A step by step approach – essential to defining a workers compensation injury

Author: Brendan Maher

Judgement Date: 17th October, 2017

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

Jurisdiction: New South Wales Court of Appeal [1]

Principles

  • The Workers Compensation Commission (Commission) is obliged to identify an “injury” for the purposes of s 9 of the Workers Compensation Act 1987 (WCA) within the meaning of that term in s 4 and then must apply s 9A. The question under each provision must be considered separately.
  • An “injury” has to be an identifiable physiological change. A precise consideration of the evidence is required, on a fact by fact basis, concerning the nature and incidence of the physiological change. A worker may genuinely complain of being unwell, but unless that worker suffered an “injury” the WCA will not be engaged.
  • An “injury” which is a finding of “psychological stress”, prima facie engages s 11A(3).
  • Although the rules of evidence do not apply in the Commission, the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done.

Background

Grant Christensen (Mr Christensen) died suddenly at his home on 8 September 2008 when he suffered ventricular fibrillation (a heart rhythm disturbance which prevents the heart pumping blood) leading to cardiac arrest. At the time of his death, he was employed as a Portfolio Manager by Tudor Australia Pty Limited (respondent).

Mr Christensen had commenced employment with the respondent in 1997. In 2000, he went to London, where he was employed by a related company. At the end of 2007, he relocated to Sydney and recommenced employment with the respondent on 21 January 2008.

Upon his relocation to Sydney, he experienced a number of IT difficulties, which were largely resolved by 27 February 2008, but caused delays which compromised his trading results. As a result, he was placed on a “watch list” on 1 July 2008, which meant that his performance would be reviewed over the balance of the financial year. He was advised of his placement on the watch list on or about 20 August 2008.

In early September 2008, Mr Christensen developed the flu and consulted his GP. He took sick leave on 5 September 2008 and 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, he collapsed. Ambulance officers noted he was in ventricular fibrillation and were unable to revive him.

Penelope Christensen (the applicant) lodged proceedings against the respondent in the Commission claiming an entitlement to compensation payments for his death pursuant to ss 9 and 25 of the WCA.


Decision

The Commission found for the applicant, finding that Mr Christensen’s death had been caused by an “injury” within the meaning of s 4, being the entry of lymphocytes (white blood cells) into the myocardium (the middle layer of the heart wall) as a result of a viral illness Mr Christensen had acquired, due to the emotional stress and frustration he encountered with the respondent after he moved to Sydney in 2008. The Arbitrator [2] was satisfied that the provisions of s 9A applied and that Mr Christensen’s employment was the main substantial reason for the breakdown of his health and subsequent death.


Appeal to the Deputy President

The Deputy President [3] confirmed the Arbitrator’s judgment, although finding that the “injury” was Mr Christensen’s experience of stress, which made him susceptible to the contraction of an infective virus.


Court of Appeal

Dealing first with s 4 (“injury” as meaning personal injury arising out of or in the course of employment), the Court noted that the claim had to be put as “arising out of” employment, as there was no evidence as to precisely when Mr Christensen first exhibited symptoms of the viral illness, while the ventricular fibrillation and cardiac arrest occurred at home and not in the course of employment.

The test imposed under s 9A (employment a substantial contributing factor) is intended to be more stringent than the test of whether an injury arose “out of” employment (see s 9A(3)). The applicant must establish that there was a causal connection, which was real and of substance between the injury and the employment concerned, in order to establish an entitlement to compensation.

The question under each provision must be considered separately. Causation is a fact‑laden conclusion which the courts have held must be based on common sense. The Commission must also take into account the matters specified in s 9A(2)(a) – (f), to the extent that they are relevant. Section 9A admits the possibility of other non‑employment related substantial contributing factors.

The Deputy President erred when he found that the “injury” was Mr Christensen’s “experience of stress”. In finding a different injury than the Arbitrator, the Deputy President implicitly identified an error of fact on the Arbitrator’s part, however the Deputy President failed to undertake the precise consideration on a fact by fact basis of the evidence 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. The Deputy President failed to identify any physiological change or disturbance of Mr Christensen’s normal physiological state which caused the “experience of stress” that he identified as the “relevant injury”.

