Fisher v Nonconformist Pty Ltd

Court of Appeal (NSW)|2023-11-10|Before: Meagher JA, Kirk JA

Background

The deceased provided contract courier services, through Nonconformist Pty Ltd, to a courier company. He lived on the Central Coast and his courier routes were generally around the Sydney metropolitan area though sometimes in rural areas.
On 22 January 2016 he commenced work at about 6am. At around 3pm he was driving in Campvale, north of Newcastle, when his vehicle left the roadway travelling at some 80km/h. It drove across a grass verge for about 50m before impacting a steel fence post and running into a tree. Investigators later found that there had been no attempt to apply the brakes. Police were very quickly on the scene, followed by paramedics and a doctor. Their attempts at revival were unsuccessful and his death was declared at 3:45pm.
An autopsy was carried out in January 2016. The pathologist concluded that Mr Clifford "died from ischaemic heart disease secondary to coronary artery atherosclerosis". The heart disease was evidenced by an enlarged heart, signs of a previous myocardial infarction, along with a 75% atherosclerotic narrowing in one coronary artery and 50% narrowing in another. The autopsy report concluded that "[t]he extent of ischaemic heart disease found in this man was such that sudden death would have occurred at any point in time".
The appellants made a claim for lump sum death benefits pursuant to s 25 of the WC Act. The insurer declined their claim. The appellants took the dispute to the Workers Compensation Commission in February 2020. Arbitrator Edwards determined the matter in their favour. That decision was set aside on appeal by Deputy President Wood in August 2021. The matter was reheard on the papers by Member Sweeney in the Personal Injury Commission (the Commission), which had by then replaced the Workers Compensation Commission . He dismissed the appellants' claims in a determination issued in May 2022 (which I will refer to as MD, for Member's Determination). This was the subject of a further appeal in the Personal Injury Commission before President Judge Phillips, who dismissed the appeal in March 2023: Fisher v Nonconformist Pty Ltd [2023] NSWPICPD 12.

The grounds of appeal and the nature of the appeal right

A party to a dispute in connection with a claim for compensation may appeal from a decision of a non-presidential member of the Commission to the Commission constituted by a presidential member pursuant to s 352(1) of the WIM Act. The nature of such an appeal is addressed by s 352(5): An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.
There is then a more limited right of appeal to this Court from such a decision by a presidential member, pursuant to s 353 of the WIM Act: (1) If a party to any proceedings under the Workers Compensation Acts before the Commission constituted by a presidential member is aggrieved by a decision of the presidential member in point of law, the party may appeal to the Court of Appeal. (2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit. …
Importantly for present purposes, s 353(1) restricts the appeal right to cases where the party is "aggrieved … in point of law". And that grievance must relate to the decision appealed from, being the decision of the presidential member which addressed the appeal from the non-presidential member. The subject of the appeal to this Court is not the decision of the non-presidential member, although it is nevertheless relevant as it was the subject of the appeal to the presidential member.

The appellants' grounds of appeal

Each appellant in this case filed an amended notice of appeal raising seven identical grounds involving purported errors in points of law made by the President. The notices were substantially defective. The grounds made little attempt to identify an error on a point of law: 1. Ground (a) complained that the President erred in law "in his determination of whether the appellant had satisfied the requirements of s 9A of the Workers Compensation Act 1987". The ground did not articulate any specific error in that approach, let alone one of law. 2. Ground (b) alleged the President erred "in failing to apply the correct legal test of causation under s 9A". This ground comes closer to alleging a legal error but still does not identify what the error was. 3. Ground (c) stated that his Honour erred "in failing to deal with a clearly articulated argument dealing with the test required under s 9A". This ground implicitly raises an argument of constructive failure to exercise jurisdiction which, as explained below, is a relevant type of error. Even so, the ground does not identify what argument was not addressed by the President. 4. Ground (d) was that the President erred in law "in his treatment of the evidence as to causation of the death of Terry Clifford". This complaint does not identify what the error was, let alone how such an apparently factual matter raised a point of law. 5. Ground (e) said that the President erred "in failing to consider and apply correct principle when determining whether the evidence established that employment was a substantial contributing factor to the injury, as found by Member Sweeney at first instance". Again, the ground does not identify what error was made in this regard, and also seems to run together errors said to have been made by each of the President and Member Sweeney. 6. Ground (f) was that the President erred "in failing to find error on the part of Member Sweeney in the determination of the appellant's claim at first instance". This ground made no attempt to identify what error Member Sweeney had made or how the President had erred in law in not finding such an error. 7. Ground (g) was that his Honour erred "in finding that Member Sweeney had provided adequate reasons". As explained below, it has been held that this type of error can raise a point of law.
To a significant extent the written submissions of the appellants focused more on the decision of Member Sweeney, when the focus needed to be on how the President determined the appeal to him from the Member's decision.
In written submissions counsel for Ms Fisher said that the grounds "are necessarily inter-related" and said "[i]t is proposed to deal with the grounds of appeal jointly in the submissions which follow". In substance this approach amounted to an abandonment of any attempt to address specifically the grounds raised in the amended notice of appeal.
At the commencement of the hearing senior counsel appearing for Ms Fisher accepted that the amended notice of appeal had substantially been abandoned. He sought to reformulate the grounds, although even then they were not entirely clear. I understood them to be, in substance, as follows: 1. The President erred in law in failing to find that the Member erred in law by misdirecting himself as to the test to be applied under s 9A, namely by the Member: 1. asking whether TRAP was the cause or the substantial cause (ie treating the issue as one of causation) as opposed to asking whether exposure to TRAP was a substantial contributing factor to his injury, where that was to be understood in terms of it being a contributing factor that was "real and of substance", as explained in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; (2009) 75 NSWLR 503 at [82]. 2. failing to accept that an increase in risk was sufficient to satisfy the s 9A requirement; 3. applying a "common sense" test of causation which derives from common law concepts, and which is not consistent with the section. 1. The Member and the President failed to deal adequately with the evidence and such constituted a constructive failure of jurisdiction by each of them. As put orally, this argument focused on aspects of the last reports of each of Dr Herman and Dr Helprin. 2. The President erred in law in finding that the Member gave adequate reasons, where the Member had not done so.
The respondent did not object to this oral reformulation of grounds, nor did it seek an adjournment in which to formulate further submissions addressing them. If such an adjournment had been sought and granted then issues may have arisen as to whether the respondent should obtain a costs order for the day of the hearing and, if so, who should bear those costs. It is the reformulated grounds which I will address below.
Something similar happened in Secretary, Department of Education v Dawking [2024] NSWCA 4. There, senior counsel appearing for the appellant employer conceded under questioning that the grounds of appeal raised were deficient in identifying points of law. The respondent did not oppose leave being given to file an amended notice of appeal.
The first matter for legal practitioners advising potential appellants to this Court is to consider whether there is a right of appeal - including considering whether or not leave to appeal is required - and, if so, what sort of right that is. If it is a constrained right, such as under s 353(1) of the WIM Act, then it is necessary to ensure that the grounds of appeal raised are ones which fall within the Court's jurisdiction and power to decide. These requirements were not adequately attended to here. It has also regularly been said in judicial review proceedings and in related contexts that errors are capable of being expressed in different ways. Points maybe overlap or be intertwined. That does not absolve practitioners of the need to articulate clearly, if succinctly, the errors they allege.
The reformulated grounds in this matter do, at least potentially, raise appropriate points for the purposes of s 353(1) of the WIM Act (which is not to say that all of the appellants' arguments were of the requisite kind). I did not understand the respondent to suggest otherwise. Given the confusion as to the operation of s 353(1) manifest in the appellants' case it is appropriate to explain how and why that is so. The importance of doing so is supported by the fact that arguments as to whether the presidential member constructively failed to exercise jurisdiction raise an issue as whether there must have been an express or implicit decision below on a question of law. A similar point may arise in relation to a duty to give reasons: Amaca Pty Ltd v Raines [2018] NSWCA 216 at [19] per White JA.

