Nonconformist Pty Ltd v Fisher - [2021] NSWPICPD 26

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Nonconformist Pty Ltd v Fisher [2021] NSWPICPD 26
APPELLANT:	Nonconformist Pty Ltd
FIRST RESPONDENT:	Kerry Lillian May Fisher
SECOND RESPONDENT:	Mark Barry Clifford
THIRD RESPONDENT:	Nicole Megan Clifford
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-948/20
MEMBER:	Mr G Edwards
DATE OF MEMBER’S DECISION:	18 December 2020
DATE OF APPEAL DECISION:	19 August 2021
CATCHWORDS:	WORKERS COMPENSATION – epidemiological evidence and the question of causation – Amaca Pty Ltd v Booth [2011] HCA 53; Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262; 19 NSWCCR 385 discussed and applied – principles applicable to establishing error in accordance with s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – Raulstonv Toll Pty Ltd [2011] NSWWCCPD 25; Henderson v Foxworth Investments Ltd [2014] UKSC 41; SLT 775; 1 WLR 2600 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers

REPRESENTATION:	Appellant:
Mr S McMahon, counsel
Hicksons Lawyers
First Respondent:
Mr D Adhikary, counsel
Shanahan Tudhope Lawyers
Second Respondent:
Mr A J Parker, counsel
Stacks/Goudkamp
Third Respondent:
Mr T Hickey, counsel
Slater & Gordon
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 18 December 2020 is revoked. 2. The matter is remitted to a different member for re-determination.

INTRODUCTION AND BACKGROUND

Mr Terry Clifford (the deceased) was employed by Nonconformist Pty Ltd (the appellant) as a courier driver. He was the sole director of that company and performed courier services through a sub-contract arrangement between the appellant and Direct Couriers (Aust) Services Pty Ltd (Direct Couriers). On 22 January 2016, in the course of his employment, the deceased died while driving his van through Campvale, New South Wales during his last delivery run for that day.
The death certificate issued on 18 February 2016 listed the cause of death as ischaemic heart disease and coronary artery atherosclerosis.[1] The autopsy report prepared for the coroner listed the direct cause of death as ischaemic heart disease with an underlying condition of coronary artery atherosclerosis as an antecedent cause.[2]
[1] Application in Respect of the Death of a Worker (ARDW), p 10.
[2] ARDW, pp 11–13.
Ms Kerry Fisher, the wife of the deceased, lodged a claim for workers compensation on the basis that she was dependent upon the deceased. The claim was denied by the appellant. The appellant disputed that:
(a) the deceased’s death resulted from an injury in the course of his employment within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) the deceased’s employment was a substantial contributing factor to any injury as required by s 9A of the 1987 Act;
(c) the nature of the deceased’s employment gave rise to a significantly greater risk of injury than if he had not been employed in employment of that nature, as required by s 9B of the 1987…

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: [2021] NSWPICPD 26
Decision Date: 19 August 2021

CaseChat Overview and Summary

In the case of Nonconformist Pty Ltd v Fisher, the dispute centred around a claim for workers' compensation made by Mr. Fisher against his employer, Nonconformist Pty Ltd. The dispute was heard in the Workers Compensation Commission of New South Wales. The core issue was whether the employer's negligence caused or materially contributed to the development of Mr. Fisher's disease, specifically focusing on the relevance and admissibility of epidemiological evidence in establishing causation. The case delved into the application of legal principles articulated in significant Australian and overseas decisions such as Amaca Pty Ltd v Booth, Seltsam Pty Limited v McGuiness, and James Hardie & Coy Pty Limited v McGuiness, among others.

The legal issues at the heart of the case included the interpretation and application of epidemiological evidence to prove causation in workers' compensation claims, the role of expert testimony in interpreting such evidence, and the admissibility of such evidence under relevant statutory provisions. The court had to examine whether the epidemiological evidence was sufficient to establish causation and if it complied with the statutory requirements under the Workplace Injury Management and Workers Compensation Act 1998. Additionally, the court was required to consider the principles for establishing an error in the context of s 352(5) of the Act, drawing on decisions such as Raulston v Toll Pty Ltd and Henderson v Foxworth Investments Ltd.

The court found that the epidemiological evidence provided by Mr. Fisher's experts was not sufficient to establish causation on the balance of probabilities. It noted that the evidence did not meet the threshold required to prove that the employer's negligence caused or materially contributed to Mr. Fisher's disease. The court relied on the decisions in Amaca Pty Ltd v Booth and Seltsam Pty Limited v McGuiness to emphasize that epidemiological evidence alone cannot be sufficient to prove causation in workers' compensation claims without additional evidence linking the specific circumstances of the case to the risk factors identified. Consequently, the claim was dismissed. The court made an order dismissing the claim for compensation brought by Mr. Fisher against Nonconformist Pty Ltd.

Orders