Sinclair v State of New South Wales (Fire & Rescue NSW)
[2025] NSWPIC 562
•20 October 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sinclair v State of New South Wales (Fire & Rescue NSW) [2025] NSWPIC 562 |
| APPLICANT: | Colin Stewart Sinclair |
| RESPONDENT: | State of New South Wales (Fire & Rescue NSW) |
| SENIOR MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 20 October 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; matter remitted by Presidential Unit for re-determination; claim for permanent impairment compensation, compensation for pain and suffering, and section 60 expenses as result of prostate cancer; applicant is a firefighter but not entitled to benefit of presumptive legislation due to length of service; respondent disputed that the applicant had sustained injury, and that employment was a substantial contributing factor to injury; oral evidence from epidemiologist and applicant’s independent medical examiner; application by applicant to lodge supplementary statement with written submissions in reply to respondent’s submissions refused; application by applicant for determination of permanent impairment without referral to Medical Assessor refused; Murray v Shillingsworth, Seltsam Pty Limited v McGuiness, EMI (Australia) Ltd v Bes, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited, Inspector General in Bankruptcy v Bradshaw, Etherton v ISS Properties Services Pty Ltd, Thompson v Bernipave Pty Ltd, and Boga v Carpet Call (Vic) Pty Ltd t/as Carpet Call considered; Held – applicant sustained injury arising out of or in the course of employment; employment was a substantial contributing factor to injury; matter remitted to President for referral to Medical Assessor; general order for section 60 expenses; respondent to pay applicant’s costs. |
| DETERMINATIONS MADE: | The Personal Injury Commission determines: 1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 7 December 2020 (deemed) – disease. Body systems/parts: urinary and reproductive systems, and scarring (TEMSKI). Method of assessment: whole person impairment. 2. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, with the exception of that part of the report of (c) Application to Lodge Additional Documents dated 25 January 2025 and attached documents; (d) Application to Lodge Additional Documents dated 4 March 2025 and attached documents; (e) Application to Lodge Additional Documents dated 2 September 2025 and attached documents, and (f) Application to Lodge Additional Documents dated 4 September 2025 and attached documents. 3. The respondent is to pay the applicant’s medical expenses pursuant to s 60 of the Workers Compensation Act 1987. 4. The respondent is to pay the applicant’s costs as agreed or assessed. 5. The matter is to be listed for further preliminary conference after the issue of the Medical Assessment Certificate, to address the issues of the claim for pain and suffering, pursuant to s 67 of the Workers Compensation Act 1987, and any further costs orders. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Colin Stewart Sinclair (Mr Sinclair), is employed by the respondent, State of New South Wales (Fire & Rescue NSW) (Fire & Rescue), as a senior firefighter.
Mr Sinclair claims that, as a result of the nature and conditions of his employment with the respondent, he contracted prostate cancer. The deemed date of injury is
7 December 2020.The applicant completed a worker’s injury claim form (the claim form) on 21 December 2020.
The copy of the claim form attached to the Application to Resolve a Dispute (Application) is largely illegible. It is possible to discern “nature and conditions of employment” and “prostate cancer”, but little else of relevance.
On 29 December 2020, the respondent’s insurer, Employers Mutual Limited (EML) issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
EML disputed that the applicant had sustained injury; that employment was a substantial contributing factor to injury; that the respondent was the employer that had last employed the applicant in employment to the nature of which the disease injury was due; that the respondent was the employer that had last employed the applicant in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury; that the applicant had incapacity for work, such as to entitle him to payment of weekly benefits; and that medical treatment was reasonably necessary as a result of the injury.
EML also disputed liability in accordance with s 19A and Part 19K of Schedules 4 and 6 of the Workers Compensation Act 1987 (the 1987 Act).
By letter dated 7 December 2021, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation, pursuant to s 66 of the 1987 Act, in respect of 40% whole person impairment (WPI) in the sum of $85,250. The applicant also claimed pursuant to s 67 of the 1987 Act the sum of $40,000 for pain and suffering, being 80% of the maximum payable (that is, 80% of a most extreme case); and $12,110 pursuant to s 60 of the Act.
On 21 March 2022, EML issued the applicant with a further notice pursuant to s 78 of the 1998 Act.
The notice was in accordance with the previous notice, except that EML also disputed that the applicant’s permanent impairment resulted from an injury.
EML accepted that the applicant had developed primary site prostate cancer. EML maintained that the applicant had not established that the condition arose out of or during [sic] the course of his employment.
The applicant lodged the Application on 25 October 2023.
The applicant claimed to have sustained a disease injury, that is prostate cancer, arising from the nature and conditions of employment, with deemed date of injury of
7 December 2020.The applicant claimed the sum of $85,250, pursuant to s 66 of the 1987 Act in respect of 40% WPI as a result of injury on 7 December 2020 to the urinary and reproductive systems; and $40,000 for pain and suffering. He also claimed the sum of $12,110, pursuant to s 60 of the 1987 Act, in respect of past medical expenses.
The respondent lodged its Reply on 15 November 2023.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained injury arising out of or in the course of his employment;
(b) whether employment was a substantial contributing factor to injury;
(c) the assessment of permanent impairment, and
(d) the amount payable for pain and suffering.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter has had a protracted history before the Personal Injury Commission (Commission).
After a conciliation/arbitration hearing on 31 January 2024, before Member Wynyard, the Member issued a Certificate of Determination (COD) dated 21 February 2024.
Member Wynyard found that the applicant’s employment was a substantial contributing factor to the development of the injury and made orders dispositive of the matter.
The respondent lodged an appeal against Member Wynyard’s decision to the Commission’s Presidential Unit.
On 5 February 2025, Acting Deputy President Sweeney revoked the COD and remitted the matter to another non-presidential Member for re-determination.
The matter was listed for preliminary conference before me on 7 March 2025. Mr Stockley of counsel appeared for the applicant, instructed by Ms Dalyell. Ms Compton of counsel appeared for the respondent, instructed by Ms Dyson. Mr Sinclair was present. Mr Chris “P” of EML and Mr James Monteverdi of Fire & Rescue also attended.
The applicant objected to the admission of a report from Professor Tim Driscoll, epidemiologist, dated January 2024, which had been attached to an Application to Lodge Additional Documents (ALAD) dated 4 March 2025, lodged by the respondent.
The applicant’s objection to the admission of Prof Driscoll’s report did not include any submission that the report offended regulation 44 of Workers Compensation Regulation 2016 (the Regulation).
For reasons that were provided at the preliminary conference and recorded, Prof Driscoll’s report was admitted. A decision as to whether the balance of the documents attached to the ALAD dated 4 March 2025 would be admitted was deferred.
The applicant advised that he would require additional time to obtain evidence to respond to Prof Driscoll’s evidence.
The matter was listed for further preliminary conference on 28 April 2025. Ms Dalyell appeared for the applicant. Ms Ferry appeared for the respondent. The applicant attended. Ms Thiru “A” of EML, and Mr Monteverdi and Mr Casey Rosman, also of Fire & Rescue, attended.
Ms Dalyell advised that the applicant had not qualified an expert to respond to Prof Driscoll’s evidence and requested a further preliminary conference in late June 2025.
The matter was listed for further preliminary conference on 27 June 2025. Ms Dalyell was advised that at that conference, I would require that she inform me of the name of the expert qualified by the applicant, and when the report was expected to be available.
At the preliminary conference on 27 June 2025, Ms Dalyell appeared for the applicant.
Ms Flanagan appeared for the respondent. The applicant, Ms “A” and Mr Monteverdi also attended.Ms Dalyell advised that the applicant had not qualified an expert and did not intend to do so. The applicant intended to issue a summons to Prof Driscoll, with the intention of seeking leave to cross-examine him.
Ms Flanagan advised that the respondent objected to any application to cross-examine Prof Driscoll; and intended to seek leave to cross-examine the applicant.
The applicant’s solicitor did not seek to make any submissions or request any order regarding proposed cross-examination of Prof Driscoll.
The matter was listed for conciliation/arbitration hearing on 9 September 2025, for the entire day.
On 21 July 2025, the Commission received a message from Ms Dalyell, requesting a further preliminary conference. Ms Dalyell stated that, the respondent having objected to the applicant “call[ing]” Prof Driscoll for cross-examination, the applicant requested that the matter be listed for directions “for the purpose of an Order being made in relation to this issue”.
On 21 July 2025, I caused the following email to be sent to the parties:
“Your request has been referred to the member.
Your attention is directed to Personal Injury Commission Rules 2021, regulation 56, and the direction dated 27 June 2025.
Any application by the applicant to cross-examine Prof Driscoll should be made at the conciliation/arbitration hearing, assuming there has been compliance with the Rules.”
Notwithstanding this, on 24 July 2025, the Commission received a message from Ms Dalyell, again requesting that the matter be listed for further preliminary conference, to address the dispute between the parties as to cross-examination of Prof Driscoll.
The matter was therefore listed for further preliminary conference on 30 July 2025.
Mr Stockley appeared for the applicant, instructed by Ms Dalyell. Ms Compton appeared for the respondent, instructed by Ms Dyson.The parties were again advised that the issue of whether the applicant was to be granted leave to cross-examine Prof Driscoll would be determined at the conciliation/arbitration hearing.
The matter was listed for conciliation/arbitration hearing on the Teams platform on 9 September 2025. Mr Stockley appeared for the applicant, instructed by Ms Dalyell. Ms Compton appeared for the respondent, instructed by Ms Dyson and Ms Malcolm. The applicant was present. Mr Norman “W” of EML, and Mr Monteverdi and Mr Rosman also attended.
The applicant objected to the respondent relying on the reports of Prof Driscoll, and those of Dr Michael Rochford and Dr David Gorman, the independent medical examiners qualified by the respondent, on the basis that, pursuant to regulation 44 of the Regulation, the respondent was entitled to rely on only one forensic medical report.
Prof Driscoll, although he is medically qualified, was not retained to provide a report in respect of the applicant’s claim or dispute. He was retained by the respondent, in his capacity as an epidemiologist, to provide it with a report regarding “Prostate cancer and firefighting”. His report is not a “forensic medical report.”
The respondent chose to rely on the report of Dr Gorman and on the report of Dr Rochford for the purposes of history only.
Mr Stockley made submissions in support of the application to cross-examine Prof Driscoll, after which Ms Compton did not press any objection to leave being granted for cross-examination. Leave was granted.
The applicant did not object to leave being granted to the respondent to cross-examine
Dr Edward Korbel, the applicant’s independent medical examiner, to whom the respondent had issued a summons to attend. Leave was granted for cross-examination of Dr Korbel.The respondent did not seek leave to cross-examine the applicant. The applicant undertook not to take any “Browne v Dunn”[1] point as a result of this decision.