The nature of the appeal right

Section 353(1) requires that the party appealing is "aggrieved by a decision of the presidential member in point of law". Reference to being aggrieved implies that there is an assertion of error in the decision. So much is implicit in, for example, Amaca Pty Ltd v New South Wales [2003] HCA 44; (2003) 77 ALJR 1509 at [21]-[22] considering similar wording in s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW) (DDT Act). That provision refers to a party being "dissatisfied with a decision of the Tribunal in point of law …".
The question then is whether that must have been a decision by the presidential member on a point of law. The provision can be read more broadly as referring to being aggrieved by the presidential member's decision where the grievance raises a point of law (whether or not that relates to a point of law decided by the presidential member), or more narrowly as relating to a grievance where the presidential member has made an erroneous decision on a point of law. In my view the better reading is the former, broader construction. First, that is the more natural reading of the text. It is the grievance which is "in point of law". The provision does not refer to a decision of the presidential member on a point of law.
Secondly, "tribunals do not usually make separate decisions on points of law; rather, they identify legal principles and apply those principles to the facts, in order to reach an operative decision": Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 at [149] per Basten JA. In that case his Honour adopted the broader view of the equivalent provision in s 32(1) of the DDT Act. Although his Honour was in partial dissent, that did not affect this reasoning. That reasoning was referred to by Giles JA in Amaca Pty Ltd v A B & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Reports 81-910, at [25], who then said - consistently with Basten JA's view - that the statutory expression "can be equated with material error of law in coming to the decision". In that case Basten JA himself referred to and applied his earlier discussion in Ghaleb (at [130]-[134]).
Thirdly, that construction avoids the need to bring separate judicial review proceedings alleging jurisdictional error or error of law on the face of the record, for such errors will necessarily be on points of law. That is obvious for errors of law on the face of the record. A decision infected by jurisdictional error is also, necessarily, one involving legal error. Such error involves a decision-maker exceeding the authority to decide conferred on them or failing to exercise that authority when required to do so. Such errors involve departure from the requirements of the relevant legislation and legal error: note, eg, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [54]-[56], [78]-[79], [127], [154]-[155]. Of course, in this country not all errors of law are regarded as jurisdictional: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [65].
Errors which could be the subject of judicial review will not necessarily relate to decisions made by a presidential member on points of law. For example, a material failure to accord procedural fairness is jurisdictional error, including because of a failure to provide a proper opportunity to be heard or because of apprehended or actual bias. Such an error may have nothing to do with any decision on a point of law. Similarly, a constructive failure to exercise jurisdiction arises where a decision-maker purports to have exercised their jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter. As explained below, that might relate to a failure to address a substantial, clearly articulated argument on a material matter, which might relate to an issue of law or fact or both.
There is no doubt that s 353(1) of the WIM Act, and equivalent provisions, are intended to provide for a limited form of appellate review. As has been said of s 32(1) of the DDT Act, the limited form of the appeal from the Dust Diseases Tribunal right manifests that Parliament "created the Tribunal as a specialist tribunal and, by confining appeal to error in point of law, gave primacy to the Tribunal's position as fact-finder": Patrick Operations Pty Limited v Comcare [2006] NSWCA 142; (2006) 68 NSWLR 131 at [55]; note similarly B & L Linings Pty Limited v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481 at [131]. Yet that intended primacy is not undermined by the broader construction, as judicial review is also available in any case. There is good reason to construe that provision as encompassing the sorts of points which can be raised on judicial review without the need for duplicity of proceedings. The appeal right here is given to this Court, where either it or the Supreme Court would exercise supervisory jurisdiction over the decision of a presidential member. This is not a situation where the appeal right is given to a non-superior court, which may raise questions about whether a construction extending to supervisory review was intended: note Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [153] per Basten JA.
The same result could be achieved if it were said that there was an implicit decision by the decision-maker on matters such as not according procedural fairness or to constructively fail to exercise jurisdiction. But it would be gratuitous for a party to submit to a decision-maker that they should exercise their jurisdiction properly, including by not failing to accord procedural fairness nor failing to consider all the substantial, clearly articulated arguments made. In that context, it would be somewhat artificial to say that there is an implicit decision of the kind outlined. Taking that view might be appropriate where the appeal right is limited to decisions on questions of law taken below: note Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 see also the subsequent discussion in Edyp. That step is unnecessary given the wording of s 353(1), and the result is better achieved more directly by the broader construction.
Fourthly, reflecting the third point, the broader construction is consistent with and supported by decisions of this Court holding that a failure to accord procedural fairness or a constructive failure to exercise jurisdiction falls within this type of provision. Ghaleb is an example in relation to procedural fairness. Another such example is Day v SAS Trustee Corp [2009] NSWCA 222; (2009) 187 IR 338, in the context of considering s 142N of the District Court Act 1973 (NSW). That provision refers to a party being "aggrieved by an award of the Court in point of law …". Another case involving that provision was Goodwin v Commissioner of Police [2012] NSWCA 379 (Goodwin 2012), in which it was accepted by Basten JA (speaking for the Court) that there will be an error of law where there has been a breach of procedural fairness or a constructive failure to exercise jurisdiction (at [19]). The Court in Goodwin 2012 upheld a complaint of constructive failure to exercise jurisdiction because there had been a failure to deal with central elements of the appellant's case (at [108]). Constructive failure to exercise jurisdiction had also been found in an earlier decision involving the same parties: Goodwin v Commissioner of Police [2010] NSWCA 239 (Goodwin 2010). Similarly, in CGU Insurance Limited v AAI Limited [2016] NSWCA 335, at [27]-[31], this Court held that a relevant error for the purposes of s 32(1) of the DDT Act had been made because the decision-maker had failed to address the correct legal question.
The broader construction is also consistent with the approach taken to appeal rights in health complaint matters. The case of Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 involved an appeal from the (then) Medical Tribunal. The relevant appeal right was that a party could "appeal to the Supreme Court against … a decision of the Tribunal with respect to a point of law". Basten JA, speaking for the Court, said this of the provision: [14] Although it may be conceded that there is a singular lack of linguistic uniformity between statutes providing rights of appeal restricted in some manner to questions of law, the proposition advanced by the Respondent is not consistent with established principle in relation to provisions of this kind. It is not necessary that a matter of law be separately identified and decided by the Tribunal: it is sufficient that the Tribunal needs to identify and apply a principle in reaching its decision and, in doing so makes an error with respect to a point of law. … [16] … There may be some ambiguity as to whether it is the appeal or the decision which must be with respect to a point of law: however, to require the identification of a decision with respect to a point of law would so limit the operation of the provision as to render the construction untenable, in the absence of clear authority requiring that approach. As already noted, the authority is to the contrary. Accordingly, it is sufficient if the Appellant can identify a decision of the Tribunal which, if it is not the ultimate decision is material to it, and that the decision was erroneous in point of law.
The discussion at [14] might be thought suggestive of a need to look for at the least some implicit decision on a point of law by the decision-maker, but the elucidation at [16] is consistent with the broader construction outlined here. It has been followed and applied in subsequent decisions of this Court involving that right of appeal, including as it now appears in s 162 of the Health Practitioners Regulation National Law Act 2009 (NSW): see Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323 at [23] per Basten JA, McColl JA and Harrison J agreeing; Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [87] per Sackville JA, Giles and Young JJA agreeing; Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19 at [2] per Meagher JA, Campbell JA and Handley AJA agreeing; Gorman v NSW Health Care Complaints Commission [2012] NSWCA 251 at [124]-[125] per Hoeben JA, Campbell JA and Sackville AJA agreeing.
An acceptance of the broader construction means that the point of law need not necessarily have been raised in the proceedings below. I should note that a more limited view was expressed by Sackville AJA, with whom Giles and McColl JJA agreed, in Amaca Pty Ltd v Doughan [2011] NSWCA 169, concerning an appeal under s 32(1) of the DDT Act: [27] It is not entirely clear whether the expression "question" or "point" of law is wider than "error of law": see Attorney-General (NSW) v X [2000] NSWCA 199; 49 NSWLR 653, at [124], per Spigelman CJ; Seltsam, at [150], per Basten JA. However, if a party appeals pursuant to s 32(1) of the DDT Act, it has generally been thought necessary to identify: a decision, whether explicit or implicit, in relation to a question of law which has been raised or determined by the Court or tribunal from which the appeal is brought. The subject matter of the appeal is that specific decision rather than the final order, which will usually involve issues of law, fact and evaluation. Goodwin v Cmr of Police, at [10]: cf Workers Compensation (Dust Diseases) Board (NSW) v Smith [2010] NSWCA 19, at [14], per Basten JA.
