Tudor Capital Australia Pty Limited v Christensen

[2017] NSWCA 260

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260

Hearing dates:

10 – 11 November 2016

Decision date:

17 October 2017

Before:

McColl JA at [1],
Macfarlan JA at [425],
Payne JA at [429]

Decision:

(1)   Appeal allowed;

 

(2)   Set aside the decision of the Workers Compensation Commission made on 25 February 2016;

 

(3)   Remit the matter to the Commission for redetermination;

(4) Respondent to pay the appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled.

Catchwords:

WORKERS COMPENSATION – injury – personal injury arising out of or in the course of employment – where employee suffering from a viral illness died as a result of ventricular fibrillation which caused cardiac arrest – whether Arbitrator and Deputy President identified “injury” within meaning of s 4, Workers Compensation Act 1987 (NSW) – whether employment substantial contributing factor to injury – where Deputy President made finding of “injury” different from Arbitrator – Workers Compensation Act 1987 (NSW), ss 4(a), 9, 9A, 25

 

WORKERS COMPENSATION – injury – where Deputy President identified “experience of stress” as s 4 “injury” – whether injury “psychological injury” – Workers Compensation Act 1987 (NSW), s 11A

 

WORKERS COMPENSATION – appeal from Arbitrator to Presidential member pursuant to Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 – whether decision of Arbitrator affected by error of fact, law or discretion – whether Presidential member erred in point of law

 

EVIDENCE – sufficiency of evidence – competing medical evidence as to cause of employee’s death – whether sufficient proof to support finding of probable causal connection where medical science did not deny possibility of connection – whether Arbitrator overlooked material medical evidence – whether Deputy President’s reasoning processes inadequate – whether sufficient analysis of medical evidence

 

ADMINISTRATIVE LAW – procedural fairness – whether appellant raised new issue on appeal – whether respondent had opportunity to call evidence

  WORDS & PHRASES – “injury”

Legislation Cited:

Safety, Rehabilitation and Compensation Act 1988 (Cth)
Suitors’ Fund Act 1951 (NSW)
Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Amendment Act 2010 (NSW)
Workers Compensation Legislation Amendment Act 2012 (NSW)
Workmen’s Compensation Act 1932-1935 (SA)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Commission Rules 2003 (NSW)
Workers Compensation Commission Rules 2011 (NSW)

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45
Ambulance Service of New South Wales v Daniel [2000] NSWCA 116; (2000) 19 NSWCCR 697
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Badawi v Nexon Asia Pacific Pty Limited (t/as Commander Australia Pty Limited) (2009) 75 NSWLR 503; [2009] NSWCA 324
Bartlett v Australia & New Zealand Banking Group Ltd (2016) 92 NSWLR 639; [2016] NSWCA 30
BHP Billiton Ltd v Dunning [2015] NSWCA 55
Bill Williams Pty Ltd v Williams (1972) 126 CLR 146
Browne v Dunn (1893) 6 R 67
CHEP Australia Ltd v Strickland [2013] NSWCA 351
Christensen v Tudor Capital Australia Pty Ltd (Workers Compensation Commission, 8 September 2015, unrep)
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Davis v NSW Land and Housing Corporation [2016] NSWCA 325
Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153, (2001) 22 NSWCCR 46
Department of Education & Training v Jeffrey Sinclair [2004] NSWWCPD 90
Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206
Dionisatos (for the Estate of the Late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
EMI (Aust) Ltd v Bes [1970] 2 NSWR 238
Favelle Mort Ltd v Murray (1976) 133 CLR 580; [1976] HCA 13
Goodwin v Commissioner of Police [2012] NSWCA 379
Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43; [2011] NSWCA 11
Haritos v Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92
Inghams Enterprises Pty Ltd v Sok (2014) 87 NSWLR 198; [2014] NSWCA 217
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kavanagh v Commonwealth (1960) 103 CLR 547; [1960] HCA 25
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; [2000] HCA 45
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397; [2015] FCAFC 93
May v Military Rehabilitation and Compensation Commission [2011] AATA 886
May v Military Rehabilitation and Compensation Commission [2014] FCA 406
Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740; [2000] NSWCA 138
Mifsud v Campbell (1991) 21 NSWLR 725
Military Rehabilitation & Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Murray v Shillingsworth (2006) 68 NSWLR 451; [2006] NSWCA 367
Northern NSW Local Health Network v Heggie [2013] NSWCA 255; (2013) 12 DDCR 95
Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; (2012) 13 DDCR 351
Osland v Secretary to the Department of Justice (2010) 241 CLR 320; [2010] HCA 24
Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324
Pollard v RRR Corp Pty Ltd [2009] NSWCA 110
Preston v Randwick City Council & Ors [2012] NSWCA 178; (2012) 13 DDCR 342
Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65
Raulston v Toll Pty Ltd [2011] NSWWCCPD 25
Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33
Sapina v Coles Myer Limited [2009] NSWCA 71; (2009) 7 DDCR 54
Scicluna v New South Wales Land and Housing Corporation (2008) 72 NSWLR 674; [2008] NSWCA 277
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421
St George Club Ltd v Hines (1961) 35 ALJR 106
St George Club Ltd v Hines [1961] NSWR 402
State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257
TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175
Tubemakers of Australia Limited v Fernandez (1976) 10 ALR 303
Tudor Capital Australia Pty Ltd v Christensen (No 2) [2016] NSWWCCPD 20
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28
Watson v Qantas Airways Ltd (2009) 75 NSWLR 539; [2009] NSWCA 322
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48
Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
Woolworths Ltd v Christopher-Coates [2014] NSWWCCPD 14; (2014) 15 DDCR 291
Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19
Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45; (2012) 10 DDCR 290
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; [1996] HCA 31

Texts Cited:

American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders, (4th ed) (DSM – IV)
New South Wales Legislative Council, Parliamentary Debates, (Hansard), 9 November 2010

Category:

Principal judgment

Parties:

Tudor Capital Australia Pty Limited (Appellant)
Penelope Trisha Christensen (Respondent)

Representation:

Counsel:
P Morris SC and S Grant (Appellant)
EG Romaniuk SC and EE Grotte (Respondent)

