Zhang v Universe Investments Pty Ltd t/as Kings Seafood

[2021] NSWPIC 39

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Zhang v Universe Investments Pty Ltd t/as Kings Seafood [2021] NSWPIC 39
APPLICANT:	Yuling Zhang
FIRST RESPONDENT:	Universe Investments Pty Ltd t/as Kings Seafood
SECOND RESPONDENT:	Zi Xi Shen
THIRD RESPONDENT:	Zhang Wenato Lun
FOURTH RESPONDENT	Zu Yu Chan (Yuk Sium Chu)
MEMBER:	Mr Brett Batchelor
DATE OF DECISION:	23 March 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for death benefits and apportionment thereof pursuant to ss 25 and 29 of the 1987 Act by the widow of a deceased ‘worker’ who died of a heart attack in the course of his employment as a restaurant chef; the first respondent/employer declined liability relying on ss 4(b)(ii), 9A and 9B of the 1987 Act; finding that the conditions under which the deceased was required to work, and the stress and long hours of that work for the employer, was the main contributing factor to aggravation of the hypertension from which the deceased suffered; that aggravation caused heart arrhythmia which led to his death; Held- finding accordingly that the reliance of the first respondent on section 9A defence not applicable; finding that the nature of the deceased’s employment with the employer gave rise to a significantly greater risk of the injury suffered by the deceased than had he not been employed in employment of that nature; section 9B defence not made out; finding that the applicant, her two infant children and the deceased’s mother, resident in Hong Kong, all wholly or partly dependent on the deceased for support at the time of his death; orders made for apportionment, and for payment by the employer to, or for the benefit of, the applicant and other dependants of the sums apportioned to them; orders made for payment of weekly benefits to the two infant dependants and for the payment of funeral expenses to the applicant.
DETERMINATIONS MADE:	1.     Hai Yuan Lun (the deceased) died on 18 March 2018 as a result of a heart attack injury arising out of or in the course of his employment with the first respondent. 2.     The deceased’s employment with the first respondent was the main contributing factor to the aggravation of the disease injury of hypertension from which the deceased suffered. 3.     The nature of the deceased’s employment with the first respondent gave rise to a significantly greater risk of the deceased suffering injury on 18 March 2018 than had he not been employed in that employment. 4. The first respondent is liable for the payment of the lump sum death benefit of $781,900 payable pursuant to s 25(a) of the Workers Compensation Act 1987 as a result of the death of the deceased. 5.     The applicant and the second, third and fourth respondents were wholly or partly dependent for support on the deceased as at that date of his death. 6.     There are no other persons who were wholly or partly dependent for support on the deceased as at that date of his death. 7.     The lump sum death benefit is apportioned as follows: Applicant         55%            $430,045 Second Respondent     17%            $132,923 Third Respondent     24%            $187,656 Fourth Respondent     4%              $ 31,726 Total 100% $781,900 8.     The first respondent is to pay interest on the lump sum death benefit at the rate of 4.10% from 7 October 2019 to the date of this Certificate of Determination apportioned between the applicant and the second, third and fourth  respondents pro-rata according to the apportionment of the lump sum death benefit. 9.     The first respondent is to pay the sum apportioned to the applicant and interest thereon to the applicant. 10.   The first respondent is to pay the sum apportioned to the fourth respondent and interest thereon to the fourth respondent. 11. The first respondent is to pay the sums apportioned to the second and third respondents and interest thereon to the NSW Trustee and Guardian in accordance with s 85(1) (a) of the Workers Compensation Act 1987 to be dealt with in accordance with s 85(2) of that Act until the second and third respondents attain their majority. 12. The first respondent is to pay to the applicant $140 per week in respect of each of the second and third respondents, as adjusted from 18 March 2018, to date and continuing pursuant to s 25(1)(b) of the Workers Compensation Act 1987. 13. The first respondent is to pay to the applicant the deceased’s funeral expenses pursuant to s 26 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

1. This claim is for benefits pursuant to s 25 of the Workers Compensation Act 1987 (the 1987 Act) arising out of the death of Hai Yuan Lun (the deceased) from a heart attack on 18 March 2018 whilst employed as a restaurant chef by the first respondent (Kings Seafood/the employer).

2. The applicant (the applicant/Ms Zhang) is the deceased’s widow, having married him on 1 October 2015. The second respondent, Zi Xi Shen (the second respondent/Zi Xi) is the infant son of the applicant from a former relationship. The third respondent Zhang Wenato Lun (the third respondent/Zhang Wenato) is an infant son of Ms Zhang and the deceased.

3. Pursuant to a notice issued to Ms Zhang on 9 November 2018 pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the employer’s insurer, Employers Mutual NSW Limited (EML), denied liability for the applicant’s claim, relying on defences under ss 4, 9A and 9B of the 1987 Act. This denial of liability was confirmed in subsequent review notices issued on 3 December 2018 and 19 September 2019. In respect of the defence under s 9B of the 1987 Act, EML alleged that the available evidence did not support a finding that the nature of the deceased’s employment as a barbecue chef with Kings Seafood gave rise to a significantly greater risk of the deceased suffering the atherosclerotic cardiovascular disease, which was the cause of his death, than had he not been employed in employment of that nature.

4. The fourth respondent (Mrs Chan) is the mother of the deceased, aged 79 and residing in a Lutheran Centre for the Elderly in Hong Kong. She has advanced dementia. She is a widow, her husband (the deceased’s father) having passed away in 2016. Mrs Chan’s daughter Za Qun Lun (the deceased’s sister), who resides in mainland China, is her guardian and takes care of her comprehensive social security scheme (CSSA) provided in Hong Kong as a safety net for those who cannot support themselves financially. This is a limited allowance which does not fully support Mrs Chan’s daily expenses. Mrs Chan has provided statement evidence that the deceased sent some money to her regularly to help with her electricity and other household expenses.

5. Ms Zhang commenced proceedings on 28 February 2020, naming the employer as first respondent and her two children and second and third respondents.

6. Following protracted attempts at contacting Mrs Chan and her daughter, and securing legal representation for Mrs Chan, she was joined as fourth respondent pursuant to a direction of the former Workers Compensation Commission on 24 November 2020. The proceedings were then stood over for conciliation/arbitration via video conference on 19 January 2021.

7. Due to technical difficulties experienced on 19 January 2021 the conciliation/arbitration was not able to proceed to hearing via video conference, and directions were made for all parties to lodge and serve written submissions on the liability of the first respondent to pay the lump sum death benefit and weekly payments in respect of dependent children pursuant to s 25 of the 1987 Act, as a result of the death of the deceased on 18 March 2018. These submissions have now been received. The parties had previously been directed to lodge and serve by 11 January 2021 short written submissions on the issue of apportionment of the lump sum death benefit between the applicant and the second, third and fourth respondents in the event that there was a finding in favour of the applicant on the liability of the first respondent to pay compensation pursuant to s 25 of the 1987 Act. Those submissions have been received.

