Secora APII Pty Ltd v Fiddes - [2025] NSWPICPD 60

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Secora APII Pty Ltd v Fiddes [2025] NSWPICPD 60
APPELLANT:	Secora APII Pty Ltd
FIRST RESPONDENT:	Cathryn Marie Fiddes
SECOND RESPONDENT:	Nathan Owen Fiddes
THIRD RESPONDENT:	James Fiddes
FOURTH RESPONDENT:	Alison Fiddes
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-W3848/24
PRESIDENTIAL MEMBER:	Acting Deputy President Paul Sweeney
DATE OF APPEAL DECISION:	13 August 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 11 October 2024 is revoked. 2. The matter is remitted to another non-presidential member for determination of the issues between the parties.
CATCHWORDS:	WORKERS COMPENSATION – Death of worker – whether inference available that deceased’s employment impaired his diet and sleep – Fuller-Lyons v State of New South Wales(No 3) [2013] NSWSC 1672 applied – evidentiary effect of “slight” knowledge when uncontradicted – whether “common knowledge” that travel to and from work at remote locations can impair diet and sleep – Holland vJones [1917] HCA 26 considered – whether error in determination of “substantial contributing factor” pursuant to s 9A – whether Member engaged with evaluative exercise required by phrase ‘main contributing factor’ in s 4(b) of the Workers Compensation Act 1987
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr A Joseph, counsel
Hicksons Lawyers
First Respondent:
Mr C Tanner, counsel
Turner Freeman, solicitors
Second Respondent:
Mr R Brown, counsel
Marsdens Law Group
Third Respondent:
Mr A Parker, counsel
Carroll & O’Dea
Fourth Respondent:
No appearance
DECISION UNDER APPEAL:	Fiddes v Secora APII Pty Ltd [2024] NSWPIC 564
SENIOR MEMBER:	Ms E Beilby
DATE OF SENIOR MEMBER’S DECISION:	11 October 2024

INTRODUCTION

This appeal concerns the liability of Secora APII Pty Limited (the appellant) to pay compensation to the dependants of the late Michael Fiddes (the deceased), who died on 24 May 2023 in the course of his employment while undertaking an assignment at the Bayswater Power Station (Bayswater).
From 2013, the deceased contracted with the appellant to perform consulting work at sites throughout Australia. From April 2022, he worked for the appellant at Bayswater near Muswellbrook in New South Wales.[1]
[1] First respondent’s statement dated 4 June 2024, Application to Admit Late Documents (AALD) 5 June 2024, p 1.
As the deceased resided in Melbourne, he commuted to Bayswater on a weekly basis. He would travel to Muswellbrook on a Monday morning and return to Melbourne either on a Thursday or Friday night.[2] During the working week, he resided with colleagues at the Remington Hotel at Muswellbrook.
[2] AALD 5 June 2024, p 2.
It was the deceased’s custom to telephone his wife, Cathryn (the first respondent), each evening while away from home.[3] During one such call, at approximately 9.10pm on 24 May 2023, the deceased suffered a cardiac arrest in his hotel room. Although his colleagues attempted cardiopulmonary resuscitation (CPR), he was unable to be revived.
[3] AALD 5 June 2024, p 2.
On 9 January 2024, a coroner determined that the cause of the deceased’s death was “Severe Coronary Atherosclerosis”.[4] The report noted that a “significant pathology at the time of death was cardiomegaly”.
[4] Application in Respect of Death of Worker (ARDW), p 130.
During their marriage the deceased and the first respondent had three children. While each of the children was initially represented by lawyers in these proceedings, the eldest child of the marriage, Alison Fiddes, who was 23 years of age at the date of the deceased’s death, took no part in the arbitration hearing or this appeal.
On 14 July 2023, the first respondent made a claim on the appellant’s workers compensation insurer, QBE Workers Compensation (NSW) Limited (QBE), for the compensation payable on the death of a worker pursuant to Part 3 of the Workers Compensation Act 1987 (the 1987 Act).[5] By a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), QBE denied liability to pay compensation as a result of the death of the deceased.
[5] ARDW, pp 2–6.
The issues raised in the dispute notice included a denial that the deceased died as a result of “injury” as defined by s 4 of the 1987 Act; that his employment was a substantial contributing factor to an injury in accordance with s 9A; and that the deceased’s employment gave rise to a significantly greater risk of a “stroke” injury as required by s 9B of the 1987 Act.[6]
[6] Appellant’s Reply to ARDW (reply), p 13.

ARBITRAL PROCEEDINGS

When the matter came on for a conciliation conference and arbitration hearing before Senior Member Beilby on 15 August 2024, each of the parties were represented by counsel. Mr Tanner appeared for the first respondent, Mr Perry for the appellant, Mr Brown for Nathan Fiddes (the second respondent) and Mr Parker for James Fiddes (the third respondent). As the matter could not be resolved at the conciliation conference it proceeded to an arbitration hearing. During the arbitration hearing, the “Injury Description” in the ARDW was amended without objection to add the following:
“The deceased suffered a heart attack as a result of work-related travel, altered diet and/or impaired sleep.”
The issues in dispute were not recorded at the commencement of the hearing. However, at paragraph [6] of her Statement of Reasons,[7] the Senior Member recorded an agreement that, the following issues remained in dispute:
(a) Was employment a substantial contributing factor to the deceased’s death as required by s 9A of the 1987 Act?
(b) Did the deceased’s employment give rise to a significantly greater risk of suffering a heart attack injury in accordance with s 9B of the 1987 Act?”
One of the issues on appeal is whether [6] of the reasons faithfully records an agreement as to the issues in dispute.
[7] Fiddes v Secora APII Pty Ltd [2024] NSWPIC 564 (reasons).
The arbitration hearing proceeded on the written evidence. Counsel for the dependants addressed orally on the issues in dispute. As the matter did not conclude on 15 August 2024, it was listed for further hearing on 19 August 2024. In the interval the appellant provided written submissions, and Mr Perry spoke to those submissions when the arbitration hearing resumed on 19 August 2024. Counsel for each of the dependants made submissions in reply.
The dependants argued at the hearing that the evidence of the first respondent laid the factual foundation for the opinion of the first respondent’s qualified specialist, A/Prof Richard Haber, that frequent flights and poor eating habits associated with the deceased’s employment aggravated his coronary artery disease and caused a significantly greater risk of the deceased suffering a cardiac arrest.[8]
[8] Transcript of proceedings (T) 15 August 2024, p 18.
Mr Tanner argued that if the deceased’s employment did not require frequent absences from home at remote locations he would have been “able to enjoy a healthy diet”.[9] Further, had the deceased been at home on the evening of 24 May 2023 in the presence of his wife there was the “prospect of averting” the cardiac “episode resulting in an injury sufficient to cause his death”.[10] His wife or another family member could have administered CPR or summoned treatment to ameliorate the cardiac arrest.
[9] T 15 August 2024, p 18.
[10] T 15 August 2024, p 19.
Counsel for the dependants attacked the opinion of A/Prof England, the cardiologist qualified by the appellant for the purposes of these proceedings. His evidence did not address:
“the primary question of the contribution of the work which involves multiple flights and the consequence of lack of sleep and the inability to obtain healthy food as the underlying – as an underlying cause and a significant cause of the relevant injury”.[11]
Thus, there was no basis in the evidence “to reject the conclusions as to causation in Dr Haber’s report”.
[11] T 15 August 2024, p 22
Mr Parker referred to the reasoning of the Court of Appeal in Jay v Petrikas[12] and Wiki v Atlantis Relocations (NSW) Pty Limited.[13] Absent a medical response in the appellant’s case to A/Prof Haber’s opinion that the deceased’s coronary artery disease was contributed to by living conditions associated with his employment, the appellant could not succeed on its defence.
[12] [2023] NSWCA 297.
[13] [2004] NSWCA 174.
In respect of the s 9B issue, the appellant argued that it had not been established that the deceased would have survived had he not been alone in a hotel room at the time of his cardiac arrest.[14] There was no evidence that CPR would have been available to the deceased within a short time of his cardiac arrest.
[14] Submissions 19 August 2024, [25]–[26].
Similarly, there was no evidence that the deceased’s “diet became unhealthy” while living away from home.[15] The evidence merely established that he consumed food from fast food outlets and restaurants. It was unlikely that the deceased, who was being treated for high cholesterol and hypertension, would order “high fat foods” from a menu. The appellant also disputed that eating these foods “was a part of [the deceased’s] employment”.[16]
[15] Submissions 19 August 2024, [47].
[16] Submissions 19 August 2024, [49].
Next, the appellant submitted that the evidence in respect of the effect of flying on the deceased’s cardiac disease was unsatisfactory.[17] There was no acceptable evidence that commuting by air led to poor eating habits or materially contributed to the deceased’s coronary artery disease.
[17] Submissions 18 August 2024, [55].
Finally, the appellant submitted there was no evidence that the deceased’s employment led to sleep deprivation.[18] It submitted that the effect of any work-related factors was to be evaluated in the context of all of the causal factors in accordance with the principles enunciated by Snell DP in AV v AW.[19]
[18] Submissions 18 August 2024, [59].
[19] [2020] NSWWCCPD 9.
The appellant concluded its submission by arguing that the evidence did not support a finding of injury. Alternatively, “employment was not the main contributing factor to any injury sustained” by the deceased.[20]
[20] Submissions 19 August 2024, [65].

