Miller v State of New South Wales

1. [1]

   THE COURT: By notice of appeal filed on 29 September 2017, the appellant, Mr David Miller, appeals pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (1998 Act) against a determination by Acting Deputy President Parker SC (ADP) of the Workers Compensation Commission (WCC), [1] made on the papers on 1 September 2017, dismissing an appeal against a decision of the Commission constituted by an arbitrator. [2]

Introduction

1. [2]

   The factual background to the appeal may be stated succinctly. The appellant claimed compensation under the Workers Compensation Act 1987 (NSW) (1987 Act) following the death of his wife, while at work, on 15 April 2011. She had been employed by the State of New South Wales, in its “Home Care Services Division” based in Brewarrina, as a community transport driver. Mrs Miller’s normal duties with the respondent involved organising drivers for the Home Services Division’s clients, which she did from an office in Brewarrina. Almost on a weekly basis, however, when drivers were not available, Mrs Miller was required to undertake driving duties herself, [3] which she was doing on the day she died. [4]

2. [3]

   On 15 April 2011, Mrs Miller had driven three patients from Brewarrina to Dubbo. On the return journey, tragically, she suffered a severe asthma attack and died in the following circumstances.

3. [4]

   Mrs Miller began to experience symptoms (“coughing consistently” and “gasping for air” [5] ) on the return trip while the van was leaving Nevertire. About 25 minutes later she was persuaded by passengers in the van to pull over to the side of the road, in a remote location, approximately 10 to 15 kms outside Nyngan. She was still conscious when she pulled over. She took puffs on her inhaler, but continued coughing. [6] However, “she could not get any air into her lungs and slumped over the steering wheel and passed out.” [7] Other passengers were unable to lift Mrs Miller from the driver’s seat and a car was flagged down to help her from the bus. At that point, two nurses who were travelling on the bus, and a qualified and experienced off-duty paramedic, Mr Holman, who happened to be following the vehicle, began administering CPR while a call was made to triple zero. [8]

4. [5]

   Despite the nurses’ and paramedic’s efforts, and those of police who arrived at the scene roughly 30 minutes later accompanied by a doctor equipped with defibrillator and resuscitation equipment, [9] Mrs Miller was declared dead at Nyngan Hospital, approximately two hours after having lost consciousness, having suffered a fatal cardiac arrest. [10]

5. [6]

   On 5 May 2014, the Coroner entered a verdict of death due to anoxia, in turn due to a severe asthma attack. [11]

6. [7]

   In the light of the above facts, the Arbitrator found, unsurprisingly, that the deceased commenced having breathing problems from the time the bus left Nevertire, increasing to the point that in response to a request from one of the passengers, she pulled over to the side of the road. [12] He found that the period of this trip, between Nevertire and Mrs Miller pulling over to the side of the road, was 25‒30 minutes. Despite the presence of the two nurses in the bus, and although the deceased carried Ventolin with her, the Arbitrator found that there was then only a limited window of opportunity, of a few minutes, before the severe asthmatic attack proved to be fatal, by preventing the supply of oxygen to the body (anoxia), leading to cardiac arrest.

7. [8]

   An appeal was dismissed by an Acting Deputy President. The appellant’s further appeal to this Court is as of right, but is confined by s 353(1) of the 1998 Act to an appeal “in point of law”. The limited scope of the current appeal means that it is not necessary to summarise the evidence, both lay and expert, which was adduced before the WCC. However, because of the nature of the errors asserted in the notice of appeal to this Court, it is necessary to summarise aspects of the procedural history, and, in particular, the basis on which the appellant put his case before the Arbitrator and the ADP.

Procedural history

1. [9]

   The appellant’s claim was for compensation pursuant to s 25 of the 1987 Act, which provides for an amount of compensation “[i]f death results from an injury”. The legislation at that time defined injury to mean “personal injury arising out of or in the course of employment” and to include, relevantly, “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration”: s 4(b)(ii). It was accepted, properly, that the requirements of causality in the definition of “injury” in s 4 were subject to s 9A, which precluded any payment of compensation “unless the employment concerned was a substantial contributing factor to the injury”. (Section 4 was amended, materially, with effect from 1 July 2011, such that the employment must now be, in the case of a “disease injury”, the “main contributing factor” to contracting the disease or to the aggravation, acceleration, exacerbation or deterioration of the disease. These reasons concern a form of the legislation which has been repealed for more than 7 years.)

