Secretary, Department of Communities and Justice v Miller & Anor (No 5) - [2020] NSWWCCPD 38

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Secretary, Department of Communities and Justice v Miller and anor (No 5) [2020] NSWWCCPD 38
APPELLANT:	Secretary, Department of Communities and Justice
FIRST RESPONDENT:	David Miller
SECOND RESPONDENT:	Terren Tuhi
INSURER:	QBE TMF
FILE NUMBER:	A1-2472/19
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	11 October 2019
DATE OF APPEAL DECISION:	17 June 2020
SUBJECT MATTER OF DECISION:	Application of the principles of estoppel - issue estoppel, the doctrine of res judicata, and Anshun estoppel; joinder of parties in death claims.
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Morgan, counsel
Moray & Agnew Solicitors
Respondents:
Mr D Hooke SC and Mr J Wilson, counsel
Stacks Law Firm
ORDERS MADE ON APPEAL:	1. The name of the appellant, wherever it appears, is amended to read ‘Secretary, Department of Communities and Justice’. 2. The Certificate of Determination dated 11 October 2019 is revoked. 3. The matter is remitted to another Arbitrator to be dealt with in accordance with these reasons.

INDEX TO DECISION

INDEX TO DECISION

INTRODUCTION

BACKGROUND

Miller No 1

Miller No 2

Miller No 3

Miller & Anor No 4

THE ARBITRATOR’S REASONS

ON THE PAPERS

THRESHOLD MATTERS

LEGISLATION

GROUNDS OF APPEAL

PRINCIPLES ON APPEAL

SUBMISSIONS

As to Ground One: The Arbitrator erred in fact and law in determining the applicant was not estopped either through operation of the principles of res judicata or issue estoppel from pursuing a further claim for compensation for death of a worker

The appellant’s submissions
The respondents’ submissions
The appellant’s submissions in reply

As to Ground Two: The Arbitrator erred in fact and law in determining compensation for death of a worker was payable by the respondent contrary to the evidence and in the absence of adequate or any adequate reasons

The appellant’s submissions
The respondents’ submissions
The appellant’s submissions in reply

As to Ground Three: The Arbitrator erred in fact and law in failing to properly apply the principles in Anshun

The appellant’s submissions
The respondents’ submissions
The appellant’s submissions in reply

DISCUSSION

As to Ground One

As to res judicata
As to issue estoppel

As to Ground Two

As to Ground Three

Terren Tuhi

DECISION

INTRODUCTION

Ms Moori Miller was employed by the appellant in these proceedings as a community transport driver based in Brewarrina. Ms Miller’s normal duties involved organising drivers for the home services division’s clients and on occasion she was required to undertake driving duties herself. On 15 April 2011 Ms Miller had driven three patients from Brewarrina to Dubbo. Late in the afternoon of 15 April 2011 Ms Miller was driving the return journey from Dubbo to Brewarrina when she suffered a severe asthma attack. This occurred approximately 10–15 kilometres from Nyngan. Tragically, the asthma attack was of such severity that death by anoxia followed shortly thereafter.
On 5 May 2014, the Deputy State Coroner Mr H Dillon entered a verdict of death due to anoxia citing a severe asthma attack as the antecedent cause.
As a result of this event, the deceased’s husband, Mr David Miller, has pursued death benefits under the Workers Compensation Act 1987 (the 1987 Act). Mr Miller’s applications for these benefits have been dealt with in the following determinations. For ease of reference I have numbered each of the four preceding decisions as follows:
(a)    Miller v The State of New South Wales (Home Care Service Division) [2017] NSWWCC 66, 21 March 2017, Arbitrator Batchelor (Miller No 1)
(b)    Miller v State of New South Wales [2017] NSWWCCPD 38, 1 September 2017, Acting Deputy President G Parker SC (Miller No 2)
(c)    Miller v State of New South Wales [2018] NSWCA 152, 12 July 2018, McColl JA, Meagher JA, Leeming JA (Miller No 3)
(d)    Mr Miller and his son, Mr Terren Tuhi, then lodged proceedings in matter 2472/19 against the State of New South Wales (Home Care Services Division). The employer filed its Reply on 22 May 2019 under the name Secretary, Department of Communities and Justice. On 2 June 2020, the appellant employer made an application confirming its intention to amend the name of the appellant to ‘Secretary, Department of Communities and Justice’, consistent with the Commission’s E-Bulletin 86, by consent. The name of the appellant employer, wherever it appears, is amended to read ‘Secretary, Department of Communities and Justice’. Miller & anor v Secretary, Department of Communities and Justice 2472/19, 11 October 2019, Arbitrator Wynyard (Miller & Anor No 4).
The employer appeals in these proceedings, which I will designate as Miller & Anor No 5, against the decision of Arbitrator Wynyard.
Given this history, it is unsurprising that in Miller & Anor No 4 arguments regarding res judicata, issue estoppel and Anshun estoppel[1] arose as principal matters of contention between the parties. Liability also remained in issue. For these reasons, it is necessary therefore to not only review the facts of what occurred, but also the history of the litigation, particularly given the estoppel arguments maintained by the appellant in these proceedings.
[1] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun).

BACKGROUND

The facts in this matter are not greatly in dispute.
As at 15 April 2011, the deceased, Ms Moori Miller, was employed by the Home Care Services Division of the State of New South Wales, based in Brewarrina, as a community transport driver. The deceased suffered from asthma her entire life.
The deceased worked for “Nynghana Home Care” which provided indigenous services in the form of transporting clients to medical appointments between large towns in the north west of New South Wales. The deceased was a coordinator, working on her own from an office in Brewarrina. Her duties principally involved office work and also driving duties when other drivers were not available.
On 14 April 2011, another driver became unavailable for a trip from Brewarrina to Dubbo and return the following day. The deceased undertook this trip, it appears, with three persons who had appointments in Dubbo.
Around 4:30 pm the deceased was driving the community transport bus from Dubbo through to Brewarrina with about six passengers on board. She was driving along the Mitchell Highway towards Nyngan when she started experiencing breathing difficulties, including coughing and gasping for air. Passengers from the bus asked the deceased to pull over.
Upon pulling over to the roadside it became apparent that Ms Miller was having an asthma attack. The deceased took some puffs of her puffer but continued to cough. As the vehicle pulled over, the vehicle travelling behind it realised that she was distressed and also pulled over. Off duty ambulance officer Mr Craig Holman was in this vehicle, returning from holidays to Nyngan.
Mr Holman dragged the deceased from the vehicle and at this point realised she was unconscious. Mr Holman diagnosed that the deceased was in cardiac arrest, she was absent a pulse and respiration. He began CPR. As no ambulance officers were available in Nyngan, Mr Holman contacted the police for assistance at 4:45 pm.
The police attended the job and picked up a doctor (Dr Abbas Haghshenas) and nurse (Nurse “Trish”) from Nyngan Hospital at 4:49 pm. They arrived at the scene at 5:00 pm. Upon their arrival the police saw Mr Holman conducting compressions on the victim. Dr Haghshenas commenced insertion of the laryngeal mask airway while Mr Holman attempted defibrillation, however no shock was delivered. Oxygen and adrenaline were given to the deceased, and resuscitation attempts continued.
Approximately four minutes later the fire brigade were on scene. Ten minutes later a single unit ambulance officer arrived, and the deceased was placed on the stretcher and conveyed by ambulance to Nyngan Hospital at 5:19 pm.
At the hospital they continued to work on resuscitating the deceased, however this was unsuccessful, and Ms Miller was pronounced dead at 6:23 pm.
For the sake of completeness, I record that the Deputy State Coroner dispensed with holding an inquest into Ms Miller’s death and recorded the cause of death in his notice addressed to the appellant’s solicitors dated 5 May 2014 as directly due to anoxia with the antecedent cause being a severe asthma attack.[2] There is nothing noted under ‘other significant conditions’ in the notice dispensing with inquest.
[2] Application in Respect of Death of Worker registered 22 May 2019 (ARD 2472/19), pp 131–132.
As referred to at paragraph [3] above, Mr Miller, the deceased’s husband, brought a series of claims arising from his wife’s death which were subject to a series of proceedings before the Commission.

Miller No 1

In the first set of proceedings Mr Miller was the sole applicant. In the Application in Respect of Death of Worker registered on 11 November 2016 (ARD 5831/16) Terren Tuhi is named as a respondent and as a dependent child of the deceased. Whilst Mr Tuhi was named as such, no separate submission was put on his behalf. In these proceedings Mr Miller claimed compensation pursuant to s 25 of the 1987 Act as a result of the death of the deceased on 15 April 2011 and funeral expenses. He also claimed that the lump sum death benefit should be apportioned between himself and Terren Tuhi, a child of Mr Miller and the deceased, pursuant to s 29 of the 1987 Act.
Mr Miller claimed that the deceased suffered from an injury resulting in her death arising out of or in the course of her employment with the respondent, in accordance with the definition in s 4(b)(ii) disease injury provisions of the 1987 Act, and that such employment was a substantial contributing factor to the injury, in accordance with s 9A of that Act. At Part 4 of ARD 5831/16, the cause of injury and death were pleaded as follows:
“The deceased work[er] was driving the Community Transport bus from Dubbo to Brewarrina when she experienced breathing difficulties. The deceased worker was an asthmatic. She pulled the vehicle over on the side of the road, approximately 10kms from Nyngan where she suffered an asthma attack.
As a result of suffering an asthma attack, the deceased worker suffered cardiac arrest and died due to the remoteness of the location and critical medical attention not being received, which was in the realms of her employment as a Home Care Service driver.”
The respondent employer denied liability for the claim. It conceded that the injury occurred in the course of the deceased’s employment, but not that it arose out of that employment, or that employment was a substantial contributing factor to the injury. In a s 74 notice issued on 26 February 2016, the respondent asserted that Mr Miller had not disclosed any evidence by which it could be established that the deceased’s employment contributed in a material way to the injury which resulted in the death of the deceased.[3]
[3] Reply to ARD 5831/16, pp 1–2.
The evidence before Arbitrator Batchelor was contained in ARD 5831/16, the Reply to that Application and attachments received 1 December 2016 and an Application to Admit Late Documents and attachments received 24 January 2017.