THE SENIOR MEMBER’S FINDINGS

The Senior Member accepted the evidence of the first respondent as to the obligation of the deceased to travel for work and his consumption of food at restaurants and from takeaway food outlets while away from home. She inferred that:
“when travelling to regional NSW it is likely that the food eaten is not as healthy as would have been cooked at home.”[21]
[21] Reasons, [69].
The Senior Member also accepted that regional travel may have impaired the deceased’s sleep although she observed this was not addressed in the respondents’ lay evidence.
The Senior Member found that she received “no meaningful assistance from [A/Prof] England in relation to the primary limb of the [first respondent’s] case”.[22] A/Prof England did not address the issue of the effect of air travel and the consumption of harmful food while away from home in his reports. His comment that he had consulted “a barrister, personal injury lawyer, M[V]A mediator and several colleagues” before providing his second report tainted his opinion. Conversely, there was no reason to reject the opinion of A/Prof Haber.
[22] Reasons, [76].
After referring to Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd[23] and Da Ros v Qantas Airways Ltd[24] the Senior Member continued:
“There is no medical evidence that support any finding that if the [deceased] had not been required for work the death would have occurred in any event. The unchallenged opinion of Associate Professor Haber is to the contrary. Quite clearly, plane travel, eating away from home and staying away from home are all factors that are wrapped in the requirements of his employment. The requirements of s 9A are therefore satisfied.
It then becomes obvious that s 9B is also satisfied as these factors resulted in a greater risk of injury as they are factors that were not present if the deceased remained at home.”[25]
[23] [2009] NSWCA 324 (Badawi).
[24] [2010] NSWCA 89 (Da Ros).
[25] Reasons, [93]–[94].
The Senior Member proceeded to find that the deceased’s employment was the main contributing factor to the aggravation of the coronary artery disease. Similarly, the evidence established that the deceased’s employment resulted in a significantly greater risk of a heart attack than had he not been employed in that work for the purpose of s 9B. She declined to determine whether the fact that the deceased was alone in his hotel room at the time of his cardiac arrest also enabled the dependants to succeed under s 9B. The Senior Member made the following findings and orders:
“1.     The deceased suffered employment injury on 24 May 2023 while in the course of his employment, which resulted in the death of the deceased on that date.
2.      The deceased’s employment was a ‘main contributing factor’ to the injury which resulted in his death.
3.      The nature of the relevant employment gave rise to a significantly greater risk of injury [than] had the deceased not been employed in employment of that nature.
4.      The matter is listed for further preliminary telephone conference to ventilate issues including any claim in respect of apportionment, weekly benefits, interest and funeral expenses.”

GROUNDS OF APPEAL

By its submissions in support of the appeal against the Senior Member’s decision, which was lodged with the Commission on 8 November 2024, the appellant identified two grounds of appeal.
Ground 1 – The appellant alleges that the Senior Member erred, in the context of s 9B of the 1987 Act, by finding:
(a)     as a matter of fact, that the requirement of the deceased to travel in his employment had a negative effect on his diet and sleep.
(b)     by accepting the opinion of Associate Professor Haber dated 30 July 2024 and in particular the factual foundation of that report which related to the deceased’s diet, sleep deprivation and their alleged effect on the deceased’s underlying heart condition.
(c)     erred in finding that the [respondents] had met the test in s 9B.
Ground 2 – The Senior Member erred in finding that the employment was a substantial contributing factor to the death of Mr Fiddes pursuant to s 9A.
By letter dated 2 December 2024, the appellant stated that “in reviewing the transcripts” it had “identified a further ground of appeal”. It sought leave to rely on the additional submissions enclosed with the letter. By its further submissions of 28 November 2024, the appellant formulated the proposed Ground 3 of the appeal as follows:
Ground 3 – The failure of the Commission to determine whether the deceased had suffered an injury pursuant to s 4(b) or, in the alternative, erred by accepting that the respondents had satisfied the requirements of section 4(b).
In disposing of the appeal it is convenient to first consider the question of leave to argue the further proposed ground and, if appropriate, to determine that ground.
Given the nature of the dispute on appeal, it is necessary to briefly review aspects of the evidence in the matter. What follows is not intended to be a comprehensive survey of the evidence. Rather, I set out the salient aspects of the evidence so that the parties may understand the way in which I have resolved this appeal.

EVIDENCE

Cathryn Fiddes

The evidence of the first respondent is contained in signed statements of 2 February 2024, 4 June 2024, and 21 June 2024. There was no application by the appellant to cross-examine her at the arbitration hearing. By her initial statement, the first respondent says that the deceased had worked for the appellant on a “regular consulting basis for 10 years” prior to his death.[26]
[26] ARDW, p 1.
The deceased had been working on the AGL Mills contract for the appellant for approximately 13 months at the time of his death. He worked 4 or 5 day weeks with an occasional shorter week. The balance of the initial statement is concerned with the question of “worker” which was not in issue at the arbitration hearing.
By her statement of 4 June 2024, the first respondent states that she was married to the deceased for over 28 years. She states that he:
“started working in the consulting industry in or around 2007. He was employed by a company called KM & T since in or around 2007 until 2010. Michael was always travelling a lot for work.”[27]
[27] AALD 12 June 2024, p 1.
The first respondent says that the deceased engaged in contract work exclusively for the appellant from around 2013. Save for the period of the COVID lockdowns in Victoria when he performed contracts in Melbourne, he was often required to travel for work. She continues:
“Once borders re-opened, Michael again worked exclusively for Secora up until his passing. Michael was always travelling a lot for work; very few contracts were in Victoria over the 10 years with Secora.”[28]
[28] AALD 5 June 2024, p 1.
The first respondent states that the deceased commenced working on the AGL contract at Bayswater in April 2022. She continues:
“Michael would typically fly up to Muswellbrook on a Monday morning and then would fly back either on a Thursday or a Friday night. Michael would work 4 to 5 days a week at the AGL Australian Plant.”[29]
[29] AALD 5 June 2024, p 2.
The first respondent then describes the telephone conversation with the deceased, which commenced at approximately 9pm on the evening of 24 May 2023. Approximately 10 minutes into the call the deceased told her that he was not feeling well. She continues:
“I instantly heard this muffling sound like his phone had just dropped out of his hand. I could hear him making noises like he was having a ‘fit’. I knew something was wrong, so I started to scream and panic.”[30]
[30] AALD 5 June 2024, p 3.
The first respondent then addresses her attempts to alert others, including the emergency services, to the condition of the deceased. The balance of the statement addresses the issue of financial dependency in a way that is not relevant to the issues on this appeal.
By a third statement dated 21 June 2024, the first respondent addresses aspects of the deceased’s work. She states that he would travel “upwards of 8 to 10 flights a month”. She continues:
“On occasion, he would comment to me that his blood pressure was raised after a flight. Michael told me this after consulting with his general practitioner. Michael told me that his GP had told him that his blood pressure was staying elevated due to the excessive flying that he was required to undertake due to employment.”[31]
[31] AALD 25 June 2024, p 8, [5].
The first respondent states that the deceased was “generally well”, was a non-smoker, and a social drinker, who “did not drink excessively”. She continued:
“The work that Michael undertook with Secora was stressful and required him to regularly travel. The travel that he undertook often meant that he could not prioritise things such as exercise or healthy eating. Michael was away for 4 to 5 times per week and was therefore required to eat out of home and often would have to rely upon fast food or food from restaurants to sustain himself.”[32]
[32] AALD 25 June 2024, p 8, [7].