2. [10]

   Both the definition of “injury” and the further threshold hurdle constituted by s 9A required an examination of a factual question of causation, namely, whether the employment was a substantial contributing factor to the injury. Accordingly, any analysis of an entitlement to compensation under the Act will turn upon the identification of the “injury”.

3. [11]

   Before the Arbitrator, the respondent opened the case on the basis that “the issue is whether or not the relevant passing – unfortunate passing of the deceased is an injury to which the applicant’s employment was a substantial contributing factor”. On no view can that be correct, having regard to the terms of s 25. Compensation is only payable if “death results from injury”. The death cannot be the injury.

4. [12]

   Counsel for the appellant said that “[t]he applicant relies on s 4(b)(ii) in relation to the fact that the applicant had a disease which was the asthma, there was an aggravation, acceleration or deterioration of that disease”.

5. [13]

   The importance of identifying the “injury” was appreciated by the Arbitrator, who said: [13]

6. [14]

   The Arbitrator found that “the cause of the deceased’s injury was a pre-existing medical condition which was not aggravated by her employment”. [14] Thus the Arbitrator proceeded on the basis identified by the appellant, namely, that the deceased had been suffering from a disease (her asthma) which had been aggravated or exacerbated when she suffered an asthma attack during the course of her employment.

7. [15]

   The Arbitrator also addressed causation as follows: [15]

8. [16]

   To anticipate what follows, in this Court, at the forefront of the appellant’s submissions was that the ADP had failed to identify error in the decision of the Arbitrator when the arbitrator himself failed to address whether the injury was the exacerbation of the asthma attack or the anoxia or the cardiac arrest. The short point, as the respondent submitted, was that that case did not form part of any of the 11 alleged errors raised before the ADP or in the written submissions in support (there was no oral hearing). Accordingly, there was no error, still less any error in point of law, in failing to make findings in accordance with a case which was not put to the ADP.

9. [17]

   To return to the procedural history of this litigation, an appeal lies to the Commission constituted by a Presidential Member. The appeal is one from error. The error may be of fact or law or discretion, but is not a review or a new hearing: s 352(5). That may be contrasted with the further appeal to this Court from the decision of the Commission constituted by Presidential Member, which, as we have said, is an appeal “in point of law”: s 353.

10. [18]

    The notice of appeal from the Arbitrator’s determination contained the following 11 grounds (minor grammatical errors have been corrected):

11. [19]

    The ADP identified those 11 grounds at the outset of his reasons, and that not all of them were pursued in the appellant’s extensive written submissions. It will be seen that nowhere was any challenge made to the approach taken by the Arbitrator that the “injury” was the deceased’s asthma which had been aggravated or exacerbated when she suffered the asthma attack around the time her bus was leaving Nevertire.

12. [20]

    The ADP addressed each of the 11 grounds at [86]‒[146]. Before doing so, he referred to [112] and [113] of the Arbitrator’s determination, of which he said at [83]:

13. [21]

    The ADP accepted a submission made by the respondent that [114] “did not form an essential part of the Arbitrator’s reasoning”.

14. [22]

    The further amended notice of appeal to this Court was as follows:

15. [23]

    The appellant has used a standard form for appeals by way of rehearing in this Court (it may be that no form has been prescribed for appeals pursuant to s 353 from the decision of a Presidential member). There would be no difficulty with the course taken by the appellant, save that he has failed to pay heed to the limited right conferred by s 353. Not one of the grounds of appeal, even as amended after the hearing in this Court, mentions the requisite point of law on which the appeal is necessarily founded.

16. [24]

    It will be seen that grounds 2‒7 assert failures to identify the arbitrator’s error in not addressing the correct injury and failures by the ADP himself to apply a relevant provision of the Act to that correct injury. The short answer to each of those grounds is that a failure to make a finding, either at first instance or on appeal, that was not sought cannot be an error, let alone an error of law.

17. [25]

    Ground 1 is, in substance, no different. Ground 1 asserts error in finding that the relevant “injury” causing death was the aggravation, acceleration or exacerbation of the deceased’s asthma condition, rather than the aggravation, exacerbation or deterioration of the acute asthma attack. The ground correctly records what the ADP found as to the injury, and complains that he failed to find that the acute asthma attack was the injury. In substance, that is the same as the grounds as follow – it is a complaint that the ADP failed to find something he was not asked to find.