ISSUES FOR DETERMINATION

1. The parties agree that the following issues remain in dispute:

   (a)    Was the death of the deceased a result of an injury arising out of or on the course of his employment with the first respondent (s 4 of the 1987 Act)?

   (b)    Was the deceased’s employment with the first respondent the main contributing factor to the disease injury causing his death on 18 March 2018 (s 4(b)(i) or (ii) of the 1987 Act)?

   (c)    Did the nature of the deceased’s employment with the first respondent give rise to a significantly greater risk of him suffering the atherosclerotic cardiovascular disease from which he died than had he not been employed in employment of that nature (s 9B of the 1987 Act)?

   (d)    Were the applicant and second, third and fourth respondents wholly or partly dependent for support on the deceased at the time of his death?

   (e)    How should the lump sum death benefit be apportioned between the applicant and the second, third and fourth respondents?

   (f)    Is the first respondent liable to pay interest on the lump sum death benefit pursuant to s 109 of the 1998 Act?

   (g) Is the first respondent liable to make weekly payments in respect of the second and third respondents pursuant to s 25(1)(b) of the 1987 Act?

   (h) Is the first respondent liable to pay for the deceased’s funeral expenses pursuant to s 26 of the 1987 Act?

   Although a defence under s 9A of the 1987 Act was raised by EML in the s 74 notices, the acknowledgement by the applicant and first respondent that the applicant relies on proving injury under s 4(b)(ii) of the 1987 Act renders any reference to a defence relying on s 9A not relevant.

PROCEDURE BEFORE THE COMMISSION

1. I am satisfied that the parties to the dispute understand the nature of the application and the  legal implications of any assertion made in the information supplied.  I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them.  I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. For the reason outlined in [7] above, the parties were informed that at the conclusion of the time allowed for submissions the dispute would be determined ‘on the papers’.

EVIDENCE

Documentary Evidence

1. The following documents were in evidence before the Commission and considered in making

   this determination:

(a)    Application in Respect of Death of Worker and attached documents (the Application);

(b)    Application to Admit Late Documents (AALD) dated 26 May 2020 lodged by the applicant with the following attached documents:

(i)supplementary report Associate Professor Richard Haber (Dr Haber), consultant physician/cardiologist, dated 16 April 2020;

(ii)report Dr Glen Smith, consultant forensic psychiatrist, dated 30 May 2020;

(iii)Medico Research Material, Bannai and Tamakoshi, dated 2014, and

(iv)Medico Research Materiak, Harvey et al, dated 2017;

(c)    Reply of first respondent dated 24 March 2020 with the following attached documents:

(i)s 74 notice, EML, dated 9 November 2019;

(ii)Review Response, EML, dated 3 December 2018;

(iii)Further Review Response, EML, dated 17 September 2019;

(iv)Factual investigation, Quantumcorp, dated 28 May 2018, and

(v)medical report of Dr Mark Herman, consultant cardiologist dated 20 August 2018;

(d)    AALD dated 8 April 2020 lodged by the first respondent with supplementary report dated 30 March 2020 of Dr Mark Herman, consultant cardiologist, attached;

(e)    AALD dated 12 January 2021 lodged by first respondent with report of Dr Robert Kaplan, forensic psychiatrist, dated 31 December 2020 attached;

(f)    Reply of second respondent dated 27 April 2020 with statement of Yuling Zhang (the applicant) dated 21 April 2020 attached;

(g)    Reply of third respondent dated 3 April 2020 with schedule of “Third Respondent Compensation Claimed” and “Wage Schedule” attached;

(h)    Reply of fourth respondent dated 29 October 2020 with the following attachments:

(i)statement Zao Qun Lun dated 28 October 2020;

(ii)statement (Traditional Chinese) Zao Qun Lun dated 28 October 2020;

(iii)statutory declaration (draft) Yuling Zhang dated 2019;

(iv)statutory declaration Yuling Zhang dated 7 June 2019;

(v)medical report Lap Kuen Chan dated 31 March 2020;

(vi)medical report dated Lap Kuen Chan dated 4 January 2019;

(vii)Marriage Certificate, Zhaoqing Public Office dated 27 March 1996;

(viii)Birth Certificate of Zao Qun Lun, Zhaoqing Public Office, dated 8 November 1996, and

(ix)Death Certificate, Registry of Births, Deaths and Marriages dated 16 April 20918.

(i)    submissions of Mr P Stockley, counsel for the applicant, dated 12 January 2021 on the issue of apportionment (apportionment);

(j)    submissions of Mr C Robertson, counsel for the second respondent, dated 6 January 2021 on apportionment;

(k)    submissions of Mr R Stanton, counsel for the third respondent, dated 7 January 2021 on apportionment;

(l)    submissions of Ms L Goodman, counsel for the fourth respondent, dated 12 January 2021 on apportionment;

(m)     submissions of Mr P Stockley dated 29 January 2021 on the issue of liability (liability);

(n)    submissions of Mr P Perry, counsel for the first respondent (employer), dated 16 February 2021 on liability;

(o)    amended submissions in reply of Mr P Stockley dated 23 February 2021 on liability, and

(p)    submissions of Mr C Robertson, counsel for the second respondent, dated 6 March 2021 on liability in which the second respondent adopts the submissions of the applicant in her counsel’s submissions dated 29 January 2021 and 23 February 2021.

1. As part of the directions for submissions on liability referred to in [7] above, the second, third and fourth respondents were directed to lodge and serve by 9 March 2021 any submissions on which they wished to rely in respect of the issue of liability. No such submissions have   been received from the third and fourth respondents.

1. All submissions, both on the issue of liability and apportionment, have been taken into account in making this determination and will be referred to hereunder where relevant.

THE APPLICANT’S CASE

The applicant’s claims

1. The applicant claims:

   (a) the lump sum death benefit of $781,900 payable pursuant to s 25 of the 1987 Act as a result of the death of the deceased on 18 March 2018;

   (b)    apportionment of the lump sum death benefit between herself and her two sons;

   (c) weekly payments pursuant to s 25(1) (b) of the 1987 Act for her two sons, and

   (d)    funeral expenses.

1. In view of the joinder of Mrs Chan as fourth respondent in the proceedings, any apportionment to which she may be entitled will also have to be considered.

Liability

1. The applicant submits that the best insight into the deceased’s working life appears from her letter dated 1 December 2018 written “…to Demand of Compensation for Hai Yuan Lun’s death caused by Universe Investments Pty Ltd.”[1] Notwithstanding the fact that this letter is written in the author’s second language, it is submitted to be “…eloquent…passionate and  relevant.”[2] The deceased had been employed as a chef by the first respondent (previously known as Golden Jade Holdings Pty Ltd) since 27 July 2004 and had been registered as a  director and secretary since that year. One Simon Chu was said to be the “shadow director for both companies during 2004-2018.” The applicant alleges that the deceased never got any benefit from either company. His salary had been very poor since 2004.