Michael Reichardt

Mr Reichardt worked with the deceased on the appellant’s project at the Bayswater Power Station. He describes himself as a colleague and a friend. Whilst working at Bayswater they would stay at the Remington Hotel at Muswellbrook.
In the early evening of 24 May 2023, he met the deceased and Frank Barresi, who drove them to the Commercial Hotel in Aberdeen for dinner. Mr Reichardt states that the deceased ordered a “ribs and rump combo”, a schooner of Stone and Wood and two glasses of red wine.[33] The colleagues returned to the Remington Hotel, arriving at around 8pm, and “went to our separate rooms”. He did not observe the deceased to be unwell at any time.
[33] Reply, p 82, [7].

Mr Reichardt recounts that at about 9.30pm he was awakened by the hotel manager, who asked him to come with her to the room of the deceased. On entering the room, he saw Mr Barresi on the ground giving the deceased CPR on instructions provided over the telephone by the emergency services. He states that he then took over the CPR until the paramedics arrived and the paramedics continued CPR until approximately 10.14pm.
Mr Reichardt states:
“At no point during the day at work or throughout the evening did Michael appear to be unwell or make any mention of being unwell.
I am not aware of any health condition Michael may have, but I do know he takes medication but I am not sure what it is for.”[34]
[34] Reply, p 83, [15]–[16].

Frank Barresi

Mr Barresi also provided a statement to the police. He says that he knew the deceased since 2018 and had worked with him since 2019. His statement largely mirrors the evidence of Mr Reichardt. He was alerted to the deceased’s condition at around 9.25pm by the hotel manager and went to his room. At the direction of 000, he performed CPR for 5 minutes, until Mr Reichardt arrived. At that time he went to meet the paramedics and took them to the deceased’s room where they took over CPR.
The witness also says that during the day or the evening, the deceased did not “appear to be unwell or mention that he did not feel well”.[35]
[35] Reply, p 89.

Associate Professor Richard Haber

A/Prof Haber provided an initial report dated 9 March 2024 based upon documents furnished by the first respondent’s solicitor. He recorded the following background:
“He considered himself to be in good health exercising frequently. He was on treatment for hypertension with two drugs namely telmisartan and Norvasc. In spite of this, his blood pressure was still slightly elevated. He was also on medication for raised cholesterol with Crestor. Most recently total cholesterol was 6.9 and LDL cholesterol was 4.1. These results are quite significantly elevated. He was also on treatment for asthma with Symbicort.”[36]
[36] ARDW, p 40.
A/Prof Haber noted that the coroner had found an enlarged heart and an almost complete occlusion of the proximal left anterior descending artery by calcified plaque. In response to a request for a diagnosis the doctor stated that:
“He died as a result of significant single obstruction of the LAD coronary artery, as well as enlarged heart which was most likely due to his hypertension.”
In response to a request to express an opinion as to the connection between employment and death, the doctor stated:
“On the balance of probabilities his death was due to the fact that he was alone and could not have immediate resuscitation. At that time he was away from home for his employment.”
In response to an enquiry as to whether employment was the main contributing factor to the deceased experiencing a sudden cardiac arrest, the doctor stated:
“I do not consider his employment to be a main contributing factor to his sudden cardiac arrest as he had significant disease found at autopsy and there was nothing obvious to have caused an aggravation of his coronary artery disease to cause his cardiac arrest.”[37]
[37] ARDW, p 41.
Other than the fact that he was alone at the time of his cardiac arrest, the doctor did not believe that the deceased’s risk of having a cardiac arrest was accelerated, exacerbated or aggravated by the employment that he was performing. He thought that it was likely that he would have collapsed and died at the same stage of his life regardless of his attendance at work on 24 May 2023. The following question and response appear in the doctor’s report:
“Do you consider that the nature of the deceased’s employment as a consultant travelling considerable distances daily gave rise to a significantly greater risk to the deceased suffering a heart attack injury than if he had not been employed in employment of that nature? Please provide detailed reasoning
Travelling considerable distances daily may have slightly increased the chances of worsening of atherosclerosis, but not to any significant degree”.
By a further report dated 25 June 2024, A/Prof Haber responds to an assumption that the deceased’s employment required him to fly extensively, experience lack of sleep and rely upon unhealthy nutritional diet. He states:
“The combination of frequent flights and lack of sleep as well as poor nutritional diet aggravate the tendency to coronary artery disease and as such contributed to aggravation or acceleration of the development of coronary artery atherosclerosis which in turn leads to acceleration or aggravation of development of blockages (stenosis) in arterial tree including coronary arteries.”[38]
He also opined that “employment more likely [than] not substantially contributes to this situation”.
[38] AALD 25 June 2024, p 10.
By a final report dated 30 July 2024, A/Prof Haber addressed further assumptions put by the first respondent’s solicitors in the following terms:
“It is well known that cholesterol/lipids contribute to development or worsening of atherosclerosis. As a traveller it is difficult to find appropriate places to eat healthy food and this of course is worse if you travel frequently to different places where you may not be able to find appropriate eating places appropriate diet for atherosclerosis. Indirectly therefore travelling and eating in relatively unknown places means that you eat food which is not suitable for people with atherosclerosis. This therefore aggravates accelerates or exacerbate[s] coronary artery disease”.[39]
[39] AALD 15 August 2024, p 1.

Associate Professor John England

A/Prof England provided a medical report to the appellant’s solicitors dated 12 March 2024. He was briefed with documents relevant to the deceased’s health including the coroner’s report dated 8 January 2024 and the clinical records of the deceased’s treating doctors at the Interhealth Medical Centre. In summary, he concluded that the deceased had:
“extensive coronary artery disease that would have developed over 20 years with plaque and lipid risk factors, hypertension, a high BMI, and lifestyle risk factors.”[40]
[40] Reply, p 106.
The doctor was asked to consider the tests in ss 9B and 9A of the 1987 Act. In respect of the former he expressed the opinion that the nature of the deceased’s employment did not give rise to a significantly greater risk of suffering a heart attack than had he not been employed. In respect of the latter he stated that he did not believe that his employment was a substantial contributing factor to the deceased’s death.
By a supplementary report dated 5 June 2024, A/Prof England addressed the report of A/Prof Haber of 9 March 2024. He expressed the opinion that A/Prof Haber’s report, which primarily dealt with the prospect of the deceased being revived if he was not alone at the time of death, “does not reflect causation”. He concluded the report by stating:
“I have researched this report very carefully and ran it past barrister, personal injury lawyer, MVA mediator and several colleagues.”[41]
[41] Reply, p 110.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

LEGISLATION

In so far as it is relevant, injury is defined by the 1987 Act as follows:
“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”.
Section 9A of the 1987 Act is as follows:
“No compensation payable unless employment substantial contributing factor to injury
(1)     No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note.
In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)     The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)—
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following—
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