Miller No 1 – Evidence

Mr Miller’s evidence

Mr Miller’s evidence is set out in three statements, dated 17 April 2011[4], 25 November 2015[5] and 19 January 2017.[6]
[4] ARD 5831/16, p 9, and part of the Coroner’s Brief of Evidence.
[5] ARD 5831/16, p 133.
[6] Application to Admit Late Documents dated 24 January 2017 filed in proceedings 5831/16 (AALD 5831/16), pp 10–16.
Both Mr Miller and the deceased were born in New Zealand and moved to Australia together in 1981. They married in about 1997. They moved to Brewarrina, near Nyngan, NSW in approximately 2006.
In his first statement, Mr Miller states that the deceased was on medication for chronic asthma and generally only took it when she felt an asthma attack coming on, normally two tablets every night before she went to bed. Mr Miller also says that the deceased used to get pneumonia, “pretty much every winter” and always used to end up in hospital. In his second statement, Mr Miller says that the deceased rarely needed to use her asthma puffer during the day, but that it was more at night when she had problems with her asthma. He never saw her suffering a bad asthma attack at home, but on some occasions he saw her struggle for air, when she would use her asthma puffer and “be okay.”[7] On rare occasions the puffer would not help and she would need to use a Ventolin machine. Mr Miller only saw her do this two or three times. He does not remember the deceased ever suffering an asthma attack at work.
[7] ARD 5831/16, p 134.
Mr Miller gives evidence of the deceased’s attendance on a general practitioner during the time they lived in Melbourne and after the move to Brewarrina, when Dr Deon Allen (sic Heyns) at the Brewarrina Medical Centre, was consulted. He also says that on the occasions when the deceased ended up with pneumonia each winter (for the last three years of her life) she spent about a week in Brewarrina Hospital where she was put on a drip and recovered.
Mr Miller notes that on the day of her death the deceased only had one asthma puffer with her, a fact that Mr Miller deduced from the return of the deceased’s belongings to him by the hospital following her death. He does not know the reason for this as he states that the deceased usually always carried two puffers in her handbag.
Mr Miller states that he does not know what triggered the deceased’s asthma attack on 15 April 2011. He says it was very unusual for her to have an asthma attack during the day.

Mr Holman – off duty paramedic

Mr Craig Holman, the ambulance officer, who provided first aid assistance at the scene, provided a statement to the NSW Police on 27 June 2011. Mr Holman assisted removing the deceased, who was unresponsive at the time, from the vehicle and put her on her back on the side of the road. He said:
“At the same time I diagnosed that the woman was in cardiac arrest, she had an absent pulse, absent respirations and her skin was cyanosed. I commenced CPR, being checked the airway which was clear and commenced cardiac comprehensions [sic].”[8]

Marjorie Parker and Faye Dwyer – passengers onboard the vehicle

[8] ARD 2472/19, p 18.

Ms Dwyer and Ms Parker were passengers in the vehicle driven by the deceased on the day of the incident. They provided statements dated 9 September 2016 and 29 October 2016 respectively. According to these two witnesses, the deceased “seemed to be having breathing problems and started coughing consistently and seemed to be gasping for air”[9] as the bus was leaving Nevertire and “started to cough and have problems breathing as we were leaving Nevertire”[10]. It was as the bus got closer to Nyngan that “Mary” (who has not supplied a statement in the proceedings) asked the deceased to stop and have a break. At that time Ms Parker says that the deceased started really coughing, got her puffer out and took some puffs. She also confirms that the deceased was still conscious when she pulled over, but thereafter could not get any air into her lungs and, slumped over the steering wheel and passed out.
[9] Per Ms Dwyer, ARD 2472/19, p 300.
[10] Per Ms Parker, ARD 2472/19, p 301.

Miller No 1 - Medical Evidence

Dr Abbas Haghshenas – doctor at scene on 15 April 2011

Included in the Coroner’s Brief is an Expert Certificate under s 177 of the Evidence Act 1995 of Dr Abbas Haghshenas (Dr Abbas) signed 2 December 2011.[11] The statement sets out his involvement in the events of 15 April 2011 on the Mitchell Highway, Nyngan. Dr Abbas certifies that he is a general practitioner of 14 years’ standing and opines that the deceased had a cardiopulmonary arrest at the time of his examination at approximately 5:00 pm. She was non-responsive, and her pupils were dilated and fixed. She was placed on the side of the road on her back “by her mates”.
[11] ARD 5831/16, pp 16–17.
Dr Abbas notes that cardiopulmonary resuscitation (CPR) was started immediately on the deceased with chest compressions, and bag-valve breathing via laryngeal mask. Her heart rhythm showed asystole. The deceased received intravenous administration of adrenaline. Before transfer to hospital, the deceased’s heart rhythm turned to “VT”, and she received “DC shock”. The deceased’s rhythm subsequently turned to “rapid AF”. She remained unconscious and there were no signs of spontaneous resumption of circulation, for example, pulse.
Dr Abbas states that on transfer to Nyngan Hospital intubation was attempted. Due to difficulty with this, a laryngeal mask was reinserted. Communication was established with an ICU specialist via video link at a referral hospital for ongoing advice while CPR continued. Dr Abbas states that the deceased’s heart rhythm varied several times from VT to AF asystole, and that circulation failed to be established with the deceased remaining unconscious throughout. He notes that CPR continued for up to 60 minutes from the time of arrival at the scene. After consultation with the ICU specialist over video link, CPR was terminated, and the patient was declared dead.

Clinical notes

There are clinical notes in evidence from:
(a) Chapel Street Medical Centre, St Kilda Victoria in respect of consultations the deceased had at that centre over the period 19 February 2000 – 22 October 2007,[12] and
(b) Barwon River Medical Centre, Brewarrina in respect of consultations the deceased had at that centre over the period from November 2005 until September 2010.[13]
[12] ARD 5831/16, pp 203–251.
[13] ARD 5831/16, pp 138–202.
There are clinical notes in evidence from Dr Battat of Chapel Street Medical Centre that indicate the deceased had been under regular and frequent treatment for her asthma since moving to Brewarrina. During this period the deceased sought admission to hospital three times in August 2003, January 2004 and in July 2010 for treatment for her asthma and related conditions. Dr Battat's clinical notes indicate the deceased was also hospitalised in July 2010 for treatment for asthma. Since moving to Brewarrina the deceased has received treatment from local general practitioners and required admission to Brewarrina Hospital.

Dr Deon Heyns – deceased’s treating GP

Dr Heyns provided a short report, addressed to Mr Miller and dated 8 September 2016.[14] He notes that he cannot comment on the specific case of the deceased’s death, as he was not involved, although he says he knew and treated the deceased as her general practitioner in Brewarrina “a few years earlier.” When asked whether the deceased would have had a better chance of survival if she was at home or in town, compared to her having had an asthma attack, as she did, out of town and a long way from acute medical care, the doctor says:
“The short answer is that the time it takes for a patient with an acute asthma attack to receive medical treatment is a very important factor in the outcome. If a patient starts having an acute asthma attack and the only treatment they have is a Ventolin inhaler their outcome would be a lot worse than if they were treated in a hospital setting with steroids, oxygen, nebulised salbutamol and ipratropium bromide and the option of further management with adrenalin and even intubation and ventilation was an option.
I know that Moori was very well educated in how to manage her asthma and if she was close to a hospital she would have presented very early if she had a sudden deterioration, or the ambulance would have been able to reach her in time to administer lifesaving medical care.
In my opinion, that fact that she got sick so far from medical care and that it took such a long time for medical care to arrive to her could undoubtedly play a role in her outcome.”

Dr Paul Jennings – IC paramedic (qualified by Mr Miller’s solicitors)

[14] AALD 5831/16, p 5.

Dr Paul Jennings, an Intensive Care Paramedic expert with qualifications in nursing, health science, paramedic studies and clinical epidemiology, prepared a report dated 8 October 2015, at the request of Mr Miller’s solicitors. Dr Jennings described the pathology regarding an asthma condition. He described that if a severe asthma attack went untreated, the body tissues would become "hypoxic" (deprived of adequate oxygen supply) which may lead to cardiac arrest.
Dr Jennings says that if a cardiac arrest occurred, basic life support such as cardiopulmonary resuscitation is a temporising intervention to maintain heart and brain oxygenation until advanced life support personnel and equipment was available. Electric defibrillation was, he said, the mainstay for heart rhythms that are amenable to defibrillation, and the chance of successful defibrillation decreases with time following heart stoppage. Dr Jennings' opinion was that early recognition of a person who was in an asthmatic state and later cardiac arrest, and early treatment of basic life support and defibrillation would have likely significantly improved the chances of survival.
At paragraph [21] Dr Jennings says the best chance of survival following cardiac arrest with limited disability due to anoxia occurs if:
(a)    the patient is witnessed to collapse (ie time to identifying cardiac arrest and summoning help is reduced);
(b)    CPR is commenced immediately;
(c)    the heart rhythm is amenable to defibrillation (ie ventricular fibrillation or pulseless ventricular tachycardia), and
(d)    defibrillation is performed as soon as possible.
At [22] Dr Jennings says that in summary, the deceased’s chances of survival would have been significantly improved by shortening the duration between her cardiac arrest (the time the heart stopped pumping) and the time an appropriately equipped and skilled team arrived at her side.[15]

Associate Professor David H Bryant – respiratory specialist (qualified by Mr Miller’s solicitors)

[15] ARD 5831/16, p 260.

Dr Bryant, a respiratory medicine specialist qualified by Mr Miller’s solicitors, conducted a file review and produced a report dated 6 February 2015 and a supplementary report dated 21 April 2016.
In the first report Dr Bryant agrees with the opinion of the Coroner who found that the cause of death was anoxia due to a severe asthma attack. He states that he has seen no evidence that the work of the deceased person as a home care services driver would have been a substantial contributing factor to her developing an asthma attack. He then concludes his report with the following:
“I have seen no information regarding the deceased’s level of asthma control in the twelve months prior to her death but the medical records indicate that she had a longstanding history with severe, unstable and steroid dependent asthma.
The likelihood of sudden severe and potentially life threating episodes of asthma is greater in individuals with severe or poorly controlled asthma especially if an asthma attack occurs in a situation where high level medical care is not readily available.”[16]
[16] ARD 5831/16, p 297.
In his supplementary report dated 21 April 2016 Dr Bryant states:
“It is more probable than not that the death of Ms Miller was substantially contributed to by the remoteness of her location at the time of suffering her asthma attack. In cases of severe acute life-threating asthma there may be a very narrow window of opportunity for delivering effective treatment and, once this has passed, irreversible body damage occurs and the patient’s condition is no longer salvageable. Because of the remoteness of the location in which Ms Miller was at the time of her attack, it is likely that the delay in receiving treatment did substantially contribute to her death.”[17]

Professor Iven Young - respiratory specialist (qualified by appellant employer)

[17] ARD 5831/16, p 298.