   [1] Application p 150.

   [2] Applicant’s submissions on liability dated 29 January 2021, at [7].

1. The applicant outlines the extensive duties that the deceased was required to undertake, including but not limited to:

   (a)    making BBQ products from raw material to being ready to sell at the front counter or in the restaurant;

   (b)    opening the kitchen at 7.00 am;

   (c)    taking customer’s orders;

   (d)    acting as cashier and selling take away meals at the BBQ counter;

   (e)    ordering supplies;

   (f)    clearing up the front BBQ counter;

   (g)    maintaining the frozen storage room of the restaurant;

   (h)    selling BBQ products in the afternoon;

   (i)    repairing kitchen appliances;

   (j)    planning advertisements and attending to accounting work;

   (k)    taking reservation calls in the reception area during the afternoon (3pm-5pm);

   (l)    receiving the delivery of supplies (3pm-5pm), and

   (m)     being on call for storage and for decoration of the restaurant.

2. Ms Zhang alleges that a co-worker, like an apprentice, assisted the deceased until 2012 when he was fired and not replaced, causing her to go and assist the deceased sometimes in his work, although she was not of much help because of the physically demanding nature of such work.

3. Ms Zhang claims that the deceased worked 545 hours for 46 days continuously. Within that period he worked 11 hours a day for two weeks with no day off and 18 hours a day every day for three days before he suddenly died at work. His usual working day was from 7.30 am to 6.30 pm. There were no lunch breaks and the deceased’s diet suffered. He was frequently called in to replace other persons in the kitchen in the evening, working until no earlier than 9.00 pm. He had to go into the restaurant at 4.00 am on occasions to start preparing customers’ orders when other co-workers were not available to assist. The deceased was threatened by Simon Chu that he would not be paid if he did not turn up.

4. Ms Zhang claims that on 13, 14 and 15, February 2018, Chinese New Year’s Eve, the deceased was exhausted after coming home following more than 18 hours of physically demanding work.

5. The picture painted by the applicant of the deceased’s working environment is one of excessively long and stressful working hours, physically demanding work, little or no time off work and threats of suspension of pay for non-attendance at work. The applicant records the effect of the deceased’s working conditions upon him and his complaints to her about such conditions. She alleges that these conditions occurred over the period 2010-2018.

6. The applicant has also supplied a statutory declaration dated 7 June 2018[3] which contains evidence of the nature of the applicant’s employment with the first respondent and is consistent with what Ms Zhang says in her letter dated 1 December 2018 referred to above. This evidence notes that the business was under financial strain, and that the deceased was not always paid his salary because of a loss incurred by the restaurant. From the time that the applicant and the deceased commenced cohabitation in early 2012 the deceased took no sick leave. He was under enormous pressure for about one month up until the day that he died because of the demands of Chinese New Year celebrations.

   [3] Application p 118.

7. The deceased’s death certificate records the cause of death as “Atherosclerotic cardiovascular disease”[4].

   [4] Application p 69.

8. The applicant relies upon the opinion of Associate Professor Richard Haber (Dr Haber), consultant physician/cardiologist, in a report dated 19 July 2019[5] prepared after a file review. At that time Dr Haber was supplied with a report of Dr Mark Herman, consultant cardiologist, dated 20 August 2018[6] prepared after a file review. The respondent relies upon the opinion of Dr Herman in support of its denial of liability.

   [5] Application p 242.

   [6] Reply p 68.

9. Based on the clinical history in the documents provided to him, Dr Haber noted that the deceased closed the restaurant at about 3.30 pm on 18 March 2018 and appeared to be in his normal state of health. At about 4.15 pm he was found to be cold and dead. Attempts at resuscitation were unsuccessful. An autopsy done by the coroner showed the deceased’s heart to be grossly enlarged globular and muscular in appearance with all major arteries showing significant stenoses as well as dystrophic calcification. There was evidence of fibrosis in the septum and anterior wall of the heart.

1. Dr Haber expressed the opinion that the deceased almost certainly had a previous heart attack as shown by the previous scarring in the heart found by the coroner, who also found the deceased to have extensive blockages in all major arteries. The doctor strongly suspected that the deceased had had untreated hypertension for years and says that a heart attack can be brought on by aggravation of pre-existing blockages of coronary arteries.

2. Dr Haber said that chronic stress is well known to aggravate and accelerate deterioration of the coronary arteries disease leading to a heart attack. This is usually a relatively slow process – often there is no obvious precipitating factor. Dr Haber said:

   “On the basis of the history of his work hours as well as physical and emotional stress it is more likely than not that work has aggravated his hyper tension and therefore coronary artery disease.”

When his attention was drawn to s 9B of the 1987 Act he said:

“Considering his employment history, it seems more likely than not that his employment gave rise to a significantly greater risk than had he not been working there.”[7]

[7] Application p 244.

The first respondent’s case

1. Dr Herman in his report dated 20 August 2018 to the solicitors for the first respondent expressed the opinion that atherosclerotic cardiovascular disease is a common condition in first world countries and provoked by several cardiac risk factors which include non-modifiable and modifiable risk factors.

1. The non-modifiable risk factors are age, sex and family history and the modifiable risk factors are smoking, hypertension, hypercholesterolaemia, diabetes, obesity, lack of regular exercise, psychosocial factors including depression and various dietary factors. Dr Herman said that in the deceased’s specific situation, he did not appear to have had any significant risk factors other than possible stress from his work situation. That however was never proven in his circumstance, he was certainly not on any treatment for the above and furthermore, stress and anxiety is lesser of a psychosocial risk factor than is isolation, loneliness, depression and post- traumatic stress disorder type diseases.

1. Dr Herman’s opinion is that the nature of the deceased’s employment and his work hours did not result in a significantly greater risk of him developing atherosclerotic cardiovascular disease and subsequently suffering a heart attack. At that stage Dr Herman had not read the autopsy report and was therefore unsure of the diagnosis of the deceased’s condition.

1. Both Dr Haber and Dr Herman produced supplementary reports on the liability of the first respondent for payment of compensation as a result of the death of the deceased, the contents of which will be referred to hereunder.

Apportionment

1. There was no agreement between the applicant and second, third and fourth respondents on the issue of apportionment of the lump sum death benefit. The respective submissions on this issue are referred to hereunder.

FINDINGS AND REASONS

Liability

1. Dr Herman produced a supplementary report dated 30 March 2020[8] after he had the post-mortem results and Dr Haber’s report dated 19 July 2019 was made available to him. Dr Herman noted that the deceased apparently had significant ischaemic cardiomyopathy with evidence of an old anteroseptal myocardial infarction (heart attack) and significant coronary artery disease involving the left main, left anterior descending and right coronary arteries. He noted the evidence of the enlarged heart with significant thickening of the left ventricle suggesting prior untreated hypertension and evidence of chronic lung disease and possible hypertensive related kidney disease. Dr Herman went on to say:

   [8] AALD 1^st respondent 08.04.20  p 4.

