An employee tragically died in the course of her employment duties in a remote area following a severe asthma attack. Although the death occurred at work, was the employee injured within the meaning of the Workers Compensation Act 1987 and are her dependents entitled to a death benefit under s25? The Court of Appeal addressed this question.
Author: Chad Farah Judgment Date: 12 July 2018 Citation: Miller v State of New South Wales  NSWCA 152 Jurisdiction: NSW Court of Appeal
Section 25 of the Workers Compensation Act 1987 does not come into effect when a worker dies at work. More accurately, it comes into effect when a worker dies because of their work.
On 15 April 2011, the wife of David Miller (the applicant) died during the course of her work duties as a community transport driver for the State of NSW (the respondent).
The uncontested facts surrounding the death of Mrs Miller is that she began coughing and gasping for air while leaving Nevertire. Despite this, she continued driving for 25 to 30 minutes until persuaded by a passenger to pull over.
Mrs Miller then took puffs from her asthma inhaler which did not assist. Unfortunately, she became unconscious and two nurses on the bus began administering CPR before Paramedics and Police arrived 30 minutes later. Sadly, Mrs Miller was declared dead at Nyngan Hospital a further two hours later having suffered anoxia and a cardiac arrest.
The applicant, who was dependent on his wife, made a claim for compensation pursuant to s25 of the 1987 Act in respect of a lump sum death benefit. That section states that compensation is only payable if the death results from a workplace injury within the meaning of ss4 and 9A of the 1987 Act. That is, an injury arising out of employment and to which the employment was a substantial or the main contributing factor.
The description of the 'injury' in the originating process in the Workers Compensation Commission was pleaded as follows:
The deceased worker’s job role was to organise drivers for clients to be taken to appointments, get groceries and other general duties which required transportation.
On the date of her death, the deceased worker went to work as usual. One of the regular drivers was not available to undertake transport duties for a client, and the deceased worker was required to drive the client herself. This was not part of the deceased worker’s usual duties.
The deceased work (sic) was driving the Community Transport bus from Dubbo to Brewarrina when she experienced breathing difficulties. The deceased worker was an asthmatic. She pulled the vehicle over on the side of the road, approximately 10kms from Nyngan where she suffered an asthma attack.
As a result of suffering the asthma attack, the deceased worker suffered cardiac arrest and died due to the remoteness of the location and critical medical attention not being received, which was in the realms of her employment as a Home Care Service driver.
The applicant further alleged that the injury was one that fell within the ambit of s4(b)(ii) of the 1987 Act, namely that there was an aggravation, acceleration, exacerbation or deterioration of a disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration.
The Arbitrator in the first instance found that the cause of the deceased's injury was a pre-existing medical condition (asthma) which was not aggravated by her employment. This was confirmed in a subsequent Presidential Appeal in the Commission.
The matter then proceeded to the NSW Court of Appeal.
The first and main ground of appeal related to the definition of the 'injury' within the meaning of s25 of the 1987 Act and was pleaded as follows:
The Acting Deputy President erred in finding that the relevant ‘injury’ causing death was the ‘aggravation, acceleration or exacerbation of the asthma condition leading to the acute asthma attack’, rather than the aggravation, exacerbation or deterioration of the asthma attack and/or the cardiac arrest, each having been substantially contributed to by the unavailability of necessary medical treatment at the remote location at which the acute asthma attack occurred by reason of the deceased’s employment [emphasis added].
Court of Appeal
The Court of Appeal rejected the appellant's submissions, firstly because his proposed definition of 'injury' on appeal was never originally put before the Arbitrator. That is, that the remoteness of the employment (as opposed to her employment duties per se) is what aggravated Mrs Miller's asthma and led to her death.
The Court referred to the original pleadings and described them as insufficient and said they did not assist in 'squarely identifying the injury'. The Court stressed that it was important for the applicant to describe what the workplace injury giving rise to the death was, and not simply to describe the mechanism of death.
Even if one were to accept that Mrs Miller died because her employment required her to be in a remote location, the Court found that the appellant's case would fail with reference to the principles of causation. This is because the evidence suggested that Mrs Miller ignored early warning signs at the commencement of her trip and continued to drive for some time. Once her asthma attack intensified, the evidence showed that she would have had but a few minutes before death occurred.
On balance there was no evidence to suggest that Mrs Miller was more likely to seek medical treatment at a hospital had she not been driving remotely and that her life could otherwise have been saved.
The Appeal was dismissed with costs.
Why this case is important
This cases stresses the need for there to be a workplace injury giving rise to death before s25 can come into effect. In the Arbitrator's words, the death itself cannot be the injury.
Hence, while Mrs Miller's death resulted from her being in a remote location, the 'injury' as pleaded (i.e. asthma) did not. Nor was it aggravated by her employment because Mrs Miller's response to her symptoms showed she was unlikely to seek early medical assistance even if she could.
Put differently, this case clarifies the function of s25 of the 1987 Act. It is not designed to provide compensation to the dependants of those who die while at work; it is designed to provide compensation to dependants of those who die because of work.
This distinction is subtle but of utmost importance in the interpretation of that section.