Fisher v Nonconformist Pty Limited - [2022] NSWPIC 201

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fisher v Nonconformist Pty Limited & Ors [2022] NSWPIC 201
APPLICANT:	Kerry Lillian May Fisher
FIRST RESPONDENT:	Nonconformist Pty Limited
SECOND RESPONDENT:	Mark Barry Clifford
THIRD RESPONDENT	Nicole Megan Clifford
MEMBER:	Paul Sweeney
DATE OF DECISION:	6 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Worker with pre-existing ischaemic cardiomyopathy dies of cardiac arrythmia in the course of his employment as a courier; conflicting evidence as to whether traffic-related air pollution to which the worker was exposed whilst driving substantially contributed to his death for the purpose of section 9A Workers Compensation Act 1987; evidence established that the pollution increased the risk of cardiac injury and death; Held- Commission not satisfied that the evidence established that the deceased’s death was caused by traffic -related air pollution; award for the first respondent.
DETERMINATIONS MADE:	Award for the first respondent.

STATEMENT OF REASONS

BACKGROUND

During his lifetime, Terry Clifford (the deceased) was the working director of Nonconformist Pty Limited (the first respondent), a company which provided courier services to Direct Courier (Aust) Services Pty Ltd.
On 22 January 2016, at about 3pm, the deceased was driving his courier van on Richardson Road, Camp Vale when the vehicle left the roadway and collided with a steel fence post and a tree. When police officers gained access to the vehicle they found the deceased upright in the driver’s seat without a pulse. He was not breathing.
An autopsy report for the coroner concluded that the direct cause of the deceased’s death was ischaemic heart disease. The antecedent cause of death was coronary artery atherosclerosis.
By these proceedings, the applicant claims the compensation provided for by s 25 of the Workers Compensation Act 1987 (the 1987 Act) when the death of a worker results from employment injury. She alleges that exposure to air pollution while driving his courier vehicle on 22 January 2016 either caused an injury to the deceased’s cardiovascular system or, alternatively, materially aggravated pre-existing cardiovascular disease.
The first respondent denies that the deceased suffered an injury pursuant to s 4(a) of the 1987 Act and that the deceased’s employment was a substantial contributing factor to that injury. It also denies that the deceased suffered an injury pursuant to s 4(b)(ii) of the 1987 Act and that the deceased’s employment was the main contributing factor to the aggravation etc. of that disease. Finally, the respondent disputes that the applicant has established for the purpose of s 9B of the 1987 Act that the nature of the deceased’s employment as a courier driver:
“gave rise to a significantly greater risk of the worker suffering the injury than had the worker not been employed in employment of that nature.”

PROCEDURE BEFORE THE COMMISSION

When the matter came on for arbitration hearing on 4 April 2022, Mr Adhikary of counsel, represented the applicant, Mr McMahon, of counsel, represented the first respondent,
Mr Parker, of counsel, represented the second respondent, and Mr Hickey, of counsel, represented the third respondent. The arbitration was…

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: [2022] NSWPIC 201
Decision Date: 6 May 2022

CaseChat Overview and Summary

Fisher brought a claim against Nonconformist Pty Limited for workers' compensation, following the death of his son, the worker, who died of a cardiac arrhythmia while employed as a courier. The dispute centred on whether the worker's death was caused by the traffic-related air pollution he was exposed to while driving for his employer. The dispute was heard in the NSW Workers Compensation Commission.

The Commission was required to decide whether the traffic-related air pollution to which the worker was exposed substantially contributed to his death, as defined by section 9A of the Workers Compensation Act 1987. The Commission heard evidence that the pollution increased the risk of cardiac injury and death. However, there was conflicting evidence as to whether the pollution caused the worker's death.

The Commission found that while the evidence established that the pollution increased the risk of cardiac injury and death, it was not satisfied that the evidence established that the deceased's death was caused by the traffic-related air pollution. The Commission found that the evidence did not establish a causal link between the pollution and the worker's death. Accordingly, the Commission dismissed the claim and ordered the first respondent to pay costs.

Orders