  Solicitors:
HWL Ebsworth Lawyers (Appellant)
Edwards Michael Powell Lawyers (Respondent)

File Number(s):

2016/83963

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

Workers Compensation Commission of New South Wales

Citation:

[2016] NSWWCCPD 14

Date of Decision:

25 February 2016

Before:

Deputy President Kevin O’Grady

File Number(s):

A1-005286/13

HEADNOTE

[This headnote is not to be read as part of the Judgment]

Tudor Capital Australia Pty Limited (Tudor Capital) appealed from a decision of a Deputy President of the Workers Compensation Commission of New South Wales (Commission) in which he dismissed Tudor Capital’s appeal from a decision of an Arbitrator finding the respondent, Penelope Christensen and her children, entitled to compensation payments from Tudor Capital pursuant to ss 9 and 25 of the Workers Compensation Act 1987 (NSW) (WCA) in respect of her late husband’s death.

Mr Christensen died suddenly at home when he suffered ventricular fibrillation (a hearth rhythm disturbance) leading to cardiac arrest. At the time of his death he was employed as a Portfolio Manager by Tudor Capital. He had recently commenced work in its Sydney office after having relocated from its London office.

In his first few weeks in the Sydney office, Mr Christensen experienced a number of technical difficulties, largely related to a slow internet connection speed, causing him frustration in not being able to operate a unique database system he had developed for market closing prices. Although the technical difficulties were largely resolved by 27 February 2008, they caused a nine week delay in total, compromised Mr Christensen’s ability to perform, and meant his actual trading results and earnings fell well behind his expected results. Mr Christensen also experienced difficulties in dealing with the time difference between Sydney and the European and US markets, in which he mainly traded. On 1 July 2008 Tudor Capital’s Capital Allocation Committee placed Mr Christensen on a “watch list”, meaning his performance would be reviewed over the balance of the financial year.

In early September 2008, Mr Christensen developed the flu. On 4 September 2008 he consulted his family doctor for a chest infection and was prescribed an antibiotic. He took sick leave on 5 September 2008. He returned to work on 8 September 2008. On that day he was observed by a colleague to be short of breath when walking to his car. That evening, after putting the children to bed, Mr Christensen was sitting on a couch with Mrs Christensen when he suddenly stopped talking, sighed and collapsed unconscious and pulseless. Ambulance officers who were called noted he was in ventricular fibrillation. He was unable to be revived.

Mr Christensen had no family history of sudden death, nor any history of collapses, chest pain, shortness of breath (other than as reported on the day of his death) or palpitation. He had been physically active, playing cricket and football, and was a keen cyclist. The autopsy report indicated that, whilst there was circumstantial evidence suggesting myocardial infarction (death of heart muscle as a result of blockage of blood flow to heart) leading to ventricular fibrillation, the cause of death was “unascertained” but was likely to have been a “cardiac arrhythmia”.

On 9 August 2011 Mrs Christensen commenced proceedings against Tudor Capital in the Commission claiming an entitlement to compensation payments in respect of Mr Christensen’s death pursuant to s 9 of the WCA. It was common ground that Mr Christensen had suffered ventricular fibrillation which led to cardiac arrest causing his death. There were, however, competing arguments, and competing medical evidence laid out in multiple expert reports and oral testimony supporting those arguments, as to the cause of the ventricular fibrillation.

Mrs Christensen framed her claim as one of injury and death caused by stress associated with Mr Christensen’s employment, including by rendering him susceptible to a viral illness, which caused or aggravated ventricular fibrillation, cardiac arrest and death. She relied primarily on the expert evidence of Associate Professor David Richards that the ventricular fibrillation was caused by a viral illness known as viral myocarditis. Acute myocarditis is the presence of inflammatory cells (lymphocytes) in the interstitial cells of the myocardium, the middle layer of the heart wall. In a case of acute myocarditis, inflammatory cells are attracted to the heart muscle which is infected by a virus. They indent (bore into) the underlying myocyte, inflicting damage which causes the muscle cell to stop contracting, eventually compromising the heart function and causing arrhythmia. Whilst there was no histological evidence (cell analysis or autopsy) of myocarditis, Associate Professor Richards was of the opinion that there was a possibility such evidence was missed due to the relatively short time between the onset of the inflammation and death.

The case ultimately put by Tudor Capital was that Mr Christensen was suffering from hypertrophic cardiomyopathy (HCM), a disease in which a portion of the heart muscle wall becomes thickened with fibrous (scar) tissue, a condition that is prone to lead to ventricular fibrillation and sudden death. Tudor Capital primarily relied on the expert evidence of Professor Anne Keogh and Dr Stephen Rainer to this effect. They, in turn, primarily based their opinions on autopsy slides of tissue samples taken from Mr Christensen’s heart on autopsy. The slides were not the subject of evidence until after most of the expert reports were prepared, and until after Associate Professor Richards gave oral evidence. However, prior to giving evidence, and before Professor Keogh and Dr Rainer were called, Associate Professor Richards had seen a report from Dr Rainer discussing the slides. Associate Professor Richards had advised Mrs Christensen’s solicitors he was not qualified to analyse the autopsy slides.

Dr Rainer and Professor Keogh gave oral evidence that the autopsy slides revealed extensive fibrosis in Mr Christensen’s heart, consistent with longstanding HCM, which could cause a ventricular fibrillation arrest at any time, without a trigger, but not viral myocarditis. Dr Rainer was of the view that the sampling of Mr Christensen’s heart was comprehensive, not patchy, and sufficient to eliminate any sampling error. He was also of the opinion that, in the case of acute myocarditis, the microscope would reveal some evidence of its presence, of which there was none in Mr Christensen’s case. Professor Keogh expressed a similar opinion. This evidence differed from a statement in her first report in which she had not excluded the possibility of viral myocarditis “since post mortem sampling does not sample the entire of the right and left ventricles.” In oral evidence she said this statement was written in reliance on the autopsy report, written by a “generalist pathologist”, which was not the same as seeing the autopsy slides.

