Birkinhead v NSW Rural Fire Service - [2023] NSWPIC 419

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Birkinhead v NSW Rural Fire Service [2023] NSWPIC 419
APPLICANT:	Hannah Birkinhead
RESPONDENT:	NSW Rural Fire Service
Member:	Rachel Homan
DATE OF DECISION:	17 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly compensation pursuant to section 37 as amended by the by the Workers Compensation Legislation Amendment Act 2012 in respect of a psychological injury; payments of weekly compensation already made on the basis that the applicant was an exempt worker; whether the applicant was a ‘firefighter’ for the purposes of clause 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987; consideration of Ware v NSW Rural Fire Service, New South Wales v Chapman-Davis, New South Wales v Stockwell (No.2); Held – applicant was not employed in a designated firefighter role but was performing the duties of a firefighter during active fires; the injury was received by the applicant as a ‘firefighter’; the applicant is an exempt worker; no order as to costs.
determinations made:	The Commission determines: 1. For the purposes of cl 25 of Part 19H of Sch 6 to the Workers Compensation Act 1987, the injury was received by the applicant as a firefighter. 2. The Commission declines to make the orders sought by the applicant. 3. No order as to costs.

STATEMENT OF REASONS

BACKGROUND

Ms Hannah Birkinhead (the applicant) was employed by NSW Rural Fire Service (the respondent) as an operational officer.
The applicant sustained a psychological injury arising out of or in the course of her employment as a result of a number of incidents that occurred during the 2019 and 2020 bushfire season.
Liability for the injury was accepted and payments of weekly compensation were made in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act) in force prior to the amendments made by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), on the basis that the applicant was a ‘firefighter’ and therefore exempt from the amendments pursuant to the transitional provision in cl 25 of Pt 19H of Sch 6 to the 1987 Act.
On 16 February 2023, the insurer wrote to the applicant indicating that as she was approaching 26 weeks of payments, her weekly compensation payment would be reduced to the current statutory rate (being less than 90% of her basic award rate).
The applicant’s solicitors wrote to the insurer on 4 April 2023 asserting that the applicant was employed in an office-based role at the RFS Fire Control Centre. The applicant had never been required, nor had she ever fought a fire in the course of her employment. The applicant’s injury was caused by trauma associated with working in the office, including receiving 000 calls, heavy workload, dealing with the community affected by the fires and reviewing footage of an aircraft crash in which three of her colleagues were killed. It was claimed that the applicant was not a ‘firefighter’ and her weekly payments should be governed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPIC 419
Decision Date: 17 August 2023

CaseChat Overview and Summary

Birkinhead was a volunteer with the NSW Rural Fire Service, claiming weekly compensation for a psychological injury sustained during active fires. The dispute centred on whether Birkinhead qualified as a ‘firefighter’ under clause 25 of Part 19H of Schedule 6 to the Workers Compensation Act 1987. The court had to determine whether Birkinhead's injury fell within the category of compensation available to exempt workers, given the specific legislative amendments. The primary legal issue was whether Birkinhead's role, although not officially designated as a firefighter, qualified him as one for the purposes of the legislation due to the nature of the duties performed during fires.

The court considered the definitions and legislative history, including relevant case law such as Ware v NSW Rural Fire Service, New South Wales v Chapman-Davis, and New South Wales v Stockwell (No.2). It examined whether Birkinhead's active participation in firefighting duties during fires met the criteria for being considered a firefighter. The court concluded that Birkinhead, despite not holding a designated firefighter role, effectively performed the duties of a firefighter during active fires and thus qualified as one for compensation purposes. Consequently, the court ruled that Birkinhead was an exempt worker entitled to the compensation he sought.

The court's reasoning hinged on the interpretation of the term 'firefighter' within the legislative context and the practical performance of duties during fires. By recognising Birkinhead's active role in firefighting, the court ensured that the legislative intent to compensate those who perform such duties was upheld. The decision underscored the importance of the nature of duties performed rather than the formal designation of the role. Ultimately, the court found in favour of Birkinhead, affirming his entitlement to compensation.

Orders