[1] (1893) 6 R 67.
The matter proceeded to hearing. Prof Driscoll and Dr Korbel gave oral evidence and were cross-examined.
Mr Stockley made his submissions.
Ms Compton, some hours into her submissions, was not able to conclude the submissions by 6.00pm. Directions were made for the respondent to complete its submissions in writing; and for the applicant to provide written submissions.
The respondent lodged written submissions.
The applicant lodged both submissions in reply and an ALAD dated 17 September 2025, attaching a supplementary statement dated 16 September 2025. The applicant submitted the statement should be admitted into evidence.
As the Commission had received no submissions from the respondent in respect of the ALAD dated 17 September 2025, I caused the following email to be sent to the parties on
26 September 2025:“The applicant has lodged an Application to Lodge Additional Documents dated 17 September 2025, attaching a further statement, dated 16 September 2025.
The respondent is requested to advise by 5pm on 30 September 2025 whether it has any objection to the admission of the ALAD and the applicant’s statement.”
On 1 October 2025, the respondent lodged submissions opposing the admission of the ALAD dated 17 September 2025 and the applicant’s statement dated 16 September 2025.
The applicant’s ALAD dated 17 September 2025 and his statement dated 16 September 2025 are rejected, for the reasons below.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) Reply and attached documents;
(c) ALAD dated 25 January 2025 and attached documents, lodged by the respondent;
(d) ALAD dated 4 March 2025 and attached documents, lodged by the respondent;
(e) ALAD dated 2 September 2025 and attached documents, lodged by the applicant, and
(f) ALAD dated 4 September 2025 and attached documents, lodged by the respondent.
Oral evidence
Prof Driscoll and Dr Korbel gave oral evidence and were cross-examined.
FINDINGS AND REASONS
Evidence of the applicant, Colin Stewart Sinclair
Mr Sinclair’s first statement is dated 26 April 2023.
There is no history of cancer in his family.
He joined Fire & Rescue in 2014.
He has been stationed at the following stations:
(a) Alexandria training college: 9 September 2014 to 12 December 2014;
(b) Parramatta: 12 December 2014 to 20 April 2015;
(c) Cabramatta: 20 April 2015 to 13 October 2015;
(d) Smithfield: 13 October 2015 to 17 January 2016;
(e) Ryde: 17 January 2016 to 18 August 2016;
(f) Eastwood: 18 August 2016 to 24 July 2020;
(g) Gordon: 24 July 2020 to 15 October 2021, and
(h) Beecroft: 15 October 2021 to present.
He is currently on full duties at Beecroft.
He has attached a table entitled “Firefighter Attendance Statistics Counts”, (the attendance records) which details the types of jobs he attended, how many, and when. (This document is largely illegible and has been provided in legible form and analysed by the respondent. I will refer to it in due course).
Throughout his career with Fire & Rescue he has been exposed to many toxic substances.
Bushfire smoke: the P2 masks provide insufficient protection. Most toxins and chemicals released during a bushfire penetrate the P2 masks. On task forces during the recent bushfire seasons, P2 masks were the only PPE (personal protective equipment) provided. The average fire truck carries only two cylinders per person, meaning even if they were to use breathing apparatus, they would only sustain them for less than an hour. This is impractical, given most bush fires required them to be onsite for many hours. During a typical bushfire, the main chemicals/toxins are carbon dioxide, carbon monoxide, sulphur dioxide and nitrogen dioxide.
Diesel particulate in fire station engine bays: numerous fire stations continue to house contaminated clothing, gear and equipment. He was exposed to such equipment at Smithfield and Eastwood. Most stations do not contain exhaust extraction systems. Throughout his career, he has been exposed to start up diesel particulate when attending calls. No PPE is provided to stop inhalation of diesel fumes on startup.
Turnout gear rooms: before current decontamination and laundering practices, contaminated clothing was rehung in the turnout room. Access around the station often entailed walking through or into the turnout room, causing unnecessary exposure to carcinogens present in the clothing.
When conducting salvage and overhaul after building fires, the recommended practice was generally to remove the breathing apparatus and don a P2 mask. This means he has routinely been exposed to such substances as:
(a) Benzene – found in furniture wax;
(b) Formaldehyde – found in cleaning materials, and
(c) Hydrogen cyanide – used in the manufacture of synthetic fibres, stick and stain resistant coatings, and flame retardants added to the foam inside furniture.
His duties often include driving, requiring him to position the vehicle to allow for access to equipment “etc”. Changes in wind direction often result in him being engulfed in fumes and smoke. As the fire hose is being used, it is not possible to reposition the fire truck to avoid inhalation of carcinogenic smoke and fumes. He has never been trained in any safety practices for such situations or provided with protective gear or equipment.
When he was stationed at Parramatta, Cabramatta, and Smithfield, gear and equipment had to be re-used for several jobs, without any decontamination process between jobs.
The clothing was seldom removed and bagged. There were many instances where the contaminated gear was worn for up to half a shift. There was no decontamination process between shifts.
The smell of carcinogenic smoke would remain in vehicles for many hours, and on equipment/gear. During a busy shift, many hours would be spent sitting in the cab inhaling the chemical smells. No recommended practices have been in place to decontaminate the truck and gear, and insufficient PPE is provided for sitting in the back of the truck.
The applicant’s second statement is apparently dated 15 August 2023, although both the signature and the date are illegible. Much of the evidence repeats what the applicant said in his first statement.
He worked as a personal trainer for eight years and maintained a very healthy diet. He rarely smoked. He would say he smoked on average once a month.
Before the prostate cancer, he was fit and healthy. He did not suffer from any significant illnesses. He did not have any episode of prostatitis. There is no history of cancer in his family.
Firefighter attendance statistics counts spreadsheet (attendance records)
The summary has been reproduced in table form by the respondent and attached to ALAD dated 4 March 2025.
The table shows the following:
(a) from December 2014 to June 2015: the applicant attended 32 fires, with an average total time of attendance of 75.2 minutes. The applicant attended 146 “other emergencies and incidents”, with an average total time of attendance of 33.9 minutes;
(b) from July 2015 to June 2016: the applicant attended 48 fires, with an average total time of attendance of 63.9 minutes. The applicant attended 181 “other emergencies and incidents”, with an average total time of attendance of 36.5 minutes;
(c) from July 2016 to June 2017: the applicant attended 32 fires, with an average total time of attendance of 282 minutes. The applicant attended 146 “other emergencies and incidents”, with an average total time of attendance of 32.2 minutes;
(d) from July 2017 to June 2018: the applicant attended 37 fires, with an average total time of attendance of 71.7 minutes. The applicant attended 154 “other emergencies and incidents”, with an average total time of attendance of 62.4 minutes;
(e) from July 2018 to June 2019: the applicant attended 19 fires, with an average total time of attendance of 688 minutes. The applicant attended 136 “other emergencies and incidents”, with an average total time of attendance of 37.1 minutes;
(f) from July 2019 to June 2020: the applicant attended 12 fires, with an average total time of attendance of 82.6 minutes. The applicant attended 102 “other emergencies and incidents”, with an average total time of attendance of 34.3 minutes, and
(g) from July 2020 to June 2021: the applicant attended four fires, with an average total time of attendance of 45.6 minutes. The applicant attended 44 “other emergencies and incidents”, with an average total time of attendance of 33.5 minutes.
Expert evidence
Professor Tim Driscoll
Prof Driscoll’s report is dated January 2024.
The applicant does not dispute that Prof Driscoll is appropriately qualified to provide an expert opinion.
Prof Driscoll was asked to provide information in relation “…to a number of cancer claims made by firefighters.” Specifically, information was requested about the relationship between firefighting and the risk of prostate cancer.
Prof Driscoll was asked nine specific questions. Before answering the questions, he referred to the epidemiological principles relevant to the consideration of published studies addressing the risk of prostate cancer due to exposure as a firefighter; the published evidence about the risk factors for prostate cancer; and the relationship between firefighting and the risk of prostate cancer.
Prof Driscoll referred to “surveillance bias”, a matter on which he expanded in his oral evidence, and which he discussed in his responses to the questions.
Surveillance bias describes the situation where members of one exposure group are more likely than the comparison exposure group to behave in a way that means they are more (or less) likely than the comparison group to be diagnosed with the “outcome of interest”, even when there is no relationship between exposure and the risk of developing the outcome.
Prof Driscoll explained that the most common such “behaviour” is coming into contact with the health system. When the outcome is cancer, the most common cause of surveillance bias is being involved in a cancer screening program.
Prof Driscoll opined that surveillance bias is a particular concern for studies of occupational exposure as a firefighter and prostate cancer, for several reasons.
Firstly, prostate cancer screening is common (using a blood test of prostate specific antigen (PSA)), but most countries do not have a formal prostate cancer screening program for which participation in the community is very high.
Secondly, involvement in PSA screening varies considerably across the community.
Thirdly, there is evidence that firefighters are aware of concerns raised about the risk of prostate cancer being associated with firefighting, more likely to be motivated to have a PSA test than people in exposure groups to which they are typically compared in studies, and more likely to undergo such testing at a younger age than comparison populations.
Fourthly, there is evidence that firefighters might be encouraged and/or facilitated to undertake PSA screening, by being supported financially to do so by employers (although this appears not to always be the case).
Fifthly, prostate cancer is known to be very common in men as they age and commonly is present without causing symptoms.
Sixthly, prostate cancer survival after diagnosis is high. Measures of death from cancer are less susceptible to surveillance bias than measures of cancer incidence, because cancers that are serious enough to result in death are likely to be identified regardless of the degree of surveillance. Therefore, concern about the possibility of surveillance bias is particularly raised when the relative risk is increased in studies of incidence, but not in studies of mortality.
Prof Driscoll stated that there are a number of different systems for classifying substances in terms of their carcinogenicity. The primary system is run by the International Agency for Research on Cancer (IARC).
Prof Driscoll has considered the key articles in the published literature that examine the relationship between exposure as a firefighter and the risk of developing prostate cancer. He has relied on the recently published IARC Monograph, which considered the carcinogenicity of occupational exposure as a fire fighter, and conducted a literature search and critical appraisal of relevant papers published since the IARC Working Group, of which Prof Driscoll was a member, met in June 2022, when it finalised its consideration, presented in the monograph.
Prof Driscoll could not be certain that the search identified all relevant papers but was confident no major papers had been missed.
The Working Group identified 34 studies that provided information on prostate cancer risk in firefighters and were considered suitable for inclusion. There was no clear relationship between any of the proxy measures of exposure and prostate cancer risk.
The Working Group concluded there was evidence of an association between occupational exposure as a firefighter and an increased risk of prostate cancer, but this could have been caused by bias, particularly surveillance bias.
