NSW Trustee and Guardian v Container Terminals Australia Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	NSW Trustee and Guardian v Container Terminals Australia Ltd [2025] NSWPIC 33
APPLICANT:	NSW Trustee and Guardian
RESPONDENT:	Container Terminals Australia Limited
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	4 February 2025
CATCHWORDS:	WORKERS COMPENSATION - Claim by executor of worker’s estate for lump sum death benefit, funeral expenses and interest; worker had accepted skin cancer injury; multiple causes of death recorded on death certificate; respondent disputed that the worker’s death resulted from accepted injury; respondent disputed claim for interest; consideration of Kooragang Cement Pty Ltd v Bates, Strong v Woolworths Ltd, Bonnington Castings Ltd v Wardlaw, Amaca Pty Ltd v Ellis, Taxis Combined Services (Victoria) Pty Ltd v Schokman, Murphy v Allity Management Services Pty Ltd, Sutherland Shire Council v Baltica General Insurance Co Ltd, Nguyen v Cosmopolitan Homes (NSW) Pty Limited, Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd, Kaur v Thales Underwater Systems Pty Ltd, Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited; Held – award for applicant in respect of lump sum death benefit and funeral expenses; award of interest from date claim was duly made at a rate 2% above the Reserve Bank cash rate.
DETERMINATIONS MADE:	The Commission determines: 1. The respondent is to pay to the applicant, pursuant to s 32 of the Workers Compensation Act 1987, the lump sum death benefit of $838,750. 2. The respondent is to pay to the applicant, pursuant to s 26 of the Workers Compensation Act 1987, the reasonable funeral expenses of the worker, Edward Brennan. 3. The respondent is to pay, pursuant to s 109 of the Workplace Injury Management and Workers Compensation Act 1998, interest on the lump sum death benefit at the rate of 6.35% from 14 January 2025 to 4 February 2025, in the amount of $3,210.24.