Associate Professor Richards was not recalled to respond to the evidence of Dr Rainer or Professor Keogh. Although Mrs Christensen subsequently tendered a further report by Associate Professor Richards, in which he commented on an aspect of Professor Keogh’s oral evidence, that report did not address the autopsy slides or, otherwise discuss her or Dr Rainer’s oral evidence.

Arbitrator Wynyard upheld Mrs Christensen’s claim. He found that Mr Christensen’s death had been, in substance, caused by an “injury” within the meaning of s 4 of the WCA being the entry of the T cell lymphocytes into the myocardium as a result of a viral illness Mr Christensen had acquired following the breakdown of his health, which was due to the emotional stress and frustration he encountered with his employer after he had moved to Sydney in 2008. He rejected Professor Keogh’s evidence, on the basis that he did not find persuasive her abandonment of the opinion in her first report. The Arbitrator was also satisfied that the provisions of s 9A, WCA applied and that Mr Christensen’s employment was the main substantial reason for the breakdown of his health and subsequent death. He was not satisfied that the pre-existing condition of Mr Christensen’s heart played any part in his death.

Tudor Capital appealed against the Arbitrator’s decision to the Commission constituted by the Deputy President pursuant to s 352(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). Such an appeal is not a review but is confined to correcting operative errors of fact, law or discretion. The Deputy President confirmed the Arbitrator’s findings and orders and remitted the matter to the Arbitrator for further directions and hearing concerning the question of apportionment.

Tudor Capital appealed to the Court of Appeal pursuant to s 353(1) of the WIM Act. On such an appeal it was required to establish that it was aggrieved by a decision of a Presidential member of the Commission in point of law.

The following provisions of the WCA were relevant to the appeal. Section 9 provides that the dependents of a worker who received an “injury” (resulting in death) shall receive compensation, the amount of which is specified in s 25. “Injury” is defined in s 4(a) relevantly as “mean[ing] personal injury arising out of or in the course of employment.” However, no compensation is payable in respect of an injury unless the employment concerned “was a substantial contributing factor to the injury” (s 9A(1)), to be determined by reference to a list of factors in s 9A(2). Where an injury, as defined in s 4, is a psychological or psychiatric disorder, no compensation is payable in respect of that injury if it was wholly or predominantly caused by reasonable actions of the employer (s 11A).

The principal issues on appeal were:

(i) Whether the Arbitrator and the Deputy President failed to identify an “injury” for the purposes of ss 9 and 25 of the WCA within the meaning of that term in s 4, leading to confusion in the application of s 9A.

(ii)   Whether there was insufficient proof to support the Arbitrator’s finding of a causal connection between psychological stress and an increased susceptibility to viral illness on the basis of a commonsense evaluation of the causal chain and that medical science did not deny a possible connection and whether, in making that finding, the Arbitrator overlooked material medical evidence.

(iii)   Whether the Deputy President’s reasoning processes were inadequate, in particular, whether there was no sufficient analysis of the medical evidence.

(iv)   Whether Mrs Christensen was denied procedural fairness because she did not have the opportunity to call evidence to meet Tudor Capital’s contention that the opinion of Associate Professor Richards (that death was caused by viral myocarditis) was based on the absence of evidence of a relevant pre-existing condition, the existence of which was confirmed by Professor Keogh’s and Dr Rainer’s evidence that the cause of death was HCM.

Held, allowing the appeal and remitting the matter to the Commission for redetermination:

As to issue (i), per McColl JA (Macfarlan and Payne JJA agreeing)

(1) Mrs Christensen was required to identify an “injury” within the meaning of s 4 of the WCA for the purposes of ss 9 and 25 and also establish that Mr Christensen’s employment with Tudor Capital was “a substantial contributing factor to the injury” within the meaning of s 9A(1), taking into account the matters specified in s 9A(2) to the extent that they were relevant. Failure to consider such factors by reference to the underlying facts involved a misconstruction of the provision and an error in point of law. (at [301], [329], [335])

Badawi v Nexon Asia Pacific Pty Limited (t/as Commander Australia Pty Limited) (2009) 75 NSWLR 503; [2009] NSWCA 324 applied.

Bill Williams Pty Ltd v Williams (1972) 126 CLR 146 referred to.

(2) The Deputy President erred in finding that the “injury” for the purposes of s 9 was Mr Christensen’s “experience of stress … [making] him susceptible to the contraction of an infective virus.” In so finding, the Deputy President:

(i)   made a finding of “injury” which differed from the “injury” the Arbitrator identified, being the “entry of the T cell lymphocytes into the myocardium”, and implicitly identified an operative error of fact on the Arbitrator’s part which, once recognised, should have been corrected; (at [337], [338], [346]) and

(ii) failed to undertake the precise consideration of the evidence, on a fact by fact basis, to determine whether Mr Christensen’s “experience of stress” or susceptibility to the contraction of an infective virus, could constitute an “injury” within the meaning of that term in s 4, and what, if any, physiological change or disturbance of Mr Christensen’s normal physiological state caused the “experience of stress”. This failure to engage with the statutory test in s 4 constituted an error in point of law and a constructive failure to exercise jurisdiction. (at [339], [341], [345])

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; [2000] HCA 45; Military Rehabilitation & Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 applied.

(3) Once the Deputy President identified “the relevant injury” as Mr Christensen’s “experience of stress”, it was incumbent upon the Deputy President to determine whether the “experience of stress” was a “psychological injury” within the meaning of s 11A(3). Failure to consider this question was a constructive failure on the part of the Deputy President to exercise his jurisdiction to correct the Arbitrator’s errors. (at [342], [344])

(4) Alternatively, the Deputy President should have held that the Arbitrator had erred in law in failing to consider on a step by step basis which aspect of the process to which he referred in making his “injury” finding was the relevant “injury” for the purposes of s 4, WCA and in what respect it was a consequence of a physiological change. (at [345])

(5) Absent isolation of the relevant “injury”, the Arbitrator could not properly undertake the evaluative process s 9A required of determining whether the employment concerned was a substantial contributing factor to the injury. The Deputy President, in turn, failed to recognise that was an operative error of law on the Arbitrator’s part and correct it. (at [338], [346] – [359])

(6) The Deputy President erred in failing to hold that the Arbitrator’s failure to consider for the purposes of s 9A, Mr Christensen’s pre-existing cardiac condition as being a factor that “played any part in his death” without considering the evidence of Tudor Capital’s experts and Associate Professor Richards as to the relevance of the underlying cardiac pathology, revealed he misunderstood Tudor Capital’s case such as to undermine the lawfulness of his decision in a fundamental way, such as to constitute an error in point of law. (at [348] – [352])

(7)   The Deputy President also misapprehended Tudor Capital’s case in his reliance on Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206. (at [353] – [359])

Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206; Department of Education & Training v Jeffrey Sinclair [2004] NSWWCPD 90 discussed.