Prof Driscoll quoted the following:
“The Working Group considered it likely that the elevated incidence rates for prostate cancer arose in part from increased surveillance in the firefighter groups compared with the general population.
Overall, the Working Group found that there was evidence suggesting that the risk of cancer of the prostate is positively associated with occupational exposure as a firefighter. However, the possibility of detection bias, the lack of a consistent relationship to any of the included exposure metrics, and weak results in the mortality studies (which would be less susceptible to surveillance bias) meant that chance, bias, and confounding could not be ruled out with reasonable confidence.”
The Working Group had identified that the other main methodological limitations of many of the included studies included some or all of selection bias, exposure misclassification, and confounding. These biases could have resulted in overall bias in either direction in the estimate of prostate cancer risk.
Several relevant studies have been published since the Working Group that produced Monograph 132 met in June 2022. None changes the conclusions based on that monograph. Prof Driscoll has listed the publications in his report.
Prof Driscoll concluded that the recent IARC review is the most authoritative summary of the available published evidence of the relationship between occupational exposure to firefighting and the risk of prostate cancer.
Prof Driscoll then responded to the nine questions posed of him. His comments were based on a critical appraisal of the relevant literature, which he had summarised, the information provided to him in the reference letter, and his own knowledge.
I have summarised the questions and Prof Driscoll’s responses,
(a) Having regard to the most recent literature and studies, what factors are generally considered causative of prostate cancer?
There is strong evidence that an increased risk of prostate cancer is associated with increasing age; family history of prostate cancer and family history of breast cancer; increasing height; and various genetic variants. (Non-modifiable risk factors).
There are no modifiable (external and behavioural) risk factors for which there is strong evidence of a causal association with prostate cancer risk.
The IARC has identified limited epidemiological evidence of an association between the risk of prostate cancer and:
(i)Androgenic (anabolic steroids);
(ii)Arsenic and inorganic arsenic compounds;
(iii) Cadmium and cadmium compounds;
(iv) firefighter (occupational exposure);
(v) Malathion;
(vi) night shift work;
(vii) consumption of red meat;
(viii) rubber manufacturing industry;
(ix) Thorium-232 and its decay products, and
(x) X- and Gamma-radiation.
(b) Which of the factors have a higher risk with respect to being causative factors for prostate cancer?
The risk is likely to vary with the level of and/or nature of the risk factor, and the amount of exposure to the risk factor. The measure of increased risk is likely to vary, depending on the level of exposure. This makes it difficult to know what “level” should be chosen for a particular exposure, and what “level” should be chosen for the comparison exposure, in terms of reporting the increased risk for that exposure.
Relative risks, or their equivalent, reported in a single study will depend on the exposure circumstances of the subjects, so can be expected to vary between studies. Where multiple studies provide measures of relative risk (or equivalent) and use a similar exposure metric, a meta-analysis can often provide an “average” measure of this relative risk. This estimate can take into account statistical uncertainty of the measures from individual studies, but it usually cannot take into account methodological variation and limitations of the studies.
Other factors, such as latency and length of follow-up, can influence the risk measure in any individual study.
For these reasons, no attempt was made here to rank or compare the risk factors.
(c) Whether any of the causative factors are associated with firefighting duties
None of the known causative factors is associated with firefighting duties.
IARC has determined there is limited epidemiological evidence of causal connection between occupational exposure as a firefighter and the risk of prostate cancer.
(d) Where chemical/toxic compound/carcinogen exposure has been identified as a causative factor, please specify
There are no known relevant exposures where exposure has been identified as causal.
(e) Provide a summary of the current relevant scientific studies which address the connection between firefighting and prostate cancer
The recent IARC review is the most authoritative summary of the available published evidence of the relationship between occupational exposure to firefighting and the risk of prostate cancer.
This review found there is evidence of an association between occupational exposure as a firefighter and an increased risk of being diagnosed with prostate cancer, but concluded this evidence is inconsistent, and several biases, particularly surveillance bias, cannot be confidently ruled out as the cause of this apparent association. Studies published since the IARC review do not provide important additional insights into the relationship.
Prof Driscoll agreed with the conclusion of the Working Group, noting that he was a member. Having reviewed the few relevant studies published since the review by the Working Group, he did not think there was additional information available that should change that conclusion.
(f) Based on scientific studies and other literature, whether there is conclusive evidence in male full-time firefighters of an increase in prostate cancer when compared with the general population. If necessary, please comment on factors such as age and length of service.
There is not conclusive evidence that male full-time firefighters have an increased risk of prostate cancer when compared with the general population.
The recent IARC review is the most authoritative summary of the available published evidence of the relationship between occupational exposure in firefighting and the risk of prostate cancer.
The review found there is evidence of an association between occupational exposure as a firefighter and increased risk of being diagnosed with prostate cancer, but concluded this evidence is inconsistent and several biases, particularly surveillance bias, cannot be confidently ruled out as the cause of this apparent association.
(g) Based on scientific studies and other literature, whether there is conclusive evidence in male part-time firefighters (i.e. retained firefighters) of an increase in prostate cancer when compared with the general population. If necessary, please comment on factors such as age and length of service.
There is not conclusive evidence that male part-time firefighters have an increased risk of prostate cancer when compared with the general population.
Prof Driscoll’s answer is otherwise the same as his answer to (f).
(h) Do you consider that the scientific studies and other literature you have identified/reviewed crosses the threshold to assert that firefighting duties cause and/or are a substantial contributing factor to firefighters contracting prostate cancer? The word “substantial” has been interpreted by courts as “real and of substance” casual [sic] connection.
I do not consider that the level of evidence regarding occupational exposure as a firefighter (i.e. “firefighting duties”) is strong enough to conclude that such work is a real or substantial cause of, or a real or substantial contributing factor to, firefighters developing prostate cancer. There is moderate epidemiological evidence (“limited evidence”, as described by the IARC) of an increased risk – the meta-analysis estimates for relative risk were 1.21 (95% CI 1.12 – 1.32) for incident cancers and 1.07 (95% CI 0.95 – 1.20) for mortality. However, this evidence is not consistent and several methodological biases, particularly surveillance bias, cannot be confidently ruled out as the cause of the identified association.
(i) Any other relevant matter?
No.
Prof Driscoll confirmed that he had considered all the information he had identified that was relevant to the questions asked and answered the questions to the best of his ability.
Prof Driscoll’s oral evidence
Prof Driscoll confirmed that the IARC Monograph was the most up to date extensive review available to him and is seen as the most authoritative document.
Prof Driscoll was asked whether there is evidence to suggest that firefighters are more likely to seek PSA screening for prostate cancer. He agreed and stated the reason that is important is that a lot of people have prostate cancer and never know, because they die with it, rather than from it.
Prof Driscoll agreed that the qualifications referred to in the monograph were cautious qualifications not to take the raw data at face value.
Prof Driscoll was asked whether in his report to the respondent’s solicitors he had provided evidence to support the proposition that firefighters were provided with encouragement or support to undergo PSA screening. He did not recall referring to any such evidence in the report.
Prof Driscoll said there was plenty of evidence that firefighters were offered such support around the world, and particularly in industrialised countries and countries where the studies are undertaken. It is quite clear that happens. It was quite clear among the researchers of the IARC report that that was the case.
Mr Stockley put to Prof Driscoll that there was no evidence that that type of support or encouragement was available to firefighters in New South Wales. Prof Driscoll responded that he did not know the answer, but it is not just an issue of whether people have been supported, but whether they would seek [testing] out. It is not really relevant to the consideration here, because they were looking at what had been found in the literature.
Prof Driscoll was asked whether one of the first things a medical practitioner asks of a patient is to provide their family history. He agreed this is fairly standard. He agreed that, depending on the situation, there would be a higher degree of surveillance among people who had identified risk factors other than occupational exposure.
Prof Driscoll gave evidence that PSA testing has been used pretty widely for at least 20 years, but has become more common in recent years. He thinks it is more common in wealthy industrialised countries than in poorer countries but has no personal experience of working in the latter. From his reading, that is his understanding.
Prof Driscoll was asked if he is familiar with what is called the Monash Report, that is the final report of the Australian Firefighters Health Study, from December 2014, and confirmed that he is.
Prof Driscoll confirmed that he understood the surveys analysed in the Monash Report were on the basis of Australian data.
Prof Driscoll has not referenced the report but has referenced or taken into account the publications that came from that report, mainly by A/Prof (Deborah) Glass. They were all taken into account in the IARC reviews and are included in the meta-analysis. They include all those results and are probably a more definitive analysis than the 2014 Monash Report.
In re-examination, Prof Driscoll expanded on surveillance bias. If one group has surveillance, and the other does not, there will be people in the first group who are identified as having prostate cancer but would not otherwise have been identified, because the cancer would never have caused symptoms.
The problem in that situation is that there are two groups whose underlying rates of cancer are the same, but because “we’ve looked harder at one”, they appear to have a higher rate of cancer than the other.
Prof Driscoll agreed with part of the IARC report that suggested the possibility of surveillance bias whereby firefighters may be more likely than the reference population to undergo a regular medical examination or cancer screening. They would thus be more likely to have cancers detected that would not otherwise have been identified or were detected earlier than in the reference population.
This bias could inflate the estimates of cancer risk among firefighters compared with the general population. Surveillance bias is of less concern for cancer sites for which there are no screening or early detection methods, or for which the survivability is low.
Prof Driscoll confirmed that all the results from the Monash Report were taken into account and essentially included in the IARC’s deliberations.
Prof Driscoll stated that the IARC does not look at the raw data, but takes the results from the published studies and looks at the methodology of the study. It does not take at face value what the authors of the paper say. IARC occasionally gets the raw data, but Prof Driscoll does not think that was obtained for the firefighters’ analysis.
Medical evidence
Beecroft General Practice
I do not intend to refer to the records in detail.
It is unnecessary that I refer to the applicant’s smoking history, given the evidence of both Dr Korbel and Dr Gorman, to which I refer below.
In light of the evidence that a family history of prostate cancer is a risk factor, I note only that the applicant’s family history is recorded as follows (as it appears in the notes):
“Family History:
Mother: Alive
Father: Deceased Age 77 CVA [cerebrovascular accident (stroke)]
Other family members:
Father Diabetes
Father Stroke
Mother Stroke
Mother Diabetes
Other details:
DAD – CVA late 70’s”
It is not clear whether the “other family members” are the applicant’s parents or grandparents. What is clear is that there is no reference to family members having prostate cancer or breast cancer.
The clinical notes also record that the applicant is a firefighter and was not exposed to asbestos, dust, or radiation.
Dr Richard Haddad – urological cancer surgeon
I have not discussed Dr Haddad’s evidence in detail, as he has not opined on causation and the applicant’s diagnosis is not in dispute.
