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. 11. Paragraph 2 in respect of the item "Nature of Injury" alleges "Heart attack". 12. Paragraph 8 reads as follows:- Where the injury is a disease contracted by a gradual process, the names and address of all other employers by whom the applicant was employed during the twelve months previous to date of incapacity in any employment to the nature of which the disease was due: Not applicable 13. Although some of the medical evidence refers to the effects of long term taxi driving the case put is confined to the events of 20 January 1999. 14. As I have mentioned the applicant's primary approach is to rely upon the aggravation of a disease, however, the Application for Determination is sufficient to support an allegation of frank injury on 20 January 1999 (See, Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310). 15. On either approach for the applicant to succeed the employment must be a substantial contributing factor to the injury. (Mercer v ANZ Banking Group Ltd (2000) 20 NSW CCR70 per Mason P at 77). 16. As was pointed out by Mason P in Mercer at 79 it is necessary in determining the meaning of "a substantial contributing factor" in the context of s9A to take into account the guidance to be found in s9A(2) and s 9A(3). 17. Section 9A provides:- No compensation payable unless employment substantial contributing factor to injury. (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. (2) The following are examples of matters to be taken into account for the purpose of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes such a determination): (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risk, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment. (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 Part 3, or the worker's death, resulted from the injury. 18. At 79 in Mercer Mason P, referring to s9A and Judge Bishop's judgment at first instance in Mercer (1998) 17 NSW CCR 264), said:- Here the word "substantial" qualifies "contributing factor". Obviously it is the extent of the causal link which is at issue. Bishop J recognised this. At [29] of his judgment he held that the meaning to be adopted was that "substantial" meant "more than minimal, large or great". In my view this was the correct approach, remembering that word is used in a relative sense, recognising that other causative factors may be present. Section 9A does not require that the employment must be "the" substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition: cf University of Tasmania v Cane (1994) 4 Tas R 156. 19. It is this approach, with which Meagher and Beasley JJA agreed, which I adopt in determining the present matter. 20. Before turning to the facts it is also convenient to refer to the observation of Davies AJA in Dayton v Coles Supermarket Pty Ltd (2001) 21 NSW CCR46. His Honour said at 56:- Likewise, in their context and particularly having regard to the list of factors specified in s9A(2) of the Act, the words, "substantial contributing factor" required that compensation be paid only when the employment can be said to have contributed to the injury in a manner that is real and of substance. The section intends to exclude those many instances where, as a result of legal theory and extension of thought, liability has been found in cases where, as a matter of practical reality, the contribution which employment has made to the injury has little substance. 21. The applicant is a 47 year old married man with a dependent wife and some seven children of whom four are dependent. He was born in Lebanon and worked there, amongst other things, as a truck driver before coming to Australia in 1987. After coming to Australia he did some work truck driving and for a period leased a taxi cab. For three months prior to 20 January 1999 he had been driving a taxi cab provided by the respondent. 22. He gave the following evidence in chief: Q. You normally paid Moncef $1,300 per week. A. Yes. Q. That is more than what one would normally pay for a cab because you were taking the cab out for more than one shift per day, is that right. A. Yes. Q. So how many shifts a day were you doing for the 3 months leading up until 20 January 1999. A. Sometime shift and a half, sometime two shift, sometime one shift and because I pay full $1,300 a week I have to drive the taxi otherwise I pay for it, if I drive one shift I can't make any money for myself, that's the truth, and I swear on the Bible to say the truth. Q. So you were working more than one shift per day. A. Yes. Q. Because you had to pay the $1,300 a week and you would not otherwise make enough money to live and support your wife and four dependent children. A. Yes. 23. The applicant agreed that Dr Awada had been his family doctor for some time and said: Q. Prior to 20 January 1999 you had seen him, I think, from time to time for medical problems that you had. A. Yes. Q. Such as cholesterol. A. Yes. Q. Triglycerides. A. Yes. Q. Did you have breathlessness from time to time prior to 20 January 1999. A. Yes. Q. As I understand it you had a longstanding problem with hypotension, which is low blood pressure, is that right. A. Yes. Q. Prior to say 19 January 1999 did you have any problems with any chest pain. A. I start the problem before the accident........about 2,3 months, I don't know exactly. I can't remember exactly the date start the pains. That's the report doctor - what said the doctor. ............ Q. You have been seeing Dr Awada for, as you have just said, cholesterol, triglycerides, low blood pressure. A. Yes. Q. Prior to 20 January 1999 can you recall whether you had any chest pains. A. I can't say yes, I can't say no, I don't remember. Q. If you had had chest pains prior to that date would you have told Dr Awada about it. A. Yes. 24. On 19 January 1999 the applicant worked until about midday and returned to his home. He commenced again at 3pm and continued working until 12 o'clock, midnight. 25. The applicant gave evidence that that was a busy time. He had been, he said, "everywhere". There were both long and short trips. He gave the following evidence:- Q. At 3 o'clock when you resumed work after your luncheon break, how were you feeling at that stage? A. I feel tired, I go home, take a rest. Than I - after I take a rest I start 3 o'clock, all right. Q. Feeling all right then. A. Yes. Q. As the afternoon went on how were you feeling. A. Up to about 8 o'clock I feel not very well, then was very busy, I keeping going, and after about 9 o'clock, I think someone - sorry to say it in court, someone like - that, I would say. Q. Sick A. Vomited. Q. So somebody vomited in your car, what, about 9 o'clock that night. A. 9:30, about 9:30. Q. How were you feeling at that time apart from the fact that he has just been sick in your car. A. Very nervous and there - I had to fight with him, just to clean the car in Mascot, and he going. Q. Did you say you were feeling nervous, did you say you had to fight with him. A. No, no, I was going to do but he's going, even not pay the fare, and I let him go, just clean the car, service station there in Gardener's Road and I turn back home. 26. In reply to the question "How were you physically feeling at around that time, around 9:30 that night", the applicant replied:- A. Like very nervous, short of breath and I had a coffee at the service station there on Gardener's Road and 15 minutes sit and I start again up to 12 o'clock, I get - I feel very, very sick. I drive home and before I - Q. Sorry, you said at midnight you were feeling very, very sick. In what way were you feeling sick, what way were you feeling sick, what were the problems you were feeling at midnight. A. I had short breath and I felt like vomiting, then I couldn't breathe, I drive my car, the car, and I went home. Before I left the car I just sat down for 5 minutes to relax and I went home. While I was sitting on the couch my wife woke up. She rang the ambulance because she saw me I was sleeping on the couch. When I open the door I fell on the couch, I didn't sleep on the couch. She rang the ambulance and they told her that he had a heart attack. 27. The applicant was taken to St George Hospital where he came under the care of Dr Post, a cardiologist, who diagnosed an acute myocardial infarction. The doctor performed a successful transluminal extractional atherectomy after a cardiac catheterisation which showed a significant 2 vessel disease and moderate LV dysfunction. 28. After what Dr Post described as a stormy passage the applicant was discharged after 5 days. He remained under the care of Dr Awada and Dr Post. 29. The applicant did not work during 1999, however, he thereafter resumed some taxi driving. At the time of the last hearing, 24 April 2002, he said that he had not worked since the end of March 2002. He gave the following evidence in chief in respect of his last visit to Dr Awada. Q, Why did you see him on Monday. A. I have the cholesterol and diabetes. The diabetes and the cholesterol. Q. Are you a diabetic, Mr Fadkhreddine. A. It wasn't before. Q. So when were you were diagnosed with diabetes. A. Approximately 3 weeks. Q. Aproximately 3 weeks ago. A. Yes, 3 weeks ago, that's the first time I know I have something like that. Q. Other than the consultation on Monday the other consultations that you had with Dr Awada, were they all connected with cholesterol and your blood pressure. A. He done test for me - the blood test for me and he find out the cholesterol it's been high and the diabetes 7 and a half and 14. Q. What is 7 and a half. A. The diabetes. Q. That is your blood sugar level. A. Yes, 2 weeks ago. He tested also last Monday and he found it is 8 and a half. 30. I should add that some of the medical evidence refers to diabetes as a contributing factor to heart attack. Having regard to the blood tests that were done at the time of the attack and Dr Awada's reference in one of his reports to the continuing need to test for diabetes I approach the decision in this matter on the basis that the applicant did not have diabetes at the time of the heart attack. 31. In cross-examination the applicant gave the following evidence:- Q. At some stage a nurse or some other person working for the hospital spoke to you about your background. A. Yes. Q. They have recorded on their notes your being a heavy smoker. A. Could be, could be my family, one of my family told them that, could be my wife told them that. Q. Your family doctor, Dr Awada, he has produced his notes about you to the Court and he says you visited him or saw him on 22 January 1997. A. Could be. Q. And told him that you had a tight chest, feeling nauseous and lethargic. Do you remember that. A. I went I saw him in 1997? I'm asking you did I go and see him 1997? Q. Yes, 22 January 1997. A. Could be I went - I don't think so I had health problem at all. Q. When you came to court in October last year you agreed with your barrister when he asked you if you had a longstanding problem with hypertension (sic). A. Did I agree with him in 1997 or now? Q. No, do you remember coming to Court and giving evidence in October last year. A. It's true. Q. The written record of your evidence is that you said you had longstanding hypotension or low blood pressure before your heart attack. A. Could be, I'm not sure. Could be but my report it's with Dr Awada, I haven't got any health problem before the accident. 