DISCUSSION

Leave to rely on proposed Ground 3

The appellant’s Appeal Against Decision of a Member (Appeal) was lodged with the Commission on 13 November 2024. On 14 November 2024, a delegate of the President issued a Direction providing for the service of the appeal and supporting documents on the respondents. The respondents were required to lodge a Notice of Opposition and submissions in reply by 19 December 2024 and to serve these documents on all parties to the appeal by 9 January 2025.
By a further Direction of 18 November 2024, the delegate informed the parties that the transcripts of the hearing before the Senior Member were available to the parties. It provided that:
“The appellant is to file and serve on all parties any supplementary submissions it wishes to make in respect of the transcripts by 2 December 2024.
This does not constitute an opportunity to add further grounds without leave.”
On 2 December 2024, the appellant sought leave to rely on the proposed Ground 3 and provided supplementary submissions in support.
While counsel for the second and third respondents addressed the question of leave, it remained unclear from her submissions whether the first respondent had dealt with the application. Accordingly, on 16 June 2025, I issued a Direction that if the first respondent wished to make a submission on the issue of leave, she should do so by 20 June 2025. The first respondent lodged a further a submission in compliance with the Direction. She “acknowledges that section 4 was an issue requiring determination, notwithstanding the contents of paragraph [6] of the [reasons]”.[42] The submission is largely concerned with the merits of the proposed Ground 3.
[42] First respondent supplementary submissions, [3].
The second and third respondent oppose the application for leave to add a further ground of appeal. The second respondent submits that there is no evidence to support the contention of the appellant that the agreement recorded by the Senior Member at [6] of her reasons was “not an accurate representation of the issues in dispute between the parties”.[43]
[43] Second respondent’s submissions (R2S), [11].
While the legal representatives of the second respondent had no recollection of the circumstances surrounding the agreement recorded by the Senior Member, the contents of the s 287A Notice, the written submissions, or the transcript of the evidence could “not usurp an agreement between the parties as to the issues in dispute”.[44] Further, the appellant had not provided any satisfactory explanation for the delay in raising the ground.
[44] R2S, [14].
The second respondent submits that if the agreement recorded at paragraph [6] was incorrect, “that must have been known to it on receipt of the decision”. The respondents were “prejudiced by the delay”. That prejudice was “irremediable”.[45]
[45] R2S, [19].
The third respondent also emphasises that there was no evidence from anyone on the appellant’s side of the record on the issue of the agreement. Mr Parker submits that his recollection was that the case was simply run on the basis of “liability”. In those circumstances, it was entirely proper for the Senior Member to approach the matter on the basis that “either liability was established, or it was not, based on the factual evidence.”[46]
[46] Third respondent’s submissions (R3S), [32].
In any event, it could not be established that a separate determination of the issue of “injury” would make any difference to the outcome. Thus, in conformity with Stead v State Government Insurance Commission[47] leave should be refused as it “makes no difference to the outcome”.[48]
[47] [1986] HCA 54.
[48] R3S, [36].
I doubt whether paragraph [6] of the reasons is an accurate reflection of an agreement between the parties that the only issues for determination were those arising from ss 9A or 9B and that “injury” was not in issue. There is nothing in the transcript of the hearing which supports this contention. It is not consistent with the way the case was argued by the parties, or with several references by the Senior Member to s 4. At [17] of her reasons, for example, the Senior Member noted that the claim was pleaded as a “disease injury” thus attracting the operation of s 4(b)(i) and 4(b)(ii) of the 1987 Act. She continued:
“If the injury is found to be a disease injury, the [dependants] must establish that employment was the main contributing factor to the disease or aggravation of the disease.”
Given the amendment to the description of injury during the hearing to allege a disease, proof that employment was a substantial contributing factor to the deceased’s injury in accordance with s 9A was not material to the determination of the case. It is true that Mr Perry referred to s 9A on several occasions in his written submissions, although it is not clear whether those submissions were prepared before or after the amendment. Undoubtedly, he also pressed a defence under s 4. At [65] of those submissions, he argued:
“If the [dependants are] to succeed under sec 4(b) (or under sections 9A and 9B) non-work factors must be considered before work-factors are given the necessary status.”
He concluded his written submissions by stating that the evidence before the Commission:
“does not support a finding of injury. Alternatively, employment was not the main contributing factor to any injury sustained.”[49]
[49] Written submissions 19 August 2024, [65].
In speaking to his submissions on 19 August 2024, Mr Perry explicitly addressed s 4(b). He argued that:
“Medical evidence to address the ultimate question of whether the test of main contributing factor is satisfied is both relevant and desirable.”[50]
[50] Written submissions 19 August 2024.
In concluding his submissions on 19 August 2024, Mr Perry submitted:
“You just don’t have evidence to support the proposition of main contributing factor or of substantial contributing factor or of the proposition that the employment gave rise to a significantly greater risk.”[51]
[51] T 19 August 2024, p 23.
These references, and the lack of any response by counsel for the respondents, establish that the Senior Member was mistaken in recording the agreed issues in dispute in paragraph [6] of her reasons.
While the appellant does not seek an extension of time to lodge the appeal, the authorities on that issue provide some guidance as to the considerations to be applied in an application for leave to amend the grounds of appeal. In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd,[52] Basten JA stated that the primary considerations were:
“(a)    the extent of the delay and the reasons therefor;
(b)     the prejudice to the applicant if the application were to be refused;
(c)     the prejudice to the defendant from the delay if the application were to be granted;
(d)     the prospects of success”.
[52] [2014] NSWCA 34, [9].
Plainly, the delay in raising the issue was short. I doubt that a delay of less than three weeks between the lodgement of the appeal and the application for leave would dramatically impair memories of the arbitration hearing as Mr Brown suggests. Each of the respondents have had the opportunity to address the proposed ground within the time limited by the Commission’s directions.
As discussed above, aspects of the argument at the hearing and the Senior Member’s reasons are not consistent with a conclusion that there was a factual basis for the agreement recorded in paragraph [6] of the reasons. Equally, they are inconsistent with the assertion that the case was contested on the grounds of an amorphous “liability” issue without refence to the terms of the legislation. I doubt that an alternative view of the transcript and the reasons is arguable. In those circumstances, it is difficult to identity any prejudice to the respondents which would flow from a grant of leave to amend.
I accept that the only explanation offered by the appellant is that it did not identify the proposed new ground until it had access to the transcript of the arbitration hearing. I agree that the error should have been identifiable from a consideration of the reasons and the appellant’s written submissions at the hearing. On the other hand, it is understandable that a party may be reluctant to challenge the correctness of a member’s recollection of the agreed issues in a case without recourse to the transcript.
Mr Parker, and probably Mr Tanner, submit that there is no real prospect of the appellant succeeding on the proposed Ground 3, which would weigh decisively against a grant of leave. I have concluded, however, that the proposed Ground 3 raises an arguable case. I elaborate on this below. Accordingly, I hold that it is in the interests of justice that leave be granted to permit the appellant to argue Ground 3.

Grounds 1 and 2

Ground 2 of the appeal essentially contends that the evidence did not support the finding that the deceased’s employment was a substantial contributing factor to an aggravation of his coronary artery disease or that the finding is vitiated by factual error. If, as the appellant asserts in Ground 3, the issue before the Senior Member was whether the deceased suffered a s 4(b) disease injury, this ground is otiose. Section 9A has no role to play in the determination of whether the deceased’s employment caused or aggravated a disease. As I accept that the issue for determination at the hearing arose under s 4(b) and not s 9A, it is unnecessary to further consider this ground.