Professor Young, specialist respiratory physician qualified by the appellant, prepared a report dated 20 June 2016 following a file review.[18] Dr Young’s report notes that the referral letter states “the cause of death has been certified by the coroner as due to anoxia secondary to a severe asthma attack” and that he has been asked to draft his report based on that assumption.[19]
[18] Reply to ARD 5831/16, p 9.
[19] Reply to ARD 5831/16, p 10.
Based on the documents provided to him, Professor Young did not find any specific precipitant for the fatal asthma attack on 15 April 2011. On the assumption that the deceased was not smoking whilst driving the vehicle, he says she would have been predisposed to sudden severe asthma attacks of uncertain cause from her history of persistent asthma spanning many decades. He does not believe that a specific cause for this fatal attack can be identified but says it could be predicted that she was very likely to have a severe attack at any time.
When asked, having regard to the deceased’s history of asthma, what effective medical treatment of her acute asthma attack would have entailed, Professor Young says that the deceased would have needed to reach a medical facility with the ability to maintain effective ventilation of her lungs with supplemental oxygen before her attack progressed to severe anoxia and cardiac arrest. That requirement may evolve within minutes. Professor Young states:
“… it needs to be understood that effective ventilation with the airways tightening and narrowing very severely often requires intubation of the airway and mechanical ventilation and these facilities are only available in a hospital’s emergency department.
There was every indication that [the deceased’s] fatal asthma attack evolved to severe anoxia and cardiac arrest within a few minutes. Once this had occurred, irreversible brain damage and subsequent death would only take between three and five minutes.”
In Professor Young's opinion, the deceased’s condition was not recoverable from the time of her attack at approximately 4.30 pm given that it deteriorated rapidly. Professor Young says that “it appears that [the deceased] lost consciousness in minutes and this would have been due to anoxia and probable cardiac arrest at that time. Although Mr Holman was on the scene within five minutes, [Professor Young] believe[s] that it is very probable that [the deceased] had already suffered irreversible brain damage at that time and resuscitation efforts were doomed to failure.”[20] He notes that the nurses on the bus apparently had not been able to feel a pulse within minutes of the deceased complaining of an asthma attack, and he believes that the chances of a successful resuscitation would have been lost within two or three minutes after this finding.
[20] Reply to ARD 5831/16, p 12.
When asked to comment on the “very narrow window of opportunity”, Professor Young says that this refers to the ability to effectively ventilate the patient with severe asthma before severe anoxia and a cardiac arrest occurs. That means that the patient, while developing severe asthma, needs to be transported to a hospital’s emergency department because intubation is very frequently required to effectively ventilate the asthmatic lungs as high pressures are needed. The window of opportunity refers to the time between the onset of the asthma attack and the severe anoxia causing cardiac arrest, which can vary depending on the severity and progression of the asthma attack. Professor Young says:
“It is well recognised that patients with a severe attack of asthma, as long as they reach a hospital’s emergency department before cardiac arrest, will very often survive but hardly ever survive if arrest has occurred before reaching such a facility.”[21]
[21] Reply to ARD 5831/16, pp 12–13.
Professor Young says that by the time Dr Abbas arrived, the deceased’s condition was not recoverable. He goes on to say:
“It is possible that ventilation with a bag and mask and use of adrenal[ine] or a defibrillator could have had a successful outcome if applied within the first few minutes of Mrs Miller’s severe asthma attack. However, all the evidence would indicate that she lost consciousness within around two to three minutes of first complaining of the attack. By the time Mr Holman arrived, which was very timely in any circumstance apart from her being in a well-equipped medical facility, I believe that she had already suffered fatal anoxia and that she would not have survived.”[22]
[22] Reply to ARD 5831/16, pp 13–14.
In response to a question as to what further measures could have been taken, if any, to secure a recovery of the deceased’s condition, Professor Young says:
“I believe the same fatal outcome would have occurred if she suffered this attack at her home or any other environment. Mrs Miller required immediate bag ventilation with oxygen proceeding to airway intubation and administration of intravenous drugs.”[23]
[23] Reply to ARD 5831/16, p 14.

Miller No 1 – Arbitrator Batchelor’s findings

The issues for determination before Arbitrator Batchelor in Miller No 1 were:
(a) Was the deceased’s employment with the respondent a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury from which the deceased suffered, in accordance with s 4(b)(ii) of the 1987 Act prior to its amendment by the Workers Compensation Legislation Amendment Act 2012?
(b) Are there any other persons other than [Mr Miller] and Terren Tuhi, named in Part 5.1 of the Application, who may have been dependent for support upon the deceased at the time of her death or who may be claiming to be dependent?
On 21 March 2017, Arbitrator Batchelor determined matter no 5831/16, making an award in in favour of the respondent employer. The Arbitrator summarised Mr Miller’s case at [9] of his Reasons:
“[Mr Miller] contends that had the deceased been in Brewarrina at the time of her severe asthma attack on 15 April 2011, she could have availed herself of medications which she kept in her home, attended on her general practitioner, or at the Brewarrina Hospital and thereby avoided the fatal consequence of her asthma attack.”
Whilst the Arbitrator accepted Mr Miller’s submission based on treating doctor Dr Heyn’s opinion that the deceased was well educated in how to manage her asthma condition, he did not accept that her condition was “well controlled”. The Arbitrator accepted Professor Young's opinion that, having regard to the history of her condition, a severe attack was likely to happen at any time.[24]
[24] Miller No 1, [99].
The Arbitrator found that the location of events may have been a substantial contributing factor to the deceased's death; however it was not such a factor to her injury. He accepted Professor Young's evidence that, having regard to the deceased's medical history and her chronic life-long condition, the deceased was likely to suffer a severe asthma attack at any time.[25] He noted that there was no suggestion from either party that the particular conditions of the deceased’s employment on 15 April 2011 brought on the attack.[26] The Arbitrator found:
“In this case the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment.
[Mr Miller’s] submission is that because of the location of the asthma attack the deceased lost the opportunity to seek suitable treatment in Brewarrina, either at a doctor's surgery or the local hospital or, (in accordance with the ‘two pronged approach’ put forward by [Mr Miller’s] counsel), having access to a second inhaler, nebuliser or ventilator. The following matters are relevant:
(a)    the deceased gave no indication of the apparent seriousness of her attack to the passengers on the community bus. She did not pull over until asked to do so;
(b)    the deceased suffered from a serious asthma condition and was at risk of a severe attack at any time;
(c)    the condition was not well controlled, but the deceased was well educated as to how to manage her condition;
(d)    the deceased had a long history of treatment for her condition, both in hospital and with her treating doctors;
(e)    at the time the deceased was in the course of her employment and not carrying out anything other than normal duties as part of that employment as a community transport coordinator and driver, and
(f)    once the very serious nature of the asthma attack became apparent when the bus was between Nevertire and Nyngan, the ‘window of opportunity’ for effective lifesaving treatment to be rendered to the deceased had unfortunately passed.”[27]
[25] Miller No 1, [110].
[26] Miller No 1, [99].
[27] Miller No 1, [112]–[113].
The Arbitrator further noted at para [114] that in order for Mr Miller to succeed in his claim, on the basis put forward in Miller No 1, the following would need to be assumed:[28]
(a)    that the deceased was in or close to Brewarrina at the time of her attack;
(b)    that she immediately recognised the seriousness of the attack;
(c)    that the use of an additional puffer, nebuliser or ventolin was insufficient treatment to deal with the attack;
(d)    that she was able to get herself to the Brewarrina Hospital in time for the appropriate treatment to be administered to her. In this context, the Arbitrator did not think that, having regard to the opinions of Professor Young and Dr Bryant on the seriousness of the deceased’s condition, attendance at a doctor's surgery would have been sufficient to receive the necessary treatment, and
(e)    that the treatment given at the Hospital would have been adequate to save the deceased's life.
[28] Miller No 1, [114].
The Arbitrator found that there was not sufficient evidence to make a finding in favour of Mr Miller on the basis of the above assumptions. The Arbitrator found the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment.[29] Therefore he found that on the balance of probabilities, Mr Miller had not discharged the onus of proof on him to show that the deceased’s employment was a substantial contributing factor to the injury suffered by her in the course of her employment on 15 April 2011.
[29] Miller No 1, [112].

Miller No 2

Mr Miller appealed Arbitrator Batchelor’s decision in an appeal application dated 13 April 2017. Mr Miller submitted 11 grounds of appeal, not all of which were pursued in his written submissions. In paragraph [4] of his decision, Parker ADP attempts to restate Mr Miller’s grounds of appeal in order to address his arguments, which I summarise in the following manner:
(a)    Grounds One to Five inclusive relate to paragraph [114] of the Arbitrator's reasons and cavilled with the Arbitrator’s finding that there was insufficient evidence to make a finding in favour of Mr Miller on the facts assumed in paragraph [114] (set out in [54(a)–(e)] above).
(b)    Ground Six complains that the Arbitrator failed to apply common sense to the test for substantial contributing factor.
(c)    Grounds Seven and Eight challenge the findings of the Arbitrator at paragraph [112] and the application of s 4 of the 1987 Act.
(d)    Ground Nine asserts that the Arbitrator failed to consider and make findings as to whether the factors were real and of substance in the sense discussed in Badawi v Nexon Asia Pacific Pty Ltd.[30]
(e)    Ground Ten asserts that the Arbitrator failed to provide adequate “resources” (assumed to mean a complaint as to the adequacy of the “reasons”).
(f)    Ground Eleven asserts that the Arbitrator failed to make findings with respect to the injury expressed by Drs Bryant, Jennings and Heyns.

Application for fresh evidence

[30] [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75 (Badawi).