STATEMENT OF REASONS

BACKGROUND

The applicant, NSW Trustee and Guardian, brings this claim as the executor of the estate of Mr Edward Brennan, (Mr Brennan, the worker), who was employed by the respondent, Container Terminals Australia Limited, as a foreman stevedore.
Mr Brennan sustained injury by way of skin cancers arising out of or in the course of his employment with the respondent. The respondent accepted liability for the injury and
Mr Brennan was paid lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act).
Mr Brennan died on 11 May 2021. There were no persons dependent on Mr Brennan for support. The claim for the lump sum death benefit and funeral expenses has accordingly been brought by the worker’s estate.
By letter dated 13 October 2023, the solicitors for the applicant advised the respondent’s insurer, GIO Pty Ltd [sic: AAI Limited trading as GIO (GIO)] that the applicant was making a claim for the death benefit, and enclosed various documents.
By letter dated 24 January 2024, the solicitors for the respondent requested particulars of the claim, and a signed authority for the release of the worker’s clinical records.
The applicant’s solicitors provided particulars of the claim and a signed authority on
25 January 2024.
By letter dated 6 March 2024, the applicant’s solicitors served on the respondent’s solicitors further clinical records.
On 23 October 2024, GIO issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
GIO disputed that the worker’s death resulted from an injury that was received in the course of employment; that employment was the main contributing factor to the contraction, or aggravation, acceleration, exacerbation or deterioration of the injury; and that the applicant was entitled to either the lump sum death benefit or payment of funeral expenses.
An Application in Respect of Death of Worker (the Application) was lodged by Mr Ted Brennan, the worker’s son, on 3 October 2024. I have referred to Ted and his brothers by their given names, to avoid confusion, meaning no disrespect to them.
The Application claimed that the worker sustained a disease injury, deemed to have happened on 13 November 2011.
The Application claimed that, due to the nature and conditions of his employment, the worker was exposed to sunlight without protection for continuous periods. As a result, the worker suffered from skin cancer and died on 11 May 2021.
The applicant claimed the lump sum death benefit of $838,750, pursuant to s 25 of the 1987 Act; and funeral expenses pursuant to s 26 of the Act.
The Application claimed that Ted was a dependant of the worker.
The respondent lodged its Reply on 24 October 2024.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the worker’s death resulted from injury deemed to have happened on
13 November 2011. The respondent clarified that the issue is really whether the death of the worker resulted from his accepted skin cancer injury with the deemed date of injury of 13 November 2011, and
(b) whether the applicant is entitled to interest on the lump sum death benefit, and, if so, the period during which, and the rate at which, interest is to be paid.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference on 1 November 2024. Mr Dababneh appeared for the applicant. Ms Jenkins appeared for the respondent. Ted attended.
The Application was amended by consent to name NSW Trustee and Guardian as the applicant.
Mr Dababneh advised that the applicant would need to lodge further liability evidence. There was at that stage no report from the doctor who issued the worker’s death certificate. The applicant had statutory declarations regarding dependency from three of the worker’s four adult children, which had been served, and was awaiting the fourth.
The respondent sought and was granted leave to issue Directions for Production.
The matter was listed for conciliation/arbitration hearing on 21 January 2025 by the Teams platform. Mr Tanner of counsel, instructed by Mr Dababneh, appeared for the applicant.
Mr Stiles of counsel, instructed by Ms Jenkins, appeared for the respondent. Ted attended. Ms Morgan of GIO and Ms Dean of icare also attended.
The applicant had advised the respondent of a claim for interest, although the correspondence was not before me. In any event, the respondent did not oppose the claim for interest being made, while it did maintain that no interest was payable.
The parties agreed that, should interest on the lump sum death benefit be awarded, the appropriate rate of interest was one that is 2% above the applicable Reserve Bank of Australia (RBA) cash rate.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents;
(c)    Application to Admit Late Documents dated 28 October 2024 and attached document, lodged by the applicant;
(d)    Application to Lodge Additional Documents dated 14 January 2025 and attached documents, lodged by the applicant, and
(e)    Application to Lodge Additional Documents dated 16 January 2025 and attached documents, lodged by the respondent.

Oral evidence

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

FINDINGS AND REASONS

Evidence of Ted Brennan

Ted’s statutory declaration is dated 31 October 2024.
The worker was widowed. Ted’s mother died on 18 March 1980.
Ted was not dependent on the worker at the time of his death and did not make a claim for dependency.

Evidence of David Brennan, worker’s son

David’s statutory declaration is dated 31 October 2024.
David’s evidence is substantially the same as that of Ted. He makes no claim to have been dependent on the worker at the time of his death.

Evidence of Stephen Brennan, worker’s son

Stephen’s statutory declaration is dated 31 October 2024.
Stephen’s evidence is substantially the same as that of Ted and David. He makes no claim to have been dependent on the worker at the time of his death.

Evidence of Wayne Brennan, worker’s son

Wayne’s statutory declaration is dated 7 November 2024.
Wayne’s evidence is substantially the same as that of Ted, David, and Stephen. He makes no claim to have been dependent on the worker at the time of his death.

Medical evidence

Worker’s death certificate

The worker’s death certificate was issued on 1 June 2021. The certifying medical practitioner was Dr Laura Lesley Hutchinson.
The cause of death and duration of last illness were listed as:
(a) cardiac arrest; respiratory failure; aspiration pneumonia – three hours, and
(b) coronary artery disease – years; skin cancers – 15 years; peripheral vascular disease – years.

