per Gaudron J at [50].
[161] Kennedy Cleaning at [36].
The occurrence of an epileptic seizure can be described ‘as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind’. The fact that, in the Deceased’ circumstances, this change was connected with an underlying ‘disease’ process, namely temporal lobe epilepsy, does not of itself, prevent the classification of such a change as an ‘injury’ in its primary sense.[162]
[162] Kennedy Cleaning at [36].

On the basis of the relevant authorities and the evidence before it, the Tribunal is satisfied that the Deceased suffered an ‘injury (other than a disease)’ which resulted in his death on 29 August 2011.
3) Was the injury ‘arising out of’ the Deceased’s employment?
In order for this injury to satisfy the statutory definition of an ‘injury’ under s 5A(1)(b) of the SRC Act, it must ‘arise out of, or in the course of, the employment’). That is, ‘… the physical or mental injury has to have a causal or temporal connection with the employee’s employment’.[163]
[163] May per French CJ, Kiefel, Nettle and Gordon JJ at [44].
On the basis of relevant authorities, and for the reasons that follow, the Tribunal is satisfied that there was a causal relationship between the shift work the Deceased was required to undertake as a condition of his employment with the Respondent, and the injury that resulted in his death on 29 August 2011.
In Telstra Corporation Ltd v Bowden[164] Murphy J stated the test for whether an injury ‘arises out of employment’:
[164] [2012] FCA 576 at [32] to [39].
.....The test as to whether an injury arises out of employment
[32] The words “arising out of employment” in subs 5A(1)(c) have their origin as part of the phrase “injury by accident arising out of and in the course of employment” in early workers’ compensation legislation in England and Australia. This phrase imposed two conditions before an injury could be compensable under the legislation. Because of the double condition the old authorities require both a temporal connection to employment through the words “in the course of” employment, and a causal connection through the words “arising out of” employment: see for example Dover Navigation Co Ltd v Isabella Craig [1940] AC 190 (“Dover Navigation”) at 199 per Lord Wright.
[33] The conjunctive “and” was removed and replaced by the disjunctive “or” in an amendment in 1948 to the Commonwealth Employees Compensation Act 1930 (Cth) (see the Commonwealth Employees’ Compensation Act 1948 — No 61 of 1948) which is the predecessor to the Act in this case. Since this amendment, for an injury to be compensable it has only been necessary for an employee to establish either that the injury arose out of employment or that it arose in the course of employment.
[34] Although only the “arising out of” employment limb of the double condition test is directly relevant in this case, the old authorities on the double condition test remain useful for the light they throw on the tests needed to meet the “arising out of” limb considered on its own. They are also useful in the guidance they provide as to the meaning of “employment” in the phrase “arising out of employment”.
[35] That the phrase “arising out of employment” requires a causal connection between the injury and employment is common ground.
[36] It is important to remember that the test of causation is one of common sense: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. In Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29 at 44 Mason JA (in dissent) noted:
... causation in tort does not differ from causation under the workers compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.
The judgment of Mason JA was endorsed by the High Court on appeal: Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236.
[37] In a passage approved by the High Court in Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635 (“Law”) per Aickin J at 647–648, with whom Gibbs, Stephen and Mason JJ agreed, the Full Court in Repatriation Commission v Law [1980] FCA 92; (1980) 47 FLR 57 said at 68:
“It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be “immediate”, “direct” or “proximate” or by saying it connotes a “real”, “sole” or “dominant” cause.
...
The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.
What is required for an injury to arise out of employment is a causal connection which is less proximate than “caused by” or “results from”, but not a connection which is fanciful or tenuous.
[38] It is also important to remember that it is well settled that the purpose of the Act is remedial and is intended to give rights to employees. The appellate courts have repeatedly taken an approach to the provisions of the legislation which is generous to employees.
[39] Consistently with this, the authorities are clear that employment is not to be narrowly construed. “Employment” when used in the statutory definition of injury covers things belonging to or arising out of it: St Helens Colliery v Hewitson [1924] AC 59 at 71 per Lord Atkinson. In an often repeated statement, in Thom v Sinclair 1917 AC 127 (“Thom”) at 142 Lord Shaw noted that:
“The expression in my opinion, applies to the employment as such — to its nature, its conditions, its obligations and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute “arising out of employment” apply.”