32. It was quite some time since the applicant had given his original evidence in chief. It would seem likely that the phrase "I haven't got any health problem before the accident" was put in a relative sense since the applicant on his own evidence did have health problems albiet not of the degree he suffered later. 33. The applicant also gave the following evidence:- Q. Before your heart attack you had been nervous or depressed for several months. A. Could be. Q. Along with that nervousness you had a throbbing headache in the back of your head for several months before the heart attack. A. Could be from the sleepness or could be long driving. 34. Mr Martin put to the applicant that when he said that someone vomited in the taxi he meant that the someone spat in the taxi. However, the applicant maintained that the man vomited. 35. The applicant then gave the following evidence:- Q. Do you remember seeing Dr Sekel for the insurance company who was at Redfern, and you saw that doctor on 19 September 2001. A. That's true, yes. Q. Dr Sekel says you came to see him with an interpreter, do you agree with that. A. That's the truth, yes. Q. Dr Sekel says you told him with the assistance of the interpreter that at about 9:30pm or 10pm on 20 January 1990 a passenger spat onto the floor of the car. A. When I - I did have the knowledge of the difference between the spit and the vomit when I came to the court 4 months ago. Q. Dr Sekel says you went on to say that this irritated you, the passenger spitting on the floor and you acknowledged that passengers often act inappropriately. A. If we went to look for this situation or this case about the spitting, every night when we wash the taxi we find there is a spitting in the taxi. Q. Dr Sekel goes on to say that you agreed with him that the act of someone spitting in the taxi would not have been the cause of your heart attack. A. No, it doesn't cause a heart attack but it makes you nervous, it may assist. Q. When you came to court and gave evidence in October last year - A. Can you bear with me in one word, if you do not mind? What I said, I said the spitting it makes you nervous, it not to assist. 36. In address Ms Goodman appeared to concede that the applicant was not entirely certain as to whether it was vomiting or spitting and said "He does not seem to place any difference between the two, any significance between the two.....". 37. Upon reading the transcript my impression formed at the time that the applicant was asserting that the man had vomited remains. I think it probable that this was the fact. There may well have been a misunderstanding by Dr Sekel on this point, perhaps because as Ms Goodman said the applicant appeared to attach little significance to the distinction. 38. It is relevant to note that whilst the applicant referred to "turning for home" he, after cleaning his car and having a cup of coffee, did work on for quite some time. No evidence was given that he was unable to carry on the work of a taxi driver during this time. It may be that "turning for home" merely means altering the pattern of work with a view to a return towards home, however, there is no evidence as to this. 39. Dr Post, the physician under whose care the applicant was admitted urgently to St George Hospital on 20 January 1999 reported to the applicant's then solicitor on 22 September 1999. He said, amongst other things:- ...He was admitted with cardiac sounding chest pain and was found to be suffering from an inferoapical acute myocardial infarction, proven on ECG and serial cardiac enzymes............He developed further chest pain after cessation of the TPA and required a cardiac catheterisation on 20 January 1999 which showed significant 2 vessel disease and moderate LV dysfunction......successful transluminal extractional atherectomy and stent insertion to the left circumflex was performed...........After a stormy early passage he was eventually discharged after 5 days. ...I have had no responsibility for any accident suffered but would consider that being a heavy smoker and in a non active work position could contribute to his problems but would not be the prime cause to his myocardial infarction. 40. There are follow up reports from the doctor to Dr Awada up to March 2001, however, they do not deal with matters going to causation. 41. Dr Awada is the applicant's general practitioner. On 21 November 1999 he reported to the applicant's then Solicitor. In that report he noted that the applicant consulted him on 26 January 1999, that is, after his release from hospital. 42. At the time the applicant's complaints were of anxiety, dizzy spells and being light headed. The report went on:- He told me that while he was driving his taxi on the night of 19 January 1999 he started to feel short of breath, lethargic and had a central chest pain. The time was about 12 midnight around the end of his shift. He was admitted urgently to the St George Hospital and discharged on the 25 January 1999. ... Past history relevant to this case involves heavy smoking and high cholesterol and triglycerides levels. This being a very dangerous combination as far as coronary artery disease is concerned. However, there is nothing in the past history to indicate that Mr Fakhreddine complained of any chest pain or other symptoms pointing to a coronary artery disease before this accident occurred. My assessment is that he had a silent coronary artery disease in the form of atheromatous plaques on the wall of the arteries which has been growing in size over the years. His non-active work as a taxi driver is definitely a contributor to the heart disease. He always complained of his job as being stressful due to the fact that he had to deal with a variety of passengers many of whom were rude or difficult in some way. My opinion is that on 19 January 1999 Mr Fakhreddine, with these atheromatous plaques in his coronary arteries, was getting very tired and stressed towards the end of his long shift providing an appropriate circumstance for an artery spasm, or a blood clot to completely block the already narrowed arteries causing his heart attack. 