Sinclair v State of New South Wales (Fire & Rescue NSW)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sinclair v State of New South Wales (Fire & Rescue NSW) [2024] NSWPIC 75
APPLICANT:	Colin Stewart Sinclair
RESPONDENT:	State of New South Wales (Fire & Rescue NSW)
MEMBER:	John Wynyard
DATE OF DECISION:	21 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by firefighter that six years exposure to duties caused him to develop prostate cancer; whether prima facie case made out; whether employment a substantial contributing factor; whether inability to enrol section 19A was relevant; Held – respondent submissions regarding prima facie case misguided; BGV v Waverly Council considered; Watts v Rake and Purkess v Critenden considered and followed; substantial contributing factor established; Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited considered and applied; respondent’s reliance on section 19A rejected as each case to be determined on its merits; award for the applicant.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant’s employment was a substantial contributing factor to the development of his injury. The Commission orders: 1. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: (a) Date of injury: 7 December 2020 (deemed). (b) Matters for assessment: urinary and reproductive systems (prostate cancer). (c) Evidence: (i) Application to Resolve a Dispute and attached documents; (ii) Reply and attached documents, and (iii) Application to Admit Late documents from the respondent dated 25 January 2024. 2. The respondent will pay the applicant’s s 60 expenses upon production of accounts/receipts and/or HIC documentation.

STATEMENT OF REASONS

BACKGROUND

Colin Stewart Sinclair, the applicant, brings an action against the State of New South Wales (Fire & Rescue NSW), the respondent, for lump sum benefits and the payment of medical expenses caused by an injury in the form of development of prostate cancer due to the nature and conditions of employment, alleged to have occurred on a deemed date 7 December 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) has the applicant established a prima facie case, and
(b) if so, was his employment a substantial contributing factor to the onset of his condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in person on 31 January 2024. Mr Bill Carney of counsel appeared for the applicant instructed by Mr James Zheng of Messrs Masselos & Co. Ms Nicole Compton of counsel appeared for the respondent instructed by Ms Brooke Dyson from Messrs Rankin Ellison. 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.
Also present were Ms Zena Dadian, Mr James Monteveiai and Mr Casey Rosman from the respondent.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents and attached documents from the respondent dated 25 January 2024.

Oral evidence

No application was made regarding oral evidence.

FINDINGS AND REASONS

Preliminary matters

At the commencement of the hearing Ms Compton objected to portions of Mr Sinclair’s statement dated 26 April 2023.[1]
[1] ARD page 1.
Ms Compton objected to paragraphs 13 - 19 of this statement on the basis that the allegations therein set out were of a general nature and not specific to his experience.
The transcript will demonstrate the application was rejected and this part of the evidence admitted, inter alia, on the basis that its weight was a matter for the Commission.

