"The result of the cases is that each case where causation is in issue in a workers' compensation claim, must be determined on its own facts. 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 death or injury, 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. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation." (my emphasis)

1. As the first respondent noted in its submissions, causation is not established merely by showing that a relevant event increased the risk of death: Seltsam Pty Ltd v McGuiness [2000] 49 NSWLR 262 and State of New South Wales v Culhana [2025] NSWCA 157 at [23] (Culhana). Rather, there must be an actual persuasion of the causal link sought to be established, having regard to the totality of the evidence and examining it on a commonsense basis.
2. The authorities make clear that when dealing with issues of causation, a trier of fact is entitled to have some recourse to the sequence of events and to common sense: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42. However, as with this matter, where an issue lies "outside the realm of common knowledge and experience" it should be determined by reference to expert medical evidence: Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 [180]. The decision in Tubemakers was affirmed by the High Court Lithgow City Council v Jackson (2011) 244 CLR 352 (Jackson) where the Court held at [66] that inferences on causation which call for more than the application of common sense or the finder of fact's experience of ordinary life can only be drawn in the light of expert medical evidence.
3. It is trite law to say a condition may have multiple causes. In ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 at [27] the High Court stated as "uncontroversial" the proposition that there can be multiple causes of the damage suffered by a plaintiff.
4. Where a condition or death is a consequential condition which may have multiple causes, the applicant is required to show on the balance of probabilities that the consequential condition arose "as a result of" the compensable injury. This phrase, in the workers compensation context, has been held to mean whether the injury materially contributed to the consequential condition or death: Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 (Murphy). The requirement of material contribution is less stringent than the test of substantial contributing factor as required to establish injury in s 4 of the 1987 Act, or of main contributing factor as required with injuries in the nature of a disease process or an aggravation to a disease process. The injury does not need to be the sole or dominant cause, or even a substantial contributing factor; but it must be a material cause: Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10; (2013) 247 CLR 613.
5. Nevertheless, it is important to keep in mind that material contribution to an injury or a consequential condition is not satisfied just by a material increase in risk: Sydney Southwest Area Health Service v Stamoulis [2009] NSWCA 153. There must be evidence to the required standard of proof to "bring that risk home."
6. By way of example, in March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 (March), the plaintiff was injured when the vehicle he was driving struck a truck which had been parked in the middle of the road, partly blocking the marked lane in which he was travelling. The accident happened at 1.00 am and the driver of the truck had parked the truck in the middle of the road as part of his usual practice while delivering fruit and vegetables. At the time of the accident the plaintiff was travelling in excess of the 60 kmph speed limit and had a blood alcohol reading of at least 0.18, which substantially impaired his co-ordination and ability to judge distance and speed. He failed to see the truck.
7. At first instance the plaintiff succeeded on negligence, with a 70% finding of contributory negligence. The Full Court upheld an appeal that the plaintiff was the "real cause", the majority applying a "last opportunity" test. An appeal to the High Court restored the judgment in favour of the plaintiff. In Dominello v Dominello; Dominello v The Nominal Defendant [2009] NSWCA 95, the majority of Macfarlan JA and Beazley JA referred to the facts in March and said at [11]:

"Both the driver of the car and the person who had parked the truck in the middle of the road were held to have been negligent and to have contributed to the injury suffered by the driver of the car. Neither the negligent driving nor the negligent parking was a sufficient condition because if either had been absent, the accident would not have occurred. Nevertheless, both materially contributed to the accident."

1. A commonsense evaluation of whether a material contribution has been made is more stringent than a mere "but for" test of causation. Events which are not really a cause but merely a necessary precondition for the real causes to have effect does not make a material contribution. To use an extreme example, in order for a plaintiff to be involved in an accident on their way to work, they must have got out of bed that morning and left their home. However, the fact they got out of bed is no more than a precondition to them being at the location of the accident and cannot be said to be a real cause of the misadventure: Dale Wesley Lawton v Star City Pty Limited, NSWCC, 16 October 2002, Burke ACCJ (unreported) (Lawton).
2. Similarly, an event which merely sets the scene upon which other circumstances play out is not a material contributor to the event in question: see for example Dorothy Joyce Stone v Mid-Western Area Health Service (Peak Hill Hospital), NSWCC, 22 July 2002, Burke CCJ (unreported) where his Honour held "employment set the stage, but it wrote none of the script."
3. In this matter, it is necessary to determine on a commonsense basis whether there is an unbroken chain of causation between the deceased's injury and the development of the DVT such that the injury made a material contribution to the DVT, which it is in turn agreed was causative of the deceased's death.