43. Dr Awada detailed the continuing treatment regime which including treatment to lower cholesterol and triglycerides and dietary and life style advice. The doctor noted that the applicant was very anxious and very apprehensive regarding doing any physical work. He envisaged a long rehabilitation process. He said:- Taxi driving can be both physically and emotionally stressful due to the fact that it involves dealing with traffic congestion, difficult passengers and the like. 44. In a later report to the applicant's present solicitor dated 15 September 2001 Dr Awada expressed the same views. Under a heading diagnosis he said:- There was no past history of chest pain complaints or other symptoms pointing to a coronary artery disease suffered by Mr Fakhreddine. My assessment is that he had a silent coronary artery disease in the form of atheromatous plaques on the wall of the coronary arteries, which has been growing in size over the years. His work as a taxi driver is definitely a factor as taxi driving involves a lot of stress and long periods of relative inactivity. My opinion is that on 19 January 1999 Mr Fakherddine was getting very tired and stressed towards the end of his long shift, thus providing the right circumstance for an artery partially blocked by an atheromatous plaque, to become completely blocked by a stress-related arterial spasm causing an acute event in the form of a heart attack. 45. The doctor considered at that time that the applicant was fit to drive taxis on a part time basis or a delivery truck. He also considered the applicant fit for full time light work. 46. In a document headed "Opinion" Dr Awada had provided a helpful account of his view as to the causation of the heart attack. It is not clear, nor does it matter, whether the document was annexed to the report of 15 September 2001 or was the answer to some later query from the Solicitor. Dr Awada said:- Five conditions are known as main contributors to coronary artery disease. These are heavy smoking, high blood pressure, diabetes mellitus, high cholesterol and family history ie; genetic predisposition. Other factors include being overweight, lack of physical activity and stress (both physical and emotional). In Mr Fakhreddine's case, two of the main conditions were at work, namely heavy smoking and high cholesterol. The lack of activity and the stress associated with taxi driving, I believe, were other contributors. Although the degree of the injury caused by the stress of the taxi driving can not be estimated or quantified as a figure or in percentage terms, my opinion is that the stress of the work on that day was translated into high blood pressure and arterial spasm. This in turn causing an acute event superimposed on a chronic condition triggering a heart attack. Once can argue that a silent coronary disease may remain as such ie; silent for years unless complicated by an acute event. Therefore in Mr Fakhreddine's case the injury that cause his heart attack was partly due to his work ie; it happened partly as a result of Mr Fakhreddine's doing his job. As the heart attack caused an irreversible damage to the heart muscles in the form of left ventricle dysfunction, one can argue that there is permanent injury sustained by mr Fakhreddine partly as a result of performing his duties. Unfortunately I am unable to separately quantify in percentage terms, the extent of the injury as caused by the pre-existing conditions and the conditions that prevailed on the day of Mr Fakhreddine's heart attack. 47. Dr Awada's hand written clinical notes were tendered, however, neither Counsel referred me to any material in the notes upon which they relied. 48. Dr Kendall, a Consultant Physician, examined the applicant and following that examination reported to his Solicitor on 26 July 2001. The doctor had a letter from the Solicitor and the report of Dr Awada of 29 November 1999. 49. The doctor does not appear to have had the benefit of a interpreter and made the comment that the applicant's English was indifferent. He suggested that it might be more reliable to have an interpreter on official occasions. 50. Dr Kendall noted the clear family history and then said:- He has a clear past medical history until he suffered his heart attack. 51. One would presume that the doctor did not consider Dr Awada's history of heavy smoking, high cholesterol and triglycerides level as a past medical history in the sense he was using. However, some doubt arises as to this as Dr Awada's report does not make any reference to a two-fold bypass which Dr Kendall seems to assume Dr Post performed. 52. Dr Kendall had a history that the applicant would work seven days a week, twelve hours a day driving between 7am and 10pm and sometimes a few hours after that. The doctor noted that the applicant would have to rely heavily on 'fast food' and that:- Even though his occupation was very demanding, it was basically sedentary (at the wheel of a taxi). His smoking was increased because it seemed to relieve his nervous stress. 