Statement 26 April 2023

Mr Sinclair was born in England in1974 and emigrated to Australia in 2000.
He obtained employment with the respondent in 2014 and he listed his assignments at the respondent’s fire stations as follows:
“10.….. a. Alexandria training college: 09/09/2014 - 12/12/2014
b. Parramatta: 12/12/2014 - 20/0412015
c. Cabramatta: 20/04/2015-13/10/2015
d. Smithfield: 13/10/2015 - 17/01/2016
e. Ryde: 17/01/2016 - 18/08/2016
f. Eastwood: 18/08/2016 - 24/07/2020
g. Gordon: 24/07/2020 - 15/1012021
h. Beecroft 15/10/2021 - Present
11. I am currently on full duties (8-day roster, 2 x 24 hours on, 5 days of Q at Beecroft
Fire station.”
Mr Sinclair is still working for the respondent. From pages 10- 17 of the ARD, the statistics of his attendance at various jobs he attended during that period of time, entitled ‘Firefighter Attendance Staistic Counts,’ were set out.
He made a further statement on 15 August 2023. He said that before the onset of his prostate cancer he was fit and healthy, he did not suffer from any significant illnesses. He said:[2]
[2][2] ARD page 18.
“6.     I rarely smoked. On average, I would say I smoked once a month….
12.    Attached is a table entitled "Firefighter Attendance Statistics Counts• which details the types of jobs I attended, how many and when.
13.    Throughout my career with Fire & Rescue NSW I have been exposed to many toxic substances.
14.    Bushfire smoke: The Fire & Rescue NSW-issued P2 masks provide insufficient protection. Most toxins and chemicals released during a bushfire penetrate the P2masks. On task forces during the recent bushfire seasons, breathing apparatus was not provided in the taskforce trucks and P2 masks were the only form of PPE provided. In addition, the average fire truck carries only two air cylinders per person, which means even if we were to use the provided breathing apparatus, they would sustain us for less than an hour, making this an impractical option given most bushfires require us to be onsite for many hours. During a typical bushfire, the main chemicals/ toxins present are carbon dioxide CO2, carbon monoxide CO, sulphur dioxide (SO2) and nitrogen dioxide (NO2).
15.    Diesel particulate in fire station engine bays: There are numerous fire stations that continue to house contaminated clothing. gear and equipment used during jobs. I was exposed to such equipment at Smithfield and Eastwood stations. In addition, most stations do not contain exhaust extraction systems. Throughout my entire career with Fire & Rescue NSW I have been exposed to start up diesel particulate when attending calls. No PPE is provided to stop inhalation of the diesel fumes on start up.
16.    Turnout gear rooms: Before current decontamination and laundering practices were in place, contaminated turnout clothing was rehung in the turnout room. The position of the turnout rooms within stations meant that access around the station often entailed walking through or into the turnout room. This caused unnecessary exposure to the carcinogens present in the contaminated turnout clothing. No alternative was provided to prevent this carcinogenic exposure.
17.    When conducting salvage and overhaul after building fires, the recommended practice has generally been to remove the provided breathing apparatus and don a P2 mask, which provides insufficient protection from the toxins, fumes and carcinogenic substances post fire. This means that I have routinely been exposed to such substances as:
a. Benzene: found in furniture wax.
b. Formaldehyde: found in cleaning materials.
c. Hydrogen cyanide: used in the manufacture of synthetic fibres, stick-and stain-resistant coatings and flame-retardants added to the foam inside furniture.
18.    My duties often include driving vehicles, and this requires me to position the vehicle to allow for access to equipment etc. Often changes in wind direction result in me being engulfed in fumes and smoke from the fire. As the fire hose is already being used, it is not possible to reposition the fi1e truck to avoid inhalation of carcinogenic smoke and fumes. I have never been trained in any safety practices for such situations nor have I been provided with any protective gear or equipment to assist in these instances.
19.    When I was stationed at Parramatta, Cabramatta and Smithfield, gear and equipment had to be re-used for several consecutive jobs without any decontamination process being in place 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 during busy shifts. Similarly. 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 of the truck inhaling the chemical smells. No recommended practices have been in place to decontaminate the truck. gear and insufficient PPE is provided for sitting in the back of the truck to prevent inhalation and exposure to these carcinogens.”
The history of the onset of Mr Sinclair’s condition was given to Dr Edward Korbel, urological surgeon, in his first report of 9 March 2021. Dr Korbel took a history that Mr Sinclair attended his family doctor, Dr Daya for a regular checkup during 2020.
In November 2020 Mr Sinclair’s PSA was noted to be elevated and a repeat test was done on 13 November 2021, which showed the PSA still to be elevated. Mr Sinclair was referred to
Dr Richard Haddad, urological cancer surgeon.

Dr Richard Haddad

Dr Haddad was consulted on 7 December 2020 and organised an MRI scan which showed “three suspicious PI-RADS 4 lesions”. Biopsies were then performed and on 22 January 2021 he had a PET scan which confirmed his lesions.
Dr Haddad proceeded to carry out a robotic- assisted radical prostatectomy on
15 February 2021, which confirmed a Gleason 4+3=7 adenocarcinoma.
The clinical notes of Dr Haddad were lodged and a series of letters to Dr Daya at Beecroft General Practice confirmed Dr Korbel’s history.
On 21 December 2020 Dr Haddad reported to Dr Daya:[3]
“…..targeted ultrasound fusion prostate biopsy is organised for the new year and a prostate cancer diagnosis will not be unexpected here unfortunately at a young age.”
[3] ARD page 75.
On 22 January 2021 Dr Haddad reported again to Dr Daya.[4] He gave a diagnosis of “There is multifocal prostate cancer” which Dr Haddad described as “a young prostate cancer diagnosis”.
[4] ARD page 77.