1. Each of the applicant and the second to fourth respondents gave oral evidence. It is appropriate to summarise that evidence in turn.

1. The applicant conceded that the deceased would often attend appointments by herself and carried out housework to her detriment. The applicant noted the deceased mostly attended to the grocery shopping via click and collect orders rather than physically doing the shopping.
2. The applicant gave evidence that by the last few months of her life, the deceased was largely bedridden, though attended to some chores which caused her pain but the undertaking of which were good for her self-esteem.
3. The applicant conceded the deceased helped the third respondent with her newborn child, in that the third respondent would frequently go to work and the deceased would look after the baby.
4. Mr Priestley suggested to the applicant his statement evidence the deceased had been in bed 90% of the time was not accurate, and in fact she was up and about a lot. The applicant replied that the deceased was only really active in the last few weeks of her life to get up to go to the toilet and was less and less active towards the December-January period, effectively being all but bedridden during this period.

1. The second respondent conceded she had four children, and that the deceased was present in their lives in her capacity as grandmother. When it was suggested to the second respondent that the deceased provided help with her children in the last 12 months of her life, the second respondent disagreed, noting the children were able to look after themselves and that the second respondent's family would attend on the deceased's premises, rather than the deceased attend on hers.
2. The second respondent stated she went to see the deceased between three to four times per week, and at times they would go shopping together. She conceded the deceased became less mobile towards the end of her life, and by the final few months was in bed almost the entire time, and very breathless a few days before she died. When asked whether there was a period in the lead up to her death when the deceased became less mobile, the second respondent said:

"Yeah, definitely. She was less mobile for a long period of time, like I can't really pinpoint the time exactly but it was - she was just tired physically. Mentally tired. I could tell she wasn't herself leading up to before she passed away. She was in bed all the time, she had an ensuite, she would go from the toilet to the bed. Just the few days before she passed she was just really breathless..." [day one T23.5]

1. On re-examination, the second respondent stated that towards the end of her life, the deceased was basically bedridden and would only get up to go to the toilet with the aid of a walking stick.

1. The third respondent made a correction to her statement, noting that the evidence contained in [17] to the effect the deceased cared for her child one to two days per week until the time of her death was incorrect, and that care no longer took place after approximately the first week of December 2021 as the third respondent was on leave from that time until the time of the deceased's death. At this time, the third respondent's baby was 13-14 months old. The third respondent described the deceased's condition in the months leading to her death as follows:

"13. Luna was just over one year old in the months leading up to Mum's passing. Her pain was increasing and her mobility was declining in the months leading up to her passing. She was reliant on her walking stick; wherever she went her walking stick was with her. Luna was very young, and an easy baby and Mum was able to cope with caring for her.

1. On the days she cared for Luna while I went to work, Mum did not take her medication as she wasn't allowed to drive while on them. By the time I home from work, Mum was in visible pain and I noticed that she hurried home. She told me it was so she could take her pain medication to ease her discomfort. Mum knew that I needed her and put on a brave face to help me."
2. The third respondent stated the care provided by the deceased was changing of nappies, giving bottles to her baby and assisting with putting the baby to sleep around midday and giving afternoon tea.
3. During cross-examination, the third respondent conceded she worked with the local council and did so in 2020 before her baby was born. Her evidence was the deceased would come to her house between 8 and 8.30 in the morning, remaining with the baby until the third respondent arrived home at approximately 4.00 pm, and this would happen at least one day per week. She said the deceased also provided assistance on some Fridays and other days when the third respondent's work commitments required.
4. The third respondent conceded there were discussions up to approximately November 2021 about the deceased undertaking an extra day's care of her baby, namely a Tuesday. The third respondent stated she and her husband were concerned by December 2021 her mother would be unable to carry out that care, as she was aware the deceased had colitis in 2021 and was repeatedly complaining of being tired and in pain.
5. On re-examination, the third respondent noted the deceased in 2021 was complaining of pain to her back, knee, and also in relation to her stomach cramping and problems with her bowel movements. When asked about the complaints of pain, the third respondent said:

"It was stomach cramping and her back, her knee as well. A lot of the time it was at that point her bowel movements, yeah, I recall her saying - that was a lot of the reason as to why she couldn't care for Luna on some Wednesdays as well because she was just on the toilet constantly and she was worried obviously if Luna was here that she wouldn't be able to give her the level 20 of care that she needs." [Day one T43.15]

1. The fourth respondent adopted the evidence contained in her statement, but corrected one aspect of it, namely in relation to the deceased's attendance on appointments with her. In evidence in chief, the fourth respondent noted that after the deceased suffered the fall the subject of these proceedings, she did not attend on appointments with the fourth respondent.
2. In cross examination, the fourth respondent conceded the deceased's fall when she hurt her back was more than five years before her death. She acknowledged the deceased also suffered from Crohn's disease which sometimes debilitated her, but despite which the deceased would often provide support to the fourth respondent.
3. The fourth respondent maintained she would see the deceased quite regularly, but mostly when she attended on the deceased rather than vice versa.
4. It was put to the fourth respondent that given she lived some distance from the deceased, she was unaware as to the deceased's status in the months and weeks leading up to her death. In response, the fourth respondent noted she and her mother spoke twice daily.
5. The fourth respondent conceded the deceased complained of being tired throughout 2020 and 2021, and that she complained of the effects of colitis around this time as well those relating to her work injury. In re-examination, the fourth respondent stated she saw the deceased every few weeks.

1. Each of the applicant (and by extension the second to fourth respondents) and the first respondent relied on IME evidence. The applicant relied on Dr Hopcroft, orthopaedic surgeon, and Dr Conrad, general surgeon. The first respondent relied on Dr Truskett, general surgeon; Dr Myers, general and vascular surgeon and Prof Wakefield, immunologist and pathologist.
2. Each of the IMEs save Prof Wakefield also gave oral evidence. It is appropriate to summarise the expert reports and, where appropriate, the oral evidence of each of the experts.

1. Dr Hopcroft provided three reports, dated 11 May 2020, 30 June 2020 and 3 March 2025 respectively. He was the only expert witness who examined the deceased.
2. In his first report, Dr Hopcroft referred to the results of his examination of the deceased and made the following comments:

"On examination, she is an articulate lady of stated age, 5'1 tall and weighing 96 kg. She had very little insight into the fact that she needs to significantly reduce her weight if she is to see any improvement in her back pain problem.

She has marked restriction in movement of her lumbosacral spine in all directions with a loss of more than 60% of the range of flexion, extension, right hand left lateral bending and right hand left lateral rotation. She struggled to carry her weight on the toes of each foot and she struggled to go into a loaded flexion squat beyond 130 degrees, a bilateral loaded knee flexion.

She struggled to assume the supine position on the examination couch. Straight leg raising was to a mere 15 to 20 degrees bilaterally. However, deep reflexes at both knees and ankles were symmetrical and equal to repeated examination, and the plantar responses were down going.

She had some minor patellofemoral crepitation of the left knee joint with pain at that site but all major ligaments were stable. There was no peripheral oedema and peripheral pulses were palpable."

1. In terms of the deceased's status in May 2020, Dr Hopcroft noted she found lifting and bending difficult and that she required her granddaughter to shop with her.
2. Dr Hopcroft noted the deceased was "on a gamut of medication" including:
   • Inza, 250 mg;
   • Pristiq, 50 mg;
   • Tramal, 100 mg x 2/daily;
   • Endone, five mgs x 2/daily;
   • Valium, five mg, as necessary, and
   • Norflex 100 mg x 2 daily when necessary.
3. At May 2020, Dr Hopcroft described the deceased's prognosis as guarded and dependent on her losing significant weight, returning to hydrotherapy and walking using a walking stick where necessary.
4. Dr Hopcroft's second report dated 30 June 2020 contained his opinion based on updated radiological evidence. He discussed the findings of a CT scan of the deceased's back taken on 25 February 2019 and stated:

"Both those investigations were undertaken in the supine position, negating the effects of gravitational compression. Should the patient have been studied in a vertical/upright position, such positioning in an MRI scan often shows increased protrusion of disc bulges and protrusions by reengaging gravitational compression forces, and as this patient has pathology at multiple levels, she is not a candidate for neurological review or intervention.