Thus his Honour seems to have suggested by his quotation from Goodwin 2010 that an appeal under s 32(1) of the DDT Act needed to be directed to a decision on a question of law made below, whether explicitly or implicitly. However, with respect, his Honour appears to have misunderstood what Basten JA said in that decision at [10], which relevantly was as follows: As the court noted in B&L Linings Pty Ltd v Chief Cmr of State Revenue [2008] NSWCA 187; 74 NSWLR 481, such provisions vary in their terminology and, it has been held, in their effect. In particular, authority requires a differential approach in relation to provisions which permit an appeal on a question of law and those which permit an appeal from a decision of the tribunal below on a question of law. The latter provisions have, generally speaking, been construed as requiring the identification of a decision, whether express or implicit, in relation to a question of law which has been raised and determined by the court or tribunal from which the appeal is brought. The subject-matter of the appeal is that specific decision, rather than the final order, which will usually involve issues of law, fact and evaluation. There is no discernable pattern or purpose behind the differences in language in different statutes.
As can be seen, the portion that Sackville AJA quoted related not to where an appeal is permitted on a question of law (or, I would add, a point of law) in respect of that decision, but to provisions which are expressed to permit an appeal from a decision of the tribunal below on a question of law, that is, where the decision below was one made on a question of law. Neither s 32(1) of the DDT Act, nor s 353(1) of the WIM Act, is of that latter kind. Basten JA was not suggesting to the contrary in Goodwin 2010. Much the same point about Sackville AJA's apparent misapprehension was made by White JA in Raines at [15]. Further, as White JA then noted in Raines at [16], in Doughan itself the Court accepted that a breach of procedural fairness was a ground open under s 32(1) of the DDT Act, thus implicitly accepting the broader construction.
In one case Basten JA seemed to suggest that the decision appealed from might have to be one made in point of law. In SAS Trustee Corporation v Pearce [2009] NSWCA 302, his Honour said that "the subject matter of an appeal under s 142N is in effect a decision of the District Court in point of law" (at [43], with Beazley JA agreeing). His Honour did not cite his earlier decision in Ghaleb. Subsequently, his Honour said that "[t]here may be a question as to whether s 142N requires the identification of a decision of the District Court on a point of law (or on a question of admissibility of evidence) or whether it is sufficient if the final conclusion of the court is affected by an error of law": Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19 at [14], Allsop P agreeing at [1]; see similarly Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; (2020) 295 IR 172 at [7], Payne JA agreeing at [61]. In answering this question, I respectfully consider his Honour's analysis in Ghaleb and in Karalasingham, along with the other authority identified above, to be persuasive and correct.
Accepting the broader construction, it follows that in some instances an argument might be made, for example, that both the non-presidential member and the presidential member misdirected themselves as to the meaning of some statutory provision, even if that argument had not been made at either level below. It would need to be shown that the misdirection affected the conclusion reached by the presidential member. In such cases, considerations analogous to those about allowing a new point to be raised on appeal from a court may arise, including consideration of whether the point could have been answered by evidence: note Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 at [80]-[83]. Such a point is more likely to be open if it involves a pure question of law.
It remains necessary to pay close attention to the statutory task set by s 353(1). Commonly it will be necessary to consider carefully what was argued below. For example, there will be no error of law when making a discretionary or evaluative determination in failing to consider some point not raised by a party, at least unless the point was fundamental and obvious: see, analogously, Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at [120]; Elzahed v State of New South Wales [2018] NSWCA 103; (2018) 97 NSWLR 898 at [2].
As noted, the relevant focus on an appeal under s 353(1) is on the decision of the presidential member. That being said, if a non-presidential member made an error of law, and complaint about that error is made but erroneously dismissed by the presidential member on the appeal under s 352, then in general the presidential member will also have made an error of law by failing to recognise the member's error of law. The presidential member may be seen to have affirmed or remade the error of law, or simply erred in law by misdirecting themselves as to the law on the point. However, if the claimed error made by the non-presidential member is only one of fact then the presidential member "can determine factual issues without committing any error in point of law": Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203 at [65] per Basten JA.
It has been said that "[t]he expression 'question' or 'point' of law is wider than 'error of law'": Attorney-General (NSW) v X [2000] NSWCA 199; (2000) 49 NSWLR 653 at [124]. It is not necessary here to consider in what respect, if any, that is so: cf Ghaleb at [150]. At the least s 353(1) encompasses errors of law in the decision of the presidential member.
Making out legal error in the decision of the presidential member will not necessarily lead to the decision being overturned. Section 353(2) of the WIM Act provides that this Court may then remit the matter and may make such other orders in relation to the appeal as it thinks fit. The powers are discretionary. They will not in general be exercised unless the error is material: see, analogously, Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177; Melino v Roads and Maritime Services [2018] NSWCA 251; (2018) 98 NSWLR 625 at [52]. Materiality involves considering whether there is a realistic possibility that the error could have made a difference to the result. That understanding is consistent with the requirement for materiality in establishing jurisdictional error: eg MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [2]. It also is consistent with common law principle in relation to ordering new trials: Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [27]-[28]; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at [7].
In summary, then, in an appeal to this Court under s 353(1) of the WIM Act the appellant must identify some issue on a point of law in the decision of the presidential member. The focus should be on that decision, not the decision of the member. The appeal need not involve a decision made by the presidential member on a point of law so long as the grounds raised in this Court are on points of law. Relevant points of law include jurisdictional errors or other errors of law. Any error must be material in order to obtain relief. The point of law need not necessarily have been raised below, for example if a pure issue of law is raised such as an argument that the presidential member has misconstrued the statute. That being said, especially for issues which are not pure matters of law, it will often be the case that a presidential member will not have erred in law if an issue which could have been raised below was not. If the presidential member has wrongly rejected an argument that the non-presidential member made jurisdictional or other legal error, then that will generally manifest legal error by the presidential member.
Returning then to the reformulated grounds of appeal in this case, the following may be said. As regards the first, a misdirection on a statutory provision will in general involve an error of law.
As for the second ground, as already indicated a constructive failure to exercise jurisdiction is an error on a point of law within the meaning of s 353(1). However, the appellants' real complaint on this front is that Member Sweeney's decision was infected with such a failure. The rejection of such a complaint by the President is not a constructive failure to exercise his jurisdiction, because it involves exercising his jurisdiction. However, as explained, it would be an error of law by a presidential member to fail to recognise a jurisdictional error in the decision of the non-presidential member, if such an error had been raised before the presidential member and was made out in this Court. If the error had not been raised before the presidential member, then it could not be said that they had erred in point of law in not finding that it was made out.
As for the third ground, a failure to comply with a legal obligation to give reasons may involve legal error: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382 and 388-389; Raines at [1] per Meagher JA and [13]-[22] per White JA; Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604 at [35]-[36], and authority there cited. Basten JA has expressed doubts that a failure to give reasons is a relevant legal error for the purposes of the type of appeal right at issue here, relating to the decision of an administrative decision-maker: Smith at [135]-[138]; Goodwin 2010 at [11]-[22]. In Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 two members of this Court held that a failure to give legally adequate reasons constituted an error of law for the purposes of s 353(1): at [394] per McColl JA, Macfarlan JA agreeing at [425].
For my part, it is difficult to see why a failure of a judge to comply with a legal duty to give reasons is an error of law but a failure of an administrative decision-maker who is subject to such a duty is not. Where the underlying complaint is that the non-presidential member failed to comply with a legal duty to give reasons, the issue in this Court will be whether or not the presidential member erred in concluding that the legal duty had been complied with by the non-presidential member (on the assumption that the ground was raised before the presidential member). That would appear to be a legal conclusion. However, it is not necessary to resolve these issues in this case as it suffices to assume that such failures do fall within s 353(1) of the WIM Act given that, as shall be seen, no such failure is made out here. On the assumption that it is a point capable of being raised under s 353(1), it is necessary to pay close attention to the nature of the duty to give reasons that is in question.