53. The doctor's account of the events of 19 January 1999 was as follows:- On the night of 19 January 1999 whilst driving his taxi he felt anxiety, dizziness and lighheadedness followed by shortness of breath, lethargy and central chest pain. It was 12 midnight and he had been working ever since early morning. 54. The applicant told Dr Kendall that he found driving a great strain because of the rudeness of passengers and the increasing difficulties with traffic. He also told the doctor that the day on which he fell ill had been a particularly demanding one with difficult passengers and difficult conditions. 55. Under the heading "Opinion" Dr Kendall said:- This man's demanding work over years was a definite contribution to his heart attack and ensuing consequences. Under the Act an employer is not entitled to simply accept an unreasonable and unsafe work practice even if not firmly and directly imposed by the employer. His hours were unsafe for his health and that of his passengers and other road users. I am appending what I have written about the nexus between (unwelcome, distressing) stress and vascular disease which applies to your client also. 56. The paper referred to by Dr Kendall is entitled "Comment on Relationship between Stress and Coronary Heart Disease". 57. The first paragraph demonstrates that the paper is primarily concerned with long term effects than short term ones. It reads:- It has been said quite correctly that we all are exposed to stress and that probably a reasonable degree of stress might be not only not harmful but in fact beneficial. However, long continued stress which is unwelcome (either qualitatively or quantitatively) is more widely than not regarded as having adverse influence on the body and particularly the coronary circulation. 58. The mechanism involved, in the doctor's view, is explained as follows:- The mechanism involved is that of frequent and/or sustained rises in blood pressure in response to the over-production of the stress substances adrenaline and noradrenaline. These raise the blood pressure and the raised blood pressure has an adverse mechanical effect on the walls of blood vessels, making them more susceptible to atheroma formation. At the same time it can also be demonstrated that there is an increase in the production of blood lipids (Cholesterol and Triglycerides) in patients under the type of stress described by me. 59. Dr Kendall challenges, in the paper, the view that stress does not have this effect and points to the practise which he suggests is virtually universal of doctors advising patients who have a warning sign of coronary heart disease to avoid exposure to stress. 60. The applicant was examined by Dr Sekel for the respondent's insurer and reported on 19 September 2001. The applicant was accompanied by an interpreter, although Dr Sekel commented that he spoke reasonably adequate English. 61. Dr Sekel noted that the applicant had no significant past medical history other than breathing problems which he referred to in the following terms:- Chest Problems Prior to January 1999 Mr Fakhreddine said that the following periods of time are only approximately as he cannot recall precise details. For the preceding one to three years before January 1999, he occasionally noticed the following: · Mild breathlessness if walking up hills · Occasional breathlessness when sitting still. A few months before January 1999, Mr Fakhreddine became increasingly concerned by "nervousness", ie presumably anxiety, which caused throbbing occipital headache. He states that he is not aware of the cause(s) of the anxiety. He attended his usual general practitioner, Dr Kamel Awada of Arncliffe, who diagnosed "problems with the blood pressure, which may have been too high or too low", but Mr Fakhreddine was not provided with medication for either the nerves or the blood pressure. Dr Awada did not provide any specific diagnosis, and Mr Fakhreddine did not require any specific time off work. During the few days or weeks prior to 20 January 1999, Mr Fakhreddine attended Dr Awada again for breathlessness or hypertension. 62. The doctor's history of the events of 19 and 20 January 1999 were taken from the applicant and a report from Dr Awada. He did not have documentation from the hospital or the treating specialist. 63. The history was:- On 20 January 1999 Mr Fakhreddine commenced his normal taxi driving duties at 3:00pm as always. At approximately 6:00pm he started to feel a little unwell, ie he felt breathless, and the whole of his body felt "very lazy" (presumably generally weak). Nevertheless, he forced himself to continue driving for a further five hours, after which he drove home. He states that at approximately 9:30pm or 10:00pm, a passenger spat onto the floor of the car, which irritated him, but he acknowledges that passengers often act inappropriately, and this would not have been the cause of a heart attack. When he arrived home, he fell into a coma and his wife summoned an ambulance that transported him to St George Public Hospital, Kogarah, where he was admitted for approximately seven days. He was diagnosed as having suffered myocardial infarct (heart attach). The coma was apparently short lived as he recalls being transported by ambulance to hospital. Somebody told him that his heart apparently stopped for approximately 11 seconds while he was on an ECG monitor. 64. The treatment at the hospital of which the doctors was aware, other than medication was:- Cardiac catheterisation, transluminal extraction atherectomy and insertion of two stents. 