Dr Michael J. McGlynn - plastic and reconstructive surgeon

Dr McGlynn was qualified by the applicant’s solicitors (who were then acting on behalf of the worker) and reported first on 18 February 2011.
Dr McGlynn recorded a history of the circumstances of the worker’s employment. The worker had worked as a waterside worker for 40 years, retiring in 1990.
The worker had had his first treatment for skin problems after retiring. He had had several lesions excised, with some requiring skin grafts. He attended for skin treatment several times a year.
Dr McGlynn recorded that the worker had hypertension and ischaemic heart disease. He had had coronary stents inserted and took medication.
The worker found the treatment for his skin condition painful. The healing process could take several weeks, limiting his mobility and activity.
Dr McGlynn opined that the worker had some incapacity or disability as a result of his skin cancer condition. The worker had a total of 17% whole person impairment (WPI) as a result of both severe bodily disfigurement and severe facial disfigurement.
Dr McGlynn next reported on 1 May 2020.
The worker had had many more skin cancers, including a malignant melanoma, treated. The melanoma was excised from the worker’s left upper back in January 2020. In April 2020, the worker had squamous cell carcinoma (SCC) removed from both lower legs. Both excision wounds required skin graft repair. The grafts had not healed, and the worker was having daily home dressings by visiting nurses.
The worker attended on average at least once a month for skin treatment. He also attended the Melanoma Unit at Royal Prince Alfred Hospital four monthly for supervision of the removed melanoma.
Once again, Dr McGlynn recorded that the worker found the treatment painful, and the healing process could take weeks to months, limiting the worker’s mobility and activity.
The worker had required treatment for high blood pressure, ischaemic heart disease, diabetes type-2, raised cholesterol, prostatic cancer, peripheral vascular disease, and abdominal aortic aneurysm.
Dr McGlynn opined that the worker had facial disfigurement and a malignant skin cancer condition, caused by prolonged exposure to the sun. His malignant melanoma condition had a significant risk of recurrence.
Dr McGlynn assessed the worker’s WPI as 22%.
Dr McGlynn again reported to the applicant’s solicitors on 6 November 2024.
Dr McGlynn noted the contents of the worker’s death certificate, including the primary cause of death. He opined that aspiration pneumonia occurs in debilitated individuals.
Dr McGlynn recorded that the worker required treatment in 2020 for an advanced malignant melanoma of his back. Histopathology reported the melanoma to be 3 mm thick, Clark level four, with margins involved. A melanoma of that thickness and depth of dermal involvement had the potential to significantly reduce life expectancy. It required close follow-up because of significant risk of recurrence and metastasis.
Dr McGlynn noted that the worker had multiple clinical issues, including skin cancer, ischaemic heart disease, and peripheral vascular disease. Dr McGlynn opined that those conditions together more likely than not caused the worker’s deterioration, leading to aspiration pneumonia, respiratory failure, and cardiac arrest.
Dr McGlynn opined that the worker’s skin cancer did not directly cause his death but contributed to the physical deterioration that caused his death.

Dr McGlynn again reported to the applicant’s solicitors on 12 December 2024. He had been provided with further documents, including the records of Canterbury Hospital and Cronulla Medical Practice.
Dr McGlynn reported that the additional records confirmed his opinion that the worker’s skin cancer condition did not directly cause his death, but contributed to the physical deterioration that caused his death.
At the time of the worker’s death, he had numerous skin cancers present, with an ulcerated cancer on his leg, causing infection.
Canterbury Hospital’s clinical notes indicated that the worker died with sepsis. There were multiple skin cancers present, and at least one was ulcerated and infected. Dr McGlynn opined that it was possible this was the cause of the worker’s terminal infection. If not, it would certainly have contributed to his general disability.

Dr Bryan K Pang – dermatologist

Dr Pang reported to the worker’s general practitioner (GP) on 15 October 2019.
Dr Pang recorded that the worker had suffered from multiple skin cancers in the past. In the last few weeks, the worker had developed a red lesion over his right elbow.
The worker had a keratotic nodule distributed over his right elbow, consistent with SCC.
Dr Pang referred to the aggressive nature of the carcinoma. He had arranged for the worker to return for excision or a skin graft repair the next day.