The claimed misdirection as to the legal test

As outlined above, the issues raised by the appellant in this regard seemed to be as follows: The President erred in law in failing to find that the Member erred in law by misdirecting himself as to the test to be applied under s 9A, namely by the Member: (a) asking whether TRAP was the cause or the substantial cause (ie treating the issue as one of causation) as opposed to asking whether exposure to TRAP was a substantial contributing factor to his injury, where that was to be understood in terms of it being a contributing factor that was "real and of substance", as explained in Badawi at [82]; (b) failing to accept that an increase in risk was sufficient to satisfy the s 9A requirement; (c) applying a "common sense" test of causation which derives from common law concepts, and which is not consistent with the section.
The issues substantially overlapped in the appellants' submissions. Nevertheless, it aids clear analysis to distinguish the strands of the argument.

Whether s 9A establishes a test of causation and the nature of the test

Alleged misdirection (a) raises issues involving the construction of s 9A, whether or not the Member misdirected himself as the meaning of that section, and whether or not the President erred in failing to find such a misdirection. As to the last aspect, it is not clear that this issue was raised below in the way it is put in this Court. However, it seems to have been raised sufficiently to raise a question as to whether the President erred in law in not finding that the Member misdirected himself.
The appellants were somewhat contradictory in their submissions as to whether or not they accepted that s 9A establishes a test of causation. Much of their written submissions seemed to imply that it did not. For example, it was submitted on behalf of Ms Clifford that what was required of the Member was analysis "by reference to the concept of a 'real and of substance' connection and the matters listed in section 9A itself", saying that the Member "did not undertake that task instead proceeding to determine whether it could be accepted that TRAP caused the deceased's death" (emphasis in the original). Yet in oral submissions senior counsel for Ms Fisher accepted that s 9A established a test of causation. It may be that the complaint that the appellants sought to make is that the Member erred - they claim - in implicitly requiring that the course of employment be the sole cause. In any event, it is necessary to address the nature of the requirement.
The liability of employers to pay compensation is provided for in s 9 of the WC Act: 9 Liability of employers for injuries received by workers - general (1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker's employer in accordance with this Act. (2) Compensation is payable whether the injury was received by the worker at or away from the worker's place of employment.
Section 4 defines the key notion of "injury" as follows: (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means - (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
As Allsop P, Beazley and McColl JJA noted in Badawi, at [72]-[73], the disjunctive "or" in s 4(a) means that there are two separate tests involved, either of which is sufficient to be satisfied for the purposes of s 9. The first limb of the provision, "arising out of employment", involves a causative element but not a temporal element. The second limb of the definition, "in the course of employment", involves a temporal element which does not of itself require causation. This was a distinction drawn by Lord Wright in Dover Navigation Co Ltd v Craig [1940] AC 190 at 199 regarding a similar provision of the Workmen's Compensation Act 1925, 15 & 16 Geo 5, c 84- albeit one where the conjunction "and" rather than "or" was used - which was picked up by Jordan CJ and Roper J in Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 at 123 as regards the same phrase in the Workers' Compensation Act 1926 (NSW).
The fact that it could suffice that an injury occur in the course of employment, without any causal link to the employment, meant that an employer could be liable merely because a congenital infirmity happened to cause injury at a time when the employee was at work. That occurred in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310, where the employee suffered a cerebral aneurism.
Section 9A was introduced to the WC Act in 1996 in response to that decision. In its current form it provides as follows: 9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury. Note - In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination) - (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following - (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.
In the Attorney-General's second reading speech introducing the amending bill he described the proposed section as intended (Legislative Council, 26 November 1996, Hansard at 6509-6510): … [to] limit compensation coverage to situations where employment is a substantial contributing factor to the worker's injury or disease. This is in line with the primary objective of compensating workers who suffer injuries that have a proper link with the workplace, rather than those whose injuries have only a remote or tenuous connection with work. The amendments specify that the weaker test of considering whether an injury arose out of or in the course of employment will no longer be enough by itself.
The section was thus intended to introduce a stronger test than was provided for in s 4, in situations where it applies. It does not apply in all contexts: for disease injuries there is the separate requirement in s 4(b) that "the employment was the main contributing factor to contracting the disease". And pursuant to s 9A(4), the provision does not apply in relation to injuries to which ss 10, 11 or 12 apply.
Badawi considered the nature of the test in s 9A. Three aspects of the decision are pertinent. First, all members of the Court accepted that the notion of "substantial contributing factor" involves a causal connection between the employment concerned and the injury: at [80]-[83] per Allsop P, Beazley and McColl JJA; [112]-[117] per Basten JA; [143] per Handley AJA. The appellants made no challenge to Badawi. The conclusion seems unassailable in any case. Thus insofar as the appellants assert that s 9A does not establish a test of causation, the argument must be rejected.
Secondly, there was a question as to whether the causal requirement in s 9A applied only to the second limb of s 4(a) ("in the course of employment"), or whether it added to the existing requirement in the first limb also ("arising out of … employment"). The joint judgment held that it applied to both, even though "there is an incongruity in having a double causation test, one in s 9 and one in s 9A": at [83]. Basten JA was of the same view: at [136].
Thirdly, an issue arose as to the stringency of the causal requirement. In Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; (2000) 48 NSWLR 740 Mason P had held that the requirement in s 4(a) that the injury "arise out of" employment was more stringent than the requirement in s 9A that employment be "a significant contributing factor" to the injury (at [32]). The joint judgment rejected this, saying "[w]e respectfully disagree ... that the causal requirement in s 9A is less stringent than that in s 9 (as read with s 4)", as otherwise "there would be no point in s 9A extending to both limbs of the definition of injury": at [83]. Basten JA was of the same view: at [113]. The judgment clarified the sense conveyed by the word "substantial", saying it meant a causal connection that "was real and of substance" (at [82]).
Although the joint judgment used the double negative, the point can be made positively: s 9A imposes a more stringent causal requirement than that involved in the causal requirement in the first limb of s 4(a). That understanding is implicit in the joint judgment. It is consistent with the Attorney's reference to the "weaker test" in s 4 in his second reading speech. And it reflects a deeper point. The causal standard for the "arising out of employment" notion in workers compensation legislation has long been accepted to involve consideration of whether the employment "caused, or to some material extent contributed to, the injury": Nunan at 124. That is relevantly the same approach as taken at common law for tort: see eg March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 514 per Mason CJ. There are various aspects to the notion of "material contribution": note Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [21]-[25]. One role that it plays was explained in Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36 at [70] per Gummow, Hayne and Crennan JJ and in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 at [45] per French CJ, Hayne and Kiefel JJ. To quote the latter (citations omitted): The law's recognition that concurrent and successive tortious acts may each be a cause of a plaintiff's loss or damage is reflected in the proposition that a plaintiff must establish that his or her loss or damage is "caused or materially contributed to" by a defendant's wrongful conduct. It is enough for liability that a wrongdoer's conduct be one cause. The relevant enquiry is whether the particular contravention was a cause, in the sense that it materially contributed to the loss. Material contribution has been said to require only that the act or omission of a wrongdoer play some part in contributing to the loss.
The citation for the last sentence referred to Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215, where Wilson J said that a relevant cause "is sufficient so long as it plays some part even if only a minor part in contributing to" the relevant consequence (at 236). The statutory language in s 9A of "substantial contribution" is obviously intended to increase the required degree of causal significance beyond this.
In this context it is difficult to see that the causal requirement in the first limb of s 4(a) has any real work to do in circumstances where s 9A applies. The joint judgment in Badawi said that the "question under each section is differently expressed and must be considered separately": at [85]. In practice it seems likely, as Basten JA said in that case, that "facts which satisfy the causal connection between employment and injury required by s 9A will also satisfy the test of 'arising out of' in s 4 and, if the injury also occurred in the course of employment, the same facts will be those which satisfy that test": at [133]. That does not mean that the causal requirement in s 4(a) never has work to do given that s 9A does not apply in all cases pursuant, relevantly, to s 9A(4).
I turn, then, to the appellants' argument that the Member erred in not referring to the fact that "substantial contribution" in s 9A involved a connection that was "real and of substance", being the phrase used in the joint judgment in Badawi. The Member did refer to that decision as being authority for the proposition that s 9A "requires the applicant to prove a connection between the injury and the deceased's employment that is 'not less stringent' than the test of 'arising out of' the employment" (at MD [98]). He added that the section also involved an evaluation of the matters set out in s 9A(2) (ibid), which factors he adverted to at the end of his decision (at [128]-[129]). There is no error in what the Member said about Badawi or s 9A in this passage. The appellants' argument seemed to come down to saying that more exposition was required, in particular by expressly invoking and addressing the notion of "real and of substance". Senior counsel for Ms Fisher submitted: So the word "substantial" is a bit like the concept of common sense. It doesn't have any intrinsic meaning. It needs some explanation for it to do its work.
Insofar as the appellants' argument involves the proposition that the Member erred in using statutory language as opposed to judicial exposition of the meaning of that language, the suggestion is quite misconceived. The High Court has "repeatedly emphasised the need, when applying a statutory provision, to look to the language of the statute rather than secondary sources or materials": Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [31]. Judicial expressions are an "attempt to describe the operation of the statutory language in other words" and "must not be taken as substitutes for that language": ibid at [33]; note also Leichhardt Council v Roads & Traffic Authority of NSW [2006] NSWCA 353; (2006) 149 LGERA 439 at [29]. As McHugh J explained in Marshall v Director General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603 at [62], in a passage approved by the whole High Court in Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 at [31]: Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.
As is implicit in McHugh J's words, the appellants would have been in more fertile territory if they established not only that the Member had not quoted the words "real and of substance", but also that he had applied some different understanding of the notion of substantial connection. The error then would be failing to act in accordance with the statutory requirement as it has been explained in authority binding on the Member. But no such error exists in the decision of either the Member or the President. That leads to the core difficulty with the appellants' argument: they mischaracterise the decision of the Member.
The Member stated in the concluding paragraph of his decision that the appellants had "not proven a causal connection between the deceased's employment on 22 January 2016 and his death" (at [129]). It is evident from his decision as a whole that the Member did not find any causal link made out between the heart attack injury and the employment of the deceased, implicitly even on the lower standard that is involved for example in the "arising out of" element of s 4 of the WC Act. Given that finding, it simply was not necessary for the Member to consider whether the more stringent standard of a substantial connection was satisfied. In light of his finding, it could not have been. There was no occasion for the Member to grapple with the significance of that notion requiring a connection that was "real and of substance".
At [100] the Member referred to the headnote of the important tort decision of Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, relevantly including the proposition that "[c]ausation is not established by showing that a defendant's act or omission increased the risk of injury to a plaintiff when the risk had not eventuated". The applicability of this proposition to s 9A was also challenged by the appellants, as addressed below. It is the key to understanding the Member's decision.
At [102]-[103] the Member referred to the Coroner's report, including the point that "[t]he extent of ischaemic heart disease found in this man was such that sudden death would have occurred at any point in time". At [106] he noted in relation to the respondent's cardiologist that whilst "various attacks have been made on Dr Herman's opinion, he has remained of the opinion that the deceased was at very high risk of death by coronary artery disease, although he does consider that 'air pollution may have been a contributing factor but do not feel this is substantial'".
The Member said at [108]: The language of the cardiologists is not always entirely consistent. Risk and cause is sometimes conflated. Dr Helprin [the appellants' cardiologist] is of the opinion that the exposure to traffic pollution increased the risk of cardiac arrhythmia and heart failure. Plainly, however, he is also of the opinion that the increased risk caused the injury. He refers on several occasions to air pollutants being the "trigger" of the deceased's cardiac arrythmia. Thus, in his opinion the risk of injury "came home" to use the language of McHugh J in Chappel and the numerous cases which have recited it.
Consistently with Dr Helprin's view, the Member accepted at [110] that "there is an increased risk of cardiac arrest associated with traffic-related air pollution". However, he said at [111] that it was difficult to understand Dr Helprin's conclusion that the deceased's risk factors from his existing heart disease would not explain sudden death from ventricular arrhythmias and only explain the prior myocardial infarction, commenting that the "assertion that ventricular arrythmia and death cannot be caused by ischaemic cardiomyopathy is difficult to reconcile with the other evidence in the case". He said at [113] that he accepted Dr Herman's reasoning that "at the time of his death that the deceased was at significant risk of death from his ischaemic cardiomyopathy", explaining that the "likelihood of arrythmia and death from exposure to air pollution in his work as a courier must be considered against that background". This part of the discussion illustrates that the Member was not simply looking to whether the existing heart disease or the TRAP caused the heart attack; rather, the point was that whether the TRAP had causal significance had to be considered in the context of the existing condition.
The Member then discussed the evidence of the occupational hygienists and the studies cited by Mr Prezant (for the appellants) and relied upon by Dr Helprin (at [114]-[122]). His key conclusions were then as follows: [122] … The difficulty is determining whether an at risk individual died as a result of the underlying conventional cardiovascular risks or as a result of the interaction of TRAP with those risks. This is not adequately addressed in the evidence. [123] In my opinion, the epidemiological surveys and scientific studies adduced in evidence do not provide any clear answer to this difficulty. They do not permit any firm conclusion to be drawn that the risk of death from TRAP was equivalent to, or a significant fraction of, the risk of death from the conventional cardiovascular risk factors described in the autopsy report. The evidence only touches on the question but does not engage with it. While it is possible that the deceased may have died as a result of exposure to air pollution on the day of his death, is not probable. It is more likely, as Dr Herman contends that the traditional cardiovascular risk factors explain his death. … [125] Of course, this is not a case where the epidemiological studies are the only evidence of causal nexus between TRAP and of the death of the deceased. However, the opinion of Dr Helprin is plainly underpinned by these studies. If they are not capable of proving causation in an individual case, the doctor's opinion is of considerably less weight. … [127] Mr Parker also submitted that the evidence established that the risk of injury of death triggered by TRAP "came home". I have reached a contrary conclusion. In my opinion the evidence does not permit a determination that it was the risk of injury created by [TRAP] that caused the [deceased's] death. Dr Herman thought that that the additional risk created by TRAP was negligible. But it is not necessary to accept that to find against the applicant. Plainly, the deceased had advanced ischaemic cardiomyopathy which was capable of causing a fatal cardiac arrhythmia at any time. The evidence of the extent of the additional risk to the deceased caused by traffic pollution is vague and unsatisfactory.
This analysis is entirely consistent with cases such as McGuiness (as addressed further below). The Member accepted Dr Herman's evidence - consistently with the unchallenged autopsy report - that the deceased was at high risk of death from his coronary artery disease. He accepted that there was an increased risk of cardiac arrest associated with exposure to TRAP. But in the Member's view the evidence did not establish the significance of that risk. Nor did it establish that the risk came home, that is, that it played a contributory role in the occurrence of the deceased's heart attack. Unsurprisingly, the Member also rejected a submission that he should "draw a lay inference" that this had occurred (at [126]). As is implicit in the Member's discussion, and as the appellants accepted in this Court, they bore the onus of proof in establishing causation. They did not discharge that onus.
Nothing in the Member's decision indicates that he felt he needed to identify exposure to TRAP as the sole cause. His conclusion that the existing heart disease was the more likely cause of death is not indicative of a binary choice but indicates that he was not persuaded on the balance of probabilities that the TRAP had played a role in triggering the heart attack which was always likely to happen.
Thus causation, even on the lower standard consistent with the common law approach in tort, was not made out. Issues of the substantiality of the contribution of the employment (through exposure to TRAP) did not arise.