Mr Miller made an application seeking leave to tender fresh or additional evidence in Miller No 2, namely an “expert report from Specialists Emergency Physician [and] Statements from witnesses on the bus which the deceased was driving”.[31] This was opposed by the employer. The fresh evidence sought to be tendered was:
(a)    report of Dr Jennings dated 4 August 2017;
(b)    report of Professor Fulde dated 12 June 2016 (sic 2017)
(c)    report of Professor Fulde dated 1 August 2017;
(d)    affidavit of Scarlett Abernethy dated 9 August 2017, and
(e)    statement of Heather Finlayson dated 4 August 2017.
[31] Appellant’s submissions in Miller No 2, Reply to ARD 2472/19, p 376.
Parker ADP noted that it was plain the material was not available when the matter was before Arbitrator Batchelor in early 2017. However, he did not find that the additional material in the reports of Dr Jennings and Professor Fulde referred to at [57] above demonstrated that if the material had been received by the Arbitrator, a different conclusion would have been achieved. Furthermore, in his view of the reports, it could not be said that the reports could not reasonably have been obtained by the appellant before the proceedings came on before the Arbitrator.
Parker ADP noted that the essence of Mr Miller’s claim was that the geographic location at which the asthma attack occurred was remote from medical assistance. He found that this still did not answer the question of whether or not the employment was a substantial contributing factor to the injury as distinct from the death. In Parker ADP’s view, the additional reports did not lead to the prospect of a different outcome and he was therefore not persuaded that in declining to admit the additional report the appellant will suffer a substantial injustice.
In respect of the statement of Ms Finlayson and the availability of lifesaving facilities at Brewarrina Hospital, Parker ADP noted that the Arbitrator’s point was not that the hospital did not have the requisite facilities, rather it was that there was no evidence justifying the conclusion that the deceased would have got to the hospital before cardiac arrest.
Mr Miller made a further application to subpoena off-duty paramedic, Mr Craig Holman, for cross-examination, asserting that Mr Holman would be able to provide “key evidence as to the timeline of events”. Parker ADP refused this application noting the timeline was not disputed at arbitration.

Grounds of appeal

In respect of the grounds of appeal generally, Parker ADP found that they did not make out any error of fact, law or discretion. He found that Mr Miller had misconceived the Arbitrator’s intention in paragraph [114] (set out at [54(a)–(e)] above), which in effect outlined assumptions that had to be made to sustain the contention that had the deceased had the asthma attack in Brewarrina at her office she would not have died. He found instead that the essential reasoning was contained in paragraphs [112] and [113] (outlined at [53] above). The finding that the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment (paragraph [112]), in Parker ADP’s view, was fatal to Mr Miller’s success. It was fatal because that finding meant that Mr Miller could not satisfy either s 4(b)(ii) or s 9A.
In respect of Ground One, Parker ADP found that the Arbitrator's conclusion that for Mr Miller’s claim to succeed as pleaded it was necessary to assume the acute asthma attack had happened in or close to Brewarrina was plainly correct. There was no direct evidence that could be used to infer when or where the deceased might suffer an acute asthmatic episode. Ground One failed.
In respect of Ground Two, Parker ADP found the evidence did not support Mr Miller’s assertion that the deceased immediately recognised the seriousness of the attack and that she was unable to act and take appropriate action due to where she was driving. Ground Two failed.
In respect of Ground Three, Parker ADP found that the Arbitrator accepted the evidence of Professor Young as to the treatment of severe asthma attack, and it was open to him to accept that evidence. Ground Three failed.
In respect of Ground Four, Parker ADP found that the appellant’s asserted assumptions as to the deceased’s likely course of conduct were conjectural and that on the evidence of both Professor Young and Mr Miller’s own evidence, the probability favoured the deceased attempting measures other than attendance at hospital within a sufficient time to receive effective treatment. This was based on historical evidence that the deceased only went to the hospital when suffering pneumonia and the accepted evidence of Professor Young that for the deceased to have had any chance of survival she needed to attend hospital within a "very narrow window of opportunity". As such, Mr Miller failed to discharge the onus of proof in establishing that the deceased would have chosen to attend hospital, had she been in Brewarrina, within the “window of opportunity”. Ground Four failed.

In respect of Ground Five, Parker ADP noted that the Arbitrator accepted Professor Young's opinion, that unless the attack occurred at a time when the deceased could have been immediately ventilated, it was likely to prove fatal. Acceptance of that opinion based on the view taken by Professor Young meant that unless the attack occurred in the hospital precinct it was likely to be fatal. Ground Five failed.
In respect of Grounds Six, Seven and Eight, Parker ADP referred to Mercer[32] and Badawi[33] in his finding that it is undisputed that neither the driving nor the location of the bus when the episode commenced caused or exacerbated the severe asthma attack. The task itself and the location at which it was being performed were entirely irrelevant to the onset of the asthma attack. Therefore ss 4, 9 and 9A were not satisfied. Grounds Six, Seven and Eight failed.
[32] Mercer v ANZ Banking Group Limited [2000] NSWCA 138; 48 NSWLR 740, [22], [32].
[33] Badawi, [89], [91].
Further in respect of Ground Nine, Parker ADP found that the Arbitrator’s conclusion that the causal connection between the deceased's employment and the acute asthma attack was not real and of substance as asserted by Mr Miller, who submitted that there is an “unbroken and very immediate chain of causation between the asthma attack, the anoxia causing the cardiac arrest and the circumstances of the deceased’s employment.” Parker ADP found that the underlying premise as to “the circumstances of the deceased’s employment” were not articulated. Parker ADP found that other than geography, there was no circumstance in the deceased’s employment of relevance and the geographical location of the events made no contribution. The underlying disease was not aggravated, accelerated or exacerbated by the duties Mrs Miller was performing. There was, therefore, no injury to which the employment contributed. Ground Nine failed.
Parker ADP found the Arbitrator provided sufficient reasons and had proper regard to the opinions of Drs Bryant, Jennings and Heyns. Grounds Ten and Eleven failed.

Miller No 3

Mr Miller appealed Parker ADP’s decision to the Court of Appeal before McColl JA, Meagher JA and Leeming JA.
The Court noted that the claim brought involved the application of the legislation prior to the amendments to s 4 of the 1987 Act, so that employment had to be a “contributing factor” pursuant to s 4(b)(ii) and not the “main contributing factor” to which the amendment was directed.
The Court considered the decision of Arbitrator Batchelor noting that he said at [107]:
"However in terms of addressing a causal connection between employment and injury, there must be focus on the injury relied upon by the applicant. The applicant relies on s 4(b)(ii) of the 1987 Act, that is an aggravation, acceleration, exacerbation or deterioration of a disease injury. This happened in the course of employment. It is not in dispute that the driving of the bus on 15 April 2011 did not bring on the asthma attack….”[34] (emphasis by Court)
[34] Miller No 3, [13].
The Court noted:
“Thus the Arbitrator proceeded on the basis identified by [Mr Miller], namely, that the deceased had been suffering from a disease (her asthma) which had been aggravated or exacerbated when she suffered an asthma attack during the course of her employment.”[35]
[35] Miller No 3, [14].
The Court also referred to [114] of Arbitrator Batchelor’s decision:
“In order for [Mr Miller] to succeed in his claim, on the basis put forward at the hearing, a number of matters would have to be assumed…”[36] (emphasis by Court)
[36] Miller No 3, [15].
The Court then said at [16]:
“To anticipate what follows, in this Court, at the forefront of [Mr Miller’s] submissions was that the ADP had failed to identify error in the decision of the Arbitrator when the arbitrator himself failed to address whether the injury was the exacerbation of the asthma attack or the anoxia or the cardiac arrest. The short point, as the respondent submitted, was that that case did not form part of any of the 11 alleged errors raised before the ADP or in the written submissions in support (there was no oral hearing). Accordingly, there was no error, still less any error in point of law, in failing to make findings in accordance with a case which was not put to the ADP.”
The Court then reproduced the 11 grounds raised before Parker ADP. At [19] the Court said:
“… It will be seen that nowhere was any challenge made to the approach taken by the Arbitrator that the ‘injury’ was the deceased’s asthma which had been aggravated or exacerbated when she suffered the asthma attack around the time her bus was leaving Nevertire.”
In considering the Grounds of Appeal made to the Court it observed that (to summarise) Grounds One to Eight suffered from the same difficulty - that they raised a complaint that the ADP failed to find something that he was not asked to find.
The Court then referred to an Application made before Parker ADP to admit fresh evidence. It was submitted that in rejecting the fresh evidence, the ADP’s discretion had miscarried because Parker ADP was under a misapprehension as to the case he was considering. At [28] the Court said:
“The ‘misapprehension as to the case he was considering’ is the same alleged misapprehension which underlies the other grounds, namely, as to the identification of the ‘injury’. Hence, this ground may be treated with the other grounds, insofar as it presupposes that a different ‘injury’ had been contended for.”
The Court then referred to the pleadings at Part 4 of the ARD 5831/16, which I have reproduced above at [19]. The Court said at [33]:
“That is insufficient. That introductory section of the form narrates the way in which the deceased died, but without squarely identifying the particular ‘injury’ which, so it was alleged, caused the death. It is one thing to describe the mechanism of death; it is another thing entirely to identify the ‘injury’ for the purposes of a claim under s 25 of the Workers Compensation Act.”
The Court then considered the overall question of causation in the circumstances.
Under the heading “the difficulty in establishing causation in any event” the Court considered what it described as a “counterfactual analysis” as to what could have occurred if the asthma attack had commenced whilst the deceased was in Brewarrina. The Court noted the factual situation that was established on the unchallenged findings of primary fact, saying that the critical matter in the case before it was that the deceased continued to drive
25–30 minutes after the onset of the attack. By the time she was asked to pull over by passengers, there was only a very short period, a matter of a few minutes, within which the deceased’s life could be saved. During the time from leaving Nevertire, a period of some
25–30 minutes, the deceased had taken no steps to address her condition. In particular, she did not seek to administer Ventolin which she had in the vehicle with her. The Court said at [37]:
“On no view of the meaning of s 9A could the deceased’s employment be causally connected with any formulation of the injury unless the deceased would more likely have rapidly appreciated that she was suffering a severe asthmatic attack. It is plain from the reasons of the Arbitrator that he could not make any such finding.”

Miller & Anor No 4

Mr Miller lodged a further Application in Respect of Death of Worker against the respondent employer in matter 2472/19 (ARD 2472/19). In this application, Mr Miller’s son, Mr Terren Tuhi, was also named as an applicant in their claim for lump sum compensation, weekly compensation and funeral expenses. Part 4 of ARD 2472/19 claimed the cause of injury and death as follows:
“1.     The deceased suffered anoxia.
2.      The deceased suffered a cardiac arrest.
3.      The anoxia and/or the cardiac arrest is a personal injury pursuant to section 4(a) of the Act and arose out of or in the course of her employment.
Further, or in the alternative, we are instructed to make a claim for death benefits under the provisions of Section 25 of the Workers Compensation Act 1987 as amended for the death of Ms Moori Miller arising from an injury pursuant to section 4(b) of the Act as follows:
1.      The deceased was suffering from asthma, which is a disease.
2.      The ‘aggravation, acceleration, exacerbation or deterioration’ of the asthma (the disease injury) was the worsening of the asthma symptoms and the anoxia, which caused the cardiac arrest.
3.      The aggravation of the disease was caused when the effects of the disease were increased by external stimulus, in this case, the unavailability of necessary medical treatment by reason of the location at which the deceased was required to work.
4.      The location of the deceased's employment gave rise to an inability on her behalf to access medical aids and treatment when she suffered an asthma attack which was a substantial contributing factor to her suffering the injury (the anoxia and/or the cardiac arrest).”