Dr Edward Korbel

The history taken by Dr Korbel was consistent with Mr Sinclair’s statement. Dr Korbel said:[5]
“During his period as a firefighter. he has been exposed to smoke and the toxins which come with smoke. There are numerous toxic gasses in the smoke. He has been exposed to oxidation and pyrolysis products. He has been exposed to known carcinogens. II is noted that smoke toxins include benzene, 1, 3-butadiene and formaldehyde. He has been exposed to radiation, diesel exhaust, asbestos and heavy metals (arsenic and cadmium) These are group 1 carcinogens according to the IARC (International Agency for Research on Cancer).”
[5] ARD page 60.
This being a Fire Brigade case the 2012 amendments do not apply and therefore the appropriate test regarding the establishment of an injury was whether Mr Sinclair’s employment was a substantial contributing factor to his injuries.
Dr Korbel was asked about that, and he said:[6]
“As mentioned above, he has been exposed to numerous carcinogens and toxins. He has been regularly exposed to smoke and the toxins that come with this. He was further exposed to potential carcinogenic material in various firehouses/depots where firefighters' clothing and equipment, trucks and other devices were not cleaned of smoke and other debris. He has been exposed to oxidation and pyrolysis products. Many of these are knows or possible carcinogens. He has also been exposed to asbestos in his work. He has been exposed to diesel fumes with products of benzene, 1,3-butadlene and formaldehyde.
On the balance of probability. these would be substantial contributing factors to his prostate cancer and therefore work is a substantial contributing factors to his prostate cancer.”
[6] ARD page 61-62.
Dr Korbel gave a further report dated 31 March 2021 which did not add any further relevant opinion.
On 26 October 2021 Dr Korbel gave a further progress report. He was asked for confirmation as to the “connection between our client’s full condition and nature and condition of his condition as a firefighter”. Dr Korbel said:[7]
“As noted in my previous report, he has been exposed to numerous carcinogens and toxins. I have listed this in the previous report and will not reiterate this.”
[7] ARD page 66.
The respondent arranged for Mr Sinclair to be assessed by Dr David Gorman, physician in medical oncology (relevantly). Dr Gorman reported on 28 February 2022.
On 7 September 2023 Dr Korbel reported to Mr Sinclair’s solicitors noting that they “would like my comments on his prostate cancer as related to his fire fighting duties”.
Dr Korbel said:[8]
“In response:
1.      From the presumptive legislation, as noted in my original report, this gentleman's cancer was 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 considered to be required for the development of prostate cancer.
2.      Mr Sinclair has a high grade prostate adenocarcinoma, Gleason 4+3=7.
3.      On the balance of probability, his exposure as listed in my original report on 09/05/2021 would have contributed to him developing prostate cancer after seven years of service as a firefighter. I note that he had a high grade prostate cancer.
4.      The radical prostatectomy, his urinary and sexual problems are all related to his prostate Cancer.”
[8] ARD page 69.
Dr Korbel referred to a number of articles and stated:[9]
“I note that Dr Gorman has confirmed from the studies there Is increased risk of prostate cancer in firefighters. but that is related to the duration of employment. This gentleman did not have the 15 years required employment at the time of his diagnosis; however, his exposures as listed by him would, on the balance of probability. have contributed to him developing prostate cancer.”
[9] ARD page 70.

Dr David Gorman

Dr Gorman in his report of 28 February 2022 took a consistent history of Mr Sinclair joining the Fire Brigade in 2014. The history taken by Dr Gorman was:[10]
“He joined the fire brigade in 2014. He has worked in multiple stations around suburban Sydney. He has been in multiple house fires. Initially the protection was not ideal but now masks are used.
He is also concerned that at his station there was no ventilation, and he was exposed
to diesel.”
[10] Reply page 19.
Dr Gorman noted that Mr Sinclair was a non smoker although he did smoke occasionally socially when he was younger. In his opinion Dr Gorman said:[11]
“Mr Sinclair has developed prostate cancer at the age of 46. This was after working in NSW Fire Brigade in suburban NSW for six years.
He has had a radical prostatectomy and his PSA tests remain less than 0.01,
indicating a probable cure.
I will review the literature with regard to prostate cancer but note that the Workers’ Compensation Legislation Amendment (Firefighters’) Act 2018, number 93 in schedule 4 notes the qualifying service period for primary site prostate cancer is 15 years.
The evidence suggests that while firefighters have an increased risk of developing prostate cancer, it is dependent on the length of exposure. The Monash University Final Report, Australian Firefighters Health Study from December 2014, states clearly that below ten years there is not a significantly increased risk of prostate cancer. Therefore, I do not believe that one can state that Mr Sinclair’s prostate cancer is related to his work as a firefighter.”
[11] Reply page 20.
Dr Gorman was asked to obtain and provide full details of Mr Sinclair’s exposure to carcinogens and/or chemicals.
As to his exposure throughout the course of Mr Sinclair’s employment Dr Gorman said:
“Mr Sinclair’s main exposure has been through house fires while he worked in stations including Parramatta, Cabramatta, Smithfield, Ryde, Eastwood, Gordon, and Beecroft. He, as I understand, has not been involved in any major chemical factory fires.
As outlined above, he is also worried about exposure to diesel in the stations where he has worked where there has been minimal ventilation.”
Dr Gorman noted that there has been no particular exposure to toxic chemicals in non-fire fighting duties or in everyday life. Dr Gorman noted that there was “no significant family history of prostate cancer”. He noted that Mr Sinclair was active and a personal trainer, not exposed to toxic chemicals or smoke.
Later in his report Dr Gorman considered the question of causation further.[12]
“In terms of causation of prostate cancer, there is an inherited component in that men
with a strong family history have a greater incidence.
There are studies indicating that various diets may affect the incidents 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 also is not definite.
A past history of prostatitis is also considered to be a possible risk factor.
Environmental carcinogens are thought possibly related to the development of prostate cancer and there is evidence that through exposure, firefighters have an increased risk of prostate cancer.”
[12] Reply page 22.
Dr Gorman was then asked to consider whether Mr Sinclair’s employment had been a substantial contributing factor to the contraction of his condition.
He said:[13]
“I do not believe that in Mr Sinclair’s case there is a causal connection between his
work with Fire & Rescue NSW 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 dependant on exposure and therefore, as the Monash study from Australia 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 fire-fighter would be covered.”
[13] Reply page 23.
Dr Gorman then outlined the medical literature which he relied on. Dr Gorman then said:[14]
“In conclusion, these studies confirm that there is increased risk of prostate cancer in firefighters but that it is related to the duration of employment (presumably related to duration of exposure to the chemicals released during fires). I believe 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 cause for his development of prostate cancer. The risk, particularly with less than 10 years work as a firefighter, is not significant.”
[14] Reply page 24.
Dr Gorman gave a final review on 24 January 2024. He noted that Dr Nanayakkara recorded on 2 September 2019 that Mr Sinclair was smoking up to three cigarettes a day.
On 15 May 2018 Dr Niduri recorded that Mr Sinclair quit smoking over Christmas and previously smoked intermittently and socially.
Dr Gorman noted that there was therefore conflicting evidence as to whether tobacco use was an independent risk for prostate cancer. He said “It may increase the risk of cancer recurrence and cancer related mortality however once the cancer has developed”.[15]
[15] ALD page 2.
Dr Gorman’s conclusion was that if smoking did cause an increased risk of prostate cancer, the increase was very small. Dr Gorman concluded that he did not believe that smoking could have caused or contributed to the development of Mr Sinclair’s prostate cancer.