As to issues (ii) and (iii), per McColl JA (Macfarlan JA agreeing)

(1)   While an unproven connection between psychological stress and an increased susceptibility to viral illness does not amount to positive knowledge, supplying some adequate ground for believing that the events are naturally associated. If medical science is prepared to say that something is possible, a judge, after examining the lay evidence, may decide that it is probable. However, a judge must not undertake the temporal inquiry in isolation from the medical evidence. (at [369] – [383])

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45; Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65; EMI (Aust) Ltd v Bes [1970] 2 NSWR 238; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 discussed.

(2)   In examining the medical evidence, the Arbitrator overlooked material facts, or gave material facts undue or too little weight in deciding the inference to be drawn from the evidence as to the cause of Mr Christensen’s death. Such material facts included uncontested contemporaneous records, such as the autopsy slides, and the evidence of Professor Keogh and Dr Rainer. This constituted an error of law which the Deputy President failed to identify, resulting in a constructive failure on his part to exercise jurisdiction. (at [384], [396])

EMI (Aust) Ltd v Bes [1970] 2 NSWR 238 applied.

(3)   There will be a failure to give adequate reasons amounting to a constructive failure to exercise jurisdiction where a decision-maker ignores evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker. (at [387] – [388])

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 applied.

(4)   As there was starkly contrasting medical evidence, both the Arbitrator and the Deputy President were obliged to consider the evidence in a manner which entailed a rational analysis of the issues. (at [389])

Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174 applied.

(5)   The Arbitrator failed adequately to have regard to significant aspects of Tudor Capital’s experts’ evidence in reaching his decision contrary to that evidence, and made errors of fact in the course of reaching his conclusion. The Deputy President ought to have held the Arbitrator had erred in law in failing to give adequate reasons. (at [392] – [394])

(6)   In concluding that the Arbitrator adequately analysed the medical evidence, and in failing himself adequately to analyse that evidence, there was a constructive failure of jurisdiction on the Deputy President’s part. (at [391] – [419])

As to issue (iv), per McColl JA (Macfarlan JA agreeing, Payne JA dissenting)

(1)   Tudor Capital was not raising a new issue on appeal. (at [303]) Alternatively, even if it was, it was not precluded from doing so as Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 applied. (at [303])

(2)   Mrs Christensen was aware, or at least should have been aware, of the evidence and the arguments in Tudor Capital’s favour based on its experts’ evidence. (at [302], [304] – [307]) She had an opportunity to respond to the evidence and arguments before the Arbitrator such that there was no denial of procedural fairness. (at [427], [443])

Judgment

Factual background - paragraph 5

Legislative framework - paragraph 15

Compensation claim - paragraph 21

The arbitration - paragraph 30

Temporal issue - paragraph 43

The medical issue - paragraph 50

Mrs Christensen’s expert evidence

Dr Whalley - paragraph 52

Professor Rawlinson - paragraph 53

Associate Professor Richards - paragraph 54

Tudor Capital’s expert evidence

Associate Professor Hudson - paragraph 68

Dr Rainer - paragraph 73

Professor Keogh - paragraph 95

Submissions to the Arbitrator - paragraph 128

Arbitrator’s determination - paragraph 144

Appeal to Presidential Member - paragraph 164

Submissions - paragraph 171

Deputy President’s decision - paragraph 204

Issues on appeal - paragraph 231

Tudor Capital’s submissions - paragraph 233

No relevant “injury” - paragraph 238

No sufficient evidence of myocarditis/strong evidence of severe cardiomyopathy - paragraph 251

Inadequate reasoning processes - paragraph 263

Mrs Christensen’s submissions - paragraph 266

“Injury”, s 9A, WCA - paragraph 269

No sufficient evidence of myocarditis/strong evidence of severe cardiomyopathy - paragraph 286

Inadequate reasoning processes - paragraph 293

Tudor Capital’s reply submissions - paragraph 295

Consideration

Ambit of appeal - paragraph 296

A new case on appeal? - paragraph 302

Issue 1: injury

Legislative framework - paragraph 308

Personal injury - paragraph 310

Injury: employment nexus - paragraph 326

Conclusion: identification of “injury” - paragraph 336

Conclusion: s 9A - paragraph 347

Issues 2 and 3: evidence of myocarditis/evidence of severe cardiomyopathy

Injury: sufficiency of proof - paragraph 360

Conclusion - paragraph 381

Adequacy of reasons - paragraph 387

Analysis of the medical evidence - paragraph 389

Failure to give reasons - paragraph 391

Time of death - paragraph 397

Tissue sampling issue - paragraph 399

Myocyte disarray - paragraph 408

Assessment of Professor Keogh - paragraph 414

Conclusion: analysis of the medical evidence - paragraph 419

Orders - paragraph 422

The conditional evidence thesis - paragraph 430

“Injury” and s 9A - paragraph 445

Remaining grounds of appeal - paragraph 454

Orders - paragraph 461

Schedule

1. McCOLL JA: Mr Grant Christensen died suddenly and unexpectedly at his home on 8 September 2008 when he suffered ventricular fibrillation [1] leading to cardiac arrest. At the time of his death he was employed as a Portfolio Manager by the appellant, Tudor Capital Australia Pty Limited (Tudor Capital).