Miller & Anor No 4 Evidence

In addition to all the evidence that was before Arbitrator Batchelor in Miller No 1, Mr Miller and Mr Tuhi (the respondents in this appeal), sought to rely on the additional material which was rejected as fresh evidence in the appeal proceedings before Parker ADP in Miller No 2 (as listed above at [57]). I summarise the material relevant to this appeal below.

Further report of Dr Paul Jennings

In his further report of 4 August 2017,[37] Dr Jennings was asked to make the following assumptions:
(a)    that the deceased suffered the asthma attack (the same as in the bus on the Mitchell Highway) but in her office situated at 11 Church Street Brewarrina;
(b)    that before the deceased reached a critical state she would have gone to the Brewarrina Hospital situated 800 meters away or her general practitioner at Barwon River Medical Centre situated 750 meters away, and
(c)    that the hospital would have had all of the necessary resources available, that is a doctor, a defibrillator, adrenaline, oxygen equipment and more.[38]
[37] ARD 2472/19, p 394.
[38] ARD 2472/19, p 396–397.
Dr Jennings acknowledged the difficulty in answering the question of whether the deceased would have survived based on the above assumptions. He did however say:[39]
“It is likely that if she had received appropriate treatment of her acute asthma attack in a timely manner that she may never had deteriorated to cardiac arrest at all, and therefore survived. I understand … that Ms Moori Miller ‘… had been coughing and suffering breathing difficulties for 30 minutes’ prior to her collapse and subsequent cardiac arrest. Given this, Ms Moori Miller would have had sufficient time to either call an ambulance, or have someone drive her to her general practitioner or local hospital prior to collapse and subsequent cardiac arrest.”
[39] ARD 2472/19, p 397.
Dr Jennings acknowledged that the deceased's chance of survival would have been “greatly improved” had she received appropriate treatment for her asthma attack prior to her collapse and subsequent cardiac arrest.
Further questions were also asked of Dr Jennings as to the impact of ambulance timeliness in reaching the deceased.

Professor Fulde

Professor Gordian W O Fulde, Professor in Emergency Medicine, was retained by Mr Miller and Mr Tuhi, and issued two expert reports, dated 12 June 2016[40] and 1 August 2017.[41]
[40] ARD 2472/19, p 311.
[41] ARD 2472/19, p 385.
In his first report, Professor Fulde answered several questions, having been asked to assume a general history of the deceased's death. He agreed that the final cause of death was anoxia which he described as a lack of oxygen to the vital organs including the brain. He also agreed that the deceased had suffered cardiac arrest.
Professor Fulde noted that it was “most unusual” for a 50 year old asthmatic to have for the first time a severe attack causing rapid loss of consciousness without any obvious trigger. He said that even in severe asthmatics the breathing difficulty is suffered over many minutes, and though they may not be able to speak, they do not tend to lose consciousness, rapidly lose pulse nor go into cardiac arrest. He therefore opines in his first report, that it was very probable that the deceased had a cardiac event, besides the asthma attack, that would account for the rapid loss of consciousness and cardiac respiratory event.[42]
[42] ARD 2472/19, p 325.
In his second report, however Professor Fulde was asked to assume that the asthma attack had begun some 40 minutes before the deceased pulled over to the side of the road. He was asked the question:
“On the balance of probabilities, had Mrs Miller been in Brewarrina during her asthma attack between 4:00 pm and 4:30 pm on 15 April 2011, with the availability of one or more of those sources of treatments, would her asthma attack have been able to be treated effectively, and she would have survived?”
Professor Fulde responded as follows:
“My initial report of 12/6/17 focussed, due to lack of good chronology on the very rapid deterioration of her asthma, which given her history and the nature of asthma attacks, to me could only be fairly explained by a cardiac event as well as the asthma.
As stated the asthma attack commenced some 30–40 minutes before the acute deterioration. I am of the opinion that had the patient been in her office in town she would have had access to several health carers in easy proximity.
Amongst these, are the local doctor or medical centre, ambulance, the local hospital emergency department with a doctor on site or on call, and with trained nurses on site. I am informed some of these are quite close by.”
Professor Fulde accordingly opined that had the asthma attack occurred at the deceased’s usual place of work in Brewarrina, on the balance of probabilities, she would not have deteriorated suffering a cardiorespiratory arrest, and survived her asthma attack.

Ms Heather Finlayson

Ms Finlayson, Health Service Manager at Brewarrina Hospital, made a statement on 18 July 2017.[43] She said that on 15 April 2011 there was a doctor on call at Brewarrina Hospital, and that on that day (and every other day) the hospital had available emergency equipment including a defibrillator, oxygen, adrenaline and salbutamol.
[43] ARD 2472/19, p 418.
Ms Finlayson said that if the deceased had attended the Brewarrina Hospital suffering respiratory and/or cardiac distress/arrest, the medical staff on duty would have been able to treat her symptoms using the equipment available at the hospital.

Associate Professor Anthony Joseph (qualified for the appellant employer)

The appellant employer relied on a report from Associate Professor Joseph, Senior Staff Specialist in the Emergency Department and Director of Trauma at Royal North Shore Hospital, dated 13 June 2016.[44] Associate Professor Joseph opined that:[45]
“Once cardiac arrest has occurred, there is no blood suppy [sic, supply] to the vital organs, in particular the heart and the brain, and this results in irreversible damage to these organs with virtually no hope of recovery of normal function unless oxygen supply to the brain can be restored as soon as possible within 5–10 minutes. This is unlikely to have been possible even if Mrs Morris [sic, Miller] had the cardio-pulmonary arrest in Nyngan Hospital as her condition was most likely irreversible once cardio-pulmonary arrest had occurred.
… The best chance of survival for Mrs Morris [sic, Miller] would have occurred if she had the severe asthma attack at a time which would have allowed her to get to the hospital while she was still conscious and could have been treated with oxygen, nebulised bronchodilators, and corticosteroids. Unfortunately, once she suffered a cardio-pulmonary arrest, her chances of survival with or without disability would have been very low or negligible.”

Professor Anne Keogh (qualified for the appellant employer)

[44] Reply to ARD 2472/19, p 781.

[45] Reply to ARD 2472/19, p 785.

Professor Anne Keogh provided a report for the appellant employer dated 23 May 2016.[46] Professor Keogh outlined a detailed timeline of the events of 15 April 2011 and was of the opinion that had an ambulance arrived earlier, Mrs Miller would nonetheless have died.
[46] Reply to ARD 2472/19, p 814.

THE ARBITRATOR’S REASONS

The Certificate of Determination issued in Miller & Anor No 4 on 11 October 2019 records:
“1.     The deceased died from an injury, namely anoxia and cardiac arrest, suffered on 15 April 2011.
2.     The deceased’s injury arose out of and in the course of her employment with the respondent.
3.     The deceased’s employment with the respondent was a substantial contributing factor to the injury.
4.     The applicant is not estopped from bringing this action by the findings and orders in matter 5831/16.
5.     I direct the parties to approach the Commission to arrange a further teleconference regarding dependency and apportionment within seven days hereof.”
Relevantly to this appeal, the Arbitrator referred in detail to passages from my earlier decision in Fourmeninapub Pty Ltd v Booth,[47] in which I considered the concepts of res judicata, issue estoppel and Anshun estoppel. The Arbitrator found that the same issues arose in this matter, as those in Booth. At paragraphs [102]–[103] he states:
“Before Arbitrator Batchelor the state of fact or law giving rise to compensation was whether the deceased suffered a disease injury, whereas the issue before me has been whether the deceased suffered a personal injury as defined by s 4(a). In either case, the causes of action are different and therefore no issue estoppel arises. Also, because the cause of action claimed before me was separate and had an independent existence to that brought before Arbitrator Batchelor, the fundamental elements of res judicata were also absent.
Accordingly, the applicant is not estopped by the principles of either issue estoppel or res judicata.”
[47] [2019] NSWWCCPD 25 (Booth).
The Arbitrator discusses the concept of Anshun estoppel at [104]:
“The application of the principle in an Anshun estoppel is discretionary, and in answering the question whether Mr Miller should be prevented from relying on the present claim, the relevant enquiry is as to whether he unreasonably refrained from including it in the proceedings before Arbitrator Batchelor. The question involves consideration of whether, having regard to the first claim and its subject matter, it would be expected that Mr Miller would have included the present claim and thereby enabled the relevant issues to be determined in the one proceeding, thus avoiding the likelihood of inconsistent judgements in respect of the same transaction.”
The Arbitrator found that there was an absence of medical evidence before Arbitrator Batchelor to support the present claim in the alternative, which is based on the occurrence of a personal injury pursuant to s 4(a), namely the cardio-pulmonary arrest. The Arbitrator found that that necessary evidence was however, supplied in the present case. He then went on to say at [121]:
“Further, my determination is not inconsistent with that of Arbitrator Ba[t]chelor in respect of the same transaction, that is, they do not conflict. Each is concerned with a different injury which arose from that transaction, namely the death of Mrs Miller. The mere fact that the two proceedings are closely related is insufficient to establish an Anshun estoppel.”
At [116] the Arbitrator found:
“I am satisfied that, had the deceased suffered her asthma attack whilst she was in her office at Brewarrina 30 minutes before she suffered her cardio-pulmonary arrest, she would probably have survived. I accept the evidence of Dr Jennings and Professor Fulde, which indeed accords with common sense, in that regard. The place of the injury, being in a remote location following her driving in the course of her employment from Brewarrina to Dubbo and thence through Nevertire to a point about 10 km from Nyngan, was a substantial contributing factor to her cardio-pulmonary arrest. The location deprived the deceased of the opportunity to have either the means or the time to avail herself of appropriate treatment.”

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) 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 without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; 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. Both parties have indicated that they are content that the matter can be dealt with on the papers.