I believe this patient, during activities of daily living when she is sitting or standing, develops nerve root compression symptoms by analysing the history of her right lower limb radiculopathy under those circumstances.

As a result of her injury, this patient has been left severely compromised in her ability to stand, rotate, squat, kneel or undertake repeated bending and lifting activities as her back pain and sciatic syndrome increase during such activity and places her at extreme risk of further protrusion of her intervertebral disc pathologies.

She is unfit to contemplate a return to her preinjury duties with the respondent as her capacity for employment is significantly compromised as she is now 58 years of age and is requiring a daily use of significant analgesia, including narcotic analgesics which compromise her attention span and her safety in prolonged sitting, standing, walking, lifting and rotation manoeuvres.

This patient may be able to undertake short-term sedentary work of a part-time nature, perhaps four hours a day, three days a week but she is likely to be unreliable in such an employment situation due to the variability of her symptoms complex that can be aggravated simply by coughing, sneezing and other routine daily activities."

1. On 3 March 2025, Dr Hopcroft provided a further report in which he provided an opinion concerning the deceased's cause of death, taking into account her medication, activities of daily living and colitis of the bowel. He found:

"I have enclosed extensive pharmaceutical details of her poly-pharmaceutical medications highlighting several medications, namely Desven, Crosuba, Inza, Purinethol (which requires very close perusal, as one of the serious allergic side effects of that medication is troubled breathing). Along with those four medications, I am supplying details of the anti-inflammatory agents Salofalk and Simponi, completing her particularly long list of poly-pharmaceuticals where cross reactions can cause significant medical complications.

It is far more probable than not that, as a result of this extensive prescribed medication, this patient had several causes for extensive and chronic pancolitis (inflammation of her entire bowel) with her extensive analgesic medication slowing her activities of daily living and predisposing the patient to deep veinous thrombosis. Taking into account that her back and knee injury suffered in the course of her work was the cause of her extensive treatment seeking analgesia.

While this patient's left sided deep veinous thrombosis and pulmonary thrombo-emboli may have been her terminating cause of death, I must bring to your attention the chemotherapeutic agent she had been prescribed for her pancolitis (Purinethol) can cause trouble breathing which I note was the triggering factor for the patient to ring for the ambulance on the day of her death on 29 December 2021.

It is my opinion following a careful analysis of this patient's management of her work-related injury at Liquorland at Wingham on 24 October 2016 was the main contributing factor to the patient's ultimate death."

1. Dr Hopcroft's opinion noted both the deceased's lack of activity and her colitis may have contributed to the onset of her DVT. However, he also stated the drug she was taking for her colitis may cause shortness of breath, which was the reason the deceased called for the ambulance on her date of death.
2. During his oral evidence, Dr Hopcroft's position appeared to be that the drugs the deceased was taking could aggravate her colitis. That view was disputed by Dr Truskett, IME for the respondent in his oral evidence. Dr Hopcroft accepted, however, there is a known connection between colitis and the development of DVT.
3. Dr Hopcroft stated in his oral evidence that the medication the deceased was taking as noted in the coroner's report could have slowed down her ability to mobilise and to be active.

1. Dr Conrad provided two reports, dated 19 August 2022 and 26 June 2024 respectively. At page three of his first report, Dr Conrad provided the following opinion:

"Based on paperwork, [the deceased] had a significant back injury whilst employed by Liquorland and had very significant back pain for a considerable period of time which was treated with a multitude of very strong pain medications, which from time to time caused bloodstained mucus discharge probably due to colitis. In addition, due to unsteadiness in her back, she also had two falls, injuring her knees. It is my view that due to a combination of severe loss of mobility compounded by the need to take a multitude of very potent analgesics, she developed severe hypomobility which undoubtedly caused her a deep vein thrombosis and massive pulmonary emboli resulting in her death."

1. When specifically asked for his view on whether the medications the deceased was taking to treat her pain and effects of her injuries would be likely to have caused the DVT of her left calf, Dr Conrad replied:

"There is no doubt that the multitude of pain medications would have contributed to the deep vein thrombosis in her left calf. I would have to state that the medications would have strongly contributed to the hypomobility. It was the hypomobility and lack of activity caused by a combination of severe back and knee pain, as well as the slowing down effect of the pain killing medications that would have undoubtedly caused the deep vein thrombosis."