   1.    A heart rhythm disturbance.

2. The respondent, Penelope Christensen, Mr Christensen’s widow, commenced proceedings against Tudor Capital in the Workers Compensation Commission (Commission) on 9 August 2011, claiming an entitlement to compensation payments in respect of his death pursuant to s 9 of the Workers Compensation Act 1987 (NSW) (WCA). Arbitrator Wynyard upheld her claim. [2] He held Mr Christensen’s death had been, in substance, caused by viral myocarditis which, in turn, Mr Christensen had contracted by reason of employment stress. On appeal, the Deputy President of the Commission confirmed the Arbitrator’s decision. [3]

   2.    Christensen v Tudor Capital Australia Pty Ltd (Workers Compensation Commission, 8 September 2015, unrep) (Arbitrator’s decision).

   3. Tudor Capital Australia Pty Ltd v Christensen [2016] NSWWCCPD 14 (Deputy President’s decision).

3. Tudor Capital appeals against the Deputy President’s decision pursuant to s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). On that appeal, Tudor Capital must establish that it is aggrieved by a decision of the Presidential Member in point of law.

4. In my view, for the reasons which follow, Tudor Capital has established that it is so aggrieved. Pursuant to s 353(2), the matter should be remitted to the Commission constituted by a Presidential member for determination by the Commission in accordance with the Court’s decision.

Factual background

5. Tudor Capital is a corporate member of an internationally established hedge fund business founded in the United States of America. Mr Christensen commenced employment with Tudor Capital in Melbourne in February 1997. When the Melbourne office closed in July 2000, he relocated to London, where he was employed by Tudor Capital’s sister corporation, Tudor Capital (UK) LP. He remained in London until the end of 2007 at which time he and his family relocated to Sydney. He recommenced employment with Tudor Capital as a Portfolio Manager on approximately 21 January 2008.

6. Mr Christensen experienced a number of difficulties during his first few weeks in the Sydney office, many of which related to a unique UNIX-based database system for market closing prices, known as the “TIC Shell”, he had developed by means of an algorithmic system. To operate his program, he required information stored on servers located in the United States. That data was accessible over the internet, but the internet connection speed between the Sydney office and United States office was slow, as was the internet generally in the Sydney office. These technical difficulties caused Mr Christensen frustration in not being able to operate his program efficiently, especially as he had been out of the market and unable to trade for four weeks during the move to Sydney.

7. Although Mr Christensen’s technical difficulties were largely resolved by 27 February 2008, they caused delays which amounted to nine weeks in total and compromised his ability to perform. He was subsequently asked by Tudor Capital’s CEO to produce a simulation of results that his program would have produced had he been trading consistently in the period between December 2007 and July 2008, a task which also interfered with his ability to trade fully. Although the simulation outcome was extremely positive, his actual trading results and hence his earnings had fallen well behind his expected results.

8. These circumstances led to Mr Christensen being placed on a “watch list” at a meeting of Tudor Capital’s Capital Allocation Committee on 1 July 2008. Placement on the “watch list” meant his performance would be reviewed over the balance of the financial year. Mrs Christensen’s evidence was that Mr Christensen was not advised of his placement on the watch list until around 20 August 2008.

9. As Mr Christensen mainly traded in European and US markets, he also experienced difficulties in dealing with the time difference between Sydney and those markets. In addition to working from home between 8am and 9am, and his time at the office between 9:30am and 7pm, Mr Christensen would work between 10pm and 2am in order to watch the US market.

10. During this time, Mr Christensen and others in the finance industry were affected by the significant problems facing economies around the world during the course of 2008, ultimately culminating in the Global Financial Crisis (GFC).

11. In early September 2008, Mr Christensen developed the flu. On 4 September 2008 he consulted his family doctor for a chest infection and was prescribed an antibiotic. He took sick leave on 5 September 2008. He returned to work on 8 September 2008. On that day he was observed by a colleague, Sharon Easten, to be short of breath when walking to his car.

12. That evening, after putting the children to bed, Mr Christensen was sitting on a couch with Mrs Christensen when he suddenly stopped talking, sighed and collapsed unconscious and pulseless. Ambulance officers who were called noted he was in ventricular fibrillation. He was unable to be revived.

13. Mr Christensen had no history of collapses, chest pain, shortness of breath (other than as reported on the day of his death) or palpitation. He had been physically active, playing cricket and football, and was a keen cyclist. There was no family history of sudden death. His brother and sisters are alive and in good health. [4]

    4. Ibid (at [21]).

14. The autopsy report by Dr B Elston, pathologist, addressed to the Coroner included, the following:

“… [T]he cause of death in my opinion is unascertained. … It is however likely that the cause of death could have been a cardiac arrhythmia and [Mr Christensen] was noted to be in ventricular fibrillation by ambulance officers. …

Although there is circumstantial evidence suggesting myocardial infarction leading to ventricular fibrillation, the cause of death is unascertained.” [5]

5.    According to a glossary of medical terms provided by Tudor Capital (Glossary), myocardial infarction is “death of heart muscle as a result of blockage of [the] blood flow to [the] heart”. Ventricular fibrillation is “a heart rhythm disturbance causing the lower chambers [of the heart] to quiver preventing the heart pumping blood”. The Glossary (omitting references in the nature of comments) is set out in the Schedule to these reasons.

Legislative framework

15. The following provisions of the WCA are those in force at the time Mrs Christensen lodged her s 25 claim. For convenience, I refer to the relevant provisions in present tense.

16. Section 9 of the WCA provides:

“9 Liability of employers for injuries received by workers-general

(cf former s 7 (1) (a))

(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.

(2) Compensation is payable whether the injury was received by the worker at or away from the worker’s place of employment.”

