Fisher v Nonconformist Pty Ltd

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.