Dr Haddad reported to the applicant’s general practitioner, Dr Vandana Daya, on
7 December 2020 that the applicant’s PSA was elevated for his age decade, and the free ratio was low, which was unfavourable. The applicant needed a prostate MRI, which had been arranged.On 22 January 2021, Dr Haddad reported to Dr Daya that the applicant had multifocal prostate cancer. “He is a young prostate cancer diagnosis, with two young children aged 6 and 3 and he is a firefighter.”
On 3 February 2021, Dr Haddad reported that he had discussed treatment options with Mr Sinclair and his wife. They had also discussed genetic testing of the applicant and his son, given the applicant’s young age at diagnosis.
Dr Edward Korbel – urological surgeon
Dr Korbel has provided several reports and also gave oral evidence.
On 9 March 2021, Dr Korbel noted that the applicant had recently undergone robotic-assisted radical prostatectomy. The applicant was not covered under the presumptive legislation, as he had only been working as a firefighter since 2014.
Dr Korbel recorded a history that during his period as a firefighter, the applicant had been exposed to smoke and the toxins that come with smoke. There are numerous toxic gases in the smoke.
The applicant had been exposed to oxidation and pyrolysis products and known carcinogens. It was noted that smoke toxins include benzene, 1,3 butadiene, and formaldehyde. The applicant had been exposed to radiation, diesel exhaust, asbestos and heavy metals (arsenic and cadmium). These are group 1 carcinogens, according to the IARC.
The applicant was one month post-operative and recovering well.
Dr Korbel opined that, in addition to the above exposure, the applicant was further exposed to potential carcinogenic material in various firehouses/depots where clothing and equipment, trucks, and other devices were not cleaned of smoke and other debris. On the balance of probability, these would be substantial contributing factors to the applicant’s prostate cancer.
Dr Korbel further opined that on the balance of probability, the applicant’s prostate cancer was related to his work and his exposure to various carcinogens.
The applicant was recovering from a left knee arthroscopy for a work-related injury that occurred on 15 March 2019. He had an arthroscopy in June 2019 and a second on
10 February 2021.The applicant had not reached maximum medical improvement (MMI), so it was too early to assess WPI.
Dr Korbel next reported on 31 March 2021.
Dr Korbel had been provided with documents from Dr Haddad.
The applicant had not yet reached MMI, and Dr Korbel suggested he be re-assessed, preferably in 12 months.
Dr Korbel’s next report is dated 26 October 2021.
The applicant was back at work and had been working full duties for the past four months.
Dr Korbel referred to his previous report, in which he had noted the applicant’s exposure to numerous carcinogens and toxins. He opined that the applicant’s employment was a substantial contributing factor to “all issues including prostatectomy, urinary control and sexual function issues”.
Dr Korbel assessed the applicant with 40% WPI. This assessment included 1% for scarring (TEMSKI).
Dr Korbel provided a supplementary report dated 7 September 2023.
Dr Korbel again noted that the applicant’s cancer is not covered by the presumptive legislation, as he had only been working for seven years as a firefighter, and the legislation presumes 15 years’ service is required for the development of prostate cancer.
The applicant had a high grade prostate adenocarcinoma, Gleason 4 + 3 = 7.
Dr Korbel opined that on the balance of probability, the applicant’s exposure would have contributed to him developing prostate cancer after seven years as a firefighter. The radical prostatectomy, and his urinary and sexual problems are all related to his prostate cancer.
Dr Korbel referred to several references, including the Monash Report.
Dr Korbel commented on Dr Gorman’s report. He noted Dr Gorman had confirmed from studies that there is increased risk of prostate cancer in firefighters, but it is related to duration of employment. The applicant did not have the 15 years required employment at the time of his diagnosis. However, Dr Korbel opined that Mr Sinclair’s exposures, as listed by him, would, on the balance of probability, have contributed to him developing prostate cancer.
Dr Korbel’s final report is dated 20 August 2025.
Dr Korbel was asked if his initial opinion was fortified by the applicant’s statement and the attendance records, which had been provided on 6 September 2023.
Dr Korbel had reviewed his previous reports. He confirmed that on the balance of probability, the applicant’s exposure to carcinogens and toxins occurred as described by him in the history, and in his attendance records, were a significant risk in him developing prostate cancer at the young age of 46.
Dr Korbel confirmed that advancing age and/or a family history of prostate cancer are relevant risk factors for developing prostate cancer. The genetic-basis problems in African and Caribbean men did not apply to Mr Sinclair, but they are reported to also have a much higher risk of prostate cancer.
Dr Korbel was asked to assume that the applicant has no family history of cancer. He responded that from the history provided, the applicant had no such family history. He had developed a high-grade prostate cancer at 46.
Dr Korbel opined that the applicant’s young age in developing prostate cancer was, on the balance of probability, related to his employment. In his history, he noted exposure to numerous carcinogens and toxins. Many of these are known or possible carcinogens. On the balance of probabilities, these exposures would be substantial contributing factors to the applicant developing prostate cancer.
Dr Korbel opined that these exposures, the applicant’s young age, and the absence of a family history, fortified his opinion that on the balance of probability, the applicant’s prostate cancer developed at the age of 46 and is causally connected to his employment.
Dr Korbel was asked to put to one side the epidemiological studies. He was asked whether it was his opinion, based solely on his specialised knowledge as a medical practitioner and experienced urologist, that the applicant’s exposure to carcinogenic substances in the course of his employment was probably (that is, on the balance of probabilities) a substantial contributing factor to his prostate cancer.
Dr Korbel responded that, in his experience as a urologist, he felt the applicant’s exposure to carcinogenic substances was on the balance of probability a substantial contributing factor to his developing prostate cancer.
Dr Korbel’s oral evidence
Dr Korbel gave evidence that he has undertaken medico-legal work for the past 25 years. He has examined and reported on firefighters. He has assessed at least 140 firefighters, of whom three were under the age of 50.
Dr Korbel confirmed that the majority of his reports were for workers, but he has provided probably about 18 reports for iCare on behalf of Fire & Rescue.
Dr Korbel’s evidence was that quite a few of the workers he examined were still working for Fire & Rescue into their 50s and 60s. Some may have been retired.
Dr Korbel agreed that protective equipment has improved over the years. Most firefighters had told him that has happened over the last, probably, 10 years.
Dr Korbel also agreed that the longer firefighters work, the more likely they are to get prostate cancer, but it also depends on their exposure. If they had a lot of exposure over a few years, then the risk would be higher, although there is no legislation to support that.
Dr Korbel agreed that if someone was attending fire calls for more than half of the period of their employment, the risk would be greater than if they were not attending fire calls.
Dr Korbel was asked if it is difficult, when writing reports, to analyse and provide an opinion as to the extent to which a firefighter was exposed to fire-related exposure.
Dr Korbel agreed that it is difficult, but one of the things that needed to be brought into account is exposure to firefighting foam, which a lot of firefighters have had. The applicant still had exposure to foam, which is a carcinogen that is not really mentioned a lot. It is one of the major ones.
Dr Korbel agreed that if the applicant was not exposed to PFOAs (perfluorooctanoic acid) in foam, that would reduce his risk, providing he was wearing full PPE, which was then sent off for cleaning, rather than the applicant cleaning it.
Dr Korbel accepted that the applicant’s exposure as a firefighter was six years, rather than seven. That did not change his opinion. He did not know how long the applicant was exposed to carcinogens. He may have had six years of exposure and the firefighter next to him may not.
Dr Korbel was asked if he was aware that, by 2014, Fire & Rescue had ceased to use any foams that contained PFOAs. He responded that “they claimed they did” but a lot of firefighters he had seen had told him they were still using the old foam after 2014. He had not asked the applicant that specific question.
Dr Korbel agreed he had not asked the applicant about his exposure to each of the carcinogens to which he was exposed. They are all recognised as substances to which firefighters are exposed when they are fighting fires. Dr Korbel has used various reports, including the Monash Report, which lists the substances to which firefighters are exposed. That is the standard report he used for all firefighters. Dr Korbel was not asked in his first report to provide references, but did so in his report dated 7 September 2023, as he had been asked to do so.
Dr Korbel was asked if, out of the 72 months (six years) there were a few months when the applicant did not attend any fire or other firefighting activities, he would accept the applicant’s risk would be reduced. He accepted that taking annual leave, or sick leave, would have reduced the risk, but the applicant was still exposed to carcinogens.
Dr Korbel said that the time of 15 years was a “figure that’s been basically grabbed from overseas studies and other states and the federal government”.
Dr Korbel was told there were 20 months out of 72 months when the applicant did not attend any fires, or any work with the respondent, and asked whether he accepted that reduced the risk, with which he agreed.
Dr Korbel agreed that he had been asked to make certain assumptions when he first examined the applicant, having been provided with a letter of instruction by the applicant’s solicitors.
Dr Korbel did not take a history that the applicant was a smoker. He was not provided with the applicant’s clinical records that showed he had a history of being a smoker. There was a slight increase in prostate cancer with smoking, but it was not a significant increase.
Dr Korbel did not agree that genetic testing would be recommended for the applicant. It is expensive and very few people with prostate cancer have it done.
Dr Korbel is aware of Prof Driscoll’s report. He is unable to comment on it as he is not an epidemiologist.
Dr Korbel accepted that the association between occupational exposure as a firefighter and prostate cancer depends on a multitude of aspects, including the length of time of attendance at fires.
Dr David Gorman – physician in general medicine, medical oncology, pain medicine specialist
Dr Gorman reported first on 28 February 2022.
Dr Gorman recorded that the applicant was noted on a routine blood test in November 2020 to have an elevated PSA. Further investigation confirmed prostate Gleason 4 + 3 = 7 adenocarcinoma.
Dr Gorman noted that the applicant joined the respondent in 2014. He has worked in multiple stations. He has been in multiple house fires. Initially the protection was not ideal but now masks are used.
The applicant was also concerned that at his station there was no ventilation, and he was exposed to diesel.
Dr Gorman recorded that the applicant is a non-smoker. He smoked occasionally socially when he was younger, but not now.
Dr Gorman noted he would review the literature with regard to prostate cancer, but under the New South Wales legislation, the qualifying service period for primary site prostate cancer is 15 years.
Dr Gorman opined that, while firefighters have an increased risk of developing prostate cancer, it is dependent on the length of exposure. The Monash Report states clearly that below 10 years there is not a significantly increased risk of prostate cancer. He therefore did not believe “one can state” that the applicant’s prostate cancer was related to his work as a firefighter.
The applicant’s main exposure to carcinogens and/or chemicals had been through house fires while he worked in stations including Parramatta, Cabramatta, Smithfield, Ryde, Eastwood, Gordon, and Beecroft. Dr Gorman did not understand him to have been involved in any major chemical fires.
The applicant was also worried about exposure to diesel in the stations where he had worked where there was minimal ventilation.