Whether an increase in risk by itself can satisfy the s 9A requirement

The appellants then challenge the Member's assumption that the principle discussed in tort cases such as McGuiness apply in the context of s 9A of the WC Act.
It is well-established in case law of this Court that merely establishing an increased risk of injury caused by a breach is not enough, by itself, to establish causation in tort. It is necessary in such cases to show that the risk came home in the sense that the defendant's breach is established to have played at least a materially contributing role in the injury occurring. As Spigelman CJ said in McGuiness: [118] The issue in the present case is whether an increased risk did cause or materially contribute to the injury actually suffered. [119] There is a tension between the suggestion that any increased risk is sufficient to constitute a "material contribution", and the clear line of authority that a mere possibility is not sufficient to establish causation for legal purposes. The latter is too well established to be qualified by the former. The reconciliation between the two kinds of references is to be found in the fact that, as in Chappel v Hart (1998) 195 CLR 232; [1998] HCA 55 and in the cases that suggest the former, the actual risk had materialised. The "possibility" or "risk" that X might cause Y had in fact eventuated, not in the sense that X happened and Y had also happened, but that it was undisputed that Y had happened because of X.
Similarly, in TC (by his tutor Sabatino) v New South Wales [2001] NSWCA 380, at [59], Mason P explained: A defendant who exposes a plaintiff to a risk of injury or who, by omission, fails to take reasonable steps to avoid or minimise that risk is not liable unless the risk comes home in the sense that the court is ultimately satisfied on the balance of probability that the defendant's breach caused or materially contributed to the harm actually suffered.
The principle has been reiterated and applied in other cases: eg Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 at 315-318 per Mason P; Gittani Stone Pty Limited v Pavkovic [2007] NSWCA 355 at [43]-[44] per Hodgson JA; Amaca Pty Limited v Gatt [2022] NSWCA 151 at [74] per Beech-Jones CJ at CL; Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 at [82]-[87].
It has also been affirmed by justices of the High Court. In Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870, Kiefel J said (citations omitted): [144] The present state of authority does not accept the possibility of risk of injury as sufficient to prove causation. It requires that the risk eventuate. Kitto J in Dunkel said that one "does not pass from the realm of conjecture into the realm of inference" unless the facts enable a positive finding as to the existence of a specific state of affairs. Spigelman CJ pointed out in Seltsam, with respect to an increased risk of injury, that the question is whether it did cause or materially contribute to the injury actually suffered. This inquiry is consistent with the commonsense approach required by March.
In Booth French CJ said (citations omitted): [41] Causation in tort is not established merely because the allegedly tortious act or omission increased a risk of injury [citing Kiefel J in Royal at [144]]. The risk of an occurrence and the cause of the occurrence are quite different things. That proposition is obvious enough …
Further, the sort of situation at issue here - where there are two main risks that might cause the relevant event and one risk is large and the other is not established to be large - is similar to the situation considered in Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111. The issue there was whether it had been established that the plaintiff's exposure to asbestos had caused his lung cancer where he had been a smoker. There was no direct evidence of what had caused the cancer. There was significant epidemiological evidence. None of the expert witnesses "assigned a probability greater than 23% to the chance that Mr Cotton's cancer was caused by exposure to asbestos (whether alone or in combination with smoking)" (at [59]). The plaintiff disavowed any argument that an increase in risk of contracting cancer from exposure to asbestos was sufficient to establish causation (noted at [12]). Even so, it is relevant to note the following reasons of the High Court for rejecting the plaintiff's claim (citations omitted, emphasis in the original): [62] … To draw an inference about causation from what was established by the epidemiological studies, it would be necessary to decide whether the particular case under consideration should be treated as conforming to the pattern described by the epidemiological studies. Absent evidence which suggests that the individual may stand apart from the ordinary, there may be sufficient reason to assume conformity, but whether or not that is so, it is important to recognise that the first step that must be taken, if an inference is to be drawn from epidemiological studies, is to relate the results of studies of populations to the particular case at hand. That step is not inevitable. … [64] … If the relative risks and probabilities derived from epidemiological studies were to be treated as revealing what was a probable explanation of what caused Mr Cotton's cancer, those analyses support two conclusions. First, it is more probable than not that smoking was a cause of (in the sense that it was a necessary condition for) Mr Cotton's cancer. Second, the risks and probabilities associated with asbestos, whether alone or in conjunction with smoking, are low and not sufficient to found the inference which the plaintiff sought to have made: that it is more probable than not that exposure to respirable asbestos fibres was a cause of Mr Cotton's cancer. [65] It was not shown to be more probable than not that asbestos was a cause of (a necessary condition for) his cancer. It was not shown that exposure to asbestos made a material contribution to his cancer. Material contribution was not shown because a connection between Mr Cotton's inhaling asbestos and his developing cancer was not demonstrated. … [68] … The issue in Bonnington Castings was whether one source of an injurious substance contributed to a gradual accumulation of dust that resulted in disease. The issue here is whether one substance that can cause injury did cause injury. Or, to adopt and adapt what Starke J said in Adelaide Stevedoring Co Ltd v Forst, was Mr Cotton's cancer "intimately connected with and contributed to" by his exposure to asbestos? Questions of material contribution arise only if a connection between Mr Cotton's inhaling asbestos and his developing cancer was established. Knowing that inhaling asbestos can cause cancer does not entail that in this case it probably did. For the reasons given earlier, that inference was not to be drawn in this case. Questions of what is a material contribution do not arise.
These reasons support the view that making out an increase is risk is not enough of itself to establish causation in tort as that notion is currently understood in Australia. In this case, as in Ellis, the issue is whether one substance (TRAP) that can cause injury did cause injury.
The question then is whether or not the test of causation in s 9A should be understood to take a different, less demanding approach on this issue than applies in the law of tort. That is a question of statutory construction. The appellants' argument for a less demanding requirement is unpersuasive.
As noted above, it has been accepted in this State at least since Nunan was decided in 1941 that the causal requirement in the notion of "arising out of employment" involves assessing whether the employment "caused, or to some material extent contributed to, the injury", being in substance the approach taken in tort. That the causal requirement is relevantly the same in that respect as in tort is illustrated by the fact that in Booth at [69] the High Court quoted part of Dixon J's dissent in Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538, a workers' compensation case, when discussing the nature of causation in tort. And there is reason to construe a causal requirement in statute consistently with the common law approach to causation in a closely related context "except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act": quotation from Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525. That is so even taking account of the fact that, as discussed further below, "it is doubtful whether there is any 'common sense' approach to causation which can provide a useful, still less universal, legal norm": Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467 at [42].
The re-enactment of the causal requirement of "arising out of employment" in s 4(a) of the 1987 Act can be presumed to have been intended to maintain the construction already established with respect to that notion: note Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96 at 106.
There is nothing in the text, context or purpose of s 9A which supports the appellants' construction. Although the words "substantial contribution" are obviously different from the words "arising out of", those latter words have been construed themselves to involve at a minimum the notion of "material contribution". In circumstances where s 9A was intended to introduce a more stringent causation test there is no reason to consider that the Parliament would have intended, in one very significant respect, to have departed from and weakened the nature of the causal requirement.
Senior counsel for Ms Fisher argued that increased risk must be sufficient to satisfy the test because in many cases it would be impossible on the evidence to determine whether a risk came home, saying: one cannot say in a case like this whether the risk came home. … In this type of injury where you can never know whether in fact something caused something else, you can only ever talk in terms of risk.
It is true that proving that a risk came home can sometimes be difficult. That does not mean it is impossible. Indeed, it is an issue which has long arisen in relation to heart attack claims in workers compensation cases. For example, in Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 317 the High Court upheld a compensation claim in relation to a worker who was, to quote two of the doctors who gave evidence, "a candidate for sudden death - work or no work" due to his arterio-sclerosis (see at 324). It was enough that some particular exertion at work had triggered the heart attack. Adelaide Stevedoring, decided in 1940, was another heart attack case. The claim in relation to the worker was again upheld. Dixon J dissented, but it is worth noting what his Honour said at 568: If the work done by the deceased did contribute in any material degree to the formation of the thrombosis, then, as the law has been interpreted, the facts would warrant the conclusion that he died by accident arising out of and in the course of his employment.
An oft-cited decision of this Court considering causation in the context of workers compensation legislation is Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, being another heart attack case, albeit one of a different kind. The relevant statutory test there used the words "results from". Kirby P said at 463-464: Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase "results from", is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death "results from" a work injury. What is required is a commonsense evaluation of the causal chain.
The third sentence quoted is consistent with the view that an increase in risk is not enough of itself to establish causation in the workers compensation context.
Moreover, much the same argument has been put and rejected in tort cases. In Ellis the plaintiff argued that it was paradoxical that the evidence established that some people in the relevant group had their cancer caused by exposure to asbestos yet none of them would be able to succeed. The High Court said this in response (citation omitted): [70] The answer to the question can be expressed in several different ways. All depend upon the basic and unpalatable fact that no scientific or medical examination can now say, with certainty, what caused Mr Cotton's cancer or lung cancer in any other particular case. As explained at the outset of these reasons, despite this uncertainty, the courts must, and do, "reduce to legal certainty [a question] to which no other conclusive answer can be given". The courts do that by asking whether it is more probable than not that X was a cause of Y. Saying only that exposure to asbestos may have been a cause of Mr Cotton's cancer is not a sufficient basis for attributing legal responsibility. Observing that a small percentage of cases of cancer were probably caused by exposure to asbestos does not identify whether an individual is one of that group. And given the small size of the percentage, the observation does not, without more, support the drawing of an inference in a particular case. The paradox, if there be one, arises from the limits of knowledge about what causes cancer.
The appellants' argument that establishing an increased risk of injury should be enough of itself to satisfy the causation requirement in s 9A of the WC Act should be rejected.