Concord Repatriation General Hospital

The hospital’s discharge summary, dated 7 April 2020, records that the worker had presented with bilateral lower leg fungating lesions.
The worker’s principal diagnoses were left skin lesions – SCC Bowen’s disease; and right shin skin lesion – SCC.
The worker had undergone excision and skin graft at the hands of Dr Joseph Dusseldorp on 17 March 2020.
The worker’s medical history included bilateral THR (total hip replacements); multiple skin lesions/cancers; right shoulder melanoma removal on 30 January 2020; right common femoral non-occlusive DVT (deep vein thrombosis); osteoporosis; HTN (hypertension); CAD – CABG (coronary artery disease and bypass graft surgery); prostate cancer under clinical/biochemical remission; peripheral vascular disease (PVD); AAA (abdominal aortic aneurysm); vascular dementia; and hearing impairment.
The discharge summary referred to the worker having no acute medical issues. There was some evidence of cognitive impairment.
Dr Chan reported to the worker’s GP on 25 March 2021.
Dr Chan had assessed the worker in the nursing home where he resided. The worker had been admitted to Canterbury Hospital from 16 March 2021 to 22 March 2021 with hypoxia.
The worker had been treated for pneumonia. Other diagnoses addressed during his admission were an acute kidney injury; ongoing management of necrotic ulcers of his left foot; and management of known congestive cardiac failure/fluid overload.
Dr Chan listed numerous active problems (a list of 16), which included PVD; necrotic ulcers of the lower limbs; “?” underlying malignancy to the left heel pressure area; acute kidney injury; severe vascular dementia; recurrent DVT; melanoma; osteoporosis; hypertension, and coronary artery disease. There were four other medical problems listed, including right shoulder melanoma removal on 30 January 2020.

Associate Professor John Cullen – specialist in geriatric medicine

A/Prof Cullen reported on 20 June 2020, having reviewed the worker at Concord Hospital.
A/Prof Cullen was “pleasantly surprised” to hear how well the worker was managing.
Sydney District Nurses were managing the dressings of the site of the excision of the SCC from the worker’s right anterior leg.
A/Prof Cullen recorded that the worker had a melanoma on his left shoulder widely excised by Professor (Robyn) Saw. The wound was well-healed. A/Prof Cullen could not detect any auxiliary, cervical, supraclavicular or other lymphadenopathy. Prof Saw was to review the worker in the coming months.
The worker had multiple SCCs in sun exposed areas. The site of excision of the left shin was well healed, and the right was almost healed. The worker was developing multiple other nodular and scaling lesions that might represent further SCCs. The worker’s next appointment with the Dermatology Clinic at Concord was not until November, and A/Prof Cullen judged that he needed to be seen earlier, so the appointment had been brought forward.
A/Prof Cullen recorded that Ted understood the worker’s PVD remained significant but there had been no major change in the severity of the stenoses, and the left sided DVT remained detectable by the Doppler scanning.
A/Prof Cullen concluded that the worker was doing much better than he anticipated. His melanoma was a high risk lesion. He was having ongoing trouble with other skin cancers.

Canterbury Hospital

The worker was conveyed from his nursing home to Canterbury Hospital by ambulance on 11 May 2021.
The hospital’s clinical records note that the worker had suffered a “faecal vomit”, followed by respiratory distress and “increase work of breathing.”
Dr Hutchinson recorded that the worker had had a recent admission under Dr Chawla with hospital-acquired pneumonia. She recorded “noted necrotic foot ulcer with ?malignancy underlaying a pressure sore → vascular consult last admission advised palliative approach.”
The worker’s past medical history comprised some 12 entries, including multiple skin lesions/cancers.
Dr Hutchinson recorded “?aspiration pneumonia - ?osteomyelitis right foot”.
Dr Hutchinson noted a conversation with Ted, who was informed that the worker was very unwell and may not survive this infection.
Ted was concerned that the worker’s foot may be worsening, but Dr Hutchinson explained that the worker would not at present survive OT (operative treatment).
Dr Hutchinson recorded that the worker had sepsis, ARF (acute renal failure), septic shock, and multi-organ failure.
Dr Hutchinson had a conversation with Ted. She explained that the situation was very grave, the worker had deteriorated and would not survive this event. She advised Ted that he should come to the hospital and inform any other family members. Ted understood and would make his way in that afternoon.
The hospital’s summary of progress recorded that the worker received treatment, but following discussions with Ted and the attending medical officer, Dr Lan, the decision was made to make the worker comfortable. The worker passed away 30 minutes later. He was comfortable and not distressed.
Dr Hutchinson was informed that the worker had passed away at 12:50pm. She called Ted, who was “shocked at news despite my earlier call.”
Ted did not wish to visit the hospital but would ask his brothers if they wished to do so, and call Dr Hutchinson back. He “requested that skin cancer be mentioned on death certificate as per solicitor.”
A death certificate was completed with aspiration pneumonia causing cardiac and respiratory arrest documented as the cause of death. Contributing factors that were included were the worker’s long-standing co-morbidities of skin cancers, PVD and CAD.
The worker’s family was contacted, but did not wish to see the worker prior to his transfer to the morgue.