17. Section 25 of the WCA contained in Pt 3 (Compensation – benefits), Div 1 (Compensation payable on death), provides:

“25 Death of worker leaving dependants

(cf former s 8 (1))

(1)    If death results from an injury, the amount of compensation payable by the employer under this Act shall be:

(a)    the amount of $425,000 (the lump sum death benefit), which is to be apportioned among any dependants who are wholly or partly dependent for support on the worker or (if there are no such dependants) paid to the worker’s legal personal representative, and

(b)    in addition, an amount of $66.60 per week in respect of:

(i)    each dependent child of the worker under the age of 16 years, and

(ii)    each dependent child of the worker being a student over the age of 16 years but under the age of 21 years. …”

18. “Injury” is defined in s 4(a) of the WCA relevantly as “mean[ing] personal injury arising out of or in the course of employment.”[6] There was no suggestion that Mr Christensen’s death was caused by a disease as referred to in s 4(b) of the WCA.

    6. The definition of “injury” in s 4 was amended with effect from 1 October 2012 by the Workers Compensation Legislation Amendment Act 2012 (NSW) (2012 Amendment Act) (Sch 7, cl [1]), with consequential amendments to s 9A (Sch 7, cl [2] and [3]). Those amendments did not apply to a claim for compensation made before the commencement of the amendment as Mrs Christensen’s was: 2012 Amendment Act, Pt 19H, cl 3(1)(b).

19. In Pt 2 (Compensation – liability), s 9A provides:

“9A No compensation payable unless employment substantial contributing factor to injury

(1)     No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.

(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.”

20. Section 11A was directed to psychological injury and provided:

“11A No compensation for psychological injury caused by reasonable actions of employer

(1)    No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

(3)    A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.

(4)    This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.

…

(6)    This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.

This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury). ...” [7]

7.    There is no subsection 11(2).

Compensation claim

21. As I have said, on 9 August 2011 Mrs Christensen submitted a claim for compensation benefits from Tudor Capital pursuant to s 9 of the WCA seeking lump sum compensation and weekly payments of compensation in respect of each dependent child. [8] On 25 July 2012 her claim was declined by Tudor Capital’s workers compensation insurer, Allianz Australia Workers Compensation (NSW) Limited, when it issued a notice pursuant to s 74 of the WIM Act (Insurers to give notice and reasons when liability disputed) in substance, denying any relevant injury. It also relied upon ss 9A and 11A of the WCA in defence of the claim. [9]

    8.    Arbitrator’s decision (at [7]).

    9.    Deputy President’s decision (at [3]).

22. On 2 April 2013 Mrs Christensen filed an application to resolve a dispute (ARD) in relation to the compensation claim. The ARD described the cause of Mr Christensen’s injury and death as:

“Stress caused by employment rendered [Mr Christensen] susceptible to a viral illness, which caused or aggravated ventricular fibrillation, cardiac arrest and death.”

23. Against the requirement to “describe how the injury occurred”, appeared:

“Stress caused by employer’s failure to provide adequate support to the worker in terms of the necessary infrastructure, equipment and technology systems. Further stress caused by manner in which worker was managed by the employer in the months leading up to his death.”

24. Mrs Christensen’s claim did not discriminate between the two limbs of the s 4 definition of “injury”, that is to say whether the injury she contended Mr Christensen had suffered was one “arising out of or in the course of employment.” [10]

    10.    See, for example, ibid (at [2]).

25. Tudor Capital filed a reply to the ARD (Reply) on 30 April 2013. It denied that Mr Christensen’s employment in any way caused his death, disputed and denied that his fatality resulted from an injury arising out of or in the course of his employment and submitted that Mr Christensen did not suffer a psychological injury but that, if he did, it was not an injury which arose out of or in the course of his employment as defined by ss 4 and 11A(3) of the WCA. It also disputed for the purposes of s 9A, WCA, that Mr Christensen’s death resulted from an injury to which his employment with Tudor Capital was a substantial contributing factor. The Reply also noted aspects of medical reports and the autopsy report, observed that research undertaken by leading cardiac experts identified that there were over 400 sudden cardiac deaths per year in Australia where post mortem examination identified no specific cause of death and submitted that, based on the medical and factual evidence, the probability was that the injury (albeit that it was disputed and denied) would have happened anyway, or at about the same time, or at about at the same stage of Mr Christensen’s life if he had not been at work or had not worked in his employment with Tudor Capital.

26. To the extent that Mrs Christensen asserted that Mr Christensen suffered a work related psychiatric or psychological injury, Tudor Capital also asserted that he did not suffer from such a condition constituting the requisite diagnostic threshold for a psychological injury pursuant to the Diagnostic and Statistical Manual for Mental Disorders, [11] and, as such, disputed that he suffered a psychiatric or psychological condition satisfying the definition of injury in ss 4 and 11A(3) of the WCA. It also contended that, if he did suffer a psychological injury, any such injury was wholly or predominantly caused by reasonable action it took with respect to transfer, performance appraisal and discipline in accordance with s 11A(1) of the WCA. Tudor Capital also raised the point that the claim for compensation was made more than six months following Mr Christensen’s death, and accordingly, disputed liability pursuant to s 261 of the WIM. That basis of opposition to the compensation claim does not appear to have been pursued.

    11.    American Psychiatric Association, (4th ed) (DSM – IV).

27. Mrs Christensen filed an Amended Application to Resolve a Dispute on 4 July 2014 (Amended ARD), it would appear from the Arbitrator’s decision with an application to admit late documents. [12] The Amended ARD amended details in the original ARD concerning cause of injury and death and description of how the injury occurred as follows.

    12.    Arbitrator’s decision (at [6]).

28. The description of the cause of injury and death was:

“Stress caused by employment (including by rendering [Mr Christensen] susceptible to a viral illness) which caused or aggravated ventricular fibrillation, cardiac arrest and death.” [Amendments underlined.]

29. The description of how the injury occurred was:

“Stress caused by the nature and conditions of employment including the employer’s failure to provide adequate support to the worker in terms of the necessary infrastructure, equipment and technology systems, and the manner in which worker was managed by the employer in the months leading up to his death.” [Amendments underlined.]