“Of note, there was no evidence of an acute coronary occlusion causing a ‘heart attack’ suggesting that his mode of death would probably have been due to a sudden ventricular arrhythmia (ventricular fibrillation) provoking a cardiac arrest. This is not infrequent in the setting of an ischaemic cardiomyopathy (a previous heart attack with significantly damaged heart muscle).”

Dr Herman noted the findings of Dr Haber in his report dated 19 July 2019 and that from previous correspondence there was no notification of previously diagnosed hypertension, although the post-mortem report certainly tended to suggest that such may have been present. He was concerned that the family history had not been adequately delineated, and with mild lung disease noted, he wondered about smoking. In answer to a specific question as to whether the autopsy report and/or the report of Dr Haber caused him to change his opinion in relation to causation in any way he said:

“In summary, the autopsy report confirms severe underlying coronary artery
disease with a previous anterior myocardial infarction and evidence of a probable
sudden cardiac arrhythmic death.

In relation to Dr Haber's report, whilst I agree that work stress may be associated
with coronary artery disease and provocation of hypertension, it is a significantly
smaller risk factor than the traditional risks factors which include hypertension,
hyperlipidaemia, diabetes, smoking and family history of premature ischaemia.”
(emphasis in original)

1. Dr Herman continued to conclude that the nature of the deceased’s employment did not result in significantly greater risk of him developing atherosclerotic cardiovascular disease resulting in the fatal heart attack. In fact, he did not think that the deceased had a heart attack at the time of his death but rather an arrhythmic event in the setting of a prior myocardial infarction which provoked cardiomyopathy. Whilst Dr Herman conceded that work related stress may possibly have exacerbated pre-existent hypertension and may be a “minor” risk factor for the development of underlying coronary disease, the nature and extent of the deceased’s disease process would highly likely have been provoked by traditional cardiac risk factors rather than work related stress. The doctor continued to highlight that an accurate family history and an accurate smoking history be obtained together with any notification from a general practitioner regarding hypertension in the past.

1. In preparing his supplementary report dated 16 April 2020 Dr Haber noted the documentary evidence previously studied as follows:

“1.     Death certificate of Hai Yuan Lun dated 18 March 2018

2.     Statement of Yuling Zhang dated 23 November 2018 including schedule of hours worked by deceased.

3.     Statutory declaration of Yuling Zhang 7 June 2018. Paragraphs 9 to 28 contain an account of the deceased’s work history and conditions.

4.     Denial notice dated 18 March 2018.

5.     Report dated 15 May 2018 of autopsy performed 21 March 2018.

6.     Report of Dr. Herman consultant cardiologist dated 20 August 2018.

7.     Investigation report of Quantumcorp and attachments.”[9]

[9] AALD applicant 26.05.20 p 2.

1. Dr Haber noted the evidence of the applicant of the long hours worked by the deceased and stressful conditions under which he worked, that he had not seen a local doctor for years and thought that he was in good health, was not on regular medication, did not smoke or drink alcohol and that for some time prior to his death had complained of feeling exhausted. He referred to the circumstances of the deceased’s death on 18 March 2018 and the findings as a result of the autopsy. He noted that the evidence from the coroner’s report revealed the presence of extensive coronary artery disease. The points of agreement between himself and Dr Herman are noted by Dr Haber as follows:

(a)    there was no evidence of an acute cardiac injury implying that more likely than not the deceased died as a result of cardiac arrhythmia, most likely ventricular fibrillation;

(b)    the deceased had an extensive coronary artery disease and most likely hypertension as well, further supported by the presence of sclerotic changes in the kidneys, and

(c)    hypertension is a multifactorial condition involving genetic constitutional and lifestyle factors, and that “stress could exacerbate tension”.

In response to (c), Dr Haber stated that “…stress remains an important contributory factor.” His belief is that hypertension in the case of the deceased contributed to the worsening of coronary artery disease and that he had suffered from a prior heart attack. The most recent cause of death was cardiac arrhythmia, most likely ventricular fibrillation which was the final fatal condition, and which is a very common complication of coronary artery disease.

1. Dr Haber says that he and Dr Herman only differ in the assessment of the severity of emotional stress which can be related to work and which can be contributing to hypertension and coronary heart disease. He says that the severity of stress factor relating to stress at work can be best assessed by a psychiatrist rather than a physician as a matter of principle.

1. Dr Glen Smith, consultant forensic psychiatrist, prepared a medico-legal report dated 20 May 2020 at the request of the applicant’s solicitors.[10] In addition to a letter of instructions,
   Dr Smith was provided with:

   (a)    reports of Dr Herman dated 20 August 2018 and 30 March 2020;

   (b)    the Application and annexures, and

   (c)    reports of Dr Haber dated 19 July 2019 and 16 April 2020.

   [10] AALD applicant 26.05.20 p 5.

2. Dr Smith had before him the Quantumcorp report dated 28 May 2018 which contained hearsay evidence of the solicitor for the applicant, Diana Simoni, given to the investigator which corroborated the applicant’s evidence referred to above as to the strenuous and stressful conditions under which the deceased worked for the first respondent. Based on the material provided, Dr Smith opined that, on the balance of probabilities, the deceased’s employment caused him stress. Having regard to the excessive job demands, excessive hours, low co-worker support and tension with workers, the resulting stress was substantial. Dr Smith attached to his report articles of medical experts discussing the association between long working hours and health, based on a review of epidemiological evidence.

1. Dr Robert Kaplan provided a report dated 31 December 2020 to the first respondent’s solicitor after a file review[11]. The doctor acknowledged the longstanding debate of the role of stress in producing cardiac illness in the following terms:

“The problem in assessing generic 'stress' is the vagueness of the concept.
Definitions include surgical stress, physiological stress and psychological stress, the latter being even less clarified.
The role of stress in producing cardiac illness has been debated for over 150 years, going as far back as the US Civil War. In recent decades the literature has swung like a pendulum between views supporting its role in causing cardiac illness and those rejecting it; consequently, it is easy to find papers supporting either point of view, which leaves the issue open to the reader's predilection. One man's stress is, as it were, another man's stimulation.

There is no objective manner of determining whether Mr Lun's work would meet this

criterion; any postmortem assessments of this are speculative.”

[11] AALD 1^st respondent 12.01.21.

1. Dr Kaplan was not provided with he statement of the applicant but did refer to the autopsy findings confirming a lengthy history of chronic lung disease, gout, hypertension, renal damage cardiac enlargement and coronary atherosclerosis. That showed that the deceased had serious illness for a lengthy period of time. He said that no finding could be made as to how long these conditions had been present, nor was there information about known etiological factors such as smoking. The same applied to hypertension. Dr Kaplan concluded with the following:

“To make sense of this case, the following principle should apply: As the role of stress is difficult to quantify, let alone confirm, it cannot be shown to be a definitive factor in causing cardiac or hypertensive illness.”