SUBMISSIONS

Counsel’s submissions have been recorded, and a transcript is available. I will therefore provide a brief summary of the submissions.

Applicant

The applicant submitted that the starting point is that the worker sustained a compensable injury in the course of his employment.
The issue is whether the worker’s death resulted from the compensable injury. The focal point is whether the injury made a material contribution to the worker’s death. It is not necessary for the applicant to establish that the injury was the whole or predominant cause of the worker’s death, but rather whether it was a relevant and contributory factor.
The applicant referred to the worker’s death certificate, which includes skin cancers as a relevant factor. It referred to the evidence of Dr McGlynn, which it submitted is not contradicted by any medical practitioner. There is no cause to query Dr McGlynn’s conclusion.
The applicant submitted that all the worker’s treating medical evidence confirms the relevance of skin cancer in the period before his death.
The applicant referred to the decision of Kirby P, as his Honour then was, in Kooragang Cement Pty Ltd v Bates.[1] It submitted that the causal chain was unbroken. The worker’s skin cancer was a material cause of his death.
[1] (1994) 35 NSWLR 452 (Kooragang).
The applicant also referred to the decision of Member Homan in Culhana v State of New South Wales (NSW Police Force) & Ors,[2] and the cases discussed therein; Sutherland Shire Council v Baltica General Insurance Company Ltd and Ors;[3] and Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Ltd.[4]
[2] [2024] NSWPIC 257 (Culhana).
[3] (1996) 39 NSWLR 87 (Sutherland Shire Council).
[4] [1994] HCA 68; (1994) 121 ALR 417.
The applicant submitted that it had satisfied the relevant test.
The applicant claimed the relevant lump sum compensation; funeral expenses; and interest on the lump sum from 13 October 2023, the date of the claim, at a rate that was 2% above the RBA cash rate.
In reply to the respondent, the applicant submitted that the respondent had no medico-legal case. Dr McGlynn was qualified to give an opinion on the effects of skin cancer, and there is no basis not to accept his opinion.
As regards the submission that the solicitor had mentioned skin cancer, the applicant asked whether the respondent suggested that the hospital had been duped into recording something that was not relevant. It was consistent with the uncontested opinion of
Dr McGlynn. The respondent would require evidence of its own to suggest it was erroneous.
As regards the claim for interest, the applicant submitted that its medical material had been in the respondent’s possession from the time the claim was made. The critical document is dated 11 May 2021. The respondent would have been able to make a decision from the time the claim was made.
The applicant submitted that the respondent’s submission that Dr McGlynn was unable to give an opinion on the effects of skin cancer was unfounded. Dr McGlynn was obviously qualified to do so. There was no basis not to accept his opinion.
The death certificate is consistent with the uncontested opinion of Dr McGlynn. The respondent would require its own medical evidence to suggest it was erroneous.