1. During cross-examination, Dr Conrad conceded the deceased's colitis would have contributed to her hypomobility but was unaware of a link between colitis and the development of DVT. The latter opinion is contrary to the balance of the medical opinion in this matter, including that of Dr Hopcroft, the applicant's other IME. On balance, I am satisfied that there is a known link between colitis and the development of DVT.

1. The first respondent qualified Dr Myers, general and vascular surgeon, who provided five reports between 8 June 2023 and 12 May 2025. Dr Myers was of the view the medications taken by the deceased for her spinal injury would not have caused hypomobility, but rather their use would have increased her mobility given their pain killing effects. He found no causal link between the deceased's back injury and the onset of the DVT.
2. During cross-examination, Dr Myers conceded that at higher levels, the medication taken by the deceased could have contributed to an effective sedation upon her. The applicant submitted such a concession was consistent with the view of the coroner, who found the amount of some medications in the deceased system was in the higher range and would have caused some sedation.
3. Dr Myers also noted in his oral evidence that if someone went to bed and virtually never got up, their risk of DVT would increase. The applicant submitted the lay evidence of the deceased's family demonstrated a significant decline in her mobility for several weeks in the lead up to her death.

1. In his first report, Dr Truskett stated the treatment of the deceased's gastrointestinal condition did not have a concrete relationship with the onset of her DVT. In his later reports, Dr Truskett noted his opinion in relation to causation was based on the assumption the deceased was "quite mobile" at the time of her death, a position he maintained throughout his reports.
2. During oral evidence, Dr Truskett conceded hypomobility was a risk factor for the onset of DVT. However, he stated that in circumstances where a patient was immobile in the sense of being in bed most of the time but getting up occasionally, there would not be an increased risk of DVT. Dr Truskett said at [T19.9.25 at 11]:

"It usually takes at least seven to 10 days, sometimes longer so that the sequence of events is the pulmonary embolus usually presents no earlier than seven or eight days after the development of the DVT. So I would have to say in my experience, if she was bed bound for four days, that wasn't time for the pulmonary embolus to mature to a level to cause death but that would be my opinion."

1. Prof Wakefield provided a report dated 24 May 2023. He opined that some of the medication the deceased took for colitis may have contributed to the onset of the DVT and noted there was a recognised association between colitis and the development of thrombosis. Prof Wakefield also noted a range of possible contributing factors, among them decreased mobility on the part of the deceased.
2. Prof Wakefield was asked about any causative effects between colitis and the deceased having undertaken the COVID-19 vaccine. He said such a connection is scientifically unproven.
3. In conclusion, Prof Wakefield stated:

"Ms Whear's tragic death because of DVT and pulmonary embolism was more likely than not due to a combination of factors. These include ulcerative colitis, obesity, arthritis decreasing her mobility, medications such as sedating narcotic analgesics further decreasing her mobility. On the balance of probability, it is more likely than not that treatment with anti-TNF inhibitors and COVID vaccination, which caused a flare in her UC (based on her symptoms and raised to CRP level) contributed to developing a DVT and subsequent pulmonary embolism."

1. Although no inquest was held, an autopsy was nevertheless requested for the coroner. That report confirms the deceased's cause of death. The comments of Dr David, who completed the autopsy include the following:

"5. Toxicological analysis showed a low blood alcohol level of 0.010g/100mL. Other prescription drugs were detected in blood at non-toxic levels but some drug levels would be regarded as being in the high range.

1. The overall effects of these drugs would be expected to be one of sedation/ drowsiness and therefore possibly prolonged immobility. If correct, this may have been [a] factor in the development of a DVT."

