In the case of C Reagh Pty Ltd v Gaydon [2020] NSWWCCPD 63, the NSW Workers Compensation Commission’s decision; to award the family of a deceased worker nearly $500,000, has been revoked.

The worker had suffered an injury to her lumbar spine while lifting heavy drums of cooking oil at work. The employer’s WorkCover insurer denied liability and the case went to the Commission for determination.

During the hearing, the worker was confronted by:

• adversarial evidence of a co-worker,
• claims her injuries arose from “violent assault” by her partner, and
• surveillance footage of her.

Following the hearing, her flight home was delayed which aggravated her fear of flying. She later suffered a heart attack and died whilst on-board the flight.

In determining the family’s claim for compensation, the Arbitrator applied the “but for” test in finding the worker would not have been subject to the stresses of the hearing, and would not have died but for her workplace injury.

On appeal, the Commission held the but for test was wrongfully applied, and confirmed the correct test of causation is whether the worker’s fatal heart attack was a direct result of her workplace injury, and related physical limitations.

The matter has been remitted for re-determination by a different Arbitrator.

Lessons for employers

1. If death results from a workplace injury, compensation is payable to the deceased’s dependents in the form of a lump sum, periodic payments and other payments such as reasonable funeral expenses. The amounts payable vary across Australia. The lump sums payable by state (as at November 2020) are outlined below:
   • New South Wales $791,850
   • Victoria $623,950
   • Queensland $618,565
   • Western Australia $570,768
   • South Australia $502,497
   • Tasmania $359,987.60
2. An injury or incapacity may be attributable to more than one cause operating concurrently. In a claim for workers compensation, it is not necessary to prove the incapacity was the natural and probable cause of the injury. It is sufficient if the incapacity results from the injury by a chain of legal causation.
3. The correct test for causation was set out in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.  It requires a common-sense evaluation of the casual chain. Mere proof that certain events occurred which predisposed a worker to subsequent death, incapacity or injury is not, of itself, sufficient to establish the death, incapacity or injury resulted from a workplace injury.
4. A chain of causation can be broken by an intervening event. For example, a journey between a worker’s residence or workplace and another place for the purpose of receiving medical attention or treatment for a workplace injury is a journey covered by workers compensation legislation. However, if the worker is assaulted while attending a doctor’s surgery, for reasons unconnected to the workplace injury, the chain of causation will be broken and further injuries sustained as a result of the assault will not be compensable.

Written by Nes Demir

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