The Deceased’s work duties required him to perform eight-hour shifts on a three-week rotating roster. Most of these shifts required him to work nights from either 4pm to midnight or from midnight to 8am. The evidence of the medical experts is that both shifts would have negatively impacted on his sleep patterns, and the latter shift would have had a particularly detrimental effect on his ability get sufficient sleep for the seven days’ duration of the shift. The medical experts agree that sleep deprivation is a contributing factor to the onset of epileptic seizures however the contribution is temporal rather than cumulative. The evidence is unclear as to whether the Deceased suffered partial seizures preceding his death, as only the two grand mal seizures which led to his hospitalisation are documented. However, the medical evidence is that the Deceased was advised by his general practitioner, Dr Ragg, not to undertake night shifts as in his opinion they were contributing to the onset of epileptic seizures. On 18 May 2010, following a grand mal seizure which led to the Deceased’s hospitalisation, Dr Ragg, wrote an open letter stating:[165]
This is to confirm that Andrew is not to work the 12.00am until 8.00am shift as this increases the risk of Grand Mal seizures. This advice is for the long term.
[165] T7E, 72, Letter from Dr P.J. Ragg dated 18 May 2010.
On the basis of the evidence before it, the Tribunal is satisfied that the seven afternoon/night shifts and the seven night shifts the Deceased was required to undertake during a three-week rotation roster were a requirement of his employment as a Night Watchman. The evidence is that the Deceased did not work the night shift from midnight to 8am for a period of five months prior to his death, however he continued to work the afternoon/night shift until eight days before he died. The Tribunal is satisfied based on the medical evidence that both these shifts negatively impacted the onset of the Deceased’s epileptic seizures, and therefore that there was a causal relationship between the injury and his employment. Accordingly, it is satisfied that the injury the Deceased suffered that resulted in his death on 29 August 2011 arose out of his employment.
It remains to consider the extent to which the work events must contribute to the injury for it to satisfy the test for an ‘injury (other than a disease)’ under the SRC Act.
The ‘arising out of’ test for an ‘injury (other than a disease)’’ requires no more than a ‘material’ contribution by the work events that need not be of any particular degree or quantitative amount. The Full Federal Court in Treloar v Australian Telecommunications Commission[166] stated:
21. … [O]nce it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a "contribution". Consistently with what was said by Windeyer J, [Federal Broom Co Pty Ltd v Semlitch] "contribution" does not require that the contributing factor be a causa sine qua non; the "but for" test is not appropriate nor is the causa causans or "real effective cause" or "proximate cause" formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not "contribute".
22. The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
[166] (1990) 26 FCR 316.
The evidence of the medical experts, Dr McColl and Professor Chambers, is that there were three contributing factors to the Deceased’s death. First, his temporal lobe epilepsy. Secondly, his failure to take prescribed epilepsy medication, and thirdly, the sleep deprivation that resulted from shift work. Professor Chamber’s view is that the Deceased’s non-compliance with medication was the overriding factor that led to his death, however he accepted that the ‘contribution from sleep deprivation would be 10 per cent or less.[167] Dr McColl’s opinion is that sleep deprivation was a necessary factor in the death of the Deceased, and he estimated that its contribution ‘easily exceeds 10 per cent.[168]
[167] Transcript of proceedings, 7 June 2021, 42.
[168] Ibid, 38.
In Comcare v Power,[169] Katzmann J discussed the meaning of ‘to a significant degree’ in s 5B(2) of the SRC Act, which is defined in s 5B(3) of the SRC Act as ‘a degree that is substantially more than material’. Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’[170] and further that, ‘… a material contribution is one which is greater than minimal or, one might say, trivial’.[171]
[169] (2015) 238 FCR 187.
[170] at [78].
[171] at [82].
The Tribunal is satisfied that the contribution of shift work to the Deceased’s death was ‘material’ in the sense that it was ‘greater than minimal or … trivial.’ The medical experts agree that the shift work was a contributing factor of at least 10% to the injury that resulted in the Deceased’s death. As this is not a trivial contribution, the Tribunal is satisfied that it meets the required threshold for materiality in this context.
On the basis of the evidence before it, the Tribunal is satisfied that the Deceased suffered an injury ‘arising out of’ his employment. Accordingly, the injury is an ‘injury (other than a disease)’ and it follows that he suffered an ‘injury’ as defined by s 5A(1)(b) of the SRC Act.
CONCLUSION
The Tribunal finds, for the reasons outlined above, that the Deceased suffered an ‘injury’ within the meaning of s 14 and s 17 of the SRC Act. The Respondent is therefore liable to pay compensation to the Applicant for the ‘injury’.
DECISION
The Reviewable Decision is set aside and in substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 and s 17 of the SRC Act.
The Tribunal awards the Applicant costs in accordance with s 67(8) of the SRC Act.

I certify that the preceding 143 paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

.................................[sgd]....................................
Associate
Dated: 8 December 2021

Date of hearing:

7 June 2021

Date final submissions received:

7 June 2021

Solicitor for Applicant:

Paul Crabb, Capital Lawyers

Counsel for Applicant:

Allan Anforth, Camberra Chambers

Solicitor for Respondent:

Stuart Marris, Sparke Helmore

Counsel for Respondent:

Ben Dube, Sparke Helmore

Date of hearing:	7 June 2021
Date final submissions received:	7 June 2021
Solicitor for Applicant:	Paul Crabb, Capital Lawyers
Counsel for Applicant:	Allan Anforth, Camberra Chambers
Solicitor for Respondent:	Stuart Marris, Sparke Helmore
Counsel for Respondent:	Ben Dube, Sparke Helmore