The arbitration

30. Mrs Christensen’s claim was heard by Arbitrator Wynyard on 23 September 2014, 18 and 19 May 2015 and 16 June 2015. The hearing was limited to Tudor Capital’s liability to pay compensation. Issues of apportionment of any compensation as between members of the family were deferred to permit appropriate submissions to be put on behalf of the children, who were to be separately represented in respect of that aspect of the proceedings should Tudor Capital be found liable to pay compensation. [13]

    13.    Deputy President’s decision (at [4]).

31. Mrs Christensen contended that Mr Christensen’s death was caused by stress associated with his employment, which rendered him susceptible to a viral illness which in turn caused or aggravated his ventricular fibrillation, cardiac arrest and death. [14] She asserted, in reliance upon a report from Associate Professor David Richards, a clinical cardiologist, that the ventricular fibrillation was caused by viral myocarditis. Acute myocarditis is the presence of inflammatory cells (lymphocytes) in the interstitial cells of the myocardium, the middle layer of the heart wall. In a case of acute myocarditis, inflammatory cells are attracted to the heart muscle which is infected by a virus. They indent (bore into) the underlying myocyte, inflicting damage which causes the muscle cell to stop contracting, eventually compromising the heart function and causing arrhythmia. [15] According to counsel for Tudor Capital, the inflammation, which is the result of the body’s defence mechanisms, including T cells, coming in to deal with the virus, is sufficient to cause the heart to go out of rhythm.

    14.    Arbitrator’s decision (at [4]).

    15.    Dr Stephen Rainer, a specialist pathologist at St Vincent’s Hospital. Ventricular fibrillation is an arrhythmia.

32. Tudor Capital contended that Mr Christensen’s death did not result from an injury arising out of or in the course of his employment within the meaning of s 4 of the WCA. It further asserted that his death did not result from an injury to which his employment was a substantial contributing factor within the meaning of s 9A of the WCA. Throughout most of the hearing its case was that Mr Christensen’s death was caused by coronary artery disease. However, that case was abandoned towards the end of the hearing. Its case, as ultimately put, was that Mr Christensen was suffering from hypertrophic cardiomyopathy, a disease in which a portion of the heart muscle wall becomes thickened with fibrous (scar) tissue, a condition that is prone to ventricular fibrillation and sudden death. [16]

    16.    An alternative case theory that Mr Christensen was suffering from coronary artery disease was abandoned in the course of the hearing, but was propounded, at least in part, in Associate Professor Hudson’s evidence: see [69] – [70] below.

33. The case was fought on two fronts. The first related to the evidence in respect of the temporal events leading up to Mr Christensen’s death (temporal issue). Mrs Christensen asserted that the nature of Mr Christensen’s employment exerted such pressure on his health that it led to his contraction of a viral illness that in turn led to his death. Tudor Capital denied that allegation. The second related to the cause of Mr Christensen’s fatal cardiac arrest, and concerned the conflicting expert medical evidence. [17] Although the medical experts were in agreement that Mr Christensen had suffered ventricular fibrillation which led to cardiac arrest causing his death, there was a factual contest between the parties as to the cause of the ventricular fibrillation.

    17.    Arbitrator’s decision (at [23] – [24]).

34. There was extensive medical evidence.

35. Mrs Christensen called Associate Professor Richards. She also tendered expert reports from Dr David Whalley, also a cardiologist, and Professor William Rawlinson, an infectious diseases physician.

36. Tudor Capital called Professor Anne Keogh, a specialist cardiologist at St Vincent’s Hospital, and Dr Rainer. Professor Keogh described herself as the founding cardiologist with Dr Victor Chang of the transplant unit, whose areas of special interest for thirty years were cardiomyopathy and heart failure. Tudor Capital also tendered two expert reports of Associate Professor B J Hudson, a specialist in microbiology and infectious diseases.

37. It is important to note at the outset that the arbitration took a somewhat unusual course. As the Deputy President observed, “the hearing … [was] at times, interrupted by adjournments occasioned by reason of the effluxion of hearing time and by the interposition of the evidence of the expert witnesses.” [18] Counsel for Mrs Christensen, Mr Wardell, commenced submissions on 18 May 2015. His submissions on that day were confined, it would appear, to the temporal issue. They were made before Associate Professor Richards was called. On the same day Mr Grant, counsel for Tudor Capital, also made submissions on the temporal issue and Mr Wardell commenced his reply.

    18.    Deputy President’s decision (at [33]).

38. Whereas expert reports were extensively prepared and commented upon by each party’s experts, important evidence was tendered late in the day. Of such evidence, the most significant was tendered on 19 May 2015 when Tudor Capital made an application to admit late documents, an application which included slides of tissue taken on Mr Christensen’s autopsy. According to counsel for Tudor Capital in this Court, the application was made by way of a telephone conference, and, to the extent, if any, there was any debate about the application, it was not recorded. This may be practical, but it is clearly undesirable if the subject of a tender is controversial. It is not apparent that this application fell into that category.

39. The application was allowed and Tudor Capital tendered the actual pathology slides created at the autopsy which, for reasons which are not explained, were not the subject of evidence until after most of the expert reports were prepared, and until after Associate Professor Richards gave evidence. They became exhibit 12. Dr Rainer and Professor Keogh were then called and occupied the balance of that day.

40. Exhibit 12 depicted slides representing tissue samples taken from various parts of Mr Christensen’s heart (set out on the right hand side of the page in exhibit 12), and, by way of comparison, on the left hand side of some pages, slides captioned as “normal” slides of the same area. In addition, on two pages, the slides on the left hand side of the page depicted heart muscle cells if affected by viral myocarditis, while the slide on the right hand side of one page showed Mr Christensen’s heart was not so affected. Dr Rainer and Professor Keogh gave oral evidence that the slides depicting Mr Christensen’s heart revealed cell pathology and an underlying and pre-existing disorder of the heart muscle (hypertrophic cardiomyopathy), but not viral myocarditis.

41. The final hearing day was 16 June 2015 on which date Mrs Christensen made an application to admit late documents, in part to tender a further report from Associate Professor Richards dated 11 June 2015 addressing aspects of Professor Keogh’s oral evidence. Finally, on that day, Mr Grant, at the direction of the Arbitrator, commenced and concluded his submissions in chief before Mr Wardell had completed the submissions he had commenced on 18 May 2015. [19]

    19.    Ibid (at [36]).

42. According to Tudor Capital’s submissions, because of the order in which exhibit 12 was tendered, what was depicted by the slides was not specifically put to Associate Professor Richards. However, as is apparent, Mrs Christensen adduced further evidence, none of which addressed the autopsy slides.