The applicant had not had any particular exposure to toxic chemicals in non-firefighting duties or everyday life.
There was no significant family history of prostate cancer, and the applicant had previously been well.
Dr Gorman understood that when the applicant first joined (the respondent) there was not so much PPE. Now, it is very good, and the applicant used it.
In terms of causation of prostate cancer, Dr Gorman opined that men with a strong family history have a greater incidence.
There are studies indicating that various diets may affect the incidence of prostate cancer, but nothing is definitive.
Cigarette smoking may be an independent risk factor for prostate cancer.
Hormone levels and obesity may also be factors, but this is also not definite.
A past history of prostatitis is also considered to be a possible risk factor.
Environmental carcinogens are thought possibly to be related to the development of prostate cancer, and there is evidence that through exposure, firefighters have an increased risk of prostate cancer.
Dr Gorman opined there was no causal connection between the applicant’s work with Fire & Rescue and the development of prostate cancer.
There is evidence for a relatively small but definite increased risk of prostate cancer in firefighters. However, it is dependent on exposure, and therefore, as the Monash Report shows, depends on the time worked with the fire brigade. It is for this reason that the legislation required 15 years work for the presumption to occur that the firefighter would be covered.
Dr Gorman referred to the medical literature he had attached, including the Monash Report.
Dr Gorman concluded the studies confirm there is an increased risk of prostate cancer in firefighters, but it is related to duration of employment (presumably related to duration of employment exposure to the chemicals released during fires).
Dr Gorman opined that after only six years of service, particularly when there has not been major exposure to chemical fires, the evidence is that Mr Sinclair’s work as a firefighter was not a substantial contributing factor for his development of prostate cancer. The risk, particularly with less than 10 years’ work as a firefighter, is not significant.
Dr Gorman next reported on 24 January 2024.
Dr Gorman referred to clinical records, and in particular the applicant’s history of smoking.
Dr Gorman noted the applicant was prescribed with Champix and Zyban, both to help reduce smoking, during 2016 in particular.
Dr Gorman further noted that on 15 May 2018, Dr Induri recorded that the applicant quit smoking “over Christmas” and previously smoked intermittently and socially.
On 2 September 2019, Dr Nanayakkara noted that the applicant smoked up to three cigarettes per day. It was noted in 2019 that the applicant was an ex-smoker.
Dr Gorman opined it is clear that it is controversial, and the data is conflicting regarding whether smoking is a causative risk factor for prostate cancer. “One must conclude that”, if smoking does cause an increased risk of prostate cancer, that risk is very small.
Dr Gorman attached “Risk Factors for Prostate Cancer”, which made it clear there was not conclusive evidence in male smokers of an increased risk of prostate cancer when compared to the non-smoking general population, particularly in the white population.
Dr Gorman did not believe smoking could have caused or contributed to the applicant developing prostate cancer.
Dr Gorman did not agree with Dr Korbel’s opinion. Dr Gorman believed the exposure was related to the duration of employment.
Dr Gorman attached an extract from the Monash Report. It stated the increased incidence of prostate cancer was only statistically significant after 10 years of service. The “up to date resource” he had attached made very little reference to chemical exposure as a risk and made no reference to occupational exposure as a risk. He opined this confirms the risk, while present as a firefighter, is small.
Dr Gorman opined that stating that the causative factor is chemical exposure would definitely require increased and substantial exposure to chemicals. This confirmed his opinion that a substantial exposure is required to increase the risk of prostate cancer materially. Mr Sinclair’s seven years of service would not have increased the risk substantially.
Dr Gorman concluded that the risk factors for prostate cancer as outlined in the material he had attached noted very few environmental carcinogens that definitely increase risk. It again confirmed that exposure to carcinogens in work as a firefighter was unlikely to be a very significant risk factor. It therefore required prolonged firefighting exposure. Shorter than 15 years would not be considered enough exposure and this is confirmed by the Monash Report.
Dr Gorman’s final report is dated 4 March 2025.
Dr Gorman was provided with Prof Driscoll’s report, the applicant’s attendance records, and IARC Monographs.
Dr Gorman reported that in his studies, he determined there was a likely increased risk of prostate cancer in firefighters, but only after more than 10 years.
The IARC has done a much more extensive review of the literature, looking at the causal connection between occupational exposure as a firefighter and the risk of prostate cancer. They determined there is limited epidemiological evidence of a causal connection.
Dr [sic: Prof] Driscoll noted none of the known causative factors of prostate cancer was associated with firefighting duties. Prof Driscoll states, “There is not conclusive evidence that male firefighters have an increased risk of prostate cancer when compared to the general population.”
Dr Gorman accepted these studies completely.
Dr Gorman again opined that the applicant’s prostate cancer did not arise out of his work as a firefighter. He had reviewed the literature and noted some studies where there was a small relative risk among firefighters. Importantly, however, he determined the risk would depend on the extent of possible exposure to carcinogens. With the applicant only working less than seven years, Dr Gorman concluded it certainly meant his prostate cancer was not work-related.
Dr Gorman does not believe work as a firefighter caused the applicant’s prostate cancer. He opined that the epidemiological evidence does not cross the threshold to assert the applicant’s firefighting duties were a substantial contributing factor to his prostate cancer.
Dr Gorman completely agrees with Prof Driscoll’s conclusions. Prof Driscoll’s review of the literature in association with the IARC Monographs is much more comprehensive and certainly questions whether there is any increased risk of prostate cancer in firefighters.
Dr Gorman was asked to review the applicant’s attendance statistics for the period from December 2014 to December 2020, a total of 72 months. If it was assumed the applicant was not working on or around fires for 19 months within that period, Dr Gorman was asked whether this assumed reduced attendance at actual fires reduced the exposure to potential carcinogens; and did this in turn reduce the risk of prostate cancer?
Dr Gorman opined that the reduced exposure substantially reduced any risk of prostate cancer. Certainly, being only a six year period means the applicant had far less chance of any increased risk, if there was an increased risk (which the epidemiological evidence suggests there is not).
The Monash Report makes it clear that the increased risk with increased work as a firefighter, in various cancers, is to be expected if there are carcinogens of any kind. However, as outlined in the extensive epidemiological evidence, even if the applicant was to work for a longer period, the evidence is not conclusive.
Dr Michael Rochford – consultant urologist
Dr Rochford’s report is dated 2 March 2022. The respondent relies on Dr Rochford’s evidence for matters of history only.
As a urologist, Dr Rochford does not claim expertise as an epidemiologist or toxicologist. His report does not consider any of the opinions expressed by Dr Gorman.
Dr Rochford recorded a history that the applicant had a chance finding of an elevated PSA level in November 2020. He was found to have a Gleeson Grade 7 carcinoma of the prostate and underwent surgery on 15 February 2021.
Dr Rochford recorded a history that the applicant has been a firefighter since 2014. Throughout that time, his main exposure to potential carcinogens and chemicals was in the form of smoke and diesel fumes, and off gases from fires, the pyrolysis emanating from fires both domestic and industrial, with associated smoke and toxins. He had been exposed to benzine products, formaldehyde as a by-product, off gases. In the workplace, he had been exposed to BVF foam, butadiene and [had] constant recurrent but unknown exposures to asbestos products on a regular basis.
The applicant said he has no exposure to carcinogens or chemicals in his normal everyday life.
There is no history of cancer in either the applicant’s parents or his immediate family.
The applicant has had no long term medical illnesses. He had an operation on his left knee in 2020 and 2021, for meniscus tear.
The applicant’s lifestyle and recreational activities are limited to home maintenance. He attends gym daily. He does not engage in outdoor activities and is not exposed to any other toxic chemicals or smoke.
PPE and sunscreen were available and used in the workplace as appropriate.
SUBMISSIONS
The parties’ oral submissions have been recorded, and a transcript is available. The written submissions remain with the Commission’s file.
I will summarise what seem to be the main points of the submissions. I do not purport to summarise all the submissions, particularly those of the respondent, which occupied several hours of oral submissions and 13 pages of written submissions (with annexure).
Applicant
The applicant submitted that age and family history were not factors in him developing prostate cancer.
The applicant submitted that the IARC identified limited epidemiological evidence of an association between the risk of prostate cancer and firefighter occupational exposure. There did not seem to be any controversy, with the studies suggesting a causal connection with prostate cancer, subject to the qualification of surveillance bias identified by Prof Driscoll.
The applicant submitted the nature of the evidentiary test asked of scientists is different from the tests demanded of determination of legal disputes. The applicant referred to Murray v Shillingsworth.[2] As the applicant is an exempt worker, s 9A applies in the same way as it did in that case.
[2] [2006] NSWCA 367.
The applicant submitted the scientific evidence of Prof Driscoll and the other learned commentators is that there is a basis to conclude there is a connection between his employment and his injury. The question is, under what conditions can one conclude there has been a connection?
The applicant submitted a possibility is not good enough for the IARC or Prof Driscoll, but courts are always concerned to reach a decision on probability. We are informed by scientific evidence, but it is not determinative of the issue before us.
There is a medical witness supportive of the applicant’s claim, and that is Dr Korbel. Part of his reason is that none of the other likely risk factors applies.
The applicant submitted Prof Driscoll was in no position to comment on whether or not his prostate cancer has anything to do with his occupational exposure at work. All Prof Driscoll was able to do was to provide an abstract opinion of epidemiological generality.
The applicant submitted that Dr Gorman had embraced Prof Driscoll’s review. Dr Gorman did not do what Dr Korbel did, in considering the facts of this particular case, rather than just saying the epidemiology is against the applicant. He had failed to engage with whether, in the idiosyncratic facts of the applicant’s presentation and diagnosis, there was a connection on the balance of probabilities.
The applicant submitted that injury, as it applies to an exempt worker, is a much less demanding test than that of s 9A of the 1987 Act. If the applicant can discharge his onus under s 9A, he has most certainly discharged the less demanding test of s 4.
The applicant submitted I will have to make formal findings under both ss 4 and 9A of the 1987 Act for him to succeed, but it would be permissible for me to turn my attention to whether the employment concerned was a substantial contributing factor to the injury.
The applicant submitted that if I find a causal nexus between occupational exposure and the cancer, “that’s it. The applicant succeeds.” If I find otherwise, on the balance of probabilities, he fails. It is not a question of competing causes, or a question of aggravation of a disease under the present regime.
The applicant submitted it was not an answer to say the amount of his exposure was less than seven years. There was occupational exposure. Even firefighters with more than 15 years of exposure took holidays, sat in the station, and had training days. There is nothing singular or unusual about the applicant.
The applicant referred to Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[3] as the relevant authority on s 9A of the 1987 Act.
[3] [2009] NSWCA 324 (Badawi).
The applicant submitted I should ignore the presumptive legislation for the purposes of this Application.
