Scanes v Comcare

1. The appeal be dismissed.
2. The applicant pay the respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal by Ms Noelene Scanes under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) from a decision of the Administrative Appeals Tribunal to affirm the decision of the respondent, Comcare, that it was not liable to pay her compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) by way of dependency benefits and funeral expenses (the latter not being mentioned in the summary reproduced in the next paragraph). Unless otherwise specified, all legislative references in these reasons are to provisions of the SRC Act. 2 It is convenient to reproduce the following overview summary from Ms Scanes' written submissions in chief (omitting footnotes): [1] The Applicant brought a claim under s.17 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") following the death of her late husband, Mr Warren Scanes. Mr Scanes was born on 1 January 1949 and was employed as an officer of the Australian Federal Police ("AFP"), and its predecessors, between 10 May 1971 and 30 June 1995. He died from a myocardial infarction on 12 October 2020. [2] As a result of his duties with the AFP, Mr Scanes suffered from a considerable amount of stress, adding to his pre-existing smoking habits. A report by Dr Coles (Mr Scanes' treating cardiologist) of 20 April 1993 records that Mr Scanes told him that he "smoked up to 60 cigarettes a day while at work, compared to 15 cigarettes a day while at home". [3] On or about 2 March 1993, while in the course of his employment with the AFP, Mr Scanes suffered a total occlusion of his right coronary artery and a consequent myocardial infarction, being an "injury (other than a disease)" for the purposes of s 5A of the SRC Act. He was taken to Woden Valley Hospital, and was later treated by Dr Craigie (GP) and Dr Coles (cardiologist). [4] On 4 March 1993, Mr Scanes filed a claim for compensation, pursuant to what is now the SRC Act, in relation to "myocardial infarction and work-related stress", which was attributed to his employment with the AFP. [5] After an initial denial of the claim, it was eventually accepted by Comcare on evidence provided by Dr Coles provided further medical evidence that Mr Scanes' "reaction to the stress of work was to smoke" and "as his coronary artery disease seemed to be due to his smoking this seemed to form a link with the conditions of his employment". Based on the above evidence, Comcare accepted on 4 June 1993 that "aggravation of coronary artery disease and resultant myocardial infarction" was a compensable condition. [6] Mr Scanes died on 12 October 2020. The death certificate states "cardiac arrest" and "ischaemic heart disease (years)" as the cause of death. [7] On 7 December 2020, the Applicant lodged a death claim for compensation with Comcare under section 17 of the SRC Act, on the basis that Mr Scanes' 1993 "injury" had "resulted in" his death in 2020. Comcare denied this claim in the primary determination and subsequently in a reviewable decision dated 30 July 2021. [8] The Applicant applied for review of Comcare's reviewable decision by the Administrative Appeals Tribunal. At the Tribunal hearing, concurrent evidence was given by three expert cardiologists (Ass Prof Colquhoun and Ass Prof Gutman called by the Applicant, and Dr Hossack called by Comcare). Written submissions were submitted by both sides. The Tribunal then affirmed the decision of Comcare. The Applicant says that the Tribunal's decision was attended by the errors set out in the "questions of law" itemised in the Notice of Appeal. 3 The three cardiologists provided written reports and gave concurrent evidence. There was also a volume of medical records and contemporaneous reports from treating doctors. The three cardiologists were provided with the following information agreed between the parties, which succinctly framed the issue and was also reproduced in the Tribunal's reasons at AAT[62] (including footnote, emphasis in original): Preliminary Guidance Notes [1] Compensation is payable under ss.17 and 18 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the SRC Act") "where an injury to an employee results in death". [2] The relevant injury to be considered in this application is an "aggravation of coronary artery disease and resultant myocardial infarction" which was suffered by the Applicant's husband in March 1993[.] [3] There may be more than one "injury" which "results in" the death of a worker like Mr Scanes. The class of relevant injuries is also not limited to only the immediate precipitant cause (or causes) of death, but could include any previous "injury", or sequence of injuries, provided that they remain at the time of Mr Scanes' death a "cause in fact" or "an effective or operative cause" of the death. [4] The term "results in" in s.17 and 18 does not require the "significant contribution" test in s.5B of the SRC Act to be applied to the earlier injury. In this case, it is sufficient that it was accepted by Comcare that the 1993 aggravation and myocardial infarction occurred while Mr Scanes was "in the course of his employment". [5] In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 the NSW Court of Appeal outlined at pp.463-464 the following statement of principles, which are relevant to this application: 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 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 common sense 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. In each case, the question whether the incapacity or death 'results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned.1 [6] The decision in Kooragang Cement was subsequently approved by the Full Federal Court in Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1, where the Full Court