18. [26]

    Ground 8 merely states the ultimate conclusion for which the appellant contends without identifying any discrete error of law.

19. [27]

    Ground 9(a) concerns a failure to admit fresh evidence. However, it too resolves to the same issue. Ultimately, this ground was articulated as follows:

20. [28]

    The “misapprehension as to the case he was considering” is the same alleged misapprehension which underlies the other grounds, namely, as to the identification of the “injury”. Hence, this ground may be treated with the other grounds, insofar as it presupposes that a different “injury” had been contended for.

21. [29]

    The short answer to all grounds of appeal is as was said by the respondent:

22. [30]

    That fairly describes the entirety of the proceeding before the ADP. There is ordinarily no error, still less any error of law, in failing to address a case which has not been put.

23. [31]

    Against the force of this, it was submitted that:

24. [32]

    It was accepted, properly, that this was not advanced before the Arbitrator in the oral submissions, which have been summarised above. It was maintained that it emerged from the s 74 notice, which crystallised the dispute between the parties. It is true that in the appellant’s originating process in the Commission, against the heading “Cause of injury and death”, it is written that:

25. [33]

    That is insufficient. That introductory section of the form narrates the way in which the deceased died, but without squarely identifying the particular “injury” which, so it was alleged, caused the death. It is one thing to describe the mechanism of death; it is another thing entirely to identify the “injury” for the purposes of a claim under s 25 of the Workers Compensation Act. As noted above, this was clarified in the parties’ oral addresses to the Arbitrator.

The difficulty in establishing causation in any event

1. [34]

   However, it should not be thought that the outcome in this Court would be otherwise if the appeal were less narrowly confined than it is.

2. [35]

   The issue of causation required a counterfactual analysis as to what could have occurred if the asthma attack had commenced while the deceased was in Brewarrina. The critical matter in the present case was that, on the unchallenged findings of primary fact, the deceased continued to drive the vehicle for 25‒30 minutes after the onset of the asthma attack, and only pulled over when asked to do so by one of the passengers. At that stage, there was a very short period, of a matter of a few minutes, within which her life could be saved. Throughout the previous 25‒30 minutes, the deceased had taken no steps to address her condition, and in particular, had not sought to administer Ventolin (which she had in the vehicle with her). There were also two nurses in the vehicle with her. Hence the force of the conclusion by the Arbitrator that he could not be satisfied that the assumptions that the deceased immediately recognised the seriousness of the attack and would have been able, had she been in Brewarrina, to get herself to the hospital in time, could be made out. Those assumptions were reproduced in [114] and the conclusion that there was not sufficient evidence to make a favourable finding was made in [115].

3. [36]

   True it is that the ADP disregarded what was said in [114]. No real attempt was made in this Court to defend that aspect of the ADP’s reasons. To the contrary, the rejection of the counterfactual was sufficient to determine the entirety of the dispute.

4. [37]

   On no view of the meaning of s 9A could the deceased’s employment be causally connected with any formulation of the injury unless the deceased would more likely have rapidly appreciated that she was suffering a severe asthmatic attack. It is plain from the reasons of the Arbitrator that he could not make any such finding. That was the subject of ground 4 of the appeal to the ADP, and part of his resolution of it was his reliance on the fact that her initial response to an asthma attack was to seek to treat it otherwise than by attending a hospital and that she attended the hospital in Brewarrina when suffering pneumonia, but not for asthma. It was submitted in this Court that the Arbitrator’s conclusion was wrong, and the submission is not without force. However, the point goes nowhere, because at [102]‒[103] the ADP addressed the point squarely and concluded that it was open to the Arbitrator to draw (or more precisely, fail to draw) the inference that he did:

5. [38]

   The ADP then made it plain, at [104], that his reasoning was independent of whether or not the attendances by the deceased at the Brewarrina Hospital were to respond to pneumonia, not to acute asthma attacks:

6. [39]

   There is no error, let alone error in point of law, in that dispositive reasoning by the ADP.

Orders

1. [40]

   For these reasons, the appeal must be dismissed. There is no reason for costs not to follow the event.