Ground 1 of the appeal is similarly based on a contention of factual error in finding that the deceased’s employment gave rise to a significantly greater risk of an aggravation of coronary artery disease than had he not be employed. The appellant adduced no lay or medical evidence on the effect on the deceased’s health of travel necessitated by his employment. As the respondents assert, the absence of evidence from the appellant permitted the Senior Member to draw factual inferences based on slight evidence in determining this issue. Slight evidence, if uncontradicted, may permit a finding of fact on the balance of probabilities. In Bradshaw v McEwans Pty Ltd the High Court addressing the civil standard of proof said this:
“where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture [authority referred to]. But 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.”[53]
[53] (1951) 217 ALR 1, 5.
This ground, however, also raises issues concerning the availability and use of judicial or common knowledge.

Appeal under s 352

The nature of an appeal under s 352 of the 1998 Act was recently considered by the Court of Appeal in State of New South Wales v Culhana.[54] It is clear that the approach to s 352 stated in Raulston v Toll Pty Ltd,[55] and the cases which follow it, is wrong. The first “general principle” stated in Raulston at [19] is predicated on too narrow a view of the appellate function conferred by s 352. That approach is also inconsistent with the previous appellate caselaw.[56]
[54] [2025] NSWCA 157 (Culhana).
[55] [2011] NSWWCCPD 25 (Raulston).
[56] Culhana, [58] per Leeming JA.
The proper approach to an appeal pursuant to s 352 can be found in the reasoning of the High Court in Warren v Coombs,[57] Lee v Lee,[58] and Fox v Percy.[59] In Culhana, Leeming JA (Bell CJ, Kirk, McHugh and Free JJA agreeing) quoted the following passage from Lee as illustrative of the proposition that it is not sufficient to conclude that an inference from primary fact was “open” when an appellate court is in as good a position as the trial judge to determine the issue:[60]
“Having rejected the essential planks of the trial judge’s reasoning, it was not to the point for the Court of Appeal to formulate the question as which of the two hypotheses the trial judge considered to be the more probable. Nor was it to the point to consider whether the trial judge had been unduly influenced by the DNA evidence. It was an error for the Court of Appeal to dismiss the appeals in this ‘very closely balanced’ case on the footing that the trial judge’s decision was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of ‘weighing [the] conflicting evidence and drawing its own inferences and conclusions’, and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant’s second ground is made good.” (citations omitted; emphasis added).
[57] [1979] HCA 9; 142 CLR 531.
[58] [2019] HCA 28; 266 CLR 129.
[59] [2003] HCA 22.
[60] Culhana, [62].
At [91] of Culhana, Leeming JA stated:
“Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”
Plainly, the advantage of the Member in this matter is constrained by the fact that it was determined on the papers. Nonetheless, it remains necessary for the appellant to prove error if it is to succeed on the appeal. It must also remain the case that the mere preference of a Presidential member for another outcome in a factual dispute does not inevitably establish error. That is particularly so in evaluative decisions, such as those arising under s 9A or s 4(b).[61] Culhana contemplates a rehearing on the basis of the errors asserted in the grounds of appeal and not a review, the statutory methodology for an appeal prior to the 2011 amendments to s 352.
[61] See the discussion of the applicability of the correctness standard in White v Redding [2019] NSWCA 152.
The role of inference in reaching a finding of fact is canvassed in the cases referred to by the Senior Member at [62] and [63] of her reasons. The reasoning of Keating P in Namoi Cotton Cooperative Ltd v Stephen Easterman (as Administrator of the Estate of Zara Lee Easterman,[62] a case referred to by Mr Tanner, also address the availability of inference in the context of the Commission.
[62] [2015] NSWWCCPD 29 (Namoi Cotton), [93].

Ground 1 – Error of fact – diet and sleep – inference and common knowledge

This ground attacks the Senior Member’s findings concerning the effect of travel on the deceased’s diet and sleep. The appellant submits that there was no “probative and reliable basis” for the finding that travel had a negative effect on his diet and sleep.[63] There was no evidence of any effect of travel on the deceased’s sleeping patterns. It submits that the sleep deprivation argument was “effectively abandoned by the [first respondent]”[64] at the hearing.
[63] Appellant’s submissions (AS), [21].
[64] AS, [23].
In criticising the finding that the deceased’s employment had a deleterious effect on his diet, the appellant relies on its submissions at the arbitration hearing. It submits that the evidence upon which the Senior Member’s findings were based was “extremely vague”.[65] Further, the assertions made by the appellant as to what he ate and drank could not be “logically or rationally tied to his employment other than the fact that the employment placed him around Muswellbrook”.[66]
[65] AS, [27].
[66] AS, [30].
As there was no evidence that the employment had a deleterious effect on the deceased’s sleep, A/Prof Haber’s opinion did “not have a proper evidentiary foundation”. Alternatively, the foundation of his reports 25 June 2024 and 30 July 2024 was “opaque”. It is not evident that the doctor had been briefed with further evidence. Rather, he had been asked to assume that the deceased had an “unhealthy nutritional diet due to time poor nature of his employment”.[67]
[67] AS, [41].

First respondent’s submissions

The first respondent argued that the Senior Member’s finding at [99] of her reasons that the deceased’s employment had a negative impact on his diet was supported by the largely uncontradicted evidence that:
(a)    the deceased travelled regularly by air;
(b)    he spent several nights a week at remote locations;
(c)    he “often” relied on takeaway or restaurant food while away from home;
(d)    the Senior Member’s acceptance that these meals were less healthy than those cooked at home, and
(e)    the Senior Member’s acceptance that travel impaired the deceased’s sleep.[68]
[68] First respondent’s submissions (R1S), [7].
The inference drawn by the Senior Member in respect of the deceased’s diet is supported by the evidence of the meal he consumed on the evening of his death. The argument put by the appellant that “healthy dietary options were available” at remote locations was speculative and ignored this evidence.[69]
[69] R1S, [8].
The first respondent argued that the appellant was seeking to re-argue the merits of the dispute “contrary to s 352(5) of the 1998 Act” as interpreted by Northern NSW Local HealthNetwork v Heggie.[70] This ground merely addresses the weight to be given to aspects of the evidence. It fails to appreciate that the first respondent’s evidence was unchallenged. Acceptance of this evidence could not involve error.[71]
[70] [2013] NSWCA 255 (Heggie), [65].
[71] R1S, [10]–[12].
That travel impaired the quality of the deceased’s sleep could be inferred from the evidence. Travelling from Dingley Village, Victoria, to Muswellbrook by air and road would occupy several hours:
“all of which would mean that the deceased would need, as a matter of weekly routine, to wake up very early in order to prepare to leave home, travel to Melbourne Airport and check into his flight, in order to fly to an airport in New South Wales, and to then drive to Muswellbrook.”[72]
It was open to the Senior Member to find impaired sleep applying “common knowledge and ordinary human experience”.[73]
[72] R1S, [89].
[73] Namoi Cotton, [93].
In respect of Ground 1(b), the appellant does not suggest that A/Prof Haber’s “medical conclusions were “erroneous” or “not open”. Rather, it attacks the “evidentiary assumptions” on which conclusions were made. As the Senior Member had accepted the evidence on which the assumptions were based, “her acceptance of the attendant medical conclusions was open, follows logically, and involves no error.”[74]
[74] R1S, [95].
Ground 1(c) involves the same complaint concerning the Senior Member’s factual findings and the acceptance of A/Prof Haber’s evidence. It was open to her to accept that “the deceased’s employment was the main contributing factor to the aggravation of his cardiac disease.”[75]
[75] R1S, [97].

Second and third respondents’ submissions

After an extensive survey of the caselaw on appellate review prior to Culhana, Mr Parker submits that it is clear that the appellant:
“a.     Cannot disturb the Member’s findings concerning the reliability/credibility of … Cathryn Fiddes; and
b.     Cannot overturn the evaluative judgments made by the Member in relation to the clinical records; and
c.      Cannot overturn the evaluative judgments made by the Member in relation to Dr Haber’s evidence; and
d.      Cannot establish actual error (as opposed to, for instance, a different conclusion being open”.[76]
[76] R3S, [18].
The Senior Member made “entirely unsurprising factual findings” based on direct evidence and inference. They were well within the province of a member.
It is evident from this brief review of the respondents’ submissions that they rely in part on the principles enunciated in Raulston and the subsequent Court of Appeal decisions which, seemingly, approved that approach. Accordingly, by a Direction of 4 August 2025, I gave the parties the opportunity to furnish further submissions addressing the effect of the reasoning in Culhana on this appeal.