Respondent

The respondent submitted that there was no real disagreement with respect to the applicable principles, which flow from Kooragang.
The respondent submitted I would not be satisfied the applicant had established that the worker’s accepted skin cancer condition materially contributed to his death, or that the worker died from skin cancer.
The respondent submitted that Dr McGlynn referred in his report dated 18 February 2011 to the worker’s other health issues, including with his heart. The worker’s clinical records show attendances at hospital over the years, some of which related to skin cancer, but also for other conditions, such as hypertension, cardiac issues, vascular issues, and prostate cancer.
The respondent submitted that, in the lead up to the worker’s death, nothing suggests he had other than skin cancers that needed to be excised in the usual way. There is no suggestion they had an impact on the worker’s life expectancy. There is nothing about the worker’s life expectancy in Dr McGlynn’s report dated 1 May 2020.
The respondent referred to the clinical records of Concord Hospital. It submitted it was putting it too highly to suggest skin cancer contributed to the worker’s functional decline.
The respondent submitted that the doctor who issued the death certificate at Canterbury Hospital had been requested to mention skin cancer. It was clear that this doctor had not cared for the worker in the six months before his death.
The respondent submitted there was no medical evidence to suggest the worker’s skin condition was playing a part when he presented to Canterbury Hospital, or to Dr Chan some months earlier.
The respondent submitted the death certificate was “pretty clear” as to the worker’s cause of death. It was not clear from Dr McGlynn’s evidence how skin cancer could have led to the worker’s cardiac condition. There was a query as to whether Dr McGlynn was the appropriate expert to comment on the worker’s cause of death.
The respondent submitted there was nothing in the hospital records to suggest that the worker may have had a terminal infection, as suggested by Dr McGlynn.
The respondent submitted I need to be satisfied that the worker’s skin cancer materially contributed to his death. The worker’s last treatment for skin cancer was in late 2020. All his treatment in 2021 was related to respiratory issues, which caused his death.
The respondent submitted the applicant had not established a link such as to warrant an award of compensation. There should therefore be an award for the respondent.
As regards the claim for interest, the respondent submitted that any award of interest was discretionary, and no award should be made.
The respondent does not accept that any award of interest, should one be made, should date from 13 October 2023. The reports of Dr McGlynn and statutory declarations were not served until 14 January 2025, which was the date when relevant particulars were provided.
The respondent accepted that any award of interest should be made at the rate that is 2% above the RBA cash rate.