1. The documentation before the Commission includes a number of treating records and reports. Among them are reports of two colonoscopies carried out on the deceased in

May 2021 and on 1 December 2021. The first of these studies showed the presence of active colitis, the second showed none. However, the expert medical opinion does indicate that even when colitis is asymptomatic, there is still a link between it and the onset of DVT, as the condition is an autoimmune one and not a temporary illness. 2. Nevertheless, it is apparent the applicant had made a significant recovery in relation to her colitis between May and December 2021. 3. The evidence also discloses the deceased suffered an injury to her knees in a fall when her back gave way in November 2019. 4. A clinical record of 7 January 2021 notes the prescription to the deceased of Diazepam, Endone, Panadeine Forte, Tramal and Pristiq. It was not until some time after this entry that the deceased was diagnosed with colitis. It therefore follows, as submitted by the applicant, that these medications were prescribed for the deceased's back injury. 5. The clinical records also show the deceased's back injury had deteriorated in the latter part of 2021 to the point where she agreed to neurosurgical review by Dr Parkinson in November 2021. On 21 November 2021, Dr King, pain physician noted the deceased presented with chronic back pain with aggravating factors such as spinal loading on prolonged standing or walking. Dr King noted the deceased was more comfortable laying on her side.

1. As noted, the applicant must demonstrate the deceased's accepted injury made a material contribution to the onset of the DVT and thrombo-embolism which led to her death. He brings his claim on the basis that the DVT was brought about by hypomobility caused as a consequence of either the pain caused by and/ or the medication taken to relieve the symptoms of the deceased's injury.
2. The first factual inquiry flowing from the presentation of the applicant's case is obvious; namely, whether the deceased actually suffered hypomobility in the lead up to her death. Absent an actual persuasion of that fact, the applicant's case must fail: see Nguyen and Culhana, op.cit.
3. Having regard to the totality of the lay and medical evidence, I am satisfied on balance that the deceased did suffer hypomobility in the weeks leading to her death. The evidence of the applicant and the second-to-fourth respondents is consistent in noting a slowing down by the deceased in the months leading to her death along with persistent complaints of pain and tiredness, culminating in the weeks leading up to the death of her being all but bed-ridden.
4. This finding is consistent with the applicant's evidence as to the deceased being bedridden save for toilet breaks in the lead up to her death, with the applicant providing a small cooler next to her bed with drinks and food in it. Additionally, although the cross examination of the applicant and third respondent disclosed the deceased continued to look after the latter's infant daughter through 2021, I accept the third respondent's evidence that she was on leave from work from early December 2021, such that the deceased was not required to look after her daughter in the weeks leading to her death.
5. Although the IME evidence deals principally with the cause of the DVT, there is little substantive discussion by the experts as to whether the deceased was in fact hypomobile before her death.
6. That observation is not made critically of the doctors, as they are not in a position to say what the deceased's mobility was like in those weeks leading to her death. Relevantly, none of the experts save Dr Truskett rule out the likelihood of the deceased having suffered hypomobility at all. Rather, their opinions differ as to the cause of the DVT itself.
7. Dr Truskett largely predicates his opinions on the basis the deceased was "quite mobile" in the lead up to her death, however, in my view the evidence does not support that opinion and I do not accept it.
8. In any event, Dr Truskett did concede a causal link between hypomobility and DVT. He stated, however, that there would not be an increased risk in circumstances where someone was largely bedridden for several days and got up to toilet themselves.
9. Having regard to the lay evidence surrounding her circumstances in the weeks before her death, I find the deceased suffered hypomobility in the lead up to it. That finding is, in my view, also consistent with the treating evidence which noted a worsening of her condition culminating in referral for neurosurgeon consultation in November 2021, approximately one month before the date of death.
10. Having found the deceased suffered hypomobility, one must then examine the evidence on a commonsense basis to determine whether there is an unbroken chain of causation between the injury and the hypomobility.
11. As noted, the applicant was taking extensive and powerful analgesic and anti-inflammatory medication throughout 2021, as recorded in the report of Dr Truskett. It was also noted by the coroner that on examination, the deceased had been prescribed medications including oxycodone, amitriptyline Desvenlafaxine, Panadeine Forte, Allosig, Salofalk and Simponi SmartJect pref pen. The coroner then reported:

"Prescription medications were detected at non-toxic levels. However, this may have caused some drowsiness and possibly immobility which may have contributed to the deep vein thrombosis."

