Sinclair v State of New South Wales (Fire & Rescue) (NSWPIC 2024)

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Key Takeaways

The Personal Injury Commission found that a firefighter’s employment was a substantial contributing factor to the development of prostate cancer, in circumstances where the minimum service period was not met for the presumption in s19A of the Workers Compensation Act 1987 (the 1987 Act) to apply.

Brief Facts

The injured worker was employed with Fire & Rescue NSW (the employer) as a firefighter, commencing service in 2014. He alleged that he suffered a disease, prostate cancer, caused by the nature and conditions of his employment, deemed to have occurred on 7 December 2020. He alleged that he was exposed to smoke and other toxins and carcinogens during the course of his firefighting duties, which he argued that, on the balance of probabilities, was a substantial contributing factor to the development of prostate cancer.

The worker alleged that during his duties he was exposed to bushfire smoke (containing carbon dioxide, carbon monoxide, sulphur dioxide and nitrogen dioxide), diesel particulate, contaminated turnout clothing, benzene, formaldehyde, hydrogen cyanide, and other various toxins.

Important to note is that s19A of the 1987 Act stipulates that a firefighter’s employment is presumed to have been a substantial contributing factor to the development of a disease, where the disease is one listed in Schedule 4. This includes many primary site cancers, including primary site prostate cancer. However, before the presumption applies, a firefighter needs to have served for a minimum qualifying service period – in the case of prostate cancer, 15 years. Here, the worker had only been employed as a firefighter since 2014 (six years) and didn’t qualify for the presumption.

Judgment

The question to be determined by the Member included whether employment was a substantial contributing factor to the worker’s injury, notwithstanding that s19A did not apply. Ultimately the question came down to medical opinion.

The worker relied upon on the opinion of his qualified medico-legal expert, Dr Korbel, and the employer that of Dr Gorman. The worker also relied upon his statement and other factual evidence detailing the nature of his firefighting duties. The employer contended that the worker had not made out a prima facie case – and because the presumption in s19A did not apply, the onus was on the worker to establish the precise kind of work he performed, where he performed that work and the types of carcinogens he was exposed to during his employment.

The Member noted that when considering causation and the link between the worker’s cancer and his employment, the presumption in s19A, although it did not apply to the worker, was still relevant. The presumption demonstrated that there was ‘no doubt’ that if a firefighter was exposed to firefighting carcinogens for over 15 years and went on to develop prostate cancer, that employment was presumed to be related. The Member pointed out that the presumption did not mean that if a firefighter is exposed for less than 15 years and developed prostate cancer, that employment is not causally linked. The Member also rejected the employer’s argument that the worker did not make out a prima facie case.

Ultimately, the Member preferred the medico-legal expert qualified by the worker. He noted that both experts agreed generally that firefighting increased the risk of developing prostate cancer, and there was an absence of any other possible cause, other than the worker’s employment.

Implications

While s19A of the 1987 Act sets out certain types of cancers presumed to be related to employment for firefighters once they have met the relevant minimum service period, this does not mean a firefighter that does not meet the minimum service period (or indeed, the listed types of cancers) cannot still be found to have suffered a compensable disease injury. Ultimately, each case will turn on its own facts, and come down to the medical evidence.