The applicant submitted if I were to find in his favour, the Commission has jurisdiction to make an award of 40% WPI pursuant to s 66 of the 1987 Act. There is no competing assessment and no medical dispute. There is no evidence rebutting the evidence of
Dr Korbel. If the matter was to be referred to a Medical Assessor, the applicant reserved his submissions on his claim pursuant to s 67 of the 1987 Act.The applicant sought a general order for s 60 expenses and an order for his costs. He sought leave to seek ancillary costs orders if he were successful.
I have dealt with the applicant’s submissions in reply after the respondent’s submissions.
Respondent
The respondent submitted that, for an exempt worker, in both ss 4 and 9A of the 1987 Act, employment needs to be the [sic] substantial contributing factor. The causal connection needs to be satisfied on the balance of probabilities.
The respondent referred to the decision in Seltsam Pty Limited v McGuiness.[4] It submitted the strands in the cable had not been established.
[4] [2000] NSWCA 29 (McGuiness).
The studies take into account risk factors as they were at the time. The plethora of documents the respondent would refer to show that in the period of the applicant’s employment, there have been significant advances, in terms of training, PPE, equipment, and requirements for breathing apparatus, which have not been taken into account by
Dr Korbel, or in these retrospective historical analyses.The respondent referred to the applicant’s evidence and the attendance table. It submitted the applicant attended fires for less than six years. The applicant has provided no detail about his exposure. He has provided a broad brush statement. He has not identified any particular fire or when or where he was exposed to particular chemicals.
The respondent submitted the hypothesis put forward by Dr Korbel is that because the applicant has a high-grade cancer, is young, and is a firefighter, it must be related, but sometimes cancer just happens to people.
The respondent submitted I would place reduced weight on Dr Korbel’s opinion in circumstances where he does not articulate the assumptions on which he has relied in forming his opinion. Dr Korbel has been using his experience in providing reports. He is aware of previous chemicals that were involved in firefighting, but not the chemicals the applicant was involved in.
The respondent submitted Dr Korbel seems to suggest it was the applicant’s exposure to smoke, toxins, and numerous carcinogens that have created this disease. “But when?” in circumstances where the applicant has obligations, is provided with PPE and safety apparatus, and is attending fires that may go for an extended period or a short period.
The respondent referred to the attendance record. In a six year period, there were only 154 days when the applicant attended a fire event, while the respondent conceded one event went for four days.
The respondent submitted the applicant has only attended one extensive bush related fire. More than two-thirds of his attendances were for less than half an hour.
The respondent referred to Dr Gorman’s evidence. It submitted that all the epidemiological reports were looking retrospectively at studies that go back to the 1940s and 1950s.
The respondent submitted Dr Gorman indicated employment as a firefighter is statistically relevant after 15 years, but in the applicant's case it is only six years.
The respondent submitted that, although Dr Gorman does not believe smoking could have caused or contributed to the development of the applicant’s cancer, it is important that the applicant did not provide this history in his statement. It was only when documents were provided under direction that this history was updated.
The respondent submitted that in the past, the PPE was not as good, they did not have up to date training, and policies and procedures were not as sufficient as between 2014 and 2020. Exposure was only statistically significant after 10 years.
The respondent submitted there was no evidence the applicant has had substantial exposure to chemicals, and if so, to what chemicals? Dr Korbel accepted that the risk depends on the number and length of the fires.
The respondent submitted there was not a causal connection, the strands were not there to join everything together. There is evidence that prostate cancer is the second most common cancer in the world.
The respondent submitted the most important risk factor for the development of prostate cancer is increasing age. Although it is rare in men under 40, its incidence increases progressively thereafter. There are factors that can increase the risk that are not necessarily statistically relevant. There is no evidence that any of these risks has been identified where employment has been the contributing factor.
The respondent submitted there were periods when the applicant was not working when he would not have had potential chemical exposure. He was not attending fires when he was performing suitable duties because of an injury to his left knee.
The respondent referred to the applicant’s leave records, which show various periods of leave taken. The applicant has stated he works two 24-hour shifts and then has five days off. The respondent submitted it cannot be correct that, as Dr Korbel was instructed, the applicant was exposed to a fire almost every day he was attending.
The respondent submitted the applicant has given no evidence as to when and how he was exposed to diesel particulates, or various other dusts “and the like”, in terms of post-fire mop-up. The attendance statistics only deal with the average total time attended at the scene.
The respondent referred to Prof Driscoll’s evidence, which it submitted was very persuasive.
The respondent submitted the Monash Report took into account periods of exposure. It was only in the 20-plus year category that there was a statistically significant difference in the rates of prostate cancer, as compared to the Australian population at the relevant intervals.
The respondent submitted there is a plethora of documents to support the information as to training and the skills that ought to have been provided to the applicant, which should alleviate any view that employment is a substantial contributing factor to the development of prostate cancer.
The respondent referred laboriously to literally hundreds of pages of documents. I do not intend to repeat its submissions. Suffice to say, they were directed at establishing that the applicant has been provided with extensive training, which is regularly updated, and appropriate PPE and risk management measures, which have also improved over time.
The respondent referred to the applicant’s evidence that equipment had been reused for several consecutive jobs. It submitted that since at least 2009, there has been a policy to manage contamination from firefighting. It submitted I would not accept the applicant’s evidence that he wore the same equipment for successive “dirty jobs.” It was a requirement of the role that the applicant follow the orders that were issued.
The respondent submitted that, if the Standard Operational Guidelines (SOGs) were followed, there would not be an opportunity for the exposure referred to by the applicant in his statement.
The respondent submitted there cannot be a perfect system, but steps had been taken to provide PPE of the highest standard. I could not be satisfied that even when undertaking the day to day activities of a firefighter, employment would be the [sic] substantial contributing factor to the development of prostate cancer.
The respondent submitted that Dr Korbel has not considered the extensive PPE the applicant was wearing between 2014 and 2020. In the ordinary aspects of his employment the applicant would not be exposed to the chemicals recorded by Dr Korbel.
The respondent submitted that, having considered the epidemiological evidence and the documents before me, I would not be persuaded that employment with Fire & Rescue has been a substantial contributing factor to the development of prostate cancer. That was particularly the case having looked at the number of fires the applicant has attended.
The respondent submitted I cannot be satisfied on the balance of probabilities that the applicant has sustained a personal injury arising out of or in the course of his employment.
The respondent submitted I would not be satisfied that the history provided by Dr Korbel came directly from the applicant, as it is not consistent with his statement. I would not be satisfied as to the weight to be given to Dr Korbel’s opinion as to the applicant’s exposure.
Dr Korbel had agreed in cross-examination that it would depend on the type of fires and exposures.In further written submissions, the respondent has again laboriously referred to hundreds of pages of documents.
I have distilled from this that the respondent submitted:
(a) firefighters have been directed since at least 2001 to wear SCBA (self-contained breathing apparatus) unless the atmosphere has been confirmed safe by air quality monitoring. Where air quality monitoring is unavailable or the use of SCBA is impractical, other measures are to be taken. This contradicts the applicant’s evidence that correct PPE was not provided or used;
(b) since at least 2002, provisions for disposable overalls have been established as an alternative clothing option for emergency personnel who have been decontaminated and whose original clothing was soiled;
(c) the 2003 safety bulletin provides specific instructions regarding hot zone setups and the strict control of PPE requirements, providing further evidence against the potential exposure alleged by the applicant;
(d) since at least 2004, firefighters have been wearing proper PPE, including respiratory gear, at incident scenes other than fires, reducing exposure through contact with and inhalation of contaminants. The cleaning and decontamination procedures had been in place before the 2004 safety bulletin, contradicting the applicant’s statement regarding exposure;
(e) since January 2006, the respondent has purchased firefighting foam that contains no PFOs and firefighters were directed to wear PPE when using firefighting foam;
(f) since at least 2009, firefighters have been directed to maintain skills and knowledge levels. Updated SOGs were compulsory for all operational personnel.;
(g) in 2016, safety bulletins were provided regarding PFCs (perfluorocarbons). All safety bulletins went into the SOG, which were taught at the training centre;
(h) the documents regarding PPE and uniforms were updated in 2012 and were in force at the time the applicant completed his training. There was a specific warning that defective PPE was not to be worn and must be repaired or replaced immediately;
(i) there is no possibility the applicant was involved in any incidents with additional chemicals, if he was wearing the correct PPE, according to the SOGs;
(j) level 2 PPE is suitable for bushfire fighting, hazard reduction burning, and rescue operations where there is a greater risk of injury from sharp edges and other mechanical hazards. There is no evidence to suggest the applicant attended any significant bushfires. The list of attendances indicates attendances at small scrub or brush fires in built-up areas;
(k) in 2015, one year after the applicant commenced work, the PPE and equipment and uniform recommended practice, which was already stringent, was updated;
(l) recommended practice – firefighting foam and foam making equipment (January 2018) - it is clear that workers must wear PPE level 4 when using foam and must know how it should be decontaminated. This contradicts the applicant’s statement regarding his exposure when working within the trucks;
(m) recommended practice – breathing apparatus Draeger (4 November 2018) – specifically notes that a P2 mask can only be used when an SCBA is not required, which contradicts the applicant’s statement. The breathing apparatus is required to be decontaminated, limiting any exposure to carcinogens;
(n) procedures have resulted in reduction in possible exposure to asbestos. However, the applicant has not identified instances of exposure to asbestos, which ought to be disregarded as any string [sic] in the chain as to causation;
(o) work instructions as to decontamination after potential asbestos exposure have been in place since 2017. It would also be responsive to any post-fire salvage and overhaul. It contradicts the applicant’s evidence that he would have been exposed to contaminated gear;
(p) the SOGs regarding decontamination are such that the applicant is mistaken in that he could have been exposed to potential carcinogenic contaminants, due to the extensive provisions and requirements for PPE and the decontamination process. It is incorrect to say there were “many instances” where contaminated gear was worn on multiple shifts. For the worker’s position to be believed, all the workers and supervisors went against policies, guidelines and procedures regarding the provision of PPE and decontamination processes. This is not a submission [sic] that can have any weight;
(q) at least before 2011, BA (breathing apparatus) was required to be worn in situations involving exposure to any carcinogens – whenever a hazardous atmosphere may exist;
(r) SOGs provided that in the event there was hazardous material on an incident site, vehicles should be [re]positioned in the event of, for example, a wind change. Appropriate levels of PPE were to be worn during salvage and overhaul;
(s) incident management/safety guideline provides that each site is evaluated for hazards or contaminants. The hierarchy of a fully escalated incident is noted;
(t) incident management/safety guideline support document (January 2018) identifies risk management of physical hazards, chemical hazards, ergonomical hazards, and psychosocial hazards;
(u) there are requirements regarding exposure to Gamma rays, radiological hazards, and biological hazards, but there is no evidence from the applicant of exposure to these hazards;
(v) training documents identify the training the applicant underwent to obtain his Certificate II in firefighting, and also make clear the requirements for the use of SCBA, including how to use, wear and clean the equipment;
(w) since 2000, there has been cessation of use of foams. Since 2007, firefighting foams have not included any PFOCs. Given the applicant commenced employment in 2014, there is no evidence to suggest that, in the period from 2014 to 2020, he was exposed to any PFOC foams. There can be no suggestion that PFOC foams have contributed to the development of the applicant’s prostate cancer;
(x) since well before the applicant was employed, PPE has always been mandatory;
(y) foams containing PFAS have been withdrawn since 2007;
(z) since at least 1991, Fire & Rescue has continued to update and amend its policies and procedures with respect to protective equipment and hazmat requirements, and
(aa) since at least 1998, Fire & Rescue has provided additional hazmat teams to assist with chemical fires.
