Fisher v Nonconformist Pty Ltd

Case [2024] NSWCA 32


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Fisher v Nonconformist Pty Ltd [2024] NSWCA 32
Hearing dates: 10 November 2023
Date of orders: 20 February 2024
Decision date: 20 February 2024
Before: Meagher JA at [1];
Kirk JA at [2];
Simpson AJA at [149]
Decision:

In each proceeding: Appeal dismissed.

Catchwords:

APPELLATE REVIEW – appeal from Personal Injury Commission – Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353(1) – nature of appellate review – whether error in point of law – meaning of aggrieved in point of law – requirement that appeal identifies a point of law in relation to the decision of the presidential member – failure to recognise error of law generally an error of law

WORKERS' COMPENSATION – entitlement to compensation following death of worker – Workers’ Compensation Act 1987 (NSW) s 9A – alleged misdirection as to proper legal test – alleged constructive failure to exercise jurisdiction – alleged failure to give adequate reasons – limits of judicial review – causation involves evaluative question of fact – no constructive failure to exercise jurisdiction – no failure to give adequate reasons

CAUSATION – meaning of “substantial contributing factor” in s 9A of Workers Compensation Act 1987 (NSW) – s 9A a more stringent causation test than “arising out of employment” in s 4(a) – Member found that causation not made out – issue of substantial contribution did not arise – requirement that risk “came home”– similarity to the position in tort – increase in risk insufficient of itself to establish causation for purposes of s 9A – meaning of “common sense” causation – common sense causation connotes a number of ideas – no error in use of common sense causation here

Legislation Cited:

District Court Act 1973 (NSW) s 142N

Personal Injury Commission Rules 2021 (NSW) r 78

Health Practitioners Regulation National Law Act 2009 (NSW) s 162

Dust Diseases Tribunal Act 1989 (NSW) s 32(1)

Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 294, 352-353

Workers’ Compensation Act 1926 (NSW)

Workers Compensation Act 1987 (NSW) ss 4, 9, 9A, 9B, 25

Workmen's Compensation Act 1925, 15 & 16 Geo 5, c 84

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420

Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538

Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26; (2005) 221 CLR 568

Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19

Amaca Pty Limited v Gatt [2022] NSWCA 151

Amaca Pty Ltd v AB & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Reports 81-910

Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36

Amaca Pty Ltd v Doughan [2011] NSWCA 169

Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111

Amaca Pty Ltd v New South Wales [2003] HCA 44; (2003) 77 ALJR 1509

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AGLC
Fisher v Nonconformist Pty Ltd [2024] NSWCA 32
Case
[2024] NSWCA 32
Decision Date

CaseChat Overview and Summary

The appeal concerned the entitlement to workers' compensation following the death of a worker, brought before the Court of Appeal of New South Wales by Fisher against Nonconformist Pty Ltd. The primary dispute revolved around the interpretation and application of the *Workers' Compensation Act 1987* (NSW), specifically section 9A, which governs causation in claims for compensation.

The court was required to determine whether the Personal Injury Commission had erred in law in its assessment of causation. Specifically, the appellant argued that the Commission had misdirected itself as to the proper legal test for causation under section 9A, constructively failed to exercise its jurisdiction, and failed to provide adequate reasons for its decision. The central legal issue was whether the deceased worker's death was caused by an injury arising out of or in the course of employment, as defined by the Act, and whether the Commission's findings on this point were legally sound.

Meagher and Kirk JJA, with Simpson AJA agreeing, reasoned that section 9A of the *Workers' Compensation Act 1987* (NSW) imposes a more stringent test for causation than the general "arising out of employment" requirement. The court held that the Commission's finding that causation was not made out meant the issue of "substantial contributing factor" did not arise. The judges affirmed that causation under section 9A requires more than an increase in risk, drawing a parallel to the position in tort law where the risk must "come home." The court found no error in the Commission's application of "common sense" causation, which encompasses several underlying ideas, and concluded there was no constructive failure to exercise jurisdiction or inadequate reasons.

Consequently, in each proceeding, the appeal was dismissed.

Orders

Orders of the court

In each proceeding: Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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