The Deputy President also erred in point of law in coming to his conclusion without engaging with the statutory test in s 4. Further, once the Deputy President identified the relevant injury as Mr Christensen’s experience of stress, it was incumbent on the Deputy President to determine whether “the experience of stress” was a “psychological injury” within the meaning of s 11A(3).

The evidence was that any connection between physiological stress and an increased susceptibility to viral illness was unproven and not well characterised, explained or understood. That did not amount to positive knowledge supplying an adequate ground for believing that the events were associated. If medical science is prepared to say that it is a possible view, then the judge after examining the lay evidence may decide that it is probable. The case in the Commission appeared to have proceeded on the basis that the fact that medical science said the connection between physiological stress and an increased susceptibility to viral illness was unproven, meant it was possible.

The issue was whether Mr Christensen’s death had been caused by hypertrophic cardiomyopathy (an inherited disease of the heart muscle where the muscle wall becomes thickened) or viral myocarditis (inflammation of the heart muscle) due to viral infection.

Although the Commission is not governed by the rules of evidence, it must bear in mind that the evidence should be logical and probative and not based on speculation or unsubstantiated assumptions. Autopsy slides of tissue samples taken from Mr Christensen’s heart were reported on by two experts on behalf of the respondent, who also gave oral evidence, generally to the effect that those slides confirmed hypertrophic cardiomyopathy and that there was no evidence of viral myocarditis. The only evidence from the applicant in reply on this point was an email from Professor Duflou, who was then NSW’s Chief Forensic Pathologist.

The Arbitrator rejected the evidence of one of the respondent’s expert witnesses on the basis of her demeanour in the witness box. The Court of Appeal held that in the case of experts, observing the demeanour of witnesses should be a last resort as a means of choosing between their evidence. Even in the case where there is an adverse credibility finding against one witness, the decision maker is not relieved from considering their evidence, particularly where it is unchallenged, unanswered and apparently reliable and supported by uncontested contemporaneous records (the slides). The Arbitrator also failed to give sufficient weight to the autopsy slides on the basis of his conclusion that their sampling size was insufficient, in circumstances where there was strong evidence to the contrary, a point which the applicant ultimately conceded in the Court of Appeal.

The effect of the respondent’s two experts’ evidence was that an affirmative answer that viral myocarditis was the cause of Mr Christensen’s death lacked justification either as a probable inference or as an accepted hypothesis. The Arbitrator overlooked these material facts, or gave them undue or too little weight, in deciding the inference to be drawn from the evidence as to the cause of Mr Christensen’s death. There were errors in the fact‑finding exercises both of the Arbitrator and the Deputy President.

The appeal was allowed, the Commission’s decision set aside and the matter remitted back to the Commission for redetermination.


Why this case is important

This case confirms that the Commission (and Case Managers) must undertake a step by step approach to determine which of the two limbs of s 4 applies (arising out of or in the course of employment), then decide whether employment was a substantial contributing factor within the meaning of s 9A, and, in the case of an injury other than a disease injury, taking into account those matters in s 9A(2) which are relevant.

If a worker alleges that injury arose out of employment, Case Managers need to consider whether medical science accepts that a causal connection is possible and, if so, whether there is medical evidence to that effect. This will involve qualifying doctors of the appropriate expertise to provide an opinion as to whether that connection exists.

Case Managers need to be aware that the mere complaint of symptoms is not sufficient, there must be an “injury” within ss 4, 9, 9A and (if psychological injury is alleged), 11A. While s 9B now applies (no compensation for heart attack or stroke unless nature of employment results in significantly greater risk), the step by step analysis of ss 4, 9, 9A (9B in the case of heart attack or stroke) and (if applicable) 11A must still be made.


 

[1] McColl, Macfarland Payne JJA (McColl JA delivered the leading judgment, with which the other two members of the Court substantially agreed, except in relation to one issue, which is not relevant to this Case Note).

[2] Arbitrator Wynyard

[3] Deputy President O’Grady