Submissions following Culhana

Only the appellant and the third respondent chose to make further submissions. There is no significant issue arising from their respective analysis of the ratio of Culhana. By his supplementary submission, the third respondent withdrew his submission insofar as it was predicated on the principes in Raulston. Mr Parker submitted that:
“Culhana does not alter the result in this case. The Member’s findings were open, because they were correct. The Member did not err by making them. Nor were other inferences open that the Presidential Member should prefer.”[77]
[77] Third respondent’s submission 7 August 2025, [6].
Conversely, the appellant submitted that, as it was impermissible to defer to the findings of the Senior Member, the reasoning in Culhana enabled a finding of error.

The Senior Member’s finding on diet and sleep

Commencing at [68] of her reasons, the Senior Member addressed the issue of the evidence of the first respondent relevant to altered diet as follows:
“I accept her evidence without reservation and make findings in accordance with her evidence. She described her husband’s diet as relying on fast food or from restaurants whilst travel[l]ing.
I accept that when one is travelling that the human experience is to eat out at restaurants, pubs, and takeaway food outlets. It is common experiences that such meals are usually cooked with more oil, fat and salt and the like. I make the inference that when travelling to regional NSW it is likely that the food eaten is not as healthy as would have been cooked at home.”
Commencing at [71], the Senior Member addressed the issue of the effect of employment on the deceased’s sleep. She stated:
“I also accept that due to the nature of regional travel, and the variety of accommodation, that sleep is more likely to be impaired [than] would have happened at home. This is also aggravated by the usual early flight times (a matter which is common experience with regional travel). I must say however that this is the weakest link of the three branches proposed in the first limb of causation as Mrs Fiddes has not addressed this issue in her evidence. I observe however that Associate Professor Haber does not appear to rely on sleep exclusively as a single causative matter in his opinion.
I therefore find that the [dependants have] established the factual matrix as pleaded, that is poor diet and regular travel and to a lesser extent poor sleep. I make these findings based on human experience, common sense and Mrs Fiddes evidence.”
Plainly, it was open to the Senior Member to make findings by a process of inference from proven facts and by utilising common knowledge and experience. The unchallenged evidence of the first respondent, the evidence of the deceased’s workmates describing his last meal, and the evidence A/Prof Haber provided more than the prima facie evidence necessary to support the inference that employment had a deleterious effect on the deceased’s diet. That conclusion is, of course, no longer sufficient to resolve this aspect of the appeal. In my opinion, however, there is no error in the Senior Member’s acceptance that the takeaway and restaurant food available at rural locations is more likely to be harmful to health than food prepared at home. This fact is so generally known that “every ordinary person may reasonably be presumed to be aware of it”.[78]
[78] Holland v Jones [1917] HCA 26; 23 CLR 149 (Holland), 153.
In Woods v Multi-Sport Holdings Pty Ltd[79] at [66] McHugh J, in a dissenting judgment, gave examples of facts of which judicial notice had been taken. They included that cancer was a major health problem in the community, that HIV was a life-endangering disease, and that many lawyers charge hundreds of dollars an hour for their services. The connection between takeaway and restaurant food and heath is not out of place in such a list. In Cross on Evidence, Sixth Australian Edition, at [3050], the author records many examples of the application by judges of the common law doctrine of judicial notice before it was subsumed by the Evidence Act 1995. It is not helpful, in the circumstances of this case to repeat them.
[79] [2002] HCA 9; 208 CLR 460.
The appellant referred to s 144 of the Evidence Act 1995, which provides that proof is not required in respect of matters that are “not reasonably open to question”. While the Commission is not bound by the rules of evidence, I do not believe that my conclusion that the appellant has not proven error in respect of altered diet is inconsistent with this section. Finally, I am of the opinion that the Senior Member was able to infer that food eaten when travelling for work was inimical to health from the contents of A/Prof Haber’s report of 30 July 2024 without resort to common knowledge and experience. The doctor stated that travelling and eating in relatively unknown places “means that you eat food which is not suitable for people with atherosclerosis.”
Dr Haber’s evidence on the issue of altered diet was uncontradicted. Bearing in mind the equally uncontested lay evidence on this issue referred to above I conclude that the appellant has not proven error. There was ample evidence on which the Member could make a finding on the balance of probabilities on that the deceased’s work adversely affected his diet and, in turn, his underlying atherosclerosis. Applying the principles of appellate review stated in Culhana, the appellant does not succeed on this issue.
I doubt, however, that there is near universal acceptance that regular domestic flights in Australia cause impairment of sleep. To use the language of Isaacs J in Holland, whether the deceased suffered from impaired sleep as a result of travel is a matter of “particular” and not “general” facts. The evidence in this case is that for the 12 months before his death the deceased travelled from Dingley Village, a suburb of Melbourne, to Muswellbrook at the beginning of each week and returned home on either Thursday or Friday. The first respondent argued that this would necessitate the deceased rising early on Monday morning. While that is possible, no evidence was led at the arbitration as to the time he left or returned home, the route or duration of his flight, or the time he arrived home at the end of each week. It is possible that he flew from Melbourne to Newcastle and then travelled by car to Bayswater, but other variations of the route are also possible. Given the nature of the deceased’s work at Bayswater, the probabilities suggest he only travelled short distances during the four or five days he resided at Muswellbrook each week.
Other than the evidence of returning to his hotel on the day of his death, there is no evidence that the deceased worked long hours at Bayswater. Importantly, there is no evidence that the deceased complained of difficulty sleeping, unusual tiredness, or appeared tired while at or away from his work.
The first respondent relied on the reasoning in Namoi Cotton to contend that the Senior Member’s finding in respect of sleep was based on inference from objective evidence rather than speculation. However, in that case there was evidence that the deceased had worked very long hours in the week before her death, that she was acclimatising to nightshift, and, more importantly, evidence that she was “tired and fatigued” in the period leading up to her death.[80] There is no similar evidence in this case. Neither inference nor common knowledge can be invoked here as a substitute for the logical and probative evidence directed at an issue required by the rules of the Commission.
[80] Namoi Cotton, [97].
In State of New South Wales v Culhana,[81] I discussed the reasoning and authorities cited by Beech-Jones J, as his Honour then was, in Fuller-Lyons v State of New South Wales (No 3):[82]
“69. First, all the circumstances proved in evidence, however slim, should be closely examined in order to establish whether they ‘rais[e] a more probable inference in favour of what is alleged [ie negligence on the part of the defendant]’ (Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ, Holloway at 480 per Williams, Webb and Taylor JJ, Jones at 304 per Dixon CJ, Girlock (Sales) Pty Ltd v Hurrell [1982] HCA 15; 149 CLR 155 at 161 to 162 per Stephen J).
70.    Second, the inference must arise as an affirmative conclusion from the evidence and be established to the reasonable satisfaction of a judicial mind (Jones at 304 per Dixon CJ, West v Government Insurance Office of New South Wales [1981] HCA 38; 148 CLR 62 at 66 per Stephen, Mason, Aickin and Wilson JJ, Condos at [68] per McColl JA, Campbell and Macfarlan JJA agreeing, Jackson v Lithgow City Council [2008] NSWCA 312 at [10] per Allsop P, Basten JA and Grove J agreeing).
71.    Third, where the circumstances give rise to nothing but conflicting conjectures that are of equal degrees of probability, the court cannot reasonably arrive at an affirmative inference of negligence (Bradshaw at 5, Luxton at 360 per Dixon, Fullagar, Kitto JJ, Holloway at 480 per Williams, Webb and Taylor JJ, Jones at 304 per Dixon CJ, West at 68 per Stephen, Mason, Aickin and Wilson JJ, Girlock at 161 to 162 per Stephen J). The plaintiff cannot succeed unless the more probable inference is that the injury arose from the defendant’s negligence (Millicent District Council v Altschwager (1983) 50 ALR 173 to 174 per Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ).
72.    Fourth, it is no answer to the question of whether something has been shown to be more probable than not to say that there is another possibility open (Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34] per French CJ, Gummow, Crennan and Bell JJ).”
[81] [2024] NSWPICPD 73.
[82] [2013] NSWSC 1672, [69]–[72].