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

Section 4 of the 1987 Act defines “injury” as follows:
“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.”
Section 9A of the 1987 Act provides as follows:
“9A 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.”
Section 350 of the 1998 Act provides:
“350 Decisions of Commission
(1)     Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.
(2)     A decision of or proceeding before the Commission is not—
(a) to be vitiated because of any informality or want of form, or
(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.
(3)     The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
Section 354 of the 1998 Act sets out the procedures to be adopted in the Commission:
“354 Procedure before Commission
(1)    Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)    The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)    The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)    Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)    Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(6)    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 without holding any conference or formal hearing.
(7)    An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings—
(a)  if it is satisfied that the proceedings have been abandoned, or
(b)  if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)  for any other ground of dismissal specified in the Rules.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”

GROUNDS OF APPEAL

The appellant employer alleges that the Arbitrator erred in fact and law in:
(a)    determining Mr Miller and Mr Tuhi were not estopped either through operation of the principles of res judicata or issue estoppel from pursuing a further claim for compensation for death of a worker (Ground One);
(b)    determining compensation for death of a worker was payable by the appellant employer contrary to the evidence and in the absence of adequate or any adequate reasons (Ground Two), and
(c)    failing to properly apply the principles in Anshun (Ground Three).

PRINCIPLES ON APPEAL

Given the multiplicity of proceedings, the issues raised on this appeal and the fact that there is an applicant present in Miller Nos 4 & 5 (Mr Terren Tuhi) who was not an applicant in Miller Nos 1, 2, or 3, it is necessary that I set out below the principles of appeal.
Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[48] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[49] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[50]) to the nature of the appeal process involving factual error, pursuant to s 352 of the 1998 Act:
“(a)    An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[51]
[48] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[49] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[50] [1996] HCA 140; 140 ALR 227.
[51] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[52] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[53]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[54]
[52] [2017] NSWWCCPD 5, [67].
[53] [2001] FCA 1833 (Branir), [28].
[54] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[55] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519”.[56]
[55] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[56] Heggie, [72].
Additionally, given the respondents’ to this appeal assertion that the grounds of appeal are deficient and, with respect to the second ground, fail to properly invoke the appellate jurisdiction of the Commission pursuant to s 352(5) of the 1998 Act, I set out the terms of Practice Direction No 6 which relevantly provide as follows:
“17. The grounds of appeal must be clearly and succinctly stated. The grounds of appeal must identify:
(a) the respects in which error of law, fact or discretion is alleged to have occurred;
(b) any material findings it is said the Arbitrator should or should not have made, and
(c) any material facts it is said the Arbitrator should or should not have found.
18. It is not acceptable to merely allege that the Arbitrator erred in law, fact or discretion, or that the decision is against the evidence or the weight of the evidence.”
It has been necessary to set out these principles regarding appeals in some detail. What I am concerned with on appeal is the correction of, if any, error of fact or discretion which has been identified in the learned Arbitrator’s decision.

SUBMISSIONS

As to Ground One: The Arbitrator erred in fact and law in determining the applicant was not estopped either through operation of the principles of res judicata or issue estoppel from pursuing a further claim for compensation for death of a worker

The appellant’s submissions

The appellant sets out Mr Miller’s claim in the 2016 proceedings (Miller No 1) and the 2019 proceedings (Miller & Anor No 4) (set out at [19] and [83] above). The appellant asserts that the Arbitrator erred in his determination that because separate and distinct causes of action existed under s 4(a) and s 4(b) in the 2016 and 2019 proceedings, that no issue estoppel or res judicata estoppel arose from the decisions of Arbitrator Batchelor, Parker ADP and the Court of Appeal.
The appellant submits that the 2016 and 2019 pleadings both related to a cause of action seeking lump sum compensation relating to death of a worker, and other than some minor differences, the essential elements of the claim were the same. The appellant submits the Arbitrator in the 2019 proceedings made a finding of injury consistent with that seen in the 2016 pleadings. The appellant submits that the injury as pleaded in the 2016 proceedings was defined in s 4(a) and s 4(b) terms but dealt with by Arbitrator Batchelor under the s 4(b) definition in Miller No 1.The parties in 2019 were the same parties before the Commission in the 2016 pleadings such that issue estoppel arises with respect to whether compensation was payable with respect to the death of the worker.
The appellant further submits that there had been a determination made by Arbitrator Batchelor with respect to the very issue that Arbitrator Wynyard sought to determine in Miller & Anor No 4, namely, the relevance of the remoteness of the location and the onset of the condition and the consequential entitlement to death benefits. This issue was squarely pleaded and determined in Miller No 1, with the same parties and arising out of the same injury as in those 2016 proceedings such that issue estoppel arose and the principles of res judicata ought be applied respectively.

The respondents’ submissions

The respondents to this appeal, Mr Miller and Mr Tuhi, submit the appellant has conflated the concepts of res judicata and issue estoppel and has failed to engage with the relevant principles and their application in its submissions.
As to res judicata, the respondents refer to Spencer Bower[57] in respect of the criteria that must be met by a party seeking to rely on it as a bar to a party’s claim. Namely:
[57] Spencer Bower, Turner & Handley, The Doctrine of Res Judicata, Third Edition, Butterworths, 1996 (Spencer Bower).
(a)     the decision is judicial in the relevant sense;
(b)     it was in fact pronounced;
(c)     the tribunal had jurisdiction over the parties and the subject matter;
(d)     the decision was -
(i) final, and
(ii) on the merits.
(e)     it determined the same question as that raised in the later litigation; and
(f)      the parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier litigation was in rem.
The respondents submit that it is clear from the appellant’s section 74 notice[58] and the reasons of Arbitrator Batchelor that the Arbitrator determined the 2016 proceedings on the basis that the ‘injury’ was the deceased’s asthma attack. The respondents submit that although the Arbitrator says that he was considering a case advanced under s 4(b)(ii) of the 1987 Act, it rather appears from his reasons that he was considering it under s 4(b)(i); based on his conclusion at [110] as to the absence of medical evidence before Arbitrator Batchelor to support a s 4(a) claim.
[58] Reply to ARD 2472/19, p 315.
The respondents submit that Mr Miller ran his case before Arbitrator Batchelor as a claim for the disease constituted by the deceased's asthma pursuant to s 4(b)(i) of the 1987 Act. He failed. In the present case, Mr Miller and Mr Tuhi contend for a finding of personal injury pursuant to s 4(a) of the 1987 Act, in the form of anoxia and/ or cardiac arrest. That question has not been litigated or determined; and that claim, pursuant to s 4(a), has not passed into judgment. Further, the appellant argued this very proposition in its objection to Mr Miller’s application for fresh evidence before Parker ADP. The respondents submit the appellant is therefore seeking to take a position contrary to that which it took in earlier proceedings, which is wrong and against long standing legal principles.[59]
[59] Respondents’ submissions, [18]–[21].
The respondents further submit that the appellant has failed to establish the final criterion identified in sub-paragraph (f) of Spencer Bower, due to the deceased’s dependent child being an applicant in the present proceedings, and as such having his own independent rights under the legislation.
As to issue estoppel, after setting out the relevant principles, the respondents submit that the appellant has made no attempt to identify the findings upon which it relies, or to explain how each was an indispensable pillar of the decision relied upon in the 2016 proceedings. For that reason alone, the assertion of issue estoppel must fail. The respondent further submits that, in line with the principles outlined in Blair v Curran[60], Lombardo v Stuart Bros Pty Ltd[61] and Egri v DRG Australia Ltd[62] there was no indispensable finding made by Arbitrator Batchelor (or Parker ADP, or the Court of Appeal (which made no findings of fact)) in the 2016 proceedings that intrudes on the present proceedings.
[60] (1939) 62 CLR 464 at 532 (Blair v Curran).
[61] [1967] 2 NSWR 39.
[62] (1998) 19 NSWLR 600.

The appellant’s submissions in reply

The appellant submits the facts of the current case are distinguishable to the scenario in Booth. The appellant submits that other than some minor differences, the essential element of the respondent’s claim is the same as submitted in the Miller No 1 pleadings which made no distinction between the definition of injury in s 4(a) or s 4(b) in the description of the injury pleaded.
In respect of the identity of the parties concerned, the appellant submits that the original proceedings sought compensation to be apportioned between Mr Miller and Mr Tuhi and to suggest that “there is no identity between the parties seeking the same compensation [in the current proceedings] is disingenuous”.

The appellant’s submissions

The appellant submits that there was no proper basis for the Arbitrator’s conclusion at [116] (set out at [103] above), namely that the deceased would not have gone into cardio-pulmonary arrest if she had the opportunity to “avail herself of appropriate treatment”. The appellant submits there was no evidence to support this inference or conclusion, and that the Arbitrator failed to observe the remarks of the Court of Appeal at [34]–[39] where it notes the absence of evidence capable of supporting an inference as to the likely conduct of the deceased.
The appellant notes that the Arbitrator in Miller & Anor No 4 relied heavily on the reports of Dr Jennings of 4 August 2017 and Professor Fulde of 12 June 2017 (sic) and 1 August 2017. The appellant submits that the questions and assumptions put to Professor Fulde (see [92] above) and Dr Jennings (see [85] above) did not accord with what had been found nor any objective evidence, particularly in respect of the deceased’s likely conduct. The appellant submits that given the opinions of Ds Jennings and Professor Fulde were based on assumptions that were not borne out of facts, it was not enough for the Arbitrator to state their opinions “accord with common sense”. The appellant submits there was no evidence that the location in which the injury was suffered led to the cardiopulmonary arrest.