He did not accept that the death of the deceased resulted from work related emotional stress
which contributed to hypertension and coronary artery disease.

1. The applicant submits that the opinion of Dr Smith is not rebutted in any credible way by the opinion of Dr Kaplan, who did not deal with he issue. Dr Kaplan did not have available to him Ms Zhang’s statement and was presumably deprived of any factual basis upon which to found an opinion as to the alleged nexus between employment and stress. The applicant also submits that Dr Kaplan’s commentary regarding the aetiology of cardiac pathology would appear to fall more within the domain of the cardiologists.

1. Both the applicant and the first respondent agree that the liability issue must be determined pursuant to s 4(b)(ii) of the 1987 Act, that is the applicant must show that the injury suffered by the applicant was aggravation of the pre-existing hypertension and coronary artery disease, and that the deceased’s employment with the first respondent was the main contributing factor to that aggravation. The first respondent submits that the applicant has failed to do this. The first respondent submits that it is incumbent to bring evidence to the effect that there were no other factors which might aggravate the disease, such as lifestyle, diet etc. Alternatively the first respondent submits that if there were any such factors, the applicant must establish that they were of such a limited contribution as would lead to a conclusion that work stress was the main contributing factor. As to the level of evidence that needs to be available to establish main contributing factor, the first respondent relies on what Snell DP said at [78] in AV v AW[12], namely:

   “The following may be taken from the above:

   (a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in
   s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.

   (b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.

   (c)In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”

   [12] [2020] NSWWCCPD 9 (AV v AW).

2. The respondent says that it is insufficient to say, as the applicant does, that Dr Haber has not identified any other aggravation of the deceased’s hypertension. The absence in Dr Haber’s report of reference to other aggravating factors does not, as appears to be contended, lead to the conclusion that work must have constitutes the main contributing factor (emphasis in submission). The respondent notes that Dr Herman identifies in his report a number of modifiable and non-modifiable aggravators, only a few of which (for example smoking) might be excluded. The first respondent submits that the applicant’s evidence fails to address this issue at all.

1. The first respondent also submits that the applicant has failed to prove causation. The deceased suffered a from deadly disease which was not caused by his employment.

1. The applicant submits that the Commission would be satisfied that she has demonstrated on the balance of probabilities:

   (a)    that the deceased worked under stressful conditions;

   (b)    that he manifested symptoms consistent with experiencing a psychological response to those stressful conditions;

   (c)    that stressful work conditions were a significant risk factor for aggravating a pre-existing tendency to hypertension and coronary heart disease, and

   (d)    that the deceased’s coronary heart disease resulted in an arrhythmic event causing death.

2. The applicant submits that the pleaded injury is of aggravation of a disease, namely hypertension. On the case supported by Dr Haber, the only identified aggravation of the hypertension was the work related stress, which must therefore have constituted the main contributing factor to the aggravation for the purposes of s 4(b)(ii) of the 1987 Act. (emphasis in submissions)

1. In AV v AW referred to in [43] above, Snell DP makes it clear that “medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.” In this case the applicant’s evidence, not challenged by the first respondent, is that the deceased worked under extremely stressful conditions which worsened leading up until his sudden death. He took no annual or holiday leave and did not have time to attend any social activities. Her evidence is also that her husband did not smoke or drink alcohol, had not seen a doctor for years and thought that he was in good health, although for some time prior to his death he complained of feeling exhausted and exhibited signs of severe emotional and physical stress. There was no evidence of significant past medical history and the deceased took no regular medicines.

1. Dr Herman in his report dated 20 August 2018 referred to the risk factors likely to contribute to atherosclerotic cardiovascular disease. He said that the deceased did not appear to have had any significant cardiovascular risk factors other than possible stress from his work situation which was never proven in his circumstances. He said that stress and anxiety is lesser of a psychosocial risk factor than isolation, loneliness, depression and post-traumatic stress disorder type diseases. The deceased had none of these.

1. The relevant contents of Dr Herman’s supplementary report dated 30 March 2020 are summarised at [33]-[34] above. Dr Kaplan’s comments on the role of stress in producing cardiac illness as referred to in [40]-[41] above.

1. The applicant draws attention to what was said in Murray v Shillingsworth[13], noting that the determination of the Commission does not depend on findings of scientific or medical certainty. At [30] in Murray, Einstein J noted that the legal requirements of proof on the balance of probabilities were examined in Seltsam Pty Ltd v McGuiness[14] where Spigelman CJ put the matter as follows:

   “i. ‘There are cases in which medical science cannot identify the biological or pathological mechanisms by which disease develops. In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for purposes of attributing legal responsibility…In circumstances where the aetiology of a disease is uncertain, or subject to significant scientific dispute, the courts are not thereby disenabled for making decisions as to causation on the balance of probabilities.’ [at 93 – 94]
   ii. ‘When assessing expert evidence on causation, the legal concept of causation requires the court to approach the matter in a distinctively different manner from that which may be appropriate in either philosophy or science, including the science of epidemiology. ‘ [at 142]

   iii. The commonsense approach to causation at common law is quite different from a scientist’s approach to causation…an inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.’ [at 143]”

   [13] [2006] NSWCA 367; 68 NSWLR 451.

   [14] [2000] NSWCA 29.

2. In my view, having regard to the whole of the evidence, the applicant has discharged the onus of proof on her to show that the deceased’s employment with the first respondent was the main contributing factor to the aggravation of the hypertension from which the deceased suffered. I accept the applicant’s submissions referred to in [46] above. Dr Haber identified that the only  aggravation of hypertension was work related stress. In his report dated 19 July 2019 under “SOCIAL HISTORY” he noted the other lifestyle factors, some of which were referred by Dr Herman as being causative of heart disease. These were not shown to exist in the case of the deceased, largely based on the evidence of the applicant which was not challenged. The autopsy report clearly showed that the deceased was suffering from pre-existing heart disease. Dr Herman’s opinion was that the deceased had almost certainly had a previous heart attack as shown by the scarring on the heart found by the coroner. He said that:

(a)    a heart attack can be brought on by aggravation of pre-existing blockages of coronary arteries;

(b)    chronic stress is well known to aggravate and accelerate deterioration of the coronary arteries leading to heart attack. This is usually a slow process; often there is no obvious precipitant factor;

(c)    work stress can be a significant risk factor, especially as it can aggravate hypertension;

(d)    on the basis of the history of the deceased’s work hours as well as physical and emotional stress, it is more likely than not that work has aggravated the deceased’s hypertension and therefore coronary heart disease, and

(e)    considering his employment history, it seems more likely than not that the deceased’s employment gave rise to a significantly greater risk than had he not been working there.

1. Dr Herman’s identification of other risk factors of isolation, loneliness, depression and post-traumatic stress disorder type diseases were not shown to exist in the case of the deceased.