Temporal issue

43. On the first front, Mrs Christensen adduced extensive evidence about the stresses to which she contended Mr Christensen’s workplace had exposed him. That evidence, as the Arbitrator described it “in broad outline was that a number of events during 2008 had adversely affected [Mr Christensen’s] immune system, in consequence of which he developed flu like symptoms in the weeks before his death.” [20]

    20.    Arbitrator’s decision (at [27]).

44. The occurrence of these events was not in dispute. It included the circumstances of the family’s move to Sydney from London, the fact that when Mr Christensen started with Tudor Capital in Sydney in January 2008 he had been out of the market for four weeks, and had been unable to trade, that he was unable to operate the TIC Shell efficiently because of the slowness of the computer he had been allocated, the fact that, due to the different time zone in which he was working, he had to readjust his system which entailed a long working day, meaning he usually missed having dinner with the family. As I have said, it took about nine weeks to resolve the technical difficulties but, according to Mrs Christensen, the delay compromised Mr Christensen’s ability to perform, which eventually resulted in him being placed on a “watch list” in June 2008, a fact of which he was, according to Mrs Christensen, apparently not informed until around 20 August 2008. [21] The Arbitrator accepted this evidence.

    21.    Ibid (at [27] – [38]).

45. Mrs Christensen also adduced evidence concerning what she submitted were physical signs of the stress Mr Christensen was suffering, manifesting in neck pain, gastro-flu and breathlessness on the day he died. [22]

    22.    Ibid (at [39] – [47]).

46. The Arbitrator concluded:

“[47] The evidence paints a picture of [Mr Christensen] being ill for some weeks prior to the date of his death, being reluctant to seek medical attention until 4 September and being in some respiratory distress whilst he was with Ms Easten, only hours before he died.”

47. The Arbitrator also set out extensive evidence of Mr Christensen’s interaction with a life coach, a facility Tudor Capital offered to all its Portfolio Management. [23] Those notes disclosed, according to the Arbitrator, “that [Mr Christensen] was not coping with the disadvantage he had been placed in by the move.” He regarded the notes as “strong supportive evidence for [Mrs Christensen’s] assertions.” [24]

    23.    Ibid (at [49] – [69]).

    24.    Ibid (at [69]).

48. Finally, in outlining Mrs Christensen’s case on the first front, the Arbitrator set out a letter of condolence the Chairman of Tudor Capital, Paul Tudor Jones II, wrote to her after Mr Christensen’s death, in which he said:

“There is no question that Grant, like all of us, was experiencing heightened stress and anxiety this year. It has been an extraordinarily tough year in what is an extraordinarily tough, unsentimental business. The hard truth is that in this business it is not enough not to lose money....My understanding is that Grant was advised that he had to step up his trading performance in order to keep his seat at the table.... We regret that our advice to Grant was so close in proximity to his untimely passing...”[25]

25. Ibid (at [70].

49. The Arbitrator also referred to Tudor Capital’s lay witnesses’ evidence concerning Mr Christensen’s work environment. [26] That evidence included evidence about Mr Christensen’s general performance, technology issues in the Sydney office and the circumstances in which Mr Christensen was placed on the watch list. It is unnecessary to refer to it in any detail. The Arbitrator did not place much weight upon it, save to note that he rejected evidence from Mr Kevin Wulwick, a UK resident who was both Associate General Counsel for Tudor Capital Europe LLP and counsel for Tudor Capital, to the extent he put in issue whether Mr Christensen was suffering from stress, due to his trading model not working. [27]

    26. Ibid (at [72] – [96]).

    27. Ibid (at [81] – [83]).

The medical issue

50. Leaving aside the controversy as to whether there was sufficient evidence to found the Arbitrator’s ultimate finding as to the cause of Mr Christensen’s death, there are other issues, which require close attention to be paid to the medical evidence. Those issues include Tudor Capital’s complaints that neither the Arbitrator nor the Deputy President properly analysed that evidence and, too, Mrs Christensen’s complaint that the case Tudor Capital sought to propound in this Court was not put in the Commission. Accordingly, it is necessary to set out extensive passages of the medical evidence, including passages not referred to in the Commission.

51. In addition to the passage from the autopsy report set out above,[28] the Arbitrator recorded that Dr Elston also reported that microscopic examination of Mr Christensen’s cardiovascular system showed:

“Sections from the heart show interstitial fibrosis with myocyte hypertrophy, which is more pronounced in the right ventricle than the left ventricle. There is some contraction band necrosis on the endocardial surface, likely agonal in nature. Some myocyte disarray is present in the right ventricle.” [29]

Mrs Christensen’s expert evidence

28. See [14] above.

29.    Arbitrator’s decision (at [104]).

Dr Whalley

52. Dr Whalley gave the following opinion (which was based in part on the “post mortem result”) as to the cause of Mr Christensen’s death in his report of 11 February 2010:

“Intercurrently, [Mr Christensen] … had been susceptible to flu over the years.

I discussed … possible causes for [Mr Christensen’s] sudden death. I pointed out that there are some inherited muscle diseases, which can cause sudden death including arrhythmogenic right ventricular dysplasia and hypertrophic cardiomyopathy. From my reading of the postmortem, it does not appear that [Mr Christensen] had classical changes of either of these two conditions. His mild right ventricular dilation could have been secondary to his level of exercise. He could alternatively have had a mild ventricular myopathy. …

Finally and what I suspect is the most likely cause of [Mr Christensen’s] death is a primary arrhythmia secondary to viral myocarditis. His postmortem was not reported to show an inflammatory infiltrate in the samples of myocardium, but this process can be patchy and may not show up depending on the timing of the postmortem relative to the onset of the viral illness. Certainly, there was a clear viral prodrome prior to his death.” [30] [Emphasis added.] [BL 334 – 335]

Endnotes

Decision last updated: 17 October 2017