Applying these principles, I have concluded that there is no reasonable basis in the evidence to permit a definite conclusion that the deceased’s travel impaired his sleep. It is evident that the journey from home to Muswellbrook took several hours and the same is true of the return journey. That may have impaired the deceased’s sleep. On the other hand, it is possible that he slept soundly at his hotel during the week. Acceptance of either conclusion involves a substantial element of speculation. Even allowing for any advantage enjoyed by the Senior Member, a finding that travel caused impaired sleep was not open in this case.
It follows that the appellant has established error in respect of the Senior Member’s factual finding as to impairment of sleep. The finding was material to the outcome of the case as A/Prof Haber’s opinion assumed that the “combination of frequent flights and lack of sleep as well as poor nutritional diet”[83] aggravated he deceased’s coronary artery disease.
[83] AALD 25 June 2024, p 10.
As I have granted leave to the appellant to rely on Ground 3, I propose to briefly discuss that ground below.

Ground 3

Appellant’s submission

The appellant complains that [6] of the Senior Member’s reasons does not accurately reflect the issues in dispute at the arbitration. Contrary to what is recorded, s 4 remained in dispute, the appellant submits that its notice pursuant to s 287A of the 1998 Act dated 23 February 2004 and the written submissions of Mr Perry of 18 August 2024 articulated its contention that s 4 had not been satisfied by the evidence in the case. It refers to several passages in the transcript in support of that argument. The submission continues:
“the Senior Member has failed to determine the section 4 question. Reading the decision, it is submitted that it does not meaningfully engage with the dispute over section 4 and is concerned, in essence, with sections 9A and 9B. If that is so, the appeal should be upheld and the matter returned so that this issue can be determined in accordance with the decision of the Presidential Member hearing the appeal.”[84]
[84] Appellant’s further submissions (AFS), [9].
Assuming that the Senior Member did address s 4 of the 1987 Act, the appellant submits that she failed to engage with the appellant’s submissions or “engage in the evaluative process referred to in the decision of Snell DP in AV v AW”.[85]
[85] AFS, [11].

First respondent’s submission

The first respondent submits that the Senior Member acknowledged at [17] of her reasons that the claim by the dependants was pleaded as a “disease” injury and that the dependants must prove that employment was the main contributing factor to the disease or aggravation of the disease.[86] Further, she was aware that the test of causation required the evaluation of “any ostensibly competing factors”.[87] She found that there were no other “competing inferences” other than those associated with the deceased’s travel for work. Thus she was able to specifically find that “employment was the main contributing factor to the aggravation of the disease.”[88]
[86] First respondent’s further submissions (R1FS), [5].
[87] R1FS, [8].
[88] Reasons, [99].
The first respondent submits that finding was the only finding open on the evidence in the absence of a countervailing medical case given the lack of weight which the Senior Member gave to the evidence of A/Prof England.[89] As the Senior Member clearly considered both work and non-work causal factors, she had “engage[d] in the evaluative process referred to in the decision of Snell DP in AV v AW”.[90]
[89] R1FS, [11].
[90] R1FS, [13]–[14].
Aspects of the first respondent’s primary submissions may also be relevant to Ground 3. Mr Tanner argued that as the appellant had not adduced medical evidence on the issue in dispute, there was no basis to challenge the Senior Member’s factual findings on appeal.

Second and third respondent’s submissions

I have recorded the second respondent’s submission on the issue of leave above. Otherwise, the second respondent relied on the written submissions of the third respondent.
Mr Parker referred to the reasoning in Heggie in support of the proposition that an appeal is “not simply a rehearing.”[91] He referred to several well-known appellate cases which state that the weight to be given to evidence is a matter for the trier of fact unless there are compelling inferences to the contrary. He argued that:
“Given the evaluative finding made by the Member, who had the advantages experienced by trial judges at first instance, the appeal must be dismissed.”[92]
[91] R3S, [13].
[92] R3S, [20].
Mr Parker argued that it was appropriate for the Senior Member to “approach the determination in a binary way: i.e. either liability was established, or it was not, based on the factual evidence.” The fact that the Senior Member “applied s 9A as well” did not detract from her finding under s 4(b)(ii) that employment was the main contributing factor to the aggravation of the disease.[93] (emphasis as in original)
[93] R3S, [33]–[34].

Appellant’s submissions in reply

By these submissions, which were prepared by Ms Roberts, of counsel, the appellant submits that a failure to consider relevant contributory factors may “involve a misconstruction of the provision and therefore an error of law”[94] in accordance with the reasoning in Tudor Capital Australia Pty Limited v Christensen.[95]
[94] Appellant’s submissions in response (ASR), [3].
[95] [2017] NSWCA 260.
In response to the third respondent’s submission that there was “no evidence” suggesting that the Senior Member’s understanding as to the issues in dispute was wrong, the appellant submits that it was clear from the transcript and the written submissions of counsel that the Senior Member was required to consider the evidence pursuant to s 4(b) of the 1987 Act.[96]
[96] ASR, [9].
The appellant submits that a consideration of the respondents’ submissions led to the conclusion that the Senior Member erred in applying s 9A:
“There is plainly ‘doubt’ over what the Member determined (cf [23] of the third respondent’s submissions) in circumstances where the relevant section is not referred to in the Member’s analysis at all (see 28 November submissions)”.[97]

The Senior Member’s consideration of “substantial contributing factor” and “main contributing factor”

[97] ASR, [10].

Having accepted the uncontradicted evidence of the first respondent on the effects of employment at remote locations on the deceased’s diet and the medical opinion of A/Prof Haber on its consequences for his cardiac condition, the Senior Member commenced her consideration of the legislation at [85] of her reasons. She stated:
“Turning to s 9A of the 1987 Act, the [dependants] must show that employment was the main contributing factor [to] the injury.” (my italics)
After considering aspects of the instruction of the Court of Appeal on s 9A in Da Ros and Badawi, the Senior Member continued at [89]:
“What is required is a careful analysis of what the worker was doing at the time of the injury and the strength of the causal link between the employment concerns and the injury. The probability that the injury could have occurred anyway at the same stage of the worker’s life must be considered, as must the lifestyle of the worker. The determination is an evaluative one, needing [sic] a broad area for the personal judgment of the decision-maker (Heavy Lift [sic] at [105]–[106]).”[98]
[98] Reasons, [89].
The Senior Member found that as there were no “competing inferences in this dispute, the only inferences that can be drawn all align with the [first respondent’s] submissions.”[99] She concluded her discussion under the heading “Applying the legislation” by stating at [93] and [94]:
“There is no medical evidence that support any finding that if the [deceased] had not been required for work the death would have occurred in any event. The unchallenged opinion of Associate Professor Haber is to the contrary. Quite clearly, plane travel, eating away from home and staying away from home are all factors that are wrapped in the requirements of his employment. The requirements of s 9A are therefore satisfied.
It then become[s] obvious that s 9B is also satisfied as these factors resulted in a greater risk of injury as they are factors that were not present if the deceased remained at home.” (my italics)
[99] Reasons, [91].
Under the heading “Conclusion”, the Senior Member again briefly outlined the nature of the dispute. She stated that the “[dependants have] been successful in relation to those issues and therefore I find in favour of the [deceased’s] family.” She continued at [99]:
“In this case, I feel a reasonable satisfaction that the deceased did indeed have a poorer diet than he would have had but for his employment together with poorer sleep and frequent travel. The unchallenged evidence provided by Associate Professor Haber is that these aggravated his disease condition. I therefore find as matter of common sense that employment was the main contributing factor to the aggravation of the disease.”