The starting point for a consideration of such an assertion can be found in the statute which itself sets out the requirement to provide reasons:
“A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”[82]
[82] Section 294(2) of the 1998 Act.
Section 294(2) of the 1998 Act needs to be read in conjunction with r 15.6 of the Workers Compensation Commission Rules 2011 (the Rules) which sets out what is required to meet the standard referred to in s 294(2) of the 1998 Act. Rule 15.6 provides as follows:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c) the reasoning processes that led the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
The obligation to give reasons has been described in a number of cases. In Soulemezis, McHugh JA said as follows:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons; Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN (NSW) 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.”[83]
[83] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 280.
This statement of principle is the approach which has been followed in the Commission.
The respondents resist Ground Two on the basis that it fails to identify any error of law, fact or discretion as is obliged by s 352(5) of the 1998 Act. This is particularly so with respect to the complaint that the impugned finding was “contrary to the evidence”, without the identification of relevant error.
Whilst I accept that the respondents maintain that Ground Two fails to identify the basis of the error alleged, on the basis of what I have set out above and on a fair reading of the appellant’s submissions, I consider that it is tolerably clear that an error of law is alleged even though it has not been stated in terms.
The chief complaint in Ground Two is the learned Arbitrator’s acceptance of the evidence of Dr Jennings and Professor Fulde. Pausing with respect to Professor Fulde’s report of 12 June 2016, I accept that this report was dated incorrectly. In any event, nothing turns upon this issue for the purposes of dealing with this appeal point.
The Arbitrator commenced his examination of the evidence from Reasons [34] and from Reasons [47] dealt with the evidence present in Miller & Anor No 4 which was not present in the earlier cases. I accept that this summary was not exhaustive, but it does not have to be.
The Arbitrator was confronted with conflicting reports, for the respondents the opinions of Dr Jennings and Professor Fulde, and for the appellant the opinions of Associate Professor Joseph and Professor Keogh. In terms of additional facts, the Arbitrator also relied upon the statement of Ms Heather Finlayson, the Health Service Manager at Brewarrina Hospital, regarding what was a description of an unchallenged state of affairs existing at Brewarrina Hospital on 15 April 2011 regarding available medical staff and relevant medical equipment.
The essence of this complaint in Ground Two is that the opinions of Dr Jennings and Professor Fulde should not have been relied upon or given the weight that they were given by the Arbitrator. Indeed the appellant complains about the propositions that Dr Jennings was asked to accept in terms of the basis of his report of 4 August 2017. These three assumptions appear at the top of page 8 of the appellant’s submissions (repeated above at [85(a)–(c)]) and these assumptions are attacked as having no basis, and thus undermining the doctor’s opinion. I do not accept this submission. Firstly, the submission that the deceased was present in her office at Brewarrina is entirely uncontroversial. The evidence was that that was where she normally worked except for the occasions, such as on 15 April 2011, when she was called upon to perform driving duties. In terms of the argument that was being pursued, I find nothing controversial or incorrect about the doctor being asked to assume this fact. Secondly with respect to proposition (b), based upon the evidence of the deceased’s husband, Mr Miller, I consider that that is a reasonable assumption to make. Mr Miller gave unchallenged evidence about the deceased’s approach to managing her asthma condition. Dr Heyns in his report of 8 September 2016 also addressed this issue and confirmed that the deceased was well educated in managing her condition. This assumption therefore had a factual basis amid the material. Lastly with respect to assumption (c), there is simply no basis for any attack upon that proposition. Ms Finlayson’s unchallenged evidence provides the necessary proof for that proposition to be put to the doctor.
The propositions that were put to Professor Fulde are similarly impugned. Professor Fulde, similarly to Dr Jennings, was of the opinion on the balance of probabilities that on the basis of the assumptions put, the deceased’s condition would not have deteriorated. In short, both medical opinions contemplate that on the basis of the assumptions it was possible that the deceased would have had a different outcome to the tragic event which actually occurred.
The respondent relies upon cases such as EMI (Australia) Ltd v Bes,[84] Tubemakers of Australia Ltd v Fernandez,[85] Commonwealth v McLean[86] and finally Tudor Capital Australia Pty Ltd v Christensen[87] which are all to the effect that if expert evidence establishes that a proposition is possible, the decision maker can without error and in reliance upon other evidence, find the matter proven to the required standard. This, with respect, was the process which was undertaken by the Arbitrator. The appellant’s attack upon the assumptions that were relied upon by Professor Fulde and Dr Jennings has been deployed to undermine the Arbitrator’s capacity to exercise the judgment referred to in those cases. Once one understands that, contrary to this submission, there was a basis for each of the three assumptions, this submission falls away.
[84] [1970] 2 NSWR 238 at 242.
[85] (1976) 50 ALJR 720 at 725.
[86] (1996) 41 NSWLR 389 at 410.
[87] 2017 NSWCA 260 at [76].
To the extent that this appeal ground relies upon the decision of the Court of Appeal in Miller No 3, such reliance is misplaced. No estoppel, as pointed out by the respondent to this appeal, has been alleged or pleaded with respect to this appeal ground. This is an appeal ground which is not advanced on that basis.
Finally, this appeal ground alleges that the decision was made in the absence of adequate or any adequate reasons. No submission is developed to make good this charge.
As I have stated above, the power to intervene on appeal rests upon the identification of error. In the absence of relevant error being identified, this appeal ground must fail.

As to Ground Three

In terms of dealing with Ground Three, it is convenient to set out the framework within which Anshun estoppel operates as the basis for the determination of this appeal ground.
McColl JA in Habib[88] described Anshun estoppel in the following terms:
“The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; [1843-60] ER 313 (at 319)), involves an extended doctrine of res judicata. It operates ‘not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time’: Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that ‘the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’: Anshun (at 602). The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected (at 602) Lord Kilbrandon’s formulation of the test in Yat Tung (at 590) that it was ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’.” (emphasis added)
[88] Habib, [81].
In Anshun itself, Gibbs CJ, Mason and Aickin JJ described the principle in the following manner:
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.”[89]
[89] Anshun, [37].
And further their Honours also said:
“The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.”[90]
[90] Anshun, [40].
Returning to Habib, McColl JA described the approach to Anshun at [82]–[87]. In these passages, her Honour describes Anshun estoppel as “an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings” (emphasis added) and that an Anshun estoppel will apply even though the parties to the second proceedings are not the same as the first.
In particular at [84] her Honour says:
“A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form.”
Her Honour also warns at [85] that:
“shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation ... is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’.” (emphasis added)
Finally, when considering the application of the Anshun estoppel principle in cases before the Commission, the statutory framework pursuant to which the Commission undertakes its functions is a relevant consideration. The respondents to the appeal have referred to some of them, for example s 354(1) of the 1998 Act: “Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits” and s 354(3) of the 1998 Act: “The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.” Reference is also made to the reconsideration power contained in s 350(3) of the 1998 Act, as well as the power contained in s 378(1) of the 1998 Act with respect to the reconsideration of the decisions of the Registrar or an Appeal Panel.
I would make one addition to this list, which for the purposes of a consideration of Anshun estoppel principles is also exceedingly relevant. Section 350(1) of the 1998 Act provides:
“Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.” (emphasis added)
The statutory scheme is that decisions, unless subject to a reconsideration application under s 350(3) or an appeal subject to s 352 of the 1998 Act, are final and binding. This is not surprising and reflects an important aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice. By administration of justice, I would remark that this not only includes the finality of litigation and the prohibition on conflicting judgments, but also the burden upon both a defendant and the court and tribunal system in having to determine disputes arising from a common substratum of facts twice in the same cause. Whilst I will deal with aspects of the respondent’s submissions regarding the Anshun principle in Commission proceedings, it is apparent from a consideration of both the statutory scheme and the principles that I have elucidated above, that Anshun estoppel is a legal principle which is available for use to defend applications brought before the Commission. Indeed in a recent Presidential decision, Deputy President Wood examined the history of Anshun estoppel in the context of the New South Wales workers compensation scheme. In Israel v Catering Industries (NSW) Pty Ltd,[91] the learned Deputy President set out at [114]–[119] various authorities, principally from the Compensation Court, dealing with the application of Anshun estoppel. It is clear from a consideration of those matters, as I have described above, Anshun estoppel is available for deployment in matters before the Commission. There is one difference between cases in the prior Compensation Court and in the present day Commission. The Compensation Court had a costs power, the Commission does not. One of the principles that the Compensation Court applied in determining Anshun estoppel was whether or not there should be a cost penalty. Given that there can be no cost penalty, that is not a factor which can be used to permit a subsequent action as the cost penalty would otherwise ameliorate the counter party’s burden. Thus, in the Commission as currently constituted, the incapacity to make a costs order means that an employer in the position of the appellant is in fact burdened with multiple costs defending a claim arising out of the same substratum of facts .
[91] 2017 NSWWCCPD 53.
It is apparent that the main complaint advanced by the appellant in this matter is that the case advanced in Miller No 1 (and subsequently appealed in Miller Nos 2 and 3) and that are now pursued in Miller & Anor No 4 are so close that they should have been pursued in the earlier proceeding. The appellant points to the fact that the same death benefit is sought in both proceedings arising from the same factual circumstances.
The respondents assert that whether any general principle regarding abuse of process or estoppel is engaged must be considered in the rubric of the practices and procedure applicable to proceedings in the Commission.[92] The respondents, quite properly, describe the task in applying Anshun in the following terms:
“In any event, as the passage quoted from the plurality in Anshun establishes,^[[93]] the consideration of whether an estoppel is made out involves questions of reasonableness and justification. Those are matters that are inherently discretionary and involve evaluative judgement. Even if there were prima facie a basis upon which an Anshun estoppel might be found, the appellant has not demonstrated any error on the part of the Arbitrator in the exercise of his discretion and evaluative judgement. In order to do so, the appellant would have to establish error of the kind identified in House v The King,^[[94]] which it has not attempted to do.”
[92] Respondent’s submissions, [64].
[93] Anshun, [37]–[39].
[94] House v The King, 504–505.
The respondents say that no error has been established in the Arbitrator’s approach at either a factual or discretionary level. This is a reference to the House v King principle relied upon by the respondents which provides as follows:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”[95]
[95] House v The King, 504–505.
The learned Arbitrator commenced his consideration of Anshun estoppel principles at Reasons [98]. At Reasons [104] the learned Arbitrator correctly records that the principle of Anshun estoppel is “discretionary” and that:
“the relevant enquiry is as to whether [Mr Miller] unreasonably refrained from including it in the proceedings before Arbitrator Batchelor. The question involves consideration of whether, having regard to the first claim and its subject matter, it would be expected that Mr Miller would have included the present claim and thereby enabled the relevant issues to be determined in the one proceeding.”
This with respect is a succinct and entirely uncontroversial formulation on the Anshun estoppel question to be answered in this matter. The appellant’s submissions do not assist with the determination of the issue as to whether it was unreasonable of Mr Miller to have failed to have brought the present proceeding or allegations in Miller No 1.
The appellant of course bears the burden of proof in establishing that it was unreasonable not to have done so. I accept that it is the general tenor of the appellant’s submissions that the failure to advance the case in Miller No 1 was unreasonable and in support of these submissions the appellant points to the similarity of the two cases in terms of the facts and the relief sought and that the only difference in Miller & Anor No 4 is the fact that the pleading is different and that this was a matter of choice and discretion made by the respondent and his advisers. I note the following statement in Anshun regarding the choice a party might make not to litigate a matter:
“In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few.”[96]
[96] Anshun, per Gibbs CJ, Mason and Aickin JJ [37].
The mere fact that a party makes a choice to litigate a matter in other proceedings in and of itself is insufficient to ground an Anshun estoppel. This proposition has even greater resonance in the context of workers compensation cases given that the legislation does provide for various statutory benefits which can, quite properly, be asserted in different proceedings. But this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Rather, such a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded this cause in the earlier action. The principles distilled from the various authorities are neatly summarised by Judge Neilson in Bruce v Grocon Ltd[97] in the following terms:
“The principles which I distil from these authorities are:
(a)     the principle in the Port of Melbourne Authority v Anshun Pty Ltd extends to claims as well as to defences: O’Brien’s case in the Court of Appeal and Boles’ case;
(b)     estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies inconsistent with the remedy originally granted or the declaration of rights of parties inconsistently with the determination of those rights made in the earlier proceedings;
(c)     the matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
(d)     it was unreasonable not to rely on that matter in the original proceedings; such unreasonableness would depend on the facts of each particular case: Boles’ case.”
[97] [1995] NSWCC 10; 11 NSWCCR 247, 261–262.