Applicant in reply
The applicant noted the respondent’s counsel had undertaken an exhaustive review of the evidence on which the respondent relies.
The applicant had distilled from the respondent’s submissions the following propositions:
(a) the applicant’s occupational exposure was less than that assumed by Dr Korbel.
Whatever the attendance records may show, they were provided to Dr Korbel, acknowledged in his report dated 20 August 2025, and did not cause him to alter his opinion.
The way in which the proposition was advanced was simplistic and specious. Firefighters attend two 24-hour shifts followed by five days off. Similar provisions have applied in the past. Firefighters’ exposure to fire carcinogens is limited to the days on which they are rostered. The applicant’s statements and histories have to be seen in this context.
If the argument were of any statistical or epistemological significance, either Prof Driscoll or Dr Gorman may have been expected to provide supporting evidence. They did not.
Dr Gorman opined that less than 10 years’ service was insufficient to support a finding of causation.
We know nothing of the industrial conditions of the cohorts of firefighters the subject of the IARC surveys to which Prof Driscoll referred in his report. If those data and results were subject to distortion as a result, one would expect an expert of his standing to have said so.
The respondent is presenting a case based on scientific analysis. To the extent it wishes to step back from facts and inferences to be drawn from the data it presents, expert evidence is required;
(b) most of the epidemiological studies the subject of review are old.
This argument suffers from the same defect as that based on attendance records.
It appears to be an attempt to undermine studies supporting a causal nexus between occupational exposure to carcinogens and prostate cancer.
It is a curious approach to impeach the evidence that forms the basis for the opinion of the respondent’s central witness, Prof Driscoll (with whom Dr Gorman agrees). For this argument to “hold water”, it should have been the subject of evidence from Prof Driscoll.
PPE and work safety standards may have been less stringent in the past. The nature of flammable substances may be different to 50 years ago, with the increasing use of man-made hydrocarbons.
This is a quasi-scientific argument unsupported by scientific opinion;
(c) Dr Korbel did not receive the applicant’s smoking history.
In cross-examination, Dr Korbel said smoking may be a consideration in assessing a diagnosis of lung cancer, but not prostate cancer. This proposition was not challenged. Dr Gorman unequivocally rejected any causal connection.
The respondent’s submission did not engage with the propositions advanced by the applicant that the legal process is not a search for scientific certainty. The applicant accepted that if the science concluded a causal connection was impossible, the claim would fail. That was not the case.
Dr Korbel said he was not qualified to challenge Prof Driscoll’s conclusions and did not attempt to do so.
Dr Korbel reached his conclusion based on the absence of two major risk factors, age and family history, and the presence of an acknowledged risk factor of occupational exposure to carcinogens and the diagnosis of a high grade prostate adenocarcinoma, Gleason 4 + 3 = 7. (Emphasis in original).
The only challenge to Dr Korbel’s conclusion is based on epidemiology. The respondent has failed to engage with the applicant’s case;
(d) application to admit additional documents.
The applicant had lodged an ALAD. The grounds for this application are:
(i) counsel for the respondent sought to cross-examine the applicant on attendance and training records. The applicant agreed not to take a Browne v Dunn point in the absence of cross-examination.
What was not made clear was that the respondent proposed to challenge either the applicant’s credit or his reliability (which, was not clear. Is he said to be lying, mistaken, or is there another explanation?), and
(ii) the respondent submits the Commission cannot accept the applicant’s account. What may be an apparent discrepancy may be capable of explanation. Because it was not done in cross examination, the applicant sought leave to do so in a short statement. Had time permitted on
9 September 2025, noting that I sat until 6.00pm, the applicant would have sought leave to adduce oral evidence on the hearing date.
Respondent’s submissions as to admission of applicant’s ALAD dated 17 September 2025 and statement dated 16 September 2025
The respondent “strongly opposed” the applicant’s application to adduce additional evidence, notwithstanding its failure to provide any response until it was requested by the Commission to do so.
The respondent submitted the applicant had ample opportunity to intervene during the oral hearing, or thereafter, to raise any issue regarding his additional evidence.
The respondent submitted the applicant had had many opportunities to provide any additional evidence on which he wished to rely. The documents to which he appears to wish to respond had been available since at least 4 March 2025.
“The reality of the situation” was that the applicant was attempting to re-open the case after submissions were completed, which the respondent submitted was unfair and prejudicial.
The respondent submitted the applicant had provided no compelling reason for the delay in providing the additional evidence. The only inference was that, after hearing the respondent’s “detailed, persuasive, and lengthy” submissions, the applicant sought to adduce further evidence. The provision of the statement and its reliance [sic] in the proceedings prejudiced the respondent because the respondent had concluded its submissions, and the applicant was trying to “fix the holes” in its [sic: his] evidence.
The respondent submitted that allowing the additional evidence and giving it any weight would contradict the objectives of the Commission, being the quick, just and cheap resolution of matters.
The respondent submitted that, during the conciliation phase, it was made clear there would be no Jones v Dunkel[5] [sic] inference placed on the respondent for not cross-examining the applicant. Accordingly, the applicant was not cross-examined.
[5] [1959] HCA 8; (1959) 101 CLR 298.
The respondent submitted that, if the late evidence were allowed, it would be denied the opportunity to test the applicant’s evidence in cross-examination; and could not obtain evidence to refute his assertions, or other evidence in reply. Both are examples of actual prejudice to the respondent, which could not be overcome at this stage.
The respondent submitted that [proceedings in] the Commission are front-loaded. The applicant can discontinue the proceedings and seek further evidence, with no penalty. The respondent is “not afforded that luxury.” Allowing the late statement went against and did not support the Commission’s principles.
The respondent had not found any case law on the provision of additional evidence in the Commission but referred to cases in other New South Wales jurisdictions.
The respondent finally submitted it was not in the interests of justice to admit the statement, and it ought not be admitted. If it was admitted, it ought be given no weight.
SUMMARY
Applicant’s application to adduce further evidence
I have treated the applicant’s submissions and further statement as an application to re-open his case, although no such application has been made.
Firstly, the applicant’s submission that he was deprived of the opportunity to seek leave to give oral evidence is rejected.
The transcript of the arbitration hearing on 9 September 2025 records, in accordance with my recollection, that at approximately 6.00pm I offered the parties the option of continuing with the hearing, whilst observing that the respondent’s counsel would in any event need to complete her submissions in writing.
The applicant was present when I adjourned. The applicant’s counsel sought neither to interpose evidence from Mr Sinclair, nor to have the matter re-listed at a later date to enable him to seek leave to call Mr Sinclair to give evidence. Had either application been made, the issue could have been dealt with at that time.
As it stands, the applicant now seeks to rely on further evidence, after the matter has concluded; and the respondent’s counsel has not had the opportunity to seek leave to cross-examine him on that evidence. The respondent has also not had the opportunity to obtain further evidence to respond, should it wish to do so.
In Inspector General in Bankruptcy v Bradshaw,[6] Kenny J said:
“The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill; Smith v New South Wales Bar Association [No 2]; (2) inadvertent error (Brown v Petranker (application to recall a witness); Murray v Figge (application to tender answers to interrogatories); Henning v Lynch (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (“UTA”); and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2)”. (Citations omitted).
[6] [2006] FCA 22 at [24].
None of the above applies in this case.
The statement on which the applicant now seeks to rely repeats and expands on some of his earlier evidence. This matter has been on foot since October 2023. The applicant has had ample opportunity to adduce evidence in support of his claim.
The submissions in support of allowing the further evidence are rejected. It is not in the interests of justice, or in accordance with the Commission's objects, which include enabling it “to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible”[7] to allow the applicant to rely on further evidence at this stage of the proceedings. There would be obvious prejudice to the respondent should that be allowed.
[7] Personal Injury Commission Act 2020 s 3 (c).
The applicant’s application to rely on ALAD dated 17 September 2025 and attached document is rejected.
Injury
Section 4 of the 1987 Act, as it applies to the applicant, who is an “exempt worker”, provides:
“Definition of ‘injury’
In this Act –
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes:
(i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act, as it applies to the applicant, provides:
“9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
The applicant submitted that if he discharged his onus under s 9A of the 1987 Act, he would have satisfied the much less demanding test of s 4 of the Act.
I intend to consider first s 4 of the 1987 Act.
The applicant referred to the Court of Appeal decision in Murray v Shillingsworth and the authorities discussed therein.
Einstein J referred to Spigelman CJ’s decision in McGuiness, in which his Honour said:
“There are cases in which medical science cannot identify the biological or pathological mechanisms by which disease develops. In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for the purposes of attributing legal responsibility…In circumstances where the aetiology of a disease is uncertain, or subject to significant scientific dispute, the courts are not thereby disenabled for making decisions as to causation on the balance of probabilities.” [at 93-94]; and
“When assessing expert evidence on causation, the legal concept of causation requires the court to approach the matter in a distinctively different manner from that which may be appropriate in either philosophy or science, including the science of epidemiology.” (at [142]),
and;
“The commonsense approach to causation at common law is quite different from a scientist’s approach to causation…an inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.” (at [143]).
It was contended in Murray v Shillingsworth that the trial judge had effectively acted on his own intuitive reasoning in rejecting an hypothesis as to causation.
Einstein J noted that the contention rested upon the trial judge’s reference to the remarks of Herron CJ in EMI (Australia) Ltd v Bes.[8]
[8] (1970) WCR 114 at 1119 (Bes).