Consideration

Plainly, the Senior Member erred in recording at [6] of her reasons that the issues remaining in dispute were those arising under ss 9A and 9B of the 1987 Act. It is necessary to consider whether this error was material. Curiously, as discussed above, the appellant’s primary submission of 8 November 2024 continues to press an argument that the Senior Member erred in determining that employment was a substantial contributing factor to the deceased’s coronary artery disease and death. These submissions were made notwithstanding that, following the amendment of the injury description, the claim pursued by the respondents alleged an acceleration or aggravation of the deceased’s coronary artery disease. This necessitated proof that the “employment was the main contributing factor to the aggravation, acceleration, … of the disease” in accordance with s 4(b)(ii) of the 1987 Act.
The Senior Member recognised at [17] of her reasons that the case was pleaded as a “disease injury” and that the first respondent must prove that employment was the main contributing factor to the disease or aggravation of the disease. Having made a finding that the deceased’s coronary artery disease was accelerated or aggravated by the impact of his employment on his diet and sleep, the Senior Member found at [99] that employment was the “main contributing factor to the aggravation of the disease”. As the respondents submit, these references plainly invoke s 4(b)(ii).
Ordinarily, these references might refute an argument that the Senior Member failed to engage with s 4(b)(ii) or carry out the evaluative exercise required by the section. The error in [6] would not be material. But, as the appellant submits, the dispositive section of the Senior Member’s reasons under the heading “Applying the legislation” is entirely concerned with s 9A and criteria arising under that section.
The Senior Member addressed the elements of s 9A and the case law applicable to the section between [83] and [93] of her reasons. She canvassed several of the examples enumerated in s 9A(2) and addressed s 9A(3),[100] before finding that the requirements of s 9A “are therefore satisfied.”[101] The rigorous attention to, and the making of a finding under s 9A suggests error.
[100] Reasons, [88]–[89].
[101] Reasons, [93].
The Senior Member proceeds to find that the test in s 9B was also met. After making findings in respect of s 9A and s 9B, under the heading “Conclusion”, the Senior Member states that the “[dependants have] been successful” and that she “find[s] in favour of the [deceased’s] family.”[102] It was only after this that she returned at [99] to the live issue under s 4(b)(ii). Thus, the critical finding that the employment “was the main contributing factor” at [99] is made after the Senior Member had seemingly determined the case and without further reasons.
[102] Reasons, [98].
It is axiomatic that a member’s reasons should not be overzealously scrutinised with a view to finding error. Reasons must be read as a whole[103] and the focus of attention should be on the real issue identified by the grounds of appeal.[104] It is also true, as the respondents argue, a consideration of “main contributing factor” is an evaluative exercise; comparable to an enquiry into causation, which can be established by a process of inference which combines primary facts like “strands in a cable”.[105] Nonetheless, I have concluded that the Senior Member’s reasons do not engage with the appellant’s argument that the deceased did not die as a result of an injury within s 4(b)(ii) of the 1987 Act.
[103] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443–444.
[104] See Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, [64], per Kirby J.
[105] Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29, [91], per Spigelman CJ.
It is possible that the Senior Member’s discussion of s 9A was intended to provide the foundation for her consideration of s 4(b)(ii), but the Senior Member does not say this. On the contrary, she proceeds to make a finding that the “requirements of s 9A are satisfied”. The critical part of her reasoning is, therefore, solely concerned with s 9A.
Undoubtedly, the determination of a s 9A issue bears some resemblance to a determination of “main contributing factor” under s 4(b)(ii). But there are significant differences. Section 4(b)(ii) does not require an evaluation of the examples in s 9A(2). Plainly, there is a vast difference between “a substantial contributing factor” and “the main contributing factor” (my emphasis). A positive finding in respect of the former cannot readily be transposed to the latter. I appreciate that as is often the case in matters arising under the 1987 Act, evidence which satisfies one provision will also satisfy another.
Mr Parker submitted that the issue for determination could be characterised broadly as one of “liability”. But it was incumbent upon the Senior Member to determine liability in accordance with the provisions of the 1987 Act properly raised by the appellant at the arbitration.
Mr Parker argued that the fact that the Senior Member “applied” s 9A did not detract from her determination of the injury issue under s 4(b)(ii). But, given the concentration on s 9A, it is by no means clear that the Senior Member engaged with the evaluative process required by s 4(b)(ii). The determination of a wrong issue in the context of an error identifying the issues in dispute gives rise to significant uncertainty as to whether the s 4(b)(ii) dispute was addressed and properly determined. I accept the appellant’s submission that there is substantial doubt over the test the Senior Member employed in determining the injury issue.
Of greater force is the first respondent’s submission that, as the Senior Member found an acceleration and aggravation of the deceased’s coronary artery disease related to his employment and that there were “no competing inferences in this dispute”,[106] a finding that the employment was the main contributing factor to the disease was not only open but inevitable.[107] It is undoubtedly correct that where an aggravation of pre-existing disease is accepted or proven, employment need only be the main contributing factor to that aggravation or acceleration to establish a s 4(b)(ii) injury.[108] But this argument exemplifies the central difficulty arising under this ground. The Senior Member found “no competing inferences” during that part of her reasons where she was, almost certainly, addressing s 9A and shortly before she made a finding that s 9A was satisfied. As discussed above, while both may involve an evaluative exercise, the language and the requirements of the sections are different.
[106] Reasons, [91].
[107] R1FS, [12].
[108] State Transit Authority of New South Wales v El-Achi [2015] NSWWCCPD 71, [64]–[67], applying Murrayv Shillingsworth [2006] NSWCA 367.
The need to undertake the evaluative exercise required by s 4(b)(ii) was unquestionably raised by the appellant at the arbitration hearing. This was not a case where the medical evidence directly addressed the issue of whether employment was the main contributing factor to the aggravation of coronary artery disease. A/Prof Haber stated in his primary report, admittedly on the basis of an incomplete history, that it was not. He was not asked to address main contributing factor in his supplementary reports. The rejection of part (or all) of the evidence of A/Prof English and the acceptance of the evidence of A/Prof Haber did not provide a complete answer to the issue of main contributing factor. A/Prof Haber attributed the deceased’s death to coronary artery disease, and an enlarged heart probably caused by hypertension.[109] A/Prof England, in a probably uncontroversial aspect of his first report, diagnosed diabetes in addition to hypertension. Both are relevant to coronary artery disease. The opinion of A/Prof Haber on these matters in his primary report was a prominent aspect of the appellant’s case at the arbitration hearing.
[109] ARDW, 41.
These and other matters raised in argument are not necessarily determinative of the case. Possibly, an unhealthy diet related to work may have had an adverse impact on these conditions as well as his coronary artery disease. I raise them merely to demonstrate that the error of failing to address “main contributing factor” was material. The appellant has proven error in failing to engage with the evaluative process required by s 4(b)(ii).

CONCLUSION

The submissions raise issues other than those discussed above. As I have found material error in respect of Grounds 1 and 3, it is unnecessary to consider those arguments. The orders in the Certificate of Determination dated 11 October 2024 are revoked. There remains evidence on which the respondents might succeed in establishing liability. In those circumstances, I propose to order that the matter be allocated to a non-presidential member to determine the issues in dispute between the parties.

DECISION

The Certificate of Determination dated 11 October 2024 is revoked.
The matter is remitted to another non-presidential member for determination of the issues between the parties.

Paul Sweeney
ACTING DEPUTY PRESIDENT

13 August 2025