said (in a case dealing with incapacity rather than death): The only additional general comments we consider it necessary to make are these. First, where the causal chain reveals multiple and sequential (or cumulative) injuries that are alleged to provide causes for an incapacity, before an earlier stage injury can properly be said to be an injury for the purposes of [the legislation], it must be able to be said that it remained an effective or operative cause of the incapacity. Secondly, as is well recognised, the sustaining an injury and the onset of incapacity resulting from that injury need not, and commonly does not, occur simultaneously: Accident Compensation Commission v CE Heath Underwriting & Insurance (Aust) Pty Ltd at 526-527. [7] The comments of the Full Court relating to "incapacity" apply equally to "death". Questions 1. In light of the above, do you consider that the accepted "aggravation of coronary artery disease and resultant myocardial infarction" in March 1993 "resulted in" Mr Scanes' death in October 2020? 2. In this regard please consider the following aspects of Mr Scanes' medical history: (a) the period before Mr Scanes' 1993 myocardial infarction; (b) Mr Scanes' 1993 myocardial infarction; (c) the period occurring between the 1993 myocardial infarction and the 2020 myocardial infarction; (d) Mr Scanes 2020 myocardial infarction. _______________________________ 1. In the SRC context, Re Kooragang Cement was applied by Drummond J in McAuliffe v Comcare [2002] FCA 769 at [11] and by DP Humphries and Member Fricker OAM in Connelly v MRCC [2021] AATA 702. 4 The closing submissions of the parties to the Tribunal were only made in writing. 5 The live issue before Comcare and subsequently the Tribunal was whether the aggravation of coronary artery disease and resultant myocardial infarction - that is, the heart attack in 1993 (1993 injury) - remained an effective or operative cause of Mr Scanes' death in 2020. There was no dispute that Ms Scanes was a dependent of Mr Scanes, as the term is defined s 4, and the Tribunal was satisfied of the same: AAT[11]. Dr Hossack's opinion was that the 1993 injury was not an effective or operative cause of death. The opinions of Associate Professor Colquhoun and Associate Professor Gutman were that the 1993 injury was an effective or operative cause of death. The Tribunal preferred the opinion of Dr Hossack, concluding as follows (footnotes omitted): [121] The Tribunal accepts the opinion of Dr Hossack regarding the history of Mr Scanes' cardiac health and its role in his death in 2020. As outlined above in these reasons, it was evident that Dr Hossack had conducted a thorough and detailed analysis of Mr Scanes' medical history and had a strong grasp of its affect on his health and the circumstances that led to his death in 2020. For the reasons set out above, Dr Hossack's evidence is therefore given more weight than that of Associate Professors Colquhoun and Gutman in this proceeding. While it may be accepted that Mr Scanes' injury predisposed him to another myocardial infarction, based on the medical evidence, the Tribunal does not accept that this increased risk is sufficient to find that the accepted injury resulted in his death some 27 years later. The existence of risk does not maintain any causal chain from the 1993 injury to Mr Scanes' death in 2020. [122] The Tribunal accepts the research of Dr Hossack regarding Mr Scanes' longstanding untreated and abnormally elevated cholesterol levels. As set out above in these reasons, under cross-examination at the hearing, both Associate Professor Colquhoun and Associate Professor Gutman ultimately agreed with Dr Hossack's opinion regarding the important role Mr Scanes' cholesterol played in his death and that it was due to ruptured plaque from atherosclerosis which led to the occlusion of his left-sided coronary artery. Based on the accepted evidence, this physiological process was separate and distinct from Mr Scanes' 1993 infarction, or the accepted 'injury'. In short, the Tribunal accepts Dr Hossack's thesis regarding the singular role played by Mr Scanes' untreated high cholesterol over many years which led to a portion of plaque shedding and resulted in the fatal occlusion of his left-sided coronary artery in 2020. Accordingly, on the balance of probabilities, the Tribunal finds that Mr Scanes' history of untreated high cholesterol was a novus actus interveniens which, even if there was a causal chain from the 1993 injury, snapped that chain of causation. [123] Having regard to all of the evidence, the Tribunal is not satisfied that Mr Scanes' 1993 injury remained an 'effective or operative cause' of his death in 2020. The Tribunal finds, on the weight of medical evidence, that the effective or operative cause of Mr Scanes' death was the occlusion of his left-sided artery in the heart due to atherosclerosis as a result of untreated high levels of cholesterol over a sustained period of time, which process was not related to the accepted injury in 1993. Accordingly, Comcare is not liable to pay compensation to Ms Scanes under sections 17 and 18 of the SRC Act. 6 The asserted questions of law and the grounds of appeal in the supplementary notice of appeal (NOA) are too detailed to warrant reproduction in these reasons, but can be sufficiently summarised as follows, adjusted to reflect the way in which there were ultimately argued by Ms Scanes in written and oral submissions: Grounds 1 and 3: The Tribunal erred in law by failing to engage with and either dispose of or accept a central contention of Ms Scanes' case, and as a result misunderstood her case. Ground 2: The Tribunal erred in law by relying on the bare assertions of Dr Hossack (the NOA uses the maxim ipse dixit) which were speculative and unsubstantiated by evidence.