[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
HEADNOTE
[This headnote is not to be read as part of the Judgment]
Tudor Capital Australia Pty Limited (Tudor Capital) appealed from a decision of a Deputy President of the Workers Compensation Commission of New South Wales (Commission) in which he dismissed Tudor Capital's appeal from a decision of an Arbitrator finding the respondent, Penelope Christensen and her children, entitled to compensation payments from Tudor Capital pursuant to ss 9 and 25 of the Workers Compensation Act 1987 (NSW) (WCA) in respect of her late husband's death.
Mr Christensen died suddenly at home when he suffered ventricular fibrillation (a hearth rhythm disturbance) leading to cardiac arrest. At the time of his death he was employed as a Portfolio Manager by Tudor Capital. He had recently commenced work in its Sydney office after having relocated from its London office.
In his first few weeks in the Sydney office, Mr Christensen experienced a number of technical difficulties, largely related to a slow internet connection speed, causing him frustration in not being able to operate a unique database system he had developed for market closing prices. Although the technical difficulties were largely resolved by 27 February 2008, they caused a nine week delay in total, compromised Mr Christensen's ability to perform, and meant his actual trading results and earnings fell well behind his expected results. Mr Christensen also experienced difficulties in dealing with the time difference between Sydney and the European and US markets, in which he mainly traded. On 1 July 2008 Tudor Capital's Capital Allocation Committee placed Mr Christensen on a "watch list", meaning his performance would be reviewed over the balance of the financial year.
In early September 2008, Mr Christensen developed the flu. On 4 September 2008 he consulted his family doctor for a chest infection and was prescribed an antibiotic. He took sick leave on 5 September 2008. He returned to work on 8 September 2008. On that day he was observed by a colleague to be short of breath when walking to his car. That evening, after putting the children to bed, Mr Christensen was sitting on a couch with Mrs Christensen when he suddenly stopped talking, sighed and collapsed unconscious and pulseless. Ambulance officers who were called noted he was in ventricular fibrillation. He was unable to be revived.
Mr Christensen had no family history of sudden death, nor any history of collapses, chest pain, shortness of breath (other than as reported on the day of his death) or palpitation. He had been physically active, playing cricket and football, and was a keen cyclist. The autopsy report indicated that, whilst there was circumstantial evidence suggesting myocardial infarction (death of heart muscle as a result of blockage of blood flow to heart) leading to ventricular fibrillation, the cause of death was "unascertained" but was likely to have been a "cardiac arrhythmia".
On 9 August 2011 Mrs Christensen commenced proceedings against Tudor Capital in the Commission claiming an entitlement to compensation payments in respect of Mr Christensen's death pursuant to s 9 of the WCA. It was common ground that Mr Christensen had suffered ventricular fibrillation which led to cardiac arrest causing his death. There were, however, competing arguments, and competing medical evidence laid out in multiple expert reports and oral testimony supporting those arguments, as to the cause of the ventricular fibrillation.
Mrs Christensen framed her claim as one of injury and death caused by stress associated with Mr Christensen's employment, including by rendering him susceptible to a viral illness, which caused or aggravated ventricular fibrillation, cardiac arrest and death. She relied primarily on the expert evidence of Associate Professor David Richards that the ventricular fibrillation was caused by a viral illness known as viral myocarditis. Acute myocarditis is the presence of inflammatory cells (lymphocytes) in the interstitial cells of the myocardium, the middle layer of the heart wall. In a case of acute myocarditis, inflammatory cells are attracted to the heart muscle which is infected by a virus. They indent (bore into) the underlying myocyte, inflicting damage which causes the muscle cell to stop contracting, eventually compromising the heart function and causing arrhythmia. Whilst there was no histological evidence (cell analysis or autopsy) of myocarditis, Associate Professor Richards was of the opinion that there was a possibility such evidence was missed due to the relatively short time between the onset of the inflammation and death.
The case ultimately put by Tudor Capital was that Mr Christensen was suffering from hypertrophic cardiomyopathy (HCM), a disease in which a portion of the heart muscle wall becomes thickened with fibrous (scar) tissue, a condition that is prone to lead to ventricular fibrillation and sudden death. Tudor Capital primarily relied on the expert evidence of Professor Anne Keogh and Dr Stephen Rainer to this effect. They, in turn, primarily based their opinions on autopsy slides of tissue samples taken from Mr Christensen's heart on autopsy. The slides were not the subject of evidence until after most of the expert reports were prepared, and until after Associate Professor Richards gave oral evidence. However, prior to giving evidence, and before Professor Keogh and Dr Rainer were called, Associate Professor Richards had seen a report from Dr Rainer discussing the slides. Associate Professor Richards had advised Mrs Christensen's solicitors he was not qualified to analyse the autopsy slides.