In commenting on Dr Korbel’s report of 7 September 2023 Dr Gorman noted that Dr Korbel thought on the balance of probabilities the exposures would have contributed to Mr Sinclair developing prostate cancer after seven years of service as a firefighter.
Dr Gorman said he did not agree because he thought the exposure was related to the duration of the employment.
He referred to an article entitled “Final Report of the Australian Firefighters Health Study” which was dated December 2014 from Monash University. He relied on a statement within that article that found increased incident of prostate cancer was statistically significant after 10 years of service.
Dr Gorman repeated that he adopted the view of the article that chemical exposure would “definitely require increased and substantial exposure to chemicals”.
Dr Gorman stated that very few environmental carcinogens definitively increased the risk of prostate cancer. Accordingly the exposure to carcinogens in the work of a firefighter “is unlikely to be a very significant risk factor and therefore, not be a very significant risk factor required prolonged firefighting exposure. Shorter than 15 years would not be considered to be enough exposure”.[16]
[16] ALD page 5.

Dr Michael Rochford

The respondent also had Mr Sinclair examined by Dr Michael Rochford, consultant urologist, who reported on 2 March 2022.[17]
[17] Reply page 88.
Dr Rochford was asked to obtain a history of Mr Sinclair’s exposure to carcinogens and/or chemicals and other elements with relevantly the respondent. Dr Rochford said:[18]
“Mr Sinclair states that he has been a Firefighter with Fire & Rescue NSW since 2014 and is at present employed fulltime as a Firefighter. He states that 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 states he has been exposed to benzine products, formaldehyde as a by product, off gases. In the workplace he has been exposed to BVF foam. Butadiene and constant recurrent but unknown exposures to asbestos products on a regular basis.”
[18] Reply page 90.
Dr Rochford gave an opinion as to whole person impairment. He was supplied with the reports of Dr Korbel and told “if you disagree with any aspect of his report(s) could you please make that clear in your report, stating your objective reasons for holding that opinion”.
Dr Rochford said:[19]
“I have reviewed the reports of Dr Korbel and substantially agree with his assessment.”

[19] Reply page 94

Journal articles

Amongst the material lodged in the Reply was an article called “Cancer risk amongst fire fighters; a review and meta-analysis of 32 studies.” This appeared in “JOEN” volume 48, 11 November 2006.[20]
[20] Reply page 38.
This study concerned American fire fighters and noted that fire fighters were exposed to harmful substances at fire scenes as well as the fire house [station] itself. The World Trade Centre disaster was noted and concerns had re-emerged relating to building debris particle exposures for the purposes to update an earlier study determining a probability of cancer. The article was also concerned with the methodology where there were diverse investigations to be evaluated and summarised.
The analysis was extremely complicated and involved technical equations. The results were highly complex. The author stated:[21]
“(SMR = 0.94). Hence, these studies demonstrate the importance of being cognizant that differences in cancer risk estimates and interpretation of risk may be influenced by outcome definition.
Results showing a probable association for prostate cancer is curious.
Prostate cancer is the most common malignancy affecting men and is the second leading cause of cancer. Risk of developing prostate cancer is associated with advancing age, black ethnicity, a positive family history, and may be influenced by diet. Although the positive association with prostate cancer may be due to some of these factors, it is unlikely that these entirely ex lain the findings; most studies analyzed white men adjusting for age…….. Parent and Siemiatycki,61 in a review article, concluded that there was suggestive epidemiologic evidence for prostate cancer associated with exposure to pesticides and herbicides, metallic dusts, metal working fluids, polycyclic aromatic hydrocarbon, and diesel engine emissions. Certainly firefighters are exposed to these latter two agents. Recently, exposure to complex mixture in the semiconductor industry also has been associated with an increase in prostate cancer.62 Thus, it is possible that some of the mixed exposures experienced by firefighters may be prostate carcinogens. Ross and Schottenfeld have cautioned, however, against associating occupational exposures with prostate cancer.”
[21] Reply page 43.
Also lodged was a paper entitled “Australian Firefighters Health Study”.[22] It included the following:
[22] Reply page 57.
“Male Career Full-time Firefighters
For male career full-time firefighters compared to the Australian population, overall cancer incidence was significantly raised for the group as a whole and for those who had worked for longer than 20 years. There was no trend of overall cancer incidence increasing with duration of service when longer serving firefighters were compared to those who had served for less than 10 years, in internal analyses. There was a trend of increasing overall cancer incidence with increasing attendance at vehicle fires. The internal analyses by duration and incidents have been adjusted for age findings are unlikely to be age-related effects.
There was a statistically significant increase in prostate cancer incidence for career full-time firefighters overall, and particularly for those employed for more than 20 years. There was a significant trend with employment duration and the number of incidents attended and some significantly increased risks for higher tertiles of incidents attended.”
…..
8.5.2 Cancer incidence by duration
For cancer incidence among male career full-time firefighters, the SIR [standardized incidence ratio] for all malignancies increased monotonically by duration category and became statistically significant for those who had served for more than 20 years (Table 30). This was mainly related to melanoma incidence which was significantly increased for those who had served for more than 10 years and prostate and male breast cancers which were significantly raised for those who had served for more than 20 years. …..
The overall cancer SIR for male part-time firefighters did not change with work duration but prostate cancer and melanoma SIRs were significantly raised for those groups who had served for more than 10 and 20 years respectively (Table 31 ). ….”