SUMMARY

Section 25(1) of the 1987 Act provides for the payment of compensation “if death results from an injury.”
“Injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It is accepted that the worker sustained an “injury”, that is skin cancers, as defined in s 4 of the 1987 Act, for which he was compensated during his lifetime.
Both parties referred me to the decision of the Court of Appeal in Kooragang.
In Kooragang, Kirby P said at [461] (Sheller and Powell JJA agreeing):
“’[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour said at [463]-[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
As the applicant submitted, and as the respondent accepted, the applicant, which bears the onus, need only establish that the worker’s injury made a material contribution to the worker’s death in order to recover compensation.
Member Homan applied Kooragang in Culhana, in which the Member referred to other relevant case law.
Authorities such as Strong v Woolworths Ltd,[5] Bonnington Castings Ltd v Wardlaw[6] and Amaca Pty Ltd v Ellis[7] confirm that it is not necessary for the applicant to establish that the worker’s injury was the “primary” or “predominant” cause of the condition that resulted in his death. It is sufficient that the injury materially contributed to the death.
[5] [2012] HCA 5.
[6] [1956] UKHL 1; [1956] AC 613 (Wardlaw).
[7] [2010] HCA 5.
What constitutes a “material contribution” was discussed by Lord Reid in Wardlaw:
“What is a material contribution must be a question of degree. A contribution which comes with the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.”
Deputy President Roche considered the meaning of “as a result of” in the context of a claim pursuant to s 60 of the 1987 Act in Taxis Combined Services (Victoria) Pty Ltd v Schokman.[8]
[8] [2014] NSWWCCPD 18 (Schokman).
Roche DP said:
“The Arbitrator was correct to observe that the presence of a pre-existing condition did not mean that the need for treatment did not ‘result from’ the injury in the sense discussed in Kooragang. The appellant’s submissions have ignored the fundamental principle that employers must take workers as they find them (Spigelman CJ (Bryson AJA agreeing) in State Transit Authority (NSW) v Chemler).
…
It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook). More importantly, the injury does not have to be the only, or even a substantial, cause of the need for the proposed treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act. As the section states, and the Arbitrator acknowledged (at [55] and other places), Mr Schokman only has to establish that the proposed treatment is reasonably necessary ‘as a result of’ the injury…” (Citations omitted).
Roche DP referred to Schokman in Murphy v Allity Management Services Pty Ltd.[9] Murphy also involved a dispute as to the reasonable necessity of medical treatment pursuant to s 60 of the 1987 Act.
[9] [2015] NSWWCCPD 49 (Murphy).
Roche DP said (at 58]):
“Ms Murphy only has to establish, applying the commonsense test of causation…that the treatment is reasonably necessary ‘as a result of’ the injury…That is, she has to establish that the injury materially contributed to the need for surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General insurance Co Ltd).”
In Sutherland Shire Council, Clarke JA, in expressly obiter comments, was of the view that the test of causation was the same under the 1987 Act as under the common law.
I need to be satisfied on the evidence that the applicant has met its onus of establishing that the worker’s death resulted from the accepted skin cancer injury. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited,[10] McDougall J said at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen.” (Citations omitted).
[10] [2008] NSWCA 246.
The worker’s skin cancer condition is well documented in the evidence before me and has been discussed above.
The worker’s death certificate included, as a cause of his death, skin cancer “15 years”. I do not believe that Dr Hutchinson would have included skin cancer on the death certificate merely because she was requested to do so by a member of the worker’s family. She was completing an official and important document. I believe that she would have exercised appropriate care in doing so.
Dr McGlynn was well aware of the worker’s medical history. He recorded it when he examined the worker first in 2011 and again in 2020, when the worker had additional health issues.
Dr McGlynn opined that the worker’s multiple clinical issues, which included skin cancer, “more likely than not” caused the worker’s deterioration, leading ultimately to his death. The skin cancer did not directly cause the worker’s death but contributed to the physical deterioration that caused his death. Dr McGlynn had documented the toll taken on the worker by the treatment he underwent for skin cancer.
Both Dr Chan and Dr Hutchinson, who treated the worker on his admission to Canterbury Hospital, listed skin cancer in the worker’s medical history.
I do not accept that Dr McGlynn was not qualified to provide an opinion in this matter. As a plastic, reconstructive and hand surgeon, he has obviously treated skin cancer patients and was previously qualified to assess the worker’s permanent impairment. He had available to him all the treating medical evidence on which the applicant relied and has in my view provided a well-reasoned opinion. The respondent has no independent medical evidence, which of course does not absolve the applicant of the requirement to meet its onus.
As the above authorities establish, the applicant need only satisfy me that the worker’s accepted injury made a material contribution to the worker’s death in order to recover compensation.
I am satisfied that the worker’s skin cancer did materially contribute to his death. It did not come within the exception de minimis non curat lex. It was too large to come within that principle and is therefore not too small to be material.
There will accordingly be an award for the applicant in respect of the lump sum death benefit and funeral expenses.