1. I find that the applicant has discharged the onus of proof on her to show that the deceased’s employment with the first respondent was the main contributing factor to the aggravation of the hypertension from which the deceased suffered. This aggravation was the cause of the arrhythmia of the deceased’s heart which caused his death on 18 March 2018.

Section 9B of the 1987 Act

1. In Renew God’s Program Pty Ltd v Kim[15] Snell DP discussed s 9B of the 1987 Act and what is required by way of evidence to address the defence raised in that section to a claim for compensation in respect of an injury in the form of a heart attack. The applicant accepts that the injury claimed in the current proceedings falls within the definition of “heart attack injury” in s 9B(2). Section 9B(1) is as follows:

“(1) No compensation is payable under this Act in respect of an injury that consists of, is caused by, results in or is associated with a heart attack injury or stroke injury unless the nature of the employment concerned gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.”

[15] [2019] NSWWCCPD 45 (Kim).

1. At [45] in Kim, Deputy President Snell said:

“I accept the employer’s submission that, consistent with what was said in De Silva, s 9B involves an evaluative task, applying the comparison that is inherent in the section. I accept that it involves an assessment of comparative risks, and is not a test of true causation. Such issues in ‘heart attack’ cases are frequently multifactorial.
…

The employer submits that Associate Professor Haber’s report does not suggest that he had considered s 9B. This to some extent misses the point. The section does not require that there be medical evidence to some particular effect. Rather it was necessary, on all of the evidence, that the Arbitrator determine whether the test in s 9B was satisfied.”

The reference to De Silva is to an earlier decision of Snell DP as an arbitrator in De Silva v Secretary of Department of Finance[16].

[16] [2015] NSWCC 279.

1. In this case Dr Haber, as compared to the apparent contents of his report in the matter of Kim, has considered s 9B. His opinion on this issue is set out at [52(e)] above. A comparison of the deceased’s employment history with the first respondent with the risk to which he would have been exposed had he not been employed by the first respondent, in my view, leads quite clearly to the conclusion that the employment with the respondent gave rise to a significantly greater risk of the deceased suffering injury, in the form of a heart attack, that he suffered on 18 March 2018.

1. Dr Herman addresses this issue in his report dated 20 August 2018 when he gave his opinion that the nature of the deceased’s employment and his work hours did not result in a significantly greater risk of him developing atherosclerotic cardiovascular disease and suffering a heart attack. Dr Herman says that although the deceased did work multiple hours, that was not generally accepted as a significant cardiovascular risk factor unless associated with severe stress, depression, post-traumatic stress disorders in association with other traditional risk factors. I do not accept this opinion. Firstly, the injury suffered by the deceased was not the development of atherosclerotic cardiovascular disease, it was the aggravation of this disease which caused him to suffer the heart attack. Secondly, although there is no evidence of the deceased suffering depression or post-traumatic disorders, he did come under considerable stress in association with his long hours of employment and the unrelenting demands on him as a result of the conditions under which he was working leading up to his death.

1. I find that the nature of the deceased’s employment with the first respondent gave rise to a significantly greater risk of the deceased suffering injury on 18 March 2018 than had he not been employed in that employment.

1. As a result of the death of the deceased on 18 March 2018 the first respondent is liable to pay the lump sum death benefit of $781,900 pursuant to s 25(1)(a) of the 1987 Act.

1. The applicant seeks apportionment of the lump sum death benefit pursuant to s 29 of the 1987 Act.

Apportionment

1. The applicant and second, third and fourth respondents have made submissions on the issue of apportionment. The third respondent’s submissions contain an outline of the legislative provisions of the 1987 Act relevant to the claims of the applicant and second to fourth respondents for apportionment of the lump sum death benefit. These submissions also set out the relevant factual background of the claims, and detailed reasons in support of the apportionment of the lump sum death benefit advocated by the third respondent.

1. The first respondent generally adopts the third respondent’s submissions and the analysis provided by counsel for the third respondent with one significant exception, that being the proportion of the lump sum death benefit that should go to the deceased’s widow, the applicant. It is therefore convenient to refer to the third respondent’s submissions before proceeding to consider the other submissions.

1. The third respondent notes that there does not appear to be any currently disputed factual matters relevant to apportionment, notwithstanding some lack of clarity on some matters of potential relevance. The applicant and second to fourth respondents were all dependent in varying degrees on the deceased at the time of his death. The applicant is now 39; the second respondent, Zi Xi, is the step-son of the deceased, now 15; the third respondent, Zhang Wenato, is the son of the deceased, now 8 and the fourth respondent, Mrs Chan, the mother of the deceased, is now 79, suffering from dementia and living in aged care in Hong Kong. She is cared for in part by her daughter (the deceased’s sister), Zao Qun Lin, who is the sole legal guardian of her mother and resides in mainland China. She visits her mother every three months. She was not dependent upon the deceased at the time of his death, has not made a claim nor does she wish to make a claim for apportionment.

1. The third respondent provides detailed submissions on apportionment having regard to:

   (a)    the life expectancy of the applicant and fourth respondent (51 and 8 years respectively), and the number of years the second and third respondents would be expected to be dependent upon the deceased (until 23 years old, therefore 10 and 18 years respectively), having regard to the age of each of them as at the date of death of the deceased;

   (b)    the income each week to the deceased’s household from the deceased’s earnings, $1,000, and the regular maintenance support for the second respondent received each month from his father, equivalent to $136 per week;

   (c)    the regular amount that the deceased remitted to his mother in Hong Kong to assist with her living expenses, $45 per week;

   (d)    the proportion of the household income that the deceased would require for personal consumption (16%);

   (e)    the amount that would be left to support the applicant, second respondent and third respondent, namely, 84% of the weekly cash income of the family, which equates to $954 per week;

   (f)    the share of this household income available to benefit the members of the applicant’s household (one third each);

   (g)    the personal financial loss per week of each immediate family member, calculated to be $273 per week after taking account of the $136 per week paid as maintenance for the second respondent, and

   (h)    the value of the physical services that would have been provided by the deceased and the value thereof (two hours a week, equivalent to $117 per week to each member of the household, notwithstanding the extraordinary hours that the deceased worked each week).

2. Using the life expectancies of the applicant and fourth respondents, the periods of anticipated dependency of the second and third respondents and the three percent multiplier tables, the third respondent submits that the lump sum death benefit should be apportioned as follows:

applicant/wife	$414,407	53% of total
second respondent/stepson	$132,923	17% of total
third respondent/son	$218, 932	28% of total
fourth respondent/mother	$  15,638	2% of total
Total	$781,900	100%

1. The third respondent submits that the proportions of the lump sum death benefit apportioned to the second and third respondents, plus any proportional interest payable, should be paid in accordance with s 85(1)((a) of the 1987 Act to the NSW Trustee and Guardian to hold and invested for them until they attain their majority. That will ensure that it is preserved for them.