65. Dr Sekel gave the following "diagnosis and opinion":- Based on a single medical report from Dr Awada, and from Mr Fakhreddine's history, he apparently sustained a myocardial infarct (heart attack) on 20 January 1999. Symptoms began approximately three hours after he commenced his 12 hour shirt, and while he was performing his normal work. He does recall an irritating event that occurred with one of his passengers, but this was a few hours after the commencement of his initial symptoms. Based on his statements and on comments in his general practitioner's report, he apparently continues to complain of lightheadedness, depression, mild breathlessness on exertion, weakness and tiredness. However, he does not have significant angina. Physical examination today revealed no abnormality of the heart or lungs, but a definitive statement regarding his heart and lung function could only be offered after reviewing original and recent investigation results, which were not available to me today. Nevertheless, on the balance of probabilities, the following is likely to be correct:- · Mr Fakhreddine did suffer a myocardial infarct on 20 January 1999. · He may have some mild left ventricular dysfunction, ie mild heart failure, although clinical signs today suggest that this would only be slight. · He describes symptoms suggestive of depression, and his general practitioner also confirmed that he suffers from "features of depression". · Mr Fakhreddine provides a history suggesting that the symptoms of depression were present for some weeks or months prior to 20 January 1999. · Mr Fakhreddine states that the initial symptoms associated with his heart attack commenced approximately three hours after he started his work as a taxi driver on 20 January 1999, and before he was irritated by one of his passengers. · The "nervousness", headache and low blood pressure had been diagnosed by his general practitioner some months before 20 January 1999. In fact he last consulted Dr Awada for these symptoms a few days or weeks prior to 20 January 1999. · Mr Fakhreddine did not perform any unusual activities during the last shift as a taxi driver. 66. Under a heading "Attributability" the doctor said:- For all of the above reasons, it is clear that Mr Fakhreddine's heart attack would have occurred at approximately the same time, whether or not he had been driving the taxi, ie his work as a taxi driver was not a substantial contributing factor to the heart attack. The commonly acknowledged risk factors for myocardial infarct are cigarette smoking, elevated cholesterol, elevated blood pressure, diabetes mellitus, a family history of coronary artery disease (heredity), and obesity. There is also some indirect evidence that longstanding significantly increased anxiety may be associated with increased risk of heart attack. Mr Fakhreddine gives a history of prolonged heavy smoking, elevated cholesterol and ongoing anxiety and depression. There is no evidence to suggest that is employment as a taxi driver was a substantial contributing factory to any of these risk factors. Specifically, Mr Fakhreddine's apparent depression was present for some weeks, months, or even years prior to 20 January 1999, and there is no evidence to suggest that his work as a taxi driver was a substantial contributing factor of his depression. 67. The doctor's expression of the view that, because the applicant's heart attack would have occurred at approximately the same time, his work as a taxi driver was not a substantial contributing factor to the heart attack is a misunderstanding of the effect of s 9A(2), however, the important matter is the doctor's medical view not his erroneous legal opinion. 68. The doctor thought that the applicant's heart attack had not resulted in symptoms that would prevent him from driving. He thought that, based on Dr Awada's report, some level of cardiac impairment existed "although it is clear that zero percent of his impairment would be due to his employment as a taxi driver". 69. Dr David Johnson, a cardio-thoracic surgeon, examined the applicant for the respondent's insurer on 24 September 2001. The doctor observed that the applicant spoke reasonable English but that they had the services of an excellent Arabic interpreter. 70. The doctor's history of the event was as follows:- On 20 January 1999 he had been driving his taxi for about nine hours. He had had a number of incidents which occurred causing him to feel somewhat stressed with difficult passengers and about midnight he had a passenger in the back of the car who was vomiting. He had felt unwell for about one hour before but just after midnight he suffered retrosternal chest pain. He drove home and said he felt very unwell and had continuing chest pain. His wife called an ambulance and he was taken to St George Hospital. He came under the care of Dr J Post, Cardiologist where he remained for seven days. Apparently a diagnosis of myocardial infarction was made. I have no ECG or ECG reports to examine but I suspect this was a lateral infarction or impending infarction. 71. Dr Johnson noted that De Awada had previously treated the applicant for high blood cholesterol and triglycerides and advised him against heavy smoking. 72. Under the heading "Past History" he said:- The claimant has been a heavy cigarette smoker for many years. There is a history as outlined above, of elevated blood cholesterol and triglycerides, all of which are risk factors for coronary artery disease. He has no family history of coronary artery disease and in fact his mother and father at seventy eight years are still alive and well. He has five brother and three sisters, all of whom are alive and well. He has not been treated previously for high blood pressure. He said prior to having his heart attack he had not been particularly well and he did get short of breath easily, particularly when he walked up hills. He said his life was rather sedentary because he drive a cab a lot of the days and did not do much physical exercise. 