Dr Rainer and Professor Keogh gave oral evidence that the autopsy slides revealed extensive fibrosis in Mr Christensen's heart, consistent with longstanding HCM, which could cause a ventricular fibrillation arrest at any time, without a trigger, but not viral myocarditis. Dr Rainer was of the view that the sampling of Mr Christensen's heart was comprehensive, not patchy, and sufficient to eliminate any sampling error. He was also of the opinion that, in the case of acute myocarditis, the microscope would reveal some evidence of its presence, of which there was none in Mr Christensen's case. Professor Keogh expressed a similar opinion. This evidence differed from a statement in her first report in which she had not excluded the possibility of viral myocarditis "since post mortem sampling does not sample the entire of the right and left ventricles." In oral evidence she said this statement was written in reliance on the autopsy report, written by a "generalist pathologist", which was not the same as seeing the autopsy slides.
Associate Professor Richards was not recalled to respond to the evidence of Dr Rainer or Professor Keogh. Although Mrs Christensen subsequently tendered a further report by Associate Professor Richards, in which he commented on an aspect of Professor Keogh's oral evidence, that report did not address the autopsy slides or, otherwise discuss her or Dr Rainer's oral evidence.
Arbitrator Wynyard upheld Mrs Christensen's claim. He found that Mr Christensen's death had been, in substance, caused by an "injury" within the meaning of s 4 of the WCA being the entry of the T cell lymphocytes into the myocardium as a result of a viral illness Mr Christensen had acquired following the breakdown of his health, which was due to the emotional stress and frustration he encountered with his employer after he had moved to Sydney in 2008. He rejected Professor Keogh's evidence, on the basis that he did not find persuasive her abandonment of the opinion in her first report. The Arbitrator was also satisfied that the provisions of s 9A, WCA applied and that Mr Christensen's employment was the main substantial reason for the breakdown of his health and subsequent death. He was not satisfied that the pre-existing condition of Mr Christensen's heart played any part in his death.
Tudor Capital appealed against the Arbitrator's decision to the Commission constituted by the Deputy President pursuant to s 352(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). Such an appeal is not a review but is confined to correcting operative errors of fact, law or discretion. The Deputy President confirmed the Arbitrator's findings and orders and remitted the matter to the Arbitrator for further directions and hearing concerning the question of apportionment.
Tudor Capital appealed to the Court of Appeal pursuant to s 353(1) of the WIM Act. On such an appeal it was required to establish that it was aggrieved by a decision of a Presidential member of the Commission in point of law.
The following provisions of the WCA were relevant to the appeal. Section 9 provides that the dependents of a worker who received an "injury" (resulting in death) shall receive compensation, the amount of which is specified in s 25. "Injury" is defined in s 4(a) relevantly as "mean[ing] personal injury arising out of or in the course of employment." However, no compensation is payable in respect of an injury unless the employment concerned "was a substantial contributing factor to the injury" (s 9A(1)), to be determined by reference to a list of factors in s 9A(2). Where an injury, as defined in s 4, is a psychological or psychiatric disorder, no compensation is payable in respect of that injury if it was wholly or predominantly caused by reasonable actions of the employer (s 11A).
The principal issues on appeal were:
(i) Whether the Arbitrator and the Deputy President failed to identify an "injury" for the purposes of ss 9 and 25 of the WCA within the meaning of that term in s 4, leading to confusion in the application of s 9A.
(ii) Whether there was insufficient proof to support the Arbitrator's finding of a causal connection between psychological stress and an increased susceptibility to viral illness on the basis of a commonsense evaluation of the causal chain and that medical science did not deny a possible connection and whether, in making that finding, the Arbitrator overlooked material medical evidence.
(iii) Whether the Deputy President's reasoning processes were inadequate, in particular, whether there was no sufficient analysis of the medical evidence.
(iv) Whether Mrs Christensen was denied procedural fairness because she did not have the opportunity to call evidence to meet Tudor Capital's contention that the opinion of Associate Professor Richards (that death was caused by viral myocarditis) was based on the absence of evidence of a relevant pre-existing condition, the existence of which was confirmed by Professor Keogh's and Dr Rainer's evidence that the cause of death was HCM.
Held, allowing the appeal and remitting the matter to the Commission for redetermination:
As to issue (i), per McColl JA (Macfarlan and Payne JJA agreeing)
(1) Mrs Christensen was required to identify an "injury" within the meaning of s 4 of the WCA for the purposes of ss 9 and 25 and also establish that Mr Christensen's employment with Tudor Capital was "a substantial contributing factor to the injury" within the meaning of s 9A(1), taking into account the matters specified in s 9A(2) to the extent that they were relevant. Failure to consider such factors by reference to the underlying facts involved a misconstruction of the provision and an error in point of law. (at [301], [329], [335])
Badawi v Nexon Asia Pacific Pty Limited (t/as Commander Australia Pty Limited) (2009) 75 NSWLR 503; [2009] NSWCA 324 applied.
Bill Williams Pty Ltd v Williams (1972) 126 CLR 146 referred to.