Further statistics

As indicated, Mr Sinclair attached a table entitled “Firefighter Attendance Statistics Counts” which detailed the sorts of jobs he attended, how many and when.[23] These were obviously tables used by the respondent to record the activities of its firefighters.
[23] These appeared at ARD pages 10 -17, and 23-30.
They were divided into monthly columns and showed the various activities with which its employees were involved. By way of example, Mr Sinclair’s attendance counts for the 2019/2020 year was as follows[24]:
[24] ARD page 28.

JUL 2019	AUG 2019	SEP 2019	OCT 2019	NOV 2019	DEC 2019	JAN 2020	FEB 2020	MAR 2020	APR 2020	MAY 2020	JUN 2020	TOTAL ATTEND-ANCES	Average total time
Total fires	2	4	2	1	1	1	1	12	82.6
Structure fires	2	2	1	1	1	1	1	9	87.7
Vehicle fires
Bush grass fires	2	2	48.0
Rubbish fires
Other fires	1	1	105.4
Other emergencies and incidents	10	6	17	5	3	8	20	25	7	102	34.3
Over pressure rupture	1	1	1	61.8
Non fire rescue call	1	1	5	1	2	1	7	5	1	1	24	38.4
Hazardous condition	1	1	1	1	1	3	8	77.7
Service, salvage call	2	3	1	1	2	9	49.3
Good intent call	2	2	1	4	4	1	14	25.5
Malicious false call
System initiated false alarms	6	4	5	1	1	5	7	11	5	1	40	23.8
Other
TOTAL	12	10	19	5	3	9	21	20	8	1	114	39.4

The 2018/2019 statistics showed 19 total fires, including 14 structure fires, 1 bush/grass fire, 1 vehicle fire and 2 rubbish fires. There were 136 other emergencies recorded, including 40 non-fire rescue calls. The 2017/2018 year showed 37 total fires including 18 structure fires, 3 vehicle fires, 6 rubbish fires. There were 154 other emergencies recorded, including 49 non-fire rescue calls. The 2016/2017 year showed 32 fires, of which 15 were structure fires and 4 vehicle fires. There were 146 other emergencies recorded, of which 25 were non-fire rescue calls. The 2015/2016 statistics showed 48 fires including 18 structure fires, 13 bush/grass fires, 6 rubbish fires and 2 vehicle fires. The 2014/2015 year – the year Mr Sinclair commenced employment – showed numbers that were indistinct, but demonstrated that he was actively involved n the same sort of activities after he joined.

SUBMISSIONS

Mr Carney

Mr Carney submitted that the dispute pertained in the final analysis to the difference of opinion between the two medico-legal experts, Dr Korbel and Dr Gorman. Mr Carney submitted that Dr Gorman conceded a relatively small but definite increased risk of prostate cancer in firefighters. Mr Carney submitted that Dr Gorman’s advice that the risk was dependant on the duration of employment was in effect just relying on the presumptive legislation and the research that caused the legislation to be passed.
Mr Carney submitted that Dr Gorman relied on the literature which considered a large number of firefighters, and the conclusions drawn from such a large study clearly underpinned the presumptive legislation, he submitted. However they did not deal with an individual’s likelihood of contracting prostate cancer, but were concerned only with mass statistics which had resulted in a statutory length of exposure about which the onus effectively switched to the employer to disprove the connection.
Regardless, Mr Carney submitted that Dr Gorman did not question the nature of the exposure that been described to him as being causative of prostate cancer.
Mr Carney relied on Dr Gorman’s opinion that the studies confirmed that there was an increased risk of prostate cancer in firefighters after different periods of employment and he queried the logic of Dr Gorman’s ultimate opinion that tied liability to the presumptive requirement of over 15 years’ employment. Mr Carney submitted that Dr Gorman did no more than rely on the length of exposure being only six years to negate the question of whether employment had been a substantial contributing factor.
Mr Carney referred to the statistics in the tables lodged by Mr Sinclair of the type of work he had been doing. He submitted that Dr Gorman’s reliance on simply the duration did not deal with the specific history and complaints from Mr Sinclair as he found him. He submitted that
Dr Korbel’s opinion was preferrable.