Interest

Section 109 of the 1998 Act provides:
“109 Interest before order for payment
(1)     In any proceedings before the Commission, the Commission may order that there is to be included, in any sum to be paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by this section.
(2)     Interest cannot be ordered under this section-
(a) on any compensation payable under Division 4 of Part 3 of the 1987 Act, or
(b) on any compensation payable under this Act for any period before a claim for the compensation was duly made, or
(c) on any compensation payable under this Act for any period during which proceedings before the Commission were adjourned on the application of the claimant for the compensation or pursuant to section 102.
(3)     This section does not-
(a) authorise the giving of interest upon interest, or
(b) apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.”
The power to award interest is discretionary. It is subject to the limitations set out in ss 109(2) and 109(3). Relevantly, s 109(2)(b) provides that interest cannot be ordered on any compensation payable for any period before a claim for compensation was duly made. While the discretion is wide, regard must be had to the facts of the case.
In Haidary v Wandella Pet Foods Pty Limited, Dynamix Pty Ltd and Burrangong Pet Foods Pty Ltd,[11] Fleming DP discussed the reasoning behind an award of interest. She said:
“The award of interest by the Commission, pursuant to section 109 of the 1998 Act is discretionary. Mr Haidary will only be entitled to interest, if awarded, on those amounts of his weekly entitlement that were unpaid, and only from the date that his claim ‘was duly made’. The likely amount of interest that would be due on these sums is small, relative to the whole of his claim, but nonetheless they may form part of Mr Haidary’s entitlement. The purpose of ordering interest on an award is to compensate the worker for the loss of his or her income, not to penalise the employer (Virag v James N Kirby t/as Betts Electric Motors; Healey v McPherson Binding Pty Ltd .” (Citations omitted).
[11] [2005] NSWWCCPD 9 (Haidary).
The application of s 109(2)(b) was considered by President Keating in Kaur v Thales Underwater Systems Pty Ltd.[12]
[12] [2011] NSWWCCPD 6 (Kaur).
Keating P said at [139]:
“Section 109(2)(b) of the 1998 Act prohibits interest on any award of compensation payable under the Act for any period before a claim for the compensation was duly made. I accept the submission that the claim for compensation on behalf of the appellants was not duly made until the day of the arbitration. I therefore accept Thales’s submission that, as at the arbitration, the appellants could not be entitled to interest pursuant to s 109 of the 1998 Act.”
“Duly made” has been held to mean “fully particularised” – see Kathryn Ann Kratz as executrix of the estate of the late Owen Beddall v Qantas Airways Limited[13] and the cases discussed therein.
[13] [2020] NSWWCC 36.
The applicant submitted that interest should be payable from the date of the claim, that is from 13 October 2023.
I do not accept the applicant’s submission.
The applicant’s letter of claim, dated 13 October 2023, enclosed, among other documents, the death certificate, treating medical evidence and Dr McGlynn’s reports prepared in support of the worker’s claims for permanent impairment compensation. The letter did not enclose any medical evidence directly addressing the question of whether the worker’s injury made a material contribution to his death. The solicitor for the applicant advised at the preliminary conference that the applicant would seek to rely on liability evidence.
The letter of claim also stated that the worker had no dependants. However, no evidence in support of this assertion was provided. In fact, the Application erroneously named Ted as a dependant.

It was not until the applicant served its Application to Lodge Additional Documents dated
14 January 2025 that Dr McGlynn’s reports addressing causation of the worker’s death, and the statutory declarations of the worker’s sons regarding dependency were provided to the respondent.
In my view, the claim was not “duly made” until 14 January 2025, and the applicant is not entitled to an award of interest on the lump sum prior to that date.
While the respondent’s primary submission was that no interest should be awarded on the lump sum, I am prepared to exercise my discretion to award interest from 14 January 2025.
The parties agree that the appropriate rate of interest is one that is 2% above the relevant RBA cash rate, and the award will be made at that rate.
I determine:
(a) the worker, Edward Brennan, died on 11 May 2021 as a result of injury deemed to have happened on 13 November 2011, arising out of or in the course of his employment with the respondent;
(b) there were no persons dependent for support on the worker;
(c) the respondent is liable to pay to the applicant, pursuant to s 32 of the 1987 Act, the lump sum death benefit of $838,750;
(d) the respondent is liable to pay to the applicant, pursuant to s 26 of the 1987 Act, reasonable funeral expenses of the worker, and
(e) the respondent is liable to pay, pursuant to s 109 of the 1998 Act, interest on the lump sum death benefit at the rate of 6.35% per annum from 14 January 2025 to 4 February 2025.
The orders are set out in the Certificate of Determination.

[2025] NSWPIC 33

4 February 2025