73. Dr Johnson considered that the applicant would be fit for his pre-injury duties as a taxi driver, driving perhaps four to five hour shifts, but this is prevented by his anxiety symptoms. 74. On the relationship between the accident and the injuries and disabilities alleged Dr Johnson said:- The claimant developed his impending myocardial infarction while driving his taxi at work on 20 January 1999. According to the history that I obtained today there is no real evidence that some unusual stress may have precipitated this attack. He was known to be a heavy smoker and had some elevation of blood cholesterol and triglycerides prior to this according to Dr Awada. I do not believe there is a strong relationship between his heart condition and his work, particularly on 19 January 1999 and 20 January 1999. There are pre-existing risk factors in the form of heavy smoking and elevated blood cholesterol and triglycerides. This would be likely to accelerate development of atheromatous plaques in the coronary arteries. Otherwise the claimant had not suffered from high blood pressure and had no family history of heart disease. Although working as a taxi driver can be stressful, there is no firm medical evidence that this type of stress increases the rate of development of atheromatous plaques in the coronary arteries. Some severe stress might precipitate a myocardial infarction when there is pre-existing severe disease of the coronary arteries, but this did not seem to be so in this case. 75. The applicant was also examined by Dr George Hall, a cardiologist, for the respondent, however, his report was not tendered. Ms Goodman relies upon the failure to tender that report (Jones v Dunkel (1959) 101 CLR 298). 76. Dr Awada's reports support a contention that the events of the shift were a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the applicant's coronary artery disease. 77. However, the doctor commented that the degree of the injury caused by the stress of taxi driving can not be estimated or quantified as a figure or in percentage terms. He also said:- Unfortunately I am unable to separately quantify in percentage terms, the extent of the injury as caused by the pre-existing conditions and the conditions that prevailed on the day of Mr Fadkhreddine's heart attack. 78. Whilst this limitation does not mean that the doctor's views are not relevant to determining, on the whole of the evidence, whether the conditions prevailing on the day were a substantial contributing factor, it does mean that mere acceptance of Dr Awada's view would not discharge the relevant onus. 79. Dr Kendall's reports do not, in my view, advance the applicant's case as it has been put. 80. Dr Sekel is of the view that the applicant's heart attack would have occurred at approximately the same time whether or not he had been driving the taxi. Whilst not determinative, as Dr Sekel apparently thought, this is a matter to be taken into account for the purpose of determining whether the applicant's employment was a substantial contributing factor (s9A(2)(d)). 81. Ms Goodman sought to meet this proposition by putting that Dr Sekel proceeded upon a different history to that which in fact occurred. She said in her submission:- Dr Sekel in fact seems to work on the premise that the symptoms that the applicant developed commenced to manifest themselves prior to the incident with the person in the cab who spits or vomits. That is completely different, of course, to the history that has been given before Her Honour and the history referred to by the other medical practitioners. 82. With respect to Ms Goodman I do not consider this to be a correct analysis of the evidence. The applicant indicated in chief that he did not feel very well up until about 8 o'clock. Then he was very busy and how he felt may well not have been a matter present to his mind. 83. Dr Sekel's account of what the applicant told him, there was an interpreter, was:- On 20 January 1999, Mr Fadkhreddine commenced his normal taxi driving duties at 3:00pm as always. At approximately 6:00pm he started to feel a little unwell, it he felt breathless and the whole of his body felt "very lazy" (presumably generally week). Nevertheless, he forced himself to continue driving for a further five hours, after which he drove home". Dr Sekel also refers to the "irritating event" being a few hours after the commencement of his initial symptoms. 84. The history Dr Johnson had also noted that the applicant "had felt unwell for an hour before (the vomiting incident). 85. There are other accounts, however, it seems to me that the probability is that the applicant was feeling unwell sometime before the vomiting incident. 86. Whilst dealing with timing it is convenient to refer to Ms Goodman's submission that there was one train of events from the incident in the taxi to the heart attack. She put:- But it is all one train of events, your Honour, which starts with whatever the incident was in the taxi, he then feels unwell, stops, cleans the car, has a break, tries to get back, cannot do it, goes back home, collapses and he has the heart attack. 87. This is to telescope the applicant's own account of the events. The vomiting incident was variously said to be at 9pm or 9:30pm. He cleaned the car and had a cup of coffee and sat for 15 minutes "and I start up again to 12 o'clock". It was then he said "I get, I feel very, very sick. I drive home". 