1. The applicant’s reservation about apportionment proposed by the third respondent is that she should receive 65% of the statutory lump sum rather than the 53% proposed. Whilst acknowledging the “perfectly logical intellectual approach” to apportionment of the third respondent, the applicant says that:

   (a)    the infant claimants are not totally deprived of support by the death of the deceased. This is because of their mother’s obligation to provide that support, including sustenance and shelter;

   (b)    a capital payment to them in compensation for such loss is of little practical utility when it will be held by the NSW Trustee and Guardian pending their attaining their respective majorities, and

   (c)    in the meantime it is the applicant who will bear the financial burden of financially supporting her children and advancing their interests.

2. The applicant submits that the only way to attend to the welfare of the family unit is to permit her to attend to their advancement and support by the allocation of a large share of the lump sum than otherwise proposed, and for this reason proposes the following:

applicant	65%	$508,235
second respondent	15%	$117,285
third respondent	18%	$140,742
fourth respondent	2%	$  15,638

1. The second respondent does not dispute that all four claimants were either wholly or partly dependent on the deceased worker at the time of his death but notes that the extent of the dependency of the fourth respondent, the deceased’s mother, is somewhat vague. The second respondent examines the modest income of the deceased, noting an approximate income earned of $1,100 per week and the payment of rent on the family home of $500 per week. That does not leave a great deal of money available for disbursement outside the immediate household.

1. The second respondent notes the applicant’s qualification as a Bachelor of Finance, and that she was looking for work at the time of her husband’s death. There is a likelihood that she will seek employment in the future, especially as the children become older.

1. There is no evidence that the child support payments made by the father of the second respondent were quarantined for his sole benefit, and it is reasonable to infer that these monies were pooled with the deceased’s modest income for the benefit of the household. The ages of all the claimants upon the lump sum death benefit are recorded.

1. The second respondent submits that it is necessary to determine a percentage of the whole amount having regard to the reasonable expectation of support by all four dependants. It is a discretionary exercise.

1. The apportionment submitted by the second respondent is as follows:

applicant	50%	$390,950
second respondent	20%	$156,380
third respondent	25%	$195,475
fourth respondent	5%	$  39,095

1. The second respondent submits that there ought to be an award for weekly payments at the rate of $260 per week [sic], as adjusted, from 18 March 2018 and continuing pursuant to
   s 25(1)(b) of the 1987 Act.

1. The fourth respondent draws attention to the comments of Egan A-J in Wratten v Kirkpatrick & Ors[17], namely the exercise of power to determine the correct amount to be apportioned to each dependant requires an examination of all relevant facts including the extent of past dependence, the anticipated future dependence, the ages of the dependants, their health, special needs, lifestyle etc. The fourth respondent then goes on to a brief examination of the facts in this case which are uncontroversial and referred to above in the submissions of the other parties. The fourth respondent estimates the sum remitted to her in Hong Kong to be $50 per week as opposed the $45 per week estimated by the third respondent.

[17] [1996] NSWCC 2.

1. The proposal of the fourth respondent for apportionment is as follows:

applicant	50%	$390,950
second respondent	15%	$117,285
third respondent	25%	$195,475
fourth respondent	10%	$  78,190

1. The fourth respondent submits that interest should be awarded from the date on which the claim was made, and notes rule 36.7(1) of the Uniform Civil Procedure Rules 2005 provides that interest ought to be at the cash rate set by the Reserve Bank plus 4%. Interest ought to be divided amongst the dependants on a pro-rata basis.

1. I agree with the applicant that the calculations of the third respondent summarised at [64-[66] above display a logical approach to the issue of apportionment on an intellectual basis. The mathematical calculations are correct. However I do think that there is merit in the applicant’s submission that the sum apportioned to her should be in somewhat excess of that submitted by the third respondent for the reason put forward by the applicant. I accept that it is likely that both her two children will go on to some form of tertiary study after high school, and that the age suggested of 23 years is not an unreasonable estimate of the age at which they could be expected to be financially independent of their mother. The applicant will have the obligation of supporting them, in part at least, until about that time. I acknowledge that the applicant may get back to some form of at least part-time employment once her two children become a little older, perhaps by the time the third respondent reaches high school. The applicant will also have the benefit of the weekly payments payable in respect of the second and third respondents pursuant to s 25(1)(b) of the 1987 Act up to the age of 21 years if they remain students until that age.

1. The percentages submitted by the parties as being appropriate for apportionment to the second respondent range between 15% and 20%; the third respondent between 18% and 28% and the fourth respondent between 2% and 10%. I appreciate that there is a degree of speculation as to what the future holds for the claimants on the lump sum death benefit in this case, particularly for the applicant and the second and third respondents. The requirements of the fourth respondent are quantified by the third respondent in his counsel’s calculations referred to at [64]-[66] above at $15,638, or 2% of the total benefit. The fourth respondent submits that 10% of the benefit, $78,190, is the appropriate apportionment. I think that that is too high having regard to the claims of the other respondents and the evidence of the fourth respondent as to what she received from the deceased. I think that the lump sum death benefit should be apportioned as follows:

applicant	55%	$430,045
second respondent	17%	$132,923
third respondent	24%	$187,656
fourth respondent	4%	$  31,726
Total	100%	$781,900

Weekly payments 

1. The applicant claims weekly payments of compensation pursuant to s 25(1)(b) of the 1987 Act in respect of the second and third respondents. The first respondent is liable to make such payments, with the adjusted figure for the period from 1 October 2017 to 31 March 2018 being $140 per week. The first respondent will be ordered to pay such compensation.

Funeral expenses

1. The applicant claims funeral expenses. The first respondent will be ordered to pay such expenses pursuant to s 26 of the 1987 Act.

Interest

1. In the submissions of the second and fourth respondents on apportionment, interest pursuant to s 109 of the 1998 Act is claimed on the lump sum death benefit. Subsection (1) of that section provides that in proceedings before the Commission, the Commission may order that there be included in any sum paid, interest at such rate as the Commission thinks fit on the whole or any part of the sum for the whole or any part of the period before the sum is payable, subject to the limitations imposed by that section. Subsection (2) relevantly provides that interest cannot be ordered under the section on any compensation payable under the Act for any period before the claim for compensation was duly made.

1. It is not clear from the documents attached to the Application when the claim for compensation in this matter was duly made. There is no letter of claim in evidence. There is reference in the s 74 notice issued to the applicant by EML on 9 November 2018[18] to correspondence received from Cameron Legal dated 7 June 2018. This was apparently accompanied by a statutory declaration from the applicant, Yuling Zhang. However, having regard to the contents of the investigation report of Quantumcorp dated 28 May 2018 addressed to EML[19], the claim for compensation may have been made earlier than 7 June 2018. There is nothing in that report to indicate when that might have been. I propose to adopt the date of 7 June 2018 as when the claim was duly made.

   [18] Application p 241.

   [19] Reply p 18.