The learned Arbitrator, having posed the correct question at Reasons [104], then proceeds to review that which transpired In Miller Nos 1, 2 and 3, before turning to the final issue for determination, being the Anshun estoppel.[98]
[98] Reasons, [117].
At Reasons [118]–[121] the learned Arbitrator then considers whether or not the Anshun estoppel is made out. He finds it is not, essentially on two bases. The first is “the mere fact that the proceedings are closely related is insufficient”[99]. However, it is clear that it is the additional medical evidence in Miller & Anor No 4 which has figured highly in the learned Arbitrator’s decision. At Reasons [120] the Arbitrator finds:
“As indicated, there was an absence of medical evidence in that matter required to support the s 4(a) claim that was before me. I have the additional evidence to which I have referred which was not part of the earlier matter.”
[99] Reasons, [118].
This is a correct statement of fact; the learned Arbitrator was possessed of evidence which was not before the first instance decision maker in Miller No 1. However, that is not the end of the matter. The question which needed to be explored at this point was the exercise of the “evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings” in accordance with McColl JA’s remarks in Habib which I have set out above. The learned Arbitrator did not undertake this consideration.
However, it is hard to discern where the enquiry which is posed by the learned Arbitrator at Reasons [104] is actually answered in terms. The fact, as stated at Reasons [110] that “there was an absence of medical evidence before Arbitrator Batchelor to support the present claim, which is based on the occurrence of a personal injury pursuant to s 4(a), namely the cardio-pulmonary arrest” was factually correct. This finding ought to have led the learned Arbitrator, consistent with the task set at Reasons [104], to considering whether or not it was unreasonable not to have advanced this case in Miller No 1. This would have entailed a consideration of what was known to the respondent and his advisers at the time of Miller No 1 and then the undertaking of the evaluative judgment as to whether it was unreasonable not to have pursued this allegation. For example, the following was available in Miller No 1:
(a)    The application in respect of death of worker filed in 5831/16 pleads the following in Part 4:
“As a result of suffering the asthma attack, the deceased worker suffered cardiac arrest and died due to the remoteness of the location and critical medical attention not being received, which was in the realms of her employment as a Home Care Service driver.”
(b) Secondly, Dr Abbas provided an expert certificate pursuant to s 177 of the Evidence Act 1995 on 4 August 2011. Dr Abbas, a general practitioner, said as follows:
“4. At about 6.00 pm on the 15 April, 2011 at Mitchell Highway, Nyngan, I examined Moori Miller
5. Based wholly or substantially on the above knowledge, I am of the opinion that
·Moori had a cardiopulmonary arrest at the time of examination. She was non-responsive. Her pupils was [sic] dilated and fixed. She was placed on the side of the road on her back by her mates.”[100]
[100] ARD 5831/16, p 16
(c)    Mr Craig Holman, an ambulance officer, gave the following statement to the NSW Police on 27 June 2011:
“At the same time I diagnosed that the woman was in cardiac arrest, she had an absent pulse, absent respirations and her skin was cyanosed. I commenced CPR, being checked the airway which was clear and commenced cardiac comprehensions [sic].”[101]
(d)    In a report addressed to the respondent’s solicitors dated 8 October 2015, Dr Paul Jennings stated as follows:
“(c) Was the asthma attack a substantially contributing factor to the death of the deceased?
Yes, most likely.
(d) If so, why was the asthma attack a substantially contributing factor to the death?
Asthma is a chronic, reversible narrowing of the small airways within the lungs. Narrowing of the airways results in less air being able to be delivered to the lungs, ultimately reducing the availability of oxygen to the body and the removal of carbon dioxide, which is required for cellular respiration. If the narrowing of the airways is severe, and goes untreated, the body's tissues become ‘hypoxic’ (deprived of adequate oxygen supply) which may lead to cardiac arrest.”[102]
(e)    Finally, I would refer to the Coroner’s finding dispensing with an inquest of 5 May 2014 in which he attributes the direct cause of death as being “anoxia” due to antecedent causes, “severe asthma attack”.[103]
[101] Reply 5831/16, p 18.
[102] Reply 5831/16, p 256.
[103] Reply 5831/16, p 4.
This material was all available to the respondents and their advisers prior to the commencement of the 2016 proceedings. No issue appears to have been taken regarding the progression of events on 15 April 2011 from the onset of the severe asthma attack, the consequent anoxia and cardiac arrest. However the case now advanced, notwithstanding this knowledge, was not advanced in the 2016 proceedings.
The similarity of the proceedings in and of themselves is not determinative but it is certainly a factor that needs to be evaluated. However, the question that the learned Arbitrator had to grapple with was whether or not it was unreasonable of the respondent not to have proceeded with the current allegations in the 2016 proceedings.
These are matters which will need to be properly prepared and explored. Accordingly, it is appropriate that the matter be remitted to another Arbitrator for redetermination to enable the Anshun issues to be properly considered and addressed. The learned Arbitrator was not much assisted by not being taken to these issues which go directly to whether an Anshun estoppel arises or not. I am satisfied that the learned Arbitrator was aware of the Anshun principle as described at Reasons [104]. However in rejecting the Anshun argument, the learned Arbitrator failed to apply the test which he had quite properly set for himself at Reasons [104].
I note that reference has been made to my decision in Booth in as much as it dealt with an Anshun estoppel question. In that case I held that there was no Anshun estoppel as there was no evidence at the time of the filing of Ms Booth’s original proceedings which would have put her or her advisers upon notice of a psychiatric condition which had not yet materialised. That is to be contrasted with the situation here where the knowledge of what transpired on 15 April 2011 was in fact well known to the parties and their representatives. I think the facts in Booth can therefore be distinguished accordingly from those in this matter.
I therefore conclude that the learned Arbitrator, by not undertaking the enquiry that I have referred to above, namely whether it was unreasonable not to have advanced the current claim in the earlier proceedings, has in fact acted upon a wrong principle in a House v The King sense. The material which I have briefly outlined above was not taken into account in terms of considering the question of unreasonableness. The learned Arbitrator was thus in error.

Terren Tuhi

In opposition to Ground One of the appellant’s appeal, the respondents take issue with the fact that Mr Tuhi was not a party to Miller No 1 and the subsequent appeals.[104] This submission points to the fact that in Miller & Anor No 4 there is an additional applicant, being Mr Terren Tuhi. The submission then quite rightly notes that each dependant of a deceased worker has independent rights under the legislation.[105]
[104] Respondents’ submissions, [22]–[25].
[105] Respondents’ submissions, [22].
The submission then proceeds to assert that as a result of the individual rights of each dependant, the dependants cannot properly be described as being privies of one another. In short, it is alleged that as Mr Tuhi is not Mr Miller’s privy, he cannot be bound by the manner in which Mr Miller conducted the earlier proceedings. There are a number of matters that need to be remarked upon with respect to this submission.
Firstly, this argument was not a matter raised before the learned Arbitrator. A consideration of Mr Tuhi’s position as a privy or not formed no part of the argument or decision below in Miller & Anor No 4. By definition there can be no error of fact, law or discretion as is required under s 352(5) of the 1998 Act such as to give rise to any power for me to intervene.
In Miller No 1, the application carries the following names:
“Applicant: David Miller (Dependant – Widower)
Respondent: The State of New South Wales (Home Care Services Division) Terren Tuhi (Dependant – Child of Deceased)”
Mr Tuhi’s name then appears as a dependant at Part 5.1 of ARD 5831/16 and a copy of Mr Tuhi’s birth certificate is attached to the application. The claim advanced by Mr Miller in Miller No 1 was for the death benefit and that it should be apportioned between himself and Terren Tuhi.
Clearly the respondents are taking issue as to whether or not Mr Tuhi was a party to the earlier proceedings. This is an entirely unsatisfactory state of affairs. Rule 10.5(1) of the Rules mandates that for the purposes of a lump sum compensation claim under s 25 of the 1987 Act, which is the death benefit provision, dependants shall be joined as respondents. Prima facie this appears to have occurred in Miller No 1 but it is apparent from a consideration of Miller No 1 that no separate submissions were put on behalf of Mr Tuhi and certainly Arbitrator Batchelor’s orders did not take into account Mr Tuhi’s situation.
In many respects it is not surprising that Arbitrator Batchelor did not deal with Mr Tuhi’s position, because he entered an award for the respondent. Mr Tuhi’s participation in those proceedings as a named respondent was for the purposes of obtaining an apportionment of the death benefit. He now appears in Miller & Anor No 4 as an applicant in his own right.
As I have described above, this is a point which has been raised by the respondents on appeal which has not been argued before the learned Arbitrator. Given that I have decided to remit this matter for the reasons outlined with respect to Ground Three above, I expect that if this is an argument that is seriously to be pursued by the respondents, that it be explored before the Arbitrator who hears this matter on remitter.
I would remark, without drawing any particular conclusion, that the issue as to whether or not particular estoppels might apply to Mr Miller (if they apply at all) and not to Mr Tuhi might require consideration regarding whether or not their separate rights require separate representation. I make these remarks having regard to the history of the litigation arising from Ms Miller’s unfortunate and tragic death, with a view to ensuring that all issues and all relevant parties are present so as to ensure that the proceedings arising from the events of 15 April 2011 might be finally determined.

DECISION

The Certificate of Determination dated 11 October 2019 is revoked.
The matter is remitted to another Arbitrator to be dealt with in accordance with these reasons.

Judge Phillips

PRESIDENT

17 June 2020