1. The lay evidence establishes the deceased became significantly less active and virtually bedridden for the last few weeks of her life, and that her back condition was worsening at that time. There is no question the deceased also suffered colitis in 2021; however, the colonoscopy of 1 December 2021 showed no active colitis present at that time.
2. Although I accept that even asymptomatic colitis may lead to increased risk of DVT, this does not mean the colitis was causative of the deceased's hypomobility in circumstances where it was rendered asymptomatic approximately one month before her death. Rather, I accept the preponderance of the lay and medical evidence establishes it was the applicant's back injury and the drugs prescribed to treat it which led to her becoming virtually bedridden. That finding is supported by the applicant's IME evidence as set out above and also by the treating material, which discloses a worsening of her condition in or about November 2021, the prescription of heavy medication throughout this time and the ongoing complaints of serious pain recorded by the applicant and second to fourth respondents.
3. Although Dr Myers expressed the view in his report that the medication prescribed for the back injury would have had the effect of increasing the deceased's mobility owing to their analgesic effect, in cross examination he conceded that at higher levels they could lead to sedation. That opinion is, in my view, broadly consistent with that of the coroner, who noted the levels of medication found in the deceased were in the high range, and as such could lead to prolonged immobility. This view of the coroner is, in turn, consistent with the lay evidence that the applicant remained in bed, and only got up to go to the toilet, such that she even had an Esky with food and drink next to her bed in those last few weeks of her life.
4. In any event, even if the deceased's colitis was partly causative of her hypomobility (which I do not accept), her back injury may also have relevantly caused it.
5. In relation to the cause of the DVT, one is again reminded that a condition can have multiple causes. I have no difficulty accepting the deceased's colitis was a risk factor in the onset of the DVT, even if the colitis was asymptomatic at the time. It is perfectly feasible that the presence of the colitis and the deceased's hypomobility caused by her back injury and the treatment of it were each materially causative of the development of the DVT.
6. To his credit, Dr Myers admitted in cross examination that if someone was largely bedridden for a protracted period and virtually never got up, their risk of DVT would increase. In my view, the evidence establishes this was the case with the deceased in the lead up to her death.
7. I have no difficulty accepting the reduction in the applicant's mobility was linked both to her severe spinal injury and medication which she took for it. To an extent, the question of whether the applicant was also rendered largely immobile by the effects of her colitis is somewhat moot. This is because, as has been noted earlier in these reasons, a relevant condition may have multiple causes, and in cases of an alleged consequential condition, the applicant only need establish the injury made a material contribution to the onset of the DVT, rather than either a substantial contributing factor to its onset or the main contributing factor. Additionally, even if the colitis did not contribute to the deceased's hypomobility, it may still have been a causative factor in the development of the DVT.
8. The findings of the coroner as to the effects of the drugs taken by the applicant for her back injury also broadly tie in with the quite appropriate concession made by Dr Truskett in his evidence, namely that if the drugs which the applicant was prescribed were taken in large quantities and if she repaired to bed where she largely remained for an extensive period of time, then there was a risk of DVT developing.
9. The presence of colitis, even if it did contribute to the DVT, does not preclude hypomobility and the applicant's medication for her spinal injury having made a material contribution to the onset of the fatal consequential condition, nor does it break the causal chain on a commonsense basis.
10. In my view, the opinion of Prof Wakefield is also important in relation to causation. Prof Wakefield, who was not questioned by any counsel in this matter, noted the deceased's death was more likely than not due to a combination of factors. I have little difficulty accepting this was the case. Prof Wakefield's unchallenged evidence is that those factors included the chronic ulcerative colitis, obesity, arthritis decreasing the deceased's mobility, and medications such as sedating narcotic analgesics (which she was taking for her back injury) further decreasing her mobility. In my view, a fair reading of Prof Wakefield's report leads to the conclusion he was of the view that hypomobility and the deceased's intake of analgesic medication were also contributing factors to the development of the DVT and subsequent fatal pulmonary embolus.
11. This conclusion by Prof Wakefield is, in my view, consistent with a finding that the deceased's injury made a material contribution to the onset of the DVT. As noted, Prof Wakefield was not called to give evidence, nor was his conclusion questioned.
12. In terms of the length of time it would take for emboli to leave a DVT and progress to the pulmonary system, Dr Myers stated in cross examination the relevant period was within one to two weeks of its formation. Dr Truskett opined the period was no earlier than seven to eight days. Each of those timeframes falls well within with the period of immobility on the part of the deceased as disclosed in the lay evidence.
13. Were it the case that the applicant was required to prove the deceased's back injury and treatment from it was the main contributing factor to the development of the DVT, the evidence may not have satisfied such requirement. However, the requirement of "material contribution" is a much lower bar.
14. In my view, the preponderance of the medical evidence, both qualified and treating, when combined with the lay evidence supporting a marked decline to a state of hypomobility in the deceased in the lead up to her death, establishes the accepted back injury made a material contribution to the onset of the DVT and was therefore a consequential condition of the injury. I am therefore satisfied, having examined the totality of the evidence that on the balance of probabilities there was an unbroken chain of causation between the injury and the DVT, such that the work injury made a material contribution to the DVT and emboli which caused the deceased's death.
15. It follows from these findings that the first respondent will be ordered to pay to the applicant the death benefit and cost of funeral expenses, subject to the findings in relation to apportionment set out below.