Ms Compton

Ms Compton said that the issue was whether Mr Sinclair’s employment was a substantial contributing factor to his contraction of prostate cancer. She submitted that question involved an examination of the level and degree of work Mr Sinclair was doing as a firefighter.
She repeated the submissions she made when she sought to have Mr Sinclair’s evidence rejected at the outset of the hearing that I have referred to already. She submitted again that Mr Sinclair had not given sufficient detail and had adopted a “broad brush” approach in making generalisations regarding his exposure.
She agreed that the experts had not questioned the history that they received.
Ms Compton referred to the presumptive legislation - and indeed the second reading speech - to emphasise that the effect of that legislation was to reverse the onus, and that the insurer had to prove that the contraction of the cancer had not been caused by employment.
She submitted that the research discussed by Dr Gorman demonstrated that it was only after 10 years that there was any statistical difference from the effects of exposure by a firefighter to the carcinogenic substances involved in his employment.
Ms Compton said that Dr Korbel’s opinion could be discounted because it did not refer to these statistics. She submitted that there was no factual basis for Dr Korbel’s opinion that
Mr Sinclair’s exposure whilst employed was a substantial contributing factor to his contraction of prostate cancer.
Ms Compton submitted that there was a lack of detail as to when Mr Sinclair was exposed to the toxins named in his statement, and to the medical experts. There was no detail as to the length of time nor the identity of any particular carcinogenic he had been exposed to.
Ms Compton said it was clear from “Court of Appeal dicta” that an expert opinion within the Commission was not to be accepted if it was not explained. Ms Compton said that the applicant’s statement did not explain exactly what he had been exposed to in his work.
Ms Compton said that Dr Gorman on the other hand provided the basis of his opinion. He did not rely on the applicant’s history but rather on the statistical evidence. She referred to
Dr Gorman’s report of 28 February 2022 and submitted that Dr Gorman’s opinion should be preferred, that there was no significant increased risk of prostate cancer where there had been exposure of less than 10 years work as a firefighter.
Ms Compton agreed that the test was not whether employment had been significant contributing factor but rather if it had been a substantial contributing factor.
Ms Compton then contended that the actual exposure had been less than the six years
Mr Sinclair had been working for the Fire Brigade because he had time off, and as I understood it, was not being exposed for the entire duration of his employment.
Ms Compton stated that there was an evidentiary burden on the applicant that the precise particulars of the work he was doing, where he was doing it, the carcinogens he was exposed to, and other matters were required to establish his case.
There was an exchange regarding the thrust of that submission as to whether Ms Compton was in fact submitting that the applicant had not made out a prima facie case, which she eventually adopted.
She returned to her statistical argument that although Mr Sinclair had been working for the respondent for six years (or 72 months), he had only been actually exposed for 42 of those months, or had an exposure of 58%.
She referred in detail to the table statistics and stated that they were supportive of
Dr Gorman’s argument that there had not been sufficient exposure.
With regard to the histories taken by Dr Korbel and Dr Gorman and the suggestion that they also constituted history of Mr Sinclair’s exposure, Ms Compton submitted that those histories had no probative value. She submitted that where there had been regular attendance for 15 years, “applying the swings and round-abouts approach and taking into account that a worker had long service leave,” Dr Gorman’s opinion was reasonable. In reality, Ms Compton said, there had only been 42 months of potential exposure, which had not been specified. The evidence was simply lacking to establish sufficient exposure to make employment a substantial contributing factor to the onset of Mr Sinclair’s prostate cancer.

Mr Carney in reply

Mr Carney responded that Dr Korbel was aware of the chemicals that Mr Sinclair had been exposed to, not because he was told by Mr Sinclair, but because he was an expert and he could rely on his expert knowledge about carcinogenic chemicals.
With regard to Ms Compton’s reliance on the statistics within the Australian Firefighters Health Study within the Reply, Mr Carney submitted that the statistical information therein was not sufficient to support Ms Compton’s submission.
Ms Compton submissions that a prima facie case had not been made out, Mr Carney said, however could not be substantiated. He referred as an example to Mr Sinclair’s personal exposure to diesel particularly and referred to the number of fires that were mentioned in the Firefighter Attendance tables.