The claimed error in applying a "common sense" test of causation

The Member said the following at [99]: As s 9A involves a test of causation, it is necessary to consider whether the deceased's employment substantially contributed to the ventricular fibrillation that resulted in his death. Presumably, the test of causation invokes the common sense test in accordance with the reasoning in reasoning in Zinc Corporation Ltd & Anor v Scarce (1995) 12 NSWCCR 566. That leads to a consideration of the proof necessary to establish causation in a case such as this.
Later, at [112], he said that Dr Herman's opinion on a particular issue "appears consistent with common sense".
The appellants argued that these invocations of common sense were inconsistent with the statutory requirement in s 9A. The foundation of their argument was the following statement by French CJ, Bell, Gageler, Keane and Nettle JJ in Martin in 2016 (some citations omitted): [42] Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any "common sense" approach to causation which can provide a useful, still less universal, legal norm [fn: Travel Compensation Fund v Tambree [2005] HCA 69; (2005) 224 CLR 627 at 642 [45], citing Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 at 596-597 [96]-[97]]. Nevertheless, the majority in the Full Court construed the phrase "as a result of" in s 5A(1) as importing a "common sense" notion of causation. That construction, with respect, did not adequately interrogate the statutory text, context and purpose.
To begin with, the High Court here did not suggest that any invocation of common sense in relation to issues of causation involved legal error. Indeed, in Hunt & Hunt, three members of the High Court - including French CJ, who was in Martin - said the following: "Causation is largely a question of fact, to be approached by applying common sense to the facts of the particular case" (at [43]). Whilst that judgment was three years prior to Martin, it was well after the authority cited in Martin in the passage just quoted. The notion of common sense has been invoked by members of the High Court more recently with respect to related factual assessments: see eg Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 at [62] per French CJ, Kiefel, Nettle and Gordon JJ; Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192 at [90] per Gordon J; Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785 at [111] per Nettle and Gordon JJ.
The notion of common sense in legal causation has been employed to connote a number of ideas, including the following. First, it is used to indicate that it is an evaluative question of fact, to be assessed in a practical manner. That seems to be the sense it was used in Hunt & Hunt and other such judgments. Historically, this point was linked to the fact that questions of causation were often matters for a jury, and the High Court discouraged "judicial directions containing theoretical analysis and exposition": see Booth at [65]. As senior counsel for Ms Fisher himself put it, "at the end of the day, if it's meant to indicate that an evaluative process is informed by the sense of the person applying it, it's hardly remarkable". It was on that basis that senior counsel said that the appellants did not need to challenge the statement made in the joint judgment in Badawi that causation "is a fact-laden conclusion which the courts have been told must be based on common sense" (at [81], citing March v Stramare and Nunan). Kirby P's statement in Kooragang that "[w]hat is required is a commonsense evaluation of the causal chain" is of a similar nature (at 463-464).
Secondly, and overlapping with the first point, "common sense" carried with it the suggestion of drawing upon the life experience of the decision-maker in making the judgment required. That being said, it has come to be recognised that "many issues of causation … lie outside the realm of common knowledge and experience": Booth at [67]. The current matter is such a case, as the Member correctly recognised in declining the appellants' invitation that he "draw a lay inference" (MD [126]).
Thirdly, the label has been seen to encompass that aspect of the common law test that "requires no more than that the act or event in question should have materially contributed to the loss or injury suffered": Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at [61] per Gaudron J; see also Royal at [144] per Kiefel J. As already noted, that standard has long been accepted to be what is involved in assessing causation in the workers compensation context relating to "arising out of", and the appellants did not suggest to the contrary.
Fourthly, in March v Stramare at 515, Mason CJ's references to "causation being 'ultimately a matter of common sense' were evidently intended to disapprove the proposition 'that value judgment has, or should have, no part to play in resolving causation as an issue of fact'" (quotation from Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [43]). This usage of common sense has fallen into some disfavour. Section 5D of the Civil Liability Act 2002 (NSW) and equivalent provisions have now separated out factual and normative issues in a manner that has also perhaps influenced the common law: note Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 at [11]-[12]. More broadly, the High Court has doubted the utility and transparency of speaking of common sense as a guide to value or policy judgments limiting the attribution of legal responsibility, and has indicated that such judgments are to be made by reference to the purpose of attributing legal responsibility for the norm in question. The quotation from Martin above, and the authority there cited, illustrates the point; see also Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; (2022) 273 CLR 454 at [45]-[46] and [101]. Where the norm is a statutory one, "notions of 'cause' … are to be understood by reference to the statutory subject, scope and purpose": Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568 at [99].
In this context, two members of the High Court have recently gone so far as to say that "the concept of common sense should be eschewed when applying the principles of causation": Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 97 ALJR 840 at [60] per Gordon and Edelman JJ. As is implicit in that statement, there are some dangers in invoking common sense in evaluating causation issues. In particular that is so if the notion distracts from either the need to consider any normative and policy-based limitations on the broad reach of the "but for" test of causation or, relatedly, the need to consider the nature of any statutory causation test in its particular statutory context. This does not mean, however, that any invocation of common sense involves legal error.
The issue in Martin involved reconciling various statutory provisions. In effect the High Court held that the Full Court of the Federal Court had distracted itself from the task of statutory construction by invocation of the notion of common sense causation: at [42]-[48]. To the extent a similar argument is put here, I have already rejected it in finding that the Member's decision was consistent with the construction of s 9A as understood in the context of ss 4(a) and 9.
The invocations of common sense by the Member in his decision are consistent with the first sense I have just identified, that is, treating the issue as an evaluative question of fact to be assessed in a practical manner. That is consistent with what was said by Clarke JA in Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566, as referred to by the Member. His Honour there said that there was no reason to adopt a different approach to the "common sense" test of causation adopted at common law in relation to the issue of causation posed by the words "arising out of". His Honour said that "[t]he question of fact is whether there is such a connection between the worker's personal injury and his employment that, as a matter of ordinary common sense and experience, the injury should be regarded as having arisen out of that employment", and then cited the decision in Nunan (at 571). There is nothing inconsistent with the WC Act in that understanding.
The invocations of common sense by the Member had nothing to do with normative or purposive limitations on factual causation (the fourth sense identified above). Nor did they manifest any other erroneous understanding of the nature of the legal test to be applied. The appellants' argument amounted to saying that any reference to common sense crosses a trip wire of error. As the use of that term in cases such as Hunt & Hunt illustrates, that is not so.
No aspect of the appellants' reformulated first ground is made out. The Member did not misdirect himself in the various ways alleged by the appellants and, thus, the President did not err in law by not finding that the Member had done so.

The claimed constructive failure to exercise jurisdiction

The appellants' argument as to constructive failure to exercise jurisdiction seemed to be that each of the Member and the President failed to deal adequately with the evidence such as to constitute a constructive failure of jurisdiction, in particular as regards aspects of the last reports of each of Dr Herman and Dr Helprin.

Relevant principles

Constructive failure to exercise jurisdiction arises where a decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter.
Here the appellants raise a form of constructive failure based on the alleged failure by the Member to respond to a critical argument. This is the variant of constructive failure of jurisdiction discussed by members of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088. In that case Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker "[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts" was both a constructive failure to exercise jurisdiction and a failure to accord natural justice (at [23]-[25]). Kirby J similarly held that where, as in that case, the decision-maker's mistake "amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way" (at [88]).
As explained in Ming at [15], arguments based on this variant of jurisdictional error can often "shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review". Such review is not within the scope of this Court's jurisdiction either when undertaking judicial review or when, as here, hearing an appeal on points of law. Further, the inquiry is not as simple as identifying whether the decision-maker gave attention to the relevant argument in their reasons, since it is not necessary for decision-makers to address every argument or every piece of evidence in delivering reasons. For the appellants to succeed on this ground, then, there must have been a failure to grapple with a substantial, clearly articulated argument. That language has been reiterated by members of the High Court: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [13] per Bell, Gageler and Keane JJ and [105] per Nettle and Gordon JJ; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [27] per Kiefel CJ, Keane, Gordon and Steward JJ. The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of their power by reason of having failed to engage with an issue of importance to the matter being resolved.
Thus in Day v SAS Trustee Corporation [2021] NSWCA 71 at [37] Meagher JA stated (with the agreement of Payne and White JJA; citation omitted): a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim ... It will be insufficient for the appellant to show that his "three key issues" were not stated and determined discretely. What he must show is that they raised "substantial" (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant's claim ...
In their written submissions the appellants made little effort to identify a clear, material argument with which the President had not engaged, such that he made an error of law by failing to find a substantial, clearly articulated argument had been put to the Member in turn, and not addressed by him. It is not sufficient to complain that the Member or President addressed something in an incorrect manner, as this may simply be an erroneous conclusion within jurisdiction.
The appellants placed great reliance on the decision of McColl JA, with whom Macfarlan JA agreed, in Tudor Capital. In that case her Honour found that both an arbitrator and then a deputy president on appeal had overlooked material facts within medical evidence, or given material facts undue or too little weight in deciding the inference to be drawn from the evidence as to the cause of death, and this was of such significance that the deputy president had constructively failed to exercise jurisdiction: note at [352], [384]-[386], [419]. Her Honour also found that the arbitrator had failed to give adequate reasons and that the deputy president's failure to recognise this was an error of law: at [394]. It is important to understand that her Honour's findings in relation to constructive failure were that there was an error of the kind identified in Dranichnikov. That is apparent from the authority upon which her Honour relied: see at [298]. Her Honour was not establishing some new legal principle. The appellants' reliance on Tudor Capital did not advance their case. That constructive error was made out on the facts of one case does not mean that it is made out in this one.

