Naji Fadkhreddine v Moncef Neffati [2002] NSWCC 57

Compensation Court of New South Wales

CITATION : Naji Fadkhreddine v Moncef Neffati [2002] NSWCC 57 Naji Fadkhreddine PARTIES : v Moncef Neffati MATTER NUMBER(S) : 55884 of 1999 JUDGMENT OF: Campbell CJ at 1 CATCHWORDS: Proceedings to Obtain Compensation :- Substantial Contributing Factor - s9A LEGISLATION CITED: 9A of the Workers Compensation Act 1987 Adelaide Stevedoring Company Ltd v Forst (1940) 64CLR 538; Dominguez v Sanchez Constructions Pty Ltd (2000) 20 NSW CCR 295; CASES CITED: Jones v Dunkel (1959) 101 CLR 298; Dayton v Coles Supermarket Pty Ltd (2001) 21 NSW CCR46; Mercer v ANZ Banking Group Ltd (2000) 20 NSW CCR70 ; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 DATES OF HEARING: 24/04/02, 11/10/02, 14/12/02 DATE OF JUDGMENT: 10/17/2002

FOR APPLICANT: Ms Goodman of Counsel instructed by HK Husseini & Co appeared for the applicant LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Martin of Counsel instructed by TJ Doubleday appeared for the respondent

JUDGMENT: 1. The applicant claims weekly payments of compensation and medical expenses under the Workers Compensation Acts in respect of a heart attack on 20 January 1999 which he alleges arose out of an in the course of his deemed employment with the respondent as a taxi driver. 2. Mr Barter and later Ms Goodman of Counsel appeared for the applicant. Mr McGrowdie and later Mr Martin of Counsel appeared for the respondent. Counsels' submissions were recorded and in the main transcribed. Accordingly it is unnecessary for me to refer to each submission merely to ensure that it is noted. Counsel also provided written submissions. The second of such submissions was delivered to Chambers on 9 September 2002. 3. It was not disputed that the applicant was a deemed worker nor that he suffered a heart attack. As Mr Martin made clear in address the issue in the case, as to liability, is whether the applicant established that his employment was a substantial contributing factor to his injury as required by section 9A of the Workers Compensation Act 1987. 4. The applicant's principal case rested upon an allegation that the applicant suffered from coronary heart disease and that the employment was a substantial contributing factor to the aggravation, acceleration, exacerbation and deterioration of that disease. 5. A question arose as to whether it is sufficient for the employment to substantially contribute to the aggravation of the disease and not the pre-existing condition other than by way of such aggravation. 6. In her written submissions Ms Goodman was content to rely, without elaboration, upon the decision of Judge Burke in Cant v Catholic Schools Office (2000) 20 NSWCCR 88 in which His Honour decided that question in the affirmative. 7. Mr Martin in his written submissions observed:- The respondent notes that in a case with similar facts to those in Cant v Catholic Schools Office, Judge Neilson did not come to the same view of section 9A (Maher v Brambles (1998) 17 NSWCCR 334). 8. He did not, no doubt, advisedly submit that Cant, in which case Judge Burke considered the matters raised in Maher, was wrongly decided. The submission went on:- The respondent submits that the decision of Cant v Catholic Schools Office does not apply in this case as the injury suffered by the applicant was not an aggravation of a disease as defined in section 4 (b) (ii). 9. Having regard to the approach adopted by Mr Martin I think it sufficient if I say that I find the reasoning of Burke J in Cant compelling and propose to follow it. I should note that Judge Neilson's views were expressed by way of addition to his judgment as delivered and that His Honour did not have the advantage of argument on the point. An additional reason to favour the view adopted by Burke J is that it allows the same meaning to be given to the word 'injury' in section 9 and section 9A. 10. It is relevant to note how the applicant's case is put in the Application for Determination. Paragraph 1 of the Application for Determination reads as follows:- (a) Date of injury (if over a period of time, state the period as accurately as possible): (a) 20 January, 1999 (b) Place where the injury happened: (b) Applicant driving taxi in Mascot (c) What work was being done at the time of injury: (c) Taxi driving (d) How did the injury occur: (d) Applicant suffered heart attack.