(2) The Deputy President erred in finding that the "injury" for the purposes of s 9 was Mr Christensen's "experience of stress … [making] him susceptible to the contraction of an infective virus." In so finding, the Deputy President:
(i) made a finding of "injury" which differed from the "injury" the Arbitrator identified, being the "entry of the T cell lymphocytes into the myocardium", and implicitly identified an operative error of fact on the Arbitrator's part which, once recognised, should have been corrected; (at [337], [338], [346]) and
(ii) failed to undertake the precise consideration of the evidence, on a fact by fact basis, to determine whether Mr Christensen's "experience of stress" or susceptibility to the contraction of an infective virus, could constitute an "injury" within the meaning of that term in s 4, and what, if any, physiological change or disturbance of Mr Christensen's normal physiological state caused the "experience of stress". This failure to engage with the statutory test in s 4 constituted an error in point of law and a constructive failure to exercise jurisdiction. (at [339], [341], [345])
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286; [2000] HCA 45; Military Rehabilitation & Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19 applied.
(3) Once the Deputy President identified "the relevant injury" as Mr Christensen's "experience of stress", it was incumbent upon the Deputy President to determine whether the "experience of stress" was a "psychological injury" within the meaning of s 11A(3). Failure to consider this question was a constructive failure on the part of the Deputy President to exercise his jurisdiction to correct the Arbitrator's errors. (at [342], [344])
(4) Alternatively, the Deputy President should have held that the Arbitrator had erred in law in failing to consider on a step by step basis which aspect of the process to which he referred in making his "injury" finding was the relevant "injury" for the purposes of s 4, WCA and in what respect it was a consequence of a physiological change. (at [345])
(5) Absent isolation of the relevant "injury", the Arbitrator could not properly undertake the evaluative process s 9A required of determining whether the employment concerned was a substantial contributing factor to the injury. The Deputy President, in turn, failed to recognise that was an operative error of law on the Arbitrator's part and correct it. (at [338], [346] - [359])
(6) The Deputy President erred in failing to hold that the Arbitrator's failure to consider for the purposes of s 9A, Mr Christensen's pre-existing cardiac condition as being a factor that "played any part in his death" without considering the evidence of Tudor Capital's experts and Associate Professor Richards as to the relevance of the underlying cardiac pathology, revealed he misunderstood Tudor Capital's case such as to undermine the lawfulness of his decision in a fundamental way, such as to constitute an error in point of law. (at [348] - [352])
(7) The Deputy President also misapprehended Tudor Capital's case in his reliance on Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206. (at [353] - [359])
Department of Education & Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206; Department of Education & Training v Jeffrey Sinclair [2004] NSWWCPD 90 discussed.
As to issues (ii) and (iii), per McColl JA (Macfarlan JA agreeing)
(1) While an unproven connection between psychological stress and an increased susceptibility to viral illness does not amount to positive knowledge, supplying some adequate ground for believing that the events are naturally associated. If medical science is prepared to say that something is possible, a judge, after examining the lay evidence, may decide that it is probable. However, a judge must not undertake the temporal inquiry in isolation from the medical evidence. (at [369] - [383])
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45; Ramsay v Watson (1961) 108 CLR 642; [1961] HCA 65; EMI (Aust) Ltd v Bes [1970] 2 NSWR 238; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 discussed.
(2) In examining the medical evidence, the Arbitrator overlooked material facts, or gave material facts undue or too little weight in deciding the inference to be drawn from the evidence as to the cause of Mr Christensen's death. Such material facts included uncontested contemporaneous records, such as the autopsy slides, and the evidence of Professor Keogh and Dr Rainer. This constituted an error of law which the Deputy President failed to identify, resulting in a constructive failure on his part to exercise jurisdiction. (at [384], [396])
EMI (Aust) Ltd v Bes [1970] 2 NSWR 238 applied.
(3) There will be a failure to give adequate reasons amounting to a constructive failure to exercise jurisdiction where a decision-maker ignores evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the decision-maker. (at [387] - [388])
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 applied.
(4) As there was starkly contrasting medical evidence, both the Arbitrator and the Deputy President were obliged to consider the evidence in a manner which entailed a rational analysis of the issues. (at [389])
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174 applied.
(5) The Arbitrator failed adequately to have regard to significant aspects of Tudor Capital's experts' evidence in reaching his decision contrary to that evidence, and made errors of fact in the course of reaching his conclusion. The Deputy President ought to have held the Arbitrator had erred in law in failing to give adequate reasons. (at [392] - [394])
(6) In concluding that the Arbitrator adequately analysed the medical evidence, and in failing himself adequately to analyse that evidence, there was a constructive failure of jurisdiction on the Deputy President's part. (at [391] - [419])
As to issue (iv), per McColl JA (Macfarlan JA agreeing, Payne JA dissenting)
(1) Tudor Capital was not raising a new issue on appeal. (at [303]) Alternatively, even if it was, it was not precluded from doing so as Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 applied. (at [303])
(2) Mrs Christensen was aware, or at least should have been aware, of the evidence and the arguments in Tudor Capital's favour based on its experts' evidence. (at [302], [304] - [307]) She had an opportunity to respond to the evidence and arguments before the Arbitrator such that there was no denial of procedural fairness. (at [427], [443])