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
[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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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.