2. In anticipation of the conciliation/arbitration on 19 January 2021, directions were issued to the parties on 24 November 2020 for the parties to lodge and serve by 11 January 2021 short written submissions on the apportionment of the lump sum death benefit between the applicant and the second, third and fourth respondents. This direction produced the submissions listed at [11(i)-(l)] above  from the applicant and second, third and fourth respondents. No submissions have been received from the first respondent on apportionment.

3. The Commission in Haidary v Wandella Pet Foods Pty Ltd[20] held that the Commission’s jurisdiction to award interest is discretionary. Fleming DP stated at [15] that in her view the Supreme Court interest rate was the most relevant benchmark for setting the base rate of interest. The submission of the fourth respondent referred to in [78] above appears to be in accordance with this decision.

   [20] [2005] NSWWCCPD 9.

4. The fourth respondent refers to rule 36.7 (1) of the Uniform Civil Procedure Rules 2005 and submits that interest ought to be at the cash rate set by the Reserve Bank plus 4%. The rate submitted is correct but reference to the rule is not. Rule 36.7(1) prescribes the rate at which interest is payable under s 101 of the Civil Procedure Act 2005, which deals with the issue if interest after judgement. It is 6% above the cash rate last published by the Reserve Bank of Australia for the period from 1 January to 30 June in any year before that period commenced and 6% above the cash rate for the period from 1 July to 31 December in any year before that period commenced. Section 100 of that Act deals with interest up to judgment. Section 109 of the 1998 Act deals with the issue of interest before order for payment.

1. Supreme Court Practice Note SC Gen 16 was issued on 16 June 2010 by Spigelman CJ to commence on 1 July 2010, applicable to new and existing civil proceedings in the Court. It is as follows:

   “5. Practitioners and litigants should expect that where, pursuant to s 100 (1) and (2) of the Civil Procedure Act 2005, interest in respect of a pre-judgment period is to be included in a judgment, the Court will have regard to the following rates, being rates agreed upon by the Discount and Interest Rate Harmonisation Committee established following a referral by the Council of Chief Justices:

   (a) in respect of the period from 1 January to 30 June in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and
   (b) in respect of the period from 1 July to 31 December in any year – the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.”

2. According to the Reserve Bank of Australia website the current cash rate as of June 2018 was 1.50%. It has been adjusted progressively downwards since then to a current rate of 0.10%. This is indicative of the prevailing low interest rates in Australia.

3. The Application commencing proceedings is dated 27 February 2020 and was filed with the Commission on 28 February 2020. On 5 March 2020 a Delegate of the Registrar issued the first of a number of Directions aimed at locating the fourth respondent in Hong Kong and informing her of her possible entitlement to make a claim in relation to the lump sum death benefit payable as a consequence of the death of the deceased. The Reply of the first respondent is dated 24 March 2020 and was filed with the Commission that day. A number of telephone conferences and further Directions ensued until the matter came before me on 24 November 2020 when the fourth respondent was joined in the proceedings which were then set down for conciliation/arbitration via video conference on 19 January 2021. That hearing did not proceed because of technical difficulties and a Direction was made for the matter to proceed on the basis of written submissions.

4. I do not think that the first respondent should be ordered to pay interest for the whole of the period from 7 June 2018 until the lump sum death benefit becomes payable under the award to be issued in these proceedings. The reason that proceedings in the Commission were not commenced until 28 February 2020 after the claim having been originally made on 7 June 2018 is not apparent from the evidence.

5. I think that the respondent should be ordered to pay interest for half the period that has elapsed from 7 June 2018 until the date of the Certificate of Determination issued in these proceedings. That is approximately 33 months. One half of that period, rounded up, is 17 months.

6. I think that, in making an order for the payment of interest, the Commission should have cognisance of the low interest rates prevailing in Australia, at least since 2018, in order to not unduly burden the first respondent nor create somewhat of a windfall for the applicant and second, third and fourth respondents.

7. In the absence of any other submissions on the question of interest, there will be an order that the first respondent pay interest on the lump sum death benefit from 7 October 2019 to the date of the Certificate of Determination issued in these proceedings at 4% above the cash rate last published by the Reserve Bank of Australia for the period 1 July 2020 to 31 December 2020. This was 0.10%. The interest is to be apportioned between the applicant and the second, third and fourth  respondents pro-rata according to the apportionment of the lump sum death benefit.

SUMMARY

1. The deceased died on 18 March 2018 as a result of a heart attack injury arising out of or in the course of his employment with the first respondent.

1. The deceased’s employment with the first respondent was the main contributing factor to the aggravation of the disease injury of hypertension from which the deceased suffered.

2. The nature of the deceased’s employment with the first respondent gave rise to a significantly greater risk of the deceased suffering injury on 18 March 2018 than had he not been employed in that employment.

3. The first respondent is liable for the payment of the lump sum death benefit of $781,900 payable pursuant to s 25(a) of the 1987 Act as a result of the death of the deceased.

4. The first respondent is liable for the payment of interest on the lump sum death benefit as specified hereunder

5. The applicant and the second, third and fourth respondents were wholly or partly dependent for support on the deceased as at that date of his death.

6. There are no other persons who were wholly or partly dependent for support on the deceased as at that date of his death.

7. The lump sum death benefit is apportioned between the applicant and the second, third and fourth respondents as specified hereunder.

8. The first respondent is liable for payment of $140 per week as adjusted from 18 March 2018 to date and continuing pursuant to s 25(1)(b) of the 1987 Act in respect of each of the second and third respondents.

9. The first respondent is liable for the payment of the deceased’s funeral expenses pursuant to s 26 of the 1987 Act.

Orders

1. The lump sum death benefit is apportioned as follows pursuant to s 29 of the 1987 Act:

applicant	55%	$430,045
second respondent	17%	$132,923
third respondent	24%	$187,656
fourth respondent	4%	$  31,726
Total	100%	$781,900

1. The first respondent is to pay interest on the lump sum death benefit at the rate of 4.10% from 7 October 2019 to the date of the Certificate of Determination apportioned between the applicant and the second, third and fourth  respondents pro-rata according to the apportionment of the lump sum death benefit.

1. The first respondent is to pay the sum apportioned to the applicant and interest thereon to the applicant.

2. The first respondent is to pay the sum apportioned to the fourth respondent and interest thereon to the fourth respondent.

3. The first respondent is to pay the sums apportioned to the second and third respondents and interest thereon to the NSW Trustee and Guardian in accordance with s 85(1)(a) of the 1987 Act to be dealt with in accordance with s 85(2) of that Act until the second and third respondents attain their majority.

4. The first respondent is to pay to the applicant $140 per week in respect of each of the second and third respondents, as adjusted from 18 March 2018, to date and continuing pursuant to s 25(1)(b) of the 1987 Act.

5. The first respondent is to pay to the applicant the deceased’s funeral expenses pursuant to
   s 26 of the 1987 Act.

Brett Batchelor
MEMBER

23 March 2021