Death by Cross Examination?
Reagh Pty Ltd v Gaydon  NSWWCCPD 63
The deceased worker injured her back at work on 5 March 2012. The dispute was the subject of WCC proceedings and was listed for an Arbitration hearing in Sydney on 7 November 2012.
The deceased worker traveled with her mother from Dubbo to attend and gave evidence and was cross-examined. A Manager of the Appellant also gave evidence in the case. The deceased worker was returning to Dubbo the same day and in the early hours of the evening boarded a flight from Sydney to Dubbo. The flight was delayed and prior to boarding she was observed to be anxious. After boarding, the deceased worker was sweating and stated that she felt like vomiting. After sleeping, the deceased worker’s breathing became shallow before stopping breathing. She became unresponsive and attempts to revive her were unsuccessful. An autopsy report gave the cause of death as being a coronary artery thrombus.
An Award of weekly compensation had been given for the period 5 March 2012 to 7 November 2012 to the deceased on 21 February 2013. The first Respondent, the deceased’s de facto partner claimed payment for the death benefit under Section 25 of the Workers Compensation Act 1987 (the ‘1987 Act’) due to the causal relationship between the Arbitration and the deceased’s death; based upon the opinion of Dr Herman, a Cardiologist.
Arbitrator Young determined on 11 May 2020 that “the deceased suffered her fatal myocardial infarction as a result of the stress occasioned by the hearing”. The Appellant employer appealed the determination of Arbitrator Young.
Grounds of Appeal
The Appellant appealed Arbitrator Young’s determination upon the following grounds:
- The Arbitrator erred in fact and law when he failed to properly evaluate the evidence to determine whether the stress of the Arbitration was causative of the heart attack which occurred at least six hours after the Arbitration hearing concluded;
- The Arbitrator erred in law when he applied the wrong test to determine whether the heart attack causing death resulted from the accepted back injury; and
- The Arbitrator erred in fact and law when he found that the death resulted from the accepted back condition.
In relation to Ground 1 of the Appeal, the Appellant argued that only a psychiatrist as a medical expert is adequately qualified to express an opinion as to the existence and cause of psychological stress and anxiety. Deputy President Snell noted that all parties relied upon medico-legal opinions from a cardiologist on causation and none stated that expressing an opinion on the presence of stress, and its potential causal relationship to the fatal myocardial infarction, was beyond their expertise.
Deputy President Snell rejected the Appellant’s submission that a medical practitioner who does not have specialist qualifications in psychiatry does not have the expertise to employ the term “stress” in describing a patient’s mental state. Snell DP noted the High Court’s decision in Ramsay v Watson  which determined that:
“a qualified medical practitioner may, as an expert, express his opinion as to the nature and cause or probable cause, of an ailment”
The Appellant argued that there was a substantial delay between the cessation of the Arbitration hearing and the onset of the heart attack and that there was no evidence to discharge the onus of the Respondents to prove that the deceased worker was suffering from stress due to the Arbitration hearing when the heart attack occurred. Deputy President Snell determined that there was evidence that dealt with the causal link between the stress the deceased was exposed to at the Arbitration hearing and the fatal myocardial infarction. He found that it was open to Arbitrator Young to conclude that there was a causal link between the hearing and the heart attack.
Deputy President Snell dismissed Ground 1 of the Appellant’s Appeal.
Deputy President Snell, in respect of Ground 2 of the Appeal, considered whether Arbitrator Young had applied the “but for” test. The test is described in Faulkner v Keffalinos  as:
“But for the first accident the [deceased] might still have been employed by the Appellant, and therefore not where [she] was when the second accident happened”
Snell DP stated that Arbitrator Young’s reasons proceeded on the basis of the ‘but for’ test. The proposition being that, but for the injury on 5 March 2012, the deceased “would not have been at the hearing or been subject to cross-examination”.
Chief Justice Mason in March v E & M H Stramere  considered that:
“the ‘but for’ test does not provide a satisfactory answer in those cases in which a superseding cause, is said to break the chain of causation which otherwise would have resulted from an earlier wrongful act”.
The Appellant submitted that Arbitrator Young should have considered whether the chain of causation had been broken due to a superseding cause. Due to Snell DP’s determination that the Arbitrator relied upon the ‘but for’ test he upheld the Appellant’s Ground 2 of Appeal.
Deputy President Snell determined that it was inappropriate to deal with Ground 3 and revoked the Certificates of Determination and remitted the matter for re-determination before a different Arbitrator.
In respect of medical experts’ opinions this case confirms the principle set out in Ramsay that a qualified medical practitioner may, as an expert, express their opinion as to the nature and cause, or probable cause, of an ailment whether they are specialised in that field or not.
In respect of applying the correct test to determine a causal link, the ‘but for’ test is not a satisfactory test when a superseding cause breaks the chain of causation.
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