88. The applicant was driving his taxi working for perhaps one and half to two hours. As I have mentioned earlier it is not clear what the applicant meant when he first said "I turn back home", however, it is clear that he continued to drive his taxi for quite some time after that. 89. Dr Johnson had a history of the vomiting incident yet he did not consider there to be a strong relationship between the applicant's heart condition and his work particularly on 19 January 1999 and 20 January 1999. He also said:- Some severe stress might precipitate a myocardial infarction when there is existing severe disease of the coronary arteries, but this did not seem to be so in this case. 90. There was relatively little evidence as to the events surrounding the vomiting occurrence. It appears the passenger ran away, the applicant did not claim there was violence between them. The incident does not appear to have been mentioned to Dr Awada or Dr Kendall or, if it was, not in a way which led them to attach any particular significance to it. 91. The impression I have formed is that it was the sort of unpleasant event not uncommon in a taxi driver's working shift which has, with the advantage of hindsight, attained a greater significance that it bore at the time. 92. No evidence was given to suggest that this was a particularly unusual event and, indeed, the applicant referred to the need to clean the taxi of spit after nearly every shift. 93. The applicant appears to have acknowledged to Dr Sekel that passengers often act inappropriately and that this would not have been the cause of his heart attack. The applicant did, however, say in cross-examination:- Q. Dr Sekel goes on to say that you agreed with him that the act of someone spitting in the taxi would not have been the cause of your heart attack. A. No, it doesn't cause a heart attack but it makes you nervous, it may assist. Q. When you came to court and gave evidence in October last year. A. Can you bear with me in one word, if you do not mind? What I said, I said the spitting it make you nervous, it not to assist. 94. Dr Johnson had a history of the vomiting attack. He noted that the applicant "had a number of incidents which occurred causing him to feel somewhat stressed with difficult passengers and about midnight he had a passenger in the back of the car who was vomiting". 95. It is, however, clear from the passage I have earlier quoted that Dr Johnson did not see this event, or any of those events, as being sufficient to amount to the 'severe stress" to which he referred. 96. Although it would seem that the applicant did not have chest pains before 19 January 1999 he did have breathlessness. Dr Awada said:- Past history relevant to this case indicates heavy smoking and high cholesterol and triglycerides levels. This being a very dangerous combination, as far as coronary artery disease is concerned. 97. The tests conducted by Dr Post showed significant 2 vessel disease. 98. S9A(2)(e) requires that the applicant's state of health before the injury be taken into account for the purpose of determining whether the applicant's employment was a substantial contributing factor to the injury. 99. Ms Goodman drew my attention to the case of Dominguez v Sanchez Constructions Pty Ltd (2000) 20 NSW CCR 295. In that case Ashford J held that an altercation with a fellow employee in the course of the applicant's employment was sufficient to cause an intracranial bleed from a rise in blood pressure. On the facts of that case Her Honour held that the worker's employment was a substantial contributing factor to the intracranial vessel rupture. 100. The decision in that case depended on its own facts. There are a number of points of distinction on the facts of which reference to two is sufficient. First, the altercation was dealt with in comprehensive detail and the evidence revealed a much more heated event than emerges from the evidence before me. Second, the rupture occurred as the worker turned away from the site of the argument. The timing and extent of the onset lent weight to an application of the principles discussed in Adelaide Stevedoring Company Ltd v Forst (1940) 64CLR 538. There was no suggestion that the worker was suffering symptoms before the altercation occurred. 101. Upon a consideration of all the material in this case, including the absence of a report from Dr Hall, I am not satisfied that the applicant has discharged the onus of establishing that more probably than not his employment was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of his coronary artery disease. 102. Dr Awada's theory of an arterial spasm or, as he said in his first report, a blood clot completely blocking already narrowed arteries may not support an alternative case based upon a frank injury. However, this question does not need to be considered as the requirement for the employment to be a substantial contributing factor would also apply to such a case. If what occurred is to be regarded as a frank injury, I am not satisfied that the applicant has established on the balance of probabilities that the applicant's employment was a substantial contributing factor to that injury. 103. Had the applicant's heart attack occurred before the introduction of s9A into the Workers Compensation Act 1987 the applicant way well have succeeded in this claim. However, that is not the position and I make an award for the respondent. Ms Goodman of Counsel instructed by H.K. Husseini & Co appeared for the applicant Mr Martin of Counsel instructed by T.J. Doubleday appeared for the respondent. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.