The complaint relating to Dr Herman

The appellants' submissions to this Court with respect to Dr Herman focused on his statement in his fourth and final report, which took account of evidence provided on behalf of the appellants, that "[i]n light of recent evidence … I do believe that the air pollution may have been a contributing factor but do not feel this is substantial" (emphasis in the original). The appellants put that Dr Herman had thus come to the view that TRAP did have some, if limited, causal significance in contributing to the death of Mr Clifford. It was also submitted that this represented a change from his earlier expressed view that even if it was proven that the deceased had had "a high risk exposure to air pollution, this risk in the overall clinical scenario is negligible".
The appellants complained that neither the Member nor the Deputy President grappled with his aspect of Dr Herman's last report. Senior counsel for Ms Fisher referred to this part of Dr Herman's last report as "the most pivotal piece of evidence", and put that "nowhere does the Member isolate what we say is probably the most single important piece of evidence in the case".
The appellants' complaint fails at three levels. First, as explained, when alleging a constructive failure to exercise jurisdiction it is necessary to show that the point was such a serious failure to grapple with the case put to the decision-maker on material points that in substance they have not undertaken or completed the task required of them. In their written submissions the appellants did not point to some substantial and clearly articulated argument put to the Member on this point. The failure to do so illustrates that, as the respondent submitted, this complaint was in truth one about factual findings dressed up as a complaint about legal error.
In oral submissions, when asked if it had been put in submissions below that this was the pivotal piece of evidence, senior counsel said "[p]erhaps not in those words". The only submissions ultimately identified by the appellants in this regard were very brief submissions put orally to the Member by one counsel that Dr Herman "accepts that exposure may have been a contributing factor but not substantial", and by another counsel that Dr Herman was an "outlier" because "in his most recent report he now accepts that air pollution is contributory" but it was as to "just how contributory that Dr Herman differs from" the other doctors. Neither counsel made a clear submission, let alone one that was manifestly central to their case, that Dr Herman's final report of itself sufficed to satisfy the causation requirement in s 9A.
Secondly, senior counsel for the respondent submitted to this Court that "it was not, as far as we can see, ever submitted to the President that the Member had misunderstood Dr Herman's evidence". In reply senior counsel for Ms Fisher stated that "a transcript of proceedings before the Member was before the President" and that in written submissions put to the President, when dealing with ground 3 put by Ms Fisher below, a complaint had been made on her behalf that the Member "accepted Dr Herman's opinion and indicated that this was consistent with the comments of the pathologist". The mere fact that the transcript of submissions to the Member was before the President does not establish anything about what submissions were made to the President on the grounds raised before him. As for the written submissions referred to, not only do they not raise the "pivotal" issue about contribution so emphasised in this Court, it is telling that they were made with respect to ground 3 raised below. As noted above at [17], that ground was that the Member "committed an error of fact by failing to address Dr Helprin's opinion". Neither that ground, nor ground 5 alleging a failure "to respond to a substantial, clearly articulated argument", referred to Dr Herman. The submissions put to the President on ground 5 on behalf of Ms Fisher referred to Dr Helprin.
Thirdly, it is in any event simply incorrect that the Member failed to address the point. He had quoted the relevant portion of the evidence at [87], including the paragraphs that followed in Dr Herman's report. The Member then quoted the key statement relied upon by the appellants again at [106]. He went on to state at [108] that the language of the cardiologists "is not always consistent" and "[r]isk and cause is sometimes conflated". In that paragraph, and in the analysis that follows, the Member makes apparent that he understood Dr Herman's evidence about being TRAP "a contributing factor" to really mean that he had come to accept that it did represent a risk factor, as opposed to saying that he thought it had in fact contributed to the death of Mr Clifford.
That view represented his characterisation of the evidence as a matter of fact. That was a matter for him as the fact-finder. That he should reach that conclusion is hardly surprising when full account is taken of Dr Herman's last report in which he goes on to say, for example, that whilst he agreed "that the deceased's employment possibly created a greater risk of him suffering a cardiac arrhythmia, I'm not convinced that this risk was significantly greater than in any other person with a ischaemic cardiomyopathy at his age and with the additional cardiac risk factors". As was said in Booth at [83], dealing with another argument about causation in the context of an appeal under s 353(1) of the WC Act, an "inference of fact, concerning the contraction of disease by [the deceased], which was reasonably open on the evidence, will not manifest error 'in point of law'".
Insofar as the appellants' complaint is that the Member mistook Dr Herman's evidence when referring at [127] to his view being that the increased risk from exposure to TRAP was "negligible", where Dr Herman's view had in fact evolved, all of the same answers apply. Moreover, the Member immediately went on to say that "it is not necessary to accept that to find against" the appellants. The complaint goes nowhere.

The complaint relating to Dr Helprin

The appellants' complaint with respect to the evidence of Dr Helprin focused on the Member's reasoning at [111], which was as follows: However it is difficult to understand Dr Helprin's contention that "Mr Clifford's risk factors would not explain sudden death from ventricular arrhythmias and only explain the prior myocardial infarction". In his analysis, the deceased's ischaemic cardiomyopathy created a vulnerability. But it could not and did not cause the ventricular arrhythmias. They were triggered by pollution. The assertion that ventricular arrythmia and death cannot be caused by ischaemic cardiomyopathy is difficult to reconcile with the other evidence in the case.
Senior counsel for Ms Fisher accused the Member of taking this quotation from Dr Helprin out of context and of misquoting him.
As noted, the appellants did raise two grounds of appeal before the President about the Member's claimed failure to address Dr Helprin's argument. The President addressed those grounds. It cannot be said that the President constructively failed to exercise his jurisdiction. That being said, as explained, if the President reached a wrong conclusion on an argument that the Member had constructively failed to exercise his jurisdiction then the President would have erred in law.
The Member did not do so. He did not misquote the evidence of Dr Helprin. And his understanding of that evidence was reasonably open to him. So much was implicitly conceded by senior counsel for Ms Fisher when he accepted that "it's certainly open to argument as to what Dr Helprin was saying". The appellants' complaint here is in truth that they disagree with the conclusion the Member reached in relation to the significance of Dr Helprin's evidence. Thus senior counsel for Ms Fisher put to this Court that "in the exercise of jurisdiction there has to be adequate regard to the evidence". That submission illustrates the point made in Ming that these arguments commonly slide into impermissible arguments about the merits.
The appellants' complaint about constructive failure to exercise jurisdiction is not made out.

The claimed failure to give adequate reasons

There is no general common law duty on executive decision-makers to give reasons for their decisions: Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 at 662; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 at [43]. The position is different for judges, for whom the requirement to give reasons is a normal, though not universal, incident of the judicial process: see Osmond at 666-667. Not infrequently, however, some statutory duty is imposed on executive decision-makers.
Such a duty is found in s 294 of the WIM Act: (1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination. (2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination.
Such an obligation is also addressed in the Personal Injury Commission Rules 2021: 78 Statement of reasons for decision (1) This rule applies only in relation to the following applicable proceedings - (a) Commission proceedings, (b) merit review proceedings. (2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker's reasons for the determination that includes the following - (a) the appropriate decision-maker's findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the appropriate decision-maker's understanding of the applicable law, (c) the reasoning processes that led the appropriate decision-maker to the conclusions made. (3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker's view of the case made by each party.
The appellants' submissions did not address these requirements. They assumed that the test of adequacy of reasons was the same for a Member of the Commission as it would have been for a judge. Whether or not the Member gave adequate reasons had to be assessed against the content of the legal duty which required the giving of reasons. However, it is not necessary to consider this issue any further because even if it is assumed that there was a duty to give reasons to the same standard expected of a judge, no breach of that standard is made out by the appellants. The nature of that standard was summarised in Ming, after referring to relevant authority: [43] What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties' cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.
Here, the appellants' submission appeared to be that the President erred in law in finding that the Member gave adequate reasons, where the Member had not done so in three respects: first, in the way in which the Member dealt with the evidence of Dr Herman and Dr Helprin; secondly and relatedly, in failing to address and explain why, although there was evidence from even Dr Herman that TRAP could be a contributing factor to cardiac arrhythmia (and represented an increase in risk), that contribution was not a substantial one; thirdly, in failing to address the factors set out in s 9A(2).
As to the first point, the way it was put was to much the same effect as the arguments addressed above in relation to constructive failure to exercise jurisdiction. As senior counsel for Ms Fisher put it, "failure to exercise jurisdiction point is obviously … fairly inextricably linked to what we would say is failure to provide adequate reasons". As addressed above, the Member did address the evidence in question. The real complaint seemed to be that he (in the appellants' submission) did not provide the correct reasons, or that the allegedly erroneous conclusion is betrayed by a lack of fulsome reasoning. Such points go to the merits of the decision. The views he reached on the evidence were manifestly open to him.
It was submitted that there was "no analysis of … the weight attached to the articles which Dr Helprin calls in aid of his conclusions". The submission is devoid of merit. The Member summarised the relevant articles at length at MD [30]-[47] and [52]-[55], then expressly relied upon them at [110] in concluding that "the evidence establishes that there is an increased risk of cardiac arrest associated with traffic-related air pollution". At [114] he said that "it is difficult on the evidence to reach definite conclusions as to the magnitude of the risk created by the TRAP to which the deceased was exposed on the day of his death", then went on to explain that conclusion at [114]-[123].
As to the second point, senior counsel for Ms Fisher submitted that in the Member's "consideration of whether TRAP was a substantial contributing factor, we don't know what test he applied". Senior counsel went so far as to submit that "there was no meaningful analysis of the evidence". That is far from being a fair characterisation of the Member's decision, key parts of which are referred to above at [76]-[83]. As explained there, the appellants mischaracterise the decision. Given that the Member found that no causal connection was established between the deceased's employment and his death it was neither necessary nor useful to go on to consider whether any such causal contribution could be characterised as substantial.
As for the third point, although not entirely clear it seemed that the appellants complained that the Member was not sufficiently fulsome in his discussion of s 9A(2), which provides "examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury" (to quote the provision). As was said in the joint judgment in Badawi, to "the extent that the matters specified in paras (a)-(f) are relevant to the case under decision, they must be taken into account and applied according to their terms" (at [89]). Obviously enough, if they are not relevant to the case under decision then they need not be the subject of analysis.
Here, the Member said the following: [128] To turn briefly to s 9A(2) while the time and place of injury, and that the nature of the work performed by the deceased weigh in favour of a causal connection, the deceased the state of health though prior to his death and the likelihood of him suffering a cardiac event at about the same stage of his life weigh against a connection. The other factors are largely immaterial. [129] A consideration of these factors does not alter my opinion that the applicant has not proven a causal connection between the deceased's employment on 22 January 2016 and his death.
Given his conclusion on causation - reiterated at [129] - it was understandable that he did not consider it necessary to address the factors in subs (2) at any length. Doing so would not have altered the result.
The appellants' complaint about the adequacy of the Member's reasons is not made out. The President did not err in law in so finding.