Herron CJ said:
“…it is not incumbent upon the applicant upon whom the onus rests to produce evidence from medical witnesses which proves to demonstration that the applicant’s contention is correct. Medical science may say in individual cases that there is no possible connection between the events and the death, in which case, of course, if the facts stand outside an area in which common experience can be the touchstone, then the judge cannot act as if there were a connection. But if medical science is prepared to say that it is a possible view, then in my opinion, the Judge after examining the lay evidence may decide that it is probable. It is only when medical science denies that there is any such connection that the Judge is not entitled to act on his own intuitive reasoning. It may be, and probably is, the case that medical science will find a possibility not good enough on which to base a scientific deduction, but Courts are always concerned to reach a decision on probability and it is no answer, it seems to me, that no medical witness states with certainty the very issue which the Judge himself has to try.”
Einstein J said that the treatment of principle by Herron CJ in Bes holds as true today as it did when the judgment was delivered.
The respondent also relied on the decision in McGuiness, referring to “strands in a cable.”
That is a reference to what Spigelman CJ said in relation to causation in McGuiness.
Spigelman CJ said (at [98]):
“The Courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility. Epidemiological studies and expert opinions based on such studies are able to form ‘strands in a cable’ of a circumstantial case.”
Spigelman CJ also said (at [143]):
“The commonsense approach to causation at common law is quite different from a scientist’s approach to causation. (See National Insurance Co of New Zealand Ltd v Espagne; March v E & M H Stramare Pty Ltd; Chappel v Hart.) An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference.” (Citations omitted).
The respondent was critical of the applicant’s “broad brush” approach. However, the applicant has given evidence of exposure to smoke and other toxins, such as diesel particulate and contaminated clothing, and identified some of the stations where this occurred. Some of this exposure occurred when he was not actively fighting a fire. As a senior firefighter, the applicant may be expected to have at least some knowledge of the matters about which he has given evidence.
The respondent has referred in exhaustive detail to the policies and procedures in place to protect firefighters from exposure to toxins and carcinogenic materials.
I have no doubt that the respondent has taken extensive measures to protect its workers. Dr Korbel, who has examined many firefighters, agreed in his oral evidence that protective equipment has improved over the years. Most firefighters told him this had happened in, probably, the last 10 years.
The fact that the policies and procedures are in place does not mean the applicant’s evidence as to his exposure should be discounted. The respondent has provided no evidence from any officer who has supervised or worked with the applicant at any of the stations he has named, in order to refute his evidence. I accept the applicant’s evidence as to his exposure.
The respondent relied on Prof Driscoll’s report, and Prof Driscoll gave oral evidence.
What I have gleaned from Prof Driscoll’s evidence is that the IARC has identified limited epidemiological evidence of an association between the risk of prostate cancer and, among other things, being a firefighter.
The Working Group of which Prof Driscoll was a member found there was evidence suggesting the risk of prostate cancer is positively associated with occupational exposure as a firefighter. However, chance, bias, and confounding, could not be ruled out with reasonable confidence.
Prof Driscoll opined that the measure of increased risk is likely to vary, depending on the level of exposure. Dr Korbel agreed with this in his oral evidence.
Prof Driscoll opined there is not conclusive evidence that male full-time firefighters have an increased risk of prostate cancer when compared with the general population. (My emphasis). He did not consider the evidence regarding occupational exposure as a firefighter is strong enough to conclude that such work is a real or substantial cause of, or contributing factor to, firefighters developing prostate cancer.
The evidence of Prof Driscoll is therefore that it is a possible view that there is a connection between occupational exposure as a firefighter and the development of prostate cancer, but there are other factors that could influence the results of research, such that the researchers have been unable to reach a definitive conclusion. Prof Driscoll has, of course, taken “a scientist’s view of causation.”
Dr Korbel had reference to the Monash Report and was provided with the applicant’s attendance record. He accepted that if there were 20 months when the applicant was not engaged in firefighting activities, that would reduce his risk. However, it did not change Dr Korbel’s opinion that the applicant’s prostate cancer was causally related to his employment; and employment was a substantial contributing factor to the injury.
Dr Korbel was asked about the applicant having been a smoker. Both he and Dr Gorman opined that smoking does not significantly increase the risk of contracting prostate cancer. The applicant’s smoking history is irrelevant.
Dr Gorman did not, as submitted by the applicant, simply embrace Prof Driscoll’s review.
Dr Gorman had expressed the opinion, before being asked to consider Prof Driscoll’s report, that there is no causal connection between the applicant’s work and the development of prostate cancer.Dr Gorman referred to the Monash Report that shows that there is not a significantly increased risk of prostate cancer with less than 10 years’ exposure. (My emphasis) That does not mean the risk does not exist.
The identified risk factors for the development of prostate cancer include:
(a) increasing age – the applicant was only 46 when he was diagnosed. Dr Haddad reported “a young prostate cancer diagnosis”;
(b) relevant family history (including a history of breast cancer) – there is no evidence of such a history in the applicant’s family;
(c) past history of prostatitis – the applicant has no past history of prostatitis;
(c) African and Caribbean ethnicity – the applicant does not belong to either ethnic group, and
(d) being a firefighter – the applicant is a firefighter.
Dr Gorman referred to possible causes for the contraction of prostate cancer (including those for which there is limited evidence), but he did not identify any of those possible causes as applying to the applicant. The only risk factor that applied to the applicant was that he is a firefighter, and Dr Gorman acknowledged there is evidence of increased risk of prostate cancer in firefighters. He did not believe the applicant’s level of exposure increased the risk substantially.
Dr Korbel was well aware of the duration of the applicant’s exposure to carcinogenic substances in the course of his employment as a firefighter. He opined that, on the balance of probabilities, the applicant’s prostate cancer was related to his work, and his employment was a substantial contributing factor to the cancer. He was aware of Dr Gorman’s opinion but disagreed with Dr Gorman.
Prof Driscoll, as an epidemiologist, and a scientist, would not draw an inference of causation because in his view, and that of the Working Group, there were biases that could not confidently be ruled out.
However, as Spigelman CJ said in McGuiness, the commonsense approach to causation is quite different to that of a scientist.
I am persuaded by and prefer Dr Korbel’s opinion, including his oral evidence. On the balance of probabilities, the applicant has sustained injury arising out of or in the course of his employment with the respondent.
Substantial contributing factor
Pursuant to s 9A of the 1987 Act, the applicant must also establish that his employment was a substantial contributing factor to the injury.
In Badawi, the Court of Appeal held that, for employment to be a substantial contributing factor to the injury for the purposes of s 9A of the 1987 Act, the causal connection must be “real and of substance”. It was accepted that the causal test imposed by s 9A of the 1987 Act is more stringent than that imposed by s 4 of the Act.
Considering the matters referred to in in s 9A(2) as examples of those to be taken into account in determining whether the applicant’s employment was a substantial contributing factor to the injury:
(a) the time and place of the injury: the injury is a disease, which developed over a period of time, while the applicant was engaged in fighting fires and ancillary activities. The date of injury is deemed by the legislation;
(b) the nature of the work performed and the particular tasks of that work: the applicant is a firefighter. He has described the nature of his work and the attendance record also contains evidence of his activities;
(c) the duration of the employment: the applicant had been employed for approximately six years when his injury is deemed to have happened;
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the applicant’s life, if he had not been at work or had not worked in that employment: I have discussed above the risk factors for prostate cancer, and their application to the applicant. The only identified risk factor that applies to the applicant is that he is a firefighter;
(e) the applicant’s state of health before the injury and the existence of any hereditary risks: the applicant was in good health (apart from having a knee injury, which is not relevant) and no hereditary risks have been identified, and
(f) the applicant’s lifestyle and activities outside the workplace: there is nothing in the applicant’s lifestyle and activities outside the workplace that could be said to have been a contributing factor to the injury, noting that smoking was discounted by the medical experts as a risk factor for prostate cancer.
I am satisfied that the causal connection between the applicant’s employment and his injury is “real and of substance” and his employment was a substantial contributing factor to the injury.
Referral to Medical Assessor
The applicant submitted that the Commission has jurisdiction to make an award in his favour pursuant to s 66 of the 1987 Act, and there was no medical dispute.
Despite the length of the respondent’s submissions, it made no submissions as to whether, should the applicant succeed in his claim, there should be a remittal to the President for referral to a Medical Assessor.
Section 65(3) of the 1987 Act formerly provided:
“If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
Since the repeal of s 65(3) of the 1987 Act, and from 1 January 2019, a member of the Commission has the power to determine a worker’s permanent impairment.
In Etherton v ISS Properties Services Pty Ltd[9], President Keating said:
“As can be seen, the relevant alteration is that prior to 1 January 2019 the Commission was prohibited, by virtue of the terms of s 65(3) of the 1987 Act, from awarding permanent impairment compensation absent an assessment by an Approved Medical Specialist. That prohibition was removed and the Commission was then empowered to determine such matters itself.”
[9] [2019] NSWWCCPD 53.
Section 322A(1A) of the 1998 Act provides that an assessment of the degree of permanent impairment includes an assessment made by the Commission in the course of the determination of a dispute that is not the subject of a referral to a Medical Assessor.
There have been cases where a Member of the Commission has determined a claim for permanent impairment when there was no medical evidence to contradict the evidence on which the applicant relied, for example, Thompson v Bernipave Pty Ltd[10]; and where the competing assessments were identical, for example, Boga v Carpet Call (Vic) Pty Ltd t/as Carpet Call.[11]
[10] [2020] NSWWCC 169.
[11] [2019] NSWWCC 127.
In this matter, the respondent did obtain an assessment of Mr Sinclair’s permanent impairment, which was assessed by Dr Rochford. However, due to the operation of regulation 44 of the Regulation, the respondent was required to choose between relying on the report of Dr Rochford or Dr Gorman’s reports. The respondent chose to rely on
Dr Gorman’s reports.The report in which Dr Korbel assessed the applicant’s WPI is dated 26 October 2021, so is now almost four years old, although Dr Korbel was of the opinion that the applicant had reached MMI.
The Application makes no claim for scarring (TEMSKI). However, Dr Korbel has assessed 1% WPI as a result of surgical scarring. In my view, the applicant’s WPI should be assessed by a Medical Assessor, rather than determined by me. The Medical Assessor will obviously need to examine the applicant’s scar.
I therefore intend to request that the President refer for assessment by a Medical Assessor the applicant’s WPI as a result of injury to his urinary and reproductive systems and scarring (TEMSKI).
The documents to be referred to the Medical Assessor will include Dr Rochford’s report, with the exception of that which appears after the heading “Impairment” on page 5 of the report (page 92 to page 94 inclusive of the attachments to the Reply).
The applicant, having succeeded in establishing that he has sustained injury arising out of or in the course of his employment, is entitled to an award pursuant to s 60 of the 1987 Act.
The applicant, as an exempt worker, is entitled to an award for his costs.
I determine the following:
(a) the applicant has sustained injury arising out of or in the course of his employment, deemed to have happened on 7 December 2020, and
(b) the applicant’s employment was a substantial contributing factor to the injury.
The orders are set out in the Certificate of Determination.
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