1. I am satisfied that each of the applicant and the second to fourth respondents were, at the time of the deceased's death, dependent for support upon her. The evidence of each of those parties satisfies me that this is the case, and I note no submissions were made to the contrary by any party to the proceedings.
2. The applicant and second to fourth respondent indicated to the Commission that agreement had been reached with respect to apportionment. Notwithstanding this being the case, it is necessary for the Commission to be satisfied as to the degree of apportionment appropriate in the circumstances.
3. Having regard to the statement evidence concerning dependency, I am satisfied that there are no other persons who were dependent on the deceased at the date of her death apart from those who are party to these proceedings, and an appropriate apportionment between the dependent parties is as follows.

(a) applicant, 55%;

(b) second respondent, 15%;

(c) third respondent, 15%, and

(d) fourth respondent, 15%.

1. Funeral expenses are also claimed in the amount of $10,420.91. There is no dispute as to the reasonable necessity of those expenses, and accordingly, the first respondent will be ordered to pay the funeral expenses in that sum.

1. The payment of interest is discretionary, and no interest is payable before a claim is duly made. The applicant submits the claim was duly made on 7 February 2022 when a notice of claim was served, or in the alternative on 13 April 2023 when the death benefits claim was declined by way of s 78 notice.
2. However, a claim is not duly made until properly particularised: Kathryn Ann Kratz (as executrix of the Estate of the Late Owen Bebal) v Qantas Airways Limited [2020] NSWWCC 36.
3. The first respondent requested particulars of the applicant's claim in a letter dated 18 February 2022, in which the respondent asked how the deceased's death was causally related to her employment with it. Responses to that request for particulars were provided on 30 August 2022 and 11 January 2023. The first of those letters responded to the above question by saying "the pain medication has caused deep vein thrombosis in her left calf, which went on to cause the pulmonary thrombo-emboli of her lung, which in turn caused her death".
4. The claim was declined in s 78 notices dated 13 April 2023, 26 June 2023 and

5 January 2024. Those s 78 notices relied on the report of Dr Truskett dated 4 April 2023 and his opinion in relation to causation, which has been set out above. 5. The applicant then filed Application with Respect to Death of a Worker on 8 March 2024, however, that claim was discontinued on 6 June 2024. 6. The current proceedings were commenced on 17 March 2025, such process apparently being adopted to allow further medical evidence to be obtained. That medical evidence provided an additional basis which was materially different for the claim, namely that hypomobility caused by pain and by medication led to the DVT. 7. In the circumstances, I accept the respondent's submissions that the claim as currently formulated then was not duly made before 17 March 2025, and not until the medical evidence in support of the new claim was then served in those proceedings. That medical evidence consisted of the further reports of Dr Hopcroft dated 3 March 2025 and Dr Conrad dated 26 June 2024, both of which were obtained after discontinuance of the original proceedings. 8. This approach to the question of when a claim is "duly made" is consistent with that of Senior Member Haddock in NSW Trustee and Guardian v Container Terminals Australia Limited [2025] NSWPIC 33 at [152]- [158], in which the Senior Member limited interest to the date from which the necessary medical evidence and support was served. 9. Given these findings, the first respondent will be ordered to pay interest on the death benefit sum and the amount claimed for funeral expenses from 17 March 2025. 10. The relevant rate of interest payable is 2% above the Reserve Bank cash rate from time to time as adjusted. Given my findings, those relevant rates are:

(a) from 17 March 2025 to 20 May 2025 at 6.10% per annum;

(b) from 21 May 2025 to 12 August 2025 at 5.85% per annum, and

(c) from 13 August 2025 to 27 August 2025 at 5.6% per annum.

1. For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.