Conclusion

None of the appellants' challenges to the decision of the President have been made out. The appeals should be dismissed. The parties agreed that there should be no order as to costs.
SIMPSON AJA: I agree with Kirk JA.

Amendments 20 February 2024 - Case name updated. 20 February 2024 - Case name updated. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2024

Workers' Compensation Act 1987(NSW)s 9A

Health Practitioners Regulation National Law Act 2009(NSW)s 162

Workers' Compensation Act 1926(NSW)

Workers Compensation Act 1987(NSW)ss 4, 9, 9A, 9B, 25

ed v AAI Limited [2016] NSWCA 335 Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467 Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Cruceanu v Vix Technology (Aust) Ltd [2020] NSWCA 203 Day v SAS Trustee Corp [2009] NSWCA 222; (2009) 187 IR 338 Day v SAS Trustee Corporation [2021] NSWCA 71 Dover Navigation Co Ltd v Craig [1940] AC 190 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 Elzahed v State of New South Wales [2018] NSWCA 103; (2018) 97 NSWLR 898 Fisher v Nonconformist Pty Ltd [2023] NSWPICPD 12 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 Gittani Stone Pty Limited v Pavkovic [2007] NSWCA 355 Goodwin v Commissioner of Police [2010] NSWCA 239 Goodwin v Commissioner of Police [2012] NSWCA 379 Gorman v NSW Health Care Complaints Commission [2012] NSWCA 251 Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215 Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323 Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 Hetherington v Amalgamated Collieries of WA Ltd [1939] HCA 36; (1939) 62 CLR 317 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 Leichhardt Council v Roads & Traffic Authority of NSW [2006] NSWCA 353; (2006) 149 LGERA 439 Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 March v E & M H Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 Marshall v Director General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603 Melino v Roads and Maritime Services [2018] NSWCA 251; (2018) 98 NSWLR 625 Mercer v ANZ Banking Group Ltd [2000] NSWCA 138; (2000) 48 NSWLR 740 Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Patrick Operations Pty Limited v Comcare [2006] NSWCA 142; (2006) 68 NSWLR 131 Pettitt v Dunkley [1971] 1 NSWLR 376 Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 Public Service Board of NSW v Osmond [1986] HCA 7; (1986) 159 CLR 656 Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785 Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96 Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 SAS Trustee Corporation v Pearce [2009] NSWCA 302 Secretary, Department of Education v Dawking [2024] NSWCA 4 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd [2022] HCA 11; (2022) 273 CLR 454 TC (by his tutor Sabatino) v New South Wales [2001] NSWCA 380 Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 Walker Corporation Pty Limited v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 Wallace v Kam [2013] HCA 19; (2013) 250 CLR 375 Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19 Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54; (2020) 295 IR 172 Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Young v Chief Executive Officer (Housing) [2023] HCA 31; (2023) 97 ALJR 840 Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310 Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566 Texts Cited: Attorney-General for New South Wales, Second Reading Speech (Legislative Council, 26 November 1996, Hansard at 6509-6510) Category: Principal judgment Parties: Proceedings 2023/123158

Hicksons (Respondent in all matters) File Number(s): 2023/119752 2023/123158 2023/123788 Publication restriction: Nil Decision under appeal Court or tribunal: Personal Injury Commission Citation: Fisher v Nonconformist Pty Ltd [2023] NSWPICPD 12 Date of Decision: 22 March 2023 Before: President Judge Phillips File Number(s): A2-048/20 A3-948/20 A4-948/20

HEADNOTE [This headnote is not to be read as part of the judgment] The appellants are the widow and two children of Terry Clifford, a working director of the respondent company, Nonconformist Pty Ltd. Mr Clifford died from a sudden catastrophic heart attack whilst driving in the course of performing his normal duties as a courier driver. The appellants each made claims under the Workers Compensation Act 1987 (NSW) (WC Act), suggesting that the heart attack was triggered by the deceased's exposure to traffic related air pollution (TRAP). The respondent denied liability for those claims on the basis that the heart attack was not compensable under the Act. That denial was upheld by a member of the Personal Injury Commission and an appeal to the President of the Commission was dismissed. Each of the claimants appealed to this Court. That right of appeal requires that the party appealing is aggrieved by a decision in point of law under s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). A threshold issue was therefore whether such an appeal was on a point of law within the meaning of that provision. The appellants effectively abandoned the grounds in their amended notices of appeal, and relied on three reformulated three grounds of appeal: (i) the Member and the President misdirected themselves as to the proper test of causation within ss 4, 9 and 9A of the WC Act in various respects; (ii) the Member and the President constructively failed to exercise jurisdiction; (iii) the Member failed to give adequate reasons, and the President erred in law in not finding that to be so. The Court (per Kirk JA, Meagher JA and Simpson AJA agreeing) dismissed the appeals and held: As to the nature of the appeal (1) Section 353(1) of the WIM Act requires that the party appealing is "aggrieved by a decision of the presidential member in point of law". The provision can be read more broadly as referring to being aggrieved by the presidential member's decision where the grievance raises a point of law, or more narrowly as relating to a grievance where the presidential member has made an erroneous decision on a point of law. The former, broader view is the better construction: [33]-[45]. Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; Amaca Pty Ltd v A B & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Reports 81-910; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Day v SAS Trustee Corp [2009] NSWCA 222; (2009) 187 IR 33; SAS Trustee Corporation v Pearce [2009] NSWCA 302; Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19; Goodwin v Commissioner of Police [2010] NSWCA 239; Amaca Pty Ltd v Doughan [2011] NSWCA 169; Goodwin v Commissioner of Police [2012] NSWCA 379; Amaca Pty Ltd v Raines [2018] NSWCA 216, considered. Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 53; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, referred to. (2) The focus in an appeal such as this should be on the President's decision, not the decision of the member. The appeal need not involve a decision made by the presidential member on a point of law so long as the grounds raised in this Court are on points of law. Relevant points of law include jurisdictional errors or other errors of law. Any error must be material in order to obtain relief. The point of law need not necessarily have been raised below, for example if a pure issue of law is raised such as an argument that the presidential member has misconstrued the statute. Especially for issues which are not pure matters of law, it will often be the case that a presidential member will not have erred in law if an issue which could have been raised below was not. If the presidential member has wrongly rejected an argument that the non-presidential member made jurisdictional or other legal error, then that will generally manifest legal error by the presidential member: [46]-[51]. Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66; Elzahed v State of New South Wales [2018] NSWCA 103; (2018) 97 NSWLR 898, considered. Yates Property Corp Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177; Melino v Roads and Maritime Services [2018] NSWCA 251; (2018) 98 NSWLR 625, applied. Attorney-General (NSW) v X [2000] NSWCA 199; (2000) 49 NSWLR 653; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478, referred to. As to the first ground - the test of causation (3) Section 4(a), together with s 9, of the WC Act establishes a test of causation insofar as it refers to "personal injury arising out of … employment", which involves consideration of whether the employment caused or to some material extent contributed to the injury, consistently with the approach in tort: [62], [70]. Section 9A of the WC Act also establishes a test of causation in requiring that "the employment concerned was a substantial contributing factor to the injury", where this imposes a more stringent causal requirement than that involved in the causal requirement in the first limb of s 4(a): [65]-[71]. Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324; (2009) 75 NSWLR 503, applied. Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119; Gould v Vaggelas [1984] HCA 68; (1984) 157 CLR 215; Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613, considered. (4) The Member did not misdirect himself in not referring in terms to the statement in Badawi that "substantial contribution" in s 9A involved a connection that was "real and of substance". The Member referred to and applied the statutory language. Properly understood, the Member held that causation was not made out, even on the lower standard consistent with the common law approach in tort, because all that the evidence established was that exposure to TRAP increased the deceased's risk of heart attack and not that that risk came home. Issues of the substantiality of the contribution of the employment did not arise: [73]-[84]. Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; Marshall v Director General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603, applied. Seltsam Pty Limited v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, referred to. (5) Making out an increase in risk is not enough of itself to establish causation in tort as that notion is currently understood in Australia. The same applies in relation to causation under s 9A of the WC Act. The Member did not err, thus, in applying the principle articulated in McGuiness: [85]-[102]. Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307;TC (by his tutor Sabatino) v New South Wales [2001] NSWCA 380; Gittani Stone Pty Limited v Pavkovic [2007] NSWCA 355; Amaca Pty Limited v Gatt [2022] NSWCA 151; Mt Pleasant Stud Farm Pty Ltd v McCormick [2022] NSWCA 191; Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870; Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111; Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36, referred to. Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538; Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514; Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, considered. Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees [1994] HCA 34; (1994) 181 CLR 96, applied. (6) References to "common sense" causation connote a number of ideas. One aspect of that usage, relating to normative or purposive limitations on factual causation, has fallen into disfavour. Here, the Member's references to common sense causation did not manifest error: [103]-[114]. The Member thus did not misdirect himself as to the test of causation in any of the ways asserted by the appellants, and the President thus did not err in finding accordingly. Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568; Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613; Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467, considered As to the second ground - constructive failure (7) The appellants raised a form of constructive failure of jurisdiction based on the alleged failure by the Member to respond to a critical argument. Yet they made little effort to identify a clear, material argument with which the President had not engaged, such that he made an error of law by failing to find a substantial, clearly articulated argument had been put to the Member in turn, and not addressed by him. It is not sufficient to complain that the Member or President addressed something in an incorrect manner, as this may simply be an erroneous conclusion within jurisdiction: [119]-[121]. There was no relevant failure to deal with the evidence of the various medical experts: [123]-[135]. Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; Day v SAS Trustee Corporation [2021] NSWCA 71; Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209; (2022) 109 NSWLR 604, followed. Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260, referred to. As to the third ground - adequacy of reasons (8) Whether or not the Member gave adequate reasons had to be assessed against the content of the applicable legal duty requiring the giving of reasons, which duty was found in s 294 of the WIM Act and r 78 of the Personal Injury Commission Rules 2021. Even if it was assumed that that duty was to the same effect as the duty applying to a judge, the complaint about adequacy of reasons was not made out: [136]-[147].

(2006) 149 LGERA 439

(2022) 109 NSWLR 604

(1995) 12 NSWCCR 566

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