Discussion

Section 19A of the 1987 Act provides relevantly:
“19A PRESUMPTIONS RELATING TO CERTAIN CANCERS--FIREFIGHTERS
(1)     In the application of this Act to a worker who is an eligible firefighter, it is presumed (unless the contrary is established) that the disease contracted by the worker was contracted in the course of the worker's firefighting employment and that employment was-
(a) for the purposes of the definition of
‘disease injury’ in section 4, a contributing factor to contracting the disease, and
(b) for the purposes of section 9A, a substantial contributing factor to contracting the disease.
Note :Amendments made to section 9A and the definition of
‘disease injury’ in section 4 by Schedule 7 to the Workers Compensation Legislation Amendment Act 2012 do not apply to police officers, paramedics or firefighters. See clause 25 of Part 19H of Schedule 6 to this Act.
(2)     A worker is an
‘eligible firefighter’ if the worker--
(a) has, at any time, been engaged in firefighting employment, and
(b) has contracted a disease that is a cancer of a kind specified in Schedule 4.
(3)     A worker has been engaged in
‘firefighting employment’ if--
(a) the worker has, at any time, been employed by any person, body or agency (or former body or agency) prescribed for the purposes of this section by the regulations, and
(b) in the course of that employment, the worker has performed firefighting activities.
(4)     This section does not apply to a disease contracted by an eligible firefighter if the total aggregate period during which the worker has been engaged in firefighting employment as at the date of injury (‘the service period’) is less than the qualifying service period specified for the disease in Schedule 4.”
Schedule 4 of the 1987 Act provides relevantly that the qualifying service period for the application of the statutory presumption to the contraction of prostate cancer is 15 years. Schedule 4 lists 12 separate cancers that the legislature has accepted are aggravated by work as a firefighter.
Ms Compton kindly referred to the second reading speech when this legislation was passed, pointing out that its effect was to reverse the onus of proof and give a qualifying firefighter a presumptive causative link between employment and the contraction of the disease.
Mr Sinclair is not eligible for the application of this presumption as he had only been working as an eligible firefighter for a period of six years when his condition was discovered through an ordinary check-up with his general practitioner.
It therefore follows that the onus of proof lies on Mr Sinclair to establish the causative link.
Section 19A however has some relevance, as it demonstrates that the legislature has accepted that there is a link between a person who has been performing firefighting activities and the contraction of prostate cancer.
The defence raised by the respondent is that Mr Sinclair’s employment was not a substantial contributing factor pursuant to s 9A of the 1987 Act, as preserved by schedule 6, part 19H, clause 25 of the 1987 Act.

A prima facie case

As noted above, Ms Compton initially objected to the relevant sections of Mr Sinclair’s statement concerning the nature of the employment he was engaged in whilst firefighting.

Ms Compton’s objection may well have foundered in an evidence-based jurisdiction in any event,[25] but in this jurisdiction matters of admissibility are in fact matters that usually go to weight.
[25] See e.g. Part 3.3 of the Evidence Act 1995.
Ms Compton renewed her criticism of Mr Sinclair’s evidence, submitting that his evidence lacked the particularity necessary for him to be able to satisfy his onus, as I understood her. Mr Sinclair’s evidence not only had to show that he was exposed as a firefighter to dangerous chemicals but in addition that employment was therefore a substantial contributing factor. As I understood Ms Compton, her submission was that Mr Sinclair had failed to do so.
In an exchange Ms Compton said that her submissions were consistent with a submission that the applicant had not therefore established a prima facie case.
In BGV v Waverley Council[26] Deputy President Snell referred to the well-known High Court Authority of Watts v Rake[27] and Purkess v Crittenden.[28]
[26] [2024] NSWPICPD 2.
[27] [1960] HCA 58.
[28] [1965] HCA 34.
The learned Deputy President said:
“98…. Reference should also be made to Purkess v Crittenden, particularly to the reasons of the plurality at [4], where Watts is discussed:
‘The expression ‘burden’ or ‘onus’ of proof, ‘As applied to judicial proceedings ... has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading - the burden, as it has been called, of establishing a case, whether by preponderance of evidence, or beyond a reasonable doubt; and (2) the burden of proof in the sense of introducing evidence’. This is a proposition which has been frequently acknowledged. The position is, we think, correctly stated by the learned author of [Phipson on Evidence] to which we have referred when he says: ‘the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates’….”
Deputy President Snell then referred to the facts of the case under discussion. He said that the respondent did not bear any onus to establish that employment was the main contributing factor pursuant to s 4(b)(ii), referring to a different factual situation before him. He said:
“….. the reasoning in those authorities is not analogous to the argument which the appellant seeks to bring it in aid of….”
In the circumstances of the present case, however, the dicta in Purkess has application. The burden of establishing his case lay on Mr Sinclair to reach the standard of proof required to satisfy the onus he bears, namely proof on the balance of probabilities. The second burden referred to by the plurality is sometimes called the evidentiary burden, which is a shifting burden, depending on the weight of the competing material. A litigant’s first priority is to satisfy his standard of proof by the evidence he relies on. If he fails to adduce sufficient evidence to reach that standard, then he has failed to prove a prima facie case. As DP Snell said in BGV, also at [99]:
“….I accept the respondent’s submission that the appellant carried the onus of proving ‘injury’…..: “he who asserts must prove”.
[Authority omitted].
Mr Sinclair has asserted that:
·        he worked for the respondent in the eight fire stations that he listed;
·        he was exposed as a firefighter to various typical situations expected of firefighters;
·        the detail of that exposure was contained in the “Firefighter Attendance Statistics Counts” tables he lodged concerning his particular participation, and
·        he was employed by the respondent since 2014 and had served for six years.
Further, Mr Sinclair’s evidence was augmented by the histories taken by Dr Korbel,
Dr Rochford and Dr Gorman. There was no challenge made to the expertise of the experts. Neither medico-legal expert cavilled with the history he obtained, and both accepted that exposure as described by Mr Sinclair could cause prostate cancer.
Additionally, Mr Sinclair said in his statement at [14] that “if ‘we’ were to use the provided breathing apparatus. They would sustain ‘us’…most bushfires require ‘us’ to be onsite..” A reasonable inference from the use of the pronoun “we” is that Mr Sinclair had himself been present. If that had not been the case, the evidentiary onus was on the respondent to disprove that inference.
Further, Mr Sinclair at [15] of his statement said “I was exposed to such equipment.” Moreover, at [17] Mr Sinclair said “I have routinely been exposed to” the substances he there described.
It can be seen that Mr Sinclair’s assertions were supported by the other evidence I have mentioned - the list of stations, the Firefighter Attendance Statistics Counts and the histories and opinions of the expert witnesses. In the light of the weight of those separate evidentiary facts I had some difficulty in following the respondent’s argument that a prima facie case had not been made out.
Ms Compton submitted that this evidence was not sufficient to establish Mr Sinclair’s case, but with respect, the basis of her hypothesis was misconceived. It was specious to suggest that a firefighter should be able to identify the exact moment that he was exposed to various carcinogenic substances and indeed that he be able to name each of them when he encountered them, as she submitted. That is a counsel of perfection which no firefighter could possibly be expected to comply with.
Similarly, there was no support for Ms Compton’s submission that I should not regard the six year’s employment as representing six years’ exposure, as Mr Sinclair was not on firefighting duties every minute of the day. There was no such reservation in Schedule 4 of the 1987 Act, which spoke only of 15-year “qualifying service period”. Again, such a submission also embraces an impossible scenario, and I did not read either expert as interpreting the length of exposure in such a manner.
The weight of Mr Sinclair’s evidence was such that the respondent needed to find evidence which would establish the propositions Ms Compton was advocating. No evidence was put on by the respondent to challenge any of Mr Sinclair’s assertions; no evidence was advanced by the respondent that he had not served at the fire stations he mentioned; no evidence was advanced that the contents of the Firefighters Attendance Statistics Counts tables were unreliable; no evidence was advanced to challenge Mr Sinclair’s account of his exposure to the substances he referred to, and neither expert witness challenged the histories they took from Mr Sinclair.
Dr Gorman accepted that “the evidence suggests that … firefighters have an increased risk of developing prostate cancer,” and Dr Korbel found that regular exposure to the carcinogens and toxins associated with Mr Sinclair’s employment as a firefighter had, on the balance of probability, been substantial contributing factors to his prostate cancer.
Dr Gorman, however, conditioned his opinion by advising that the increased risk of developing prostate cancer was dependent on the length of exposure. He relied on s 19A of the 1987 Act (referring to it in its original form as the Workers’ Compensation Legislation Amendment (Firefighters’) Act 2018), and cited the Monash University Final Report, Australian Firefighters Health Study from December 2014, to support his opinion.
The Australian Firefighters Health Study was based on surveys of various cohorts and concluded that for all malignancies, the statistics were significant where there had been service of over 20 years as a firefighter. The study found that the standardized incidence ratios (SIRs) for prostate cancer were “significantly raised” for those groups who had served for more than 10 years.
Dr Gorman accordingly did not support Mr Sinclair’s case, as Mr Sinclair had only served for six years. Dr Gorman’s opinion was that the risk of the development of prostate cancer where Mr Sinclair had served less than 10 years as a firefighter was not a substantial cause, the risk being “not significant”.
However, Dr Gorman also considered the other possible causes for the contraction of prostate cancer. He noted that there was an inherited component and that various diets may affect the incidents of prostate cancer, although “nothing is definitive” regarding the diet factor. He also noted that cigarette smoking “may be” an independent risk factor, although in his second report Dr Gorman did not think so in Mr Sinclair’s case, and Dr Gorman stated that a past history of prostatitis was also a possible risk factor. None of these possible causes were identified by Dr Gorman as applicable to Mr Sinclair. He did, however acknowledge that environmental carcinogens were possibly related to the development of prostate cancer, and that there was “evidence that through exposure, firefighters have an increased risk of prostate cancer”.

Substantial contributing factor

Section 9A of the 1987 Act, as preserved, requires employment to be a substantial contributing factor, not a “significant” contributing factor. This provision was considered in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[29] At [48] Allsop P, Beazley JA and McColl JA, Basten JA and Handley AJA agreeing, summarised the following propositions as being correct and uncontroversial (authorities omitted):
“(1)    The strength of the causal linkage between the employment concerned and the injury is the question in issue: …
(2)     The fact of the injury arising out or in the course of employment is relevant but not determinative of itself: …
(3)     Both s 4 and s 9A require independent satisfaction….
(4)     Section 9A requires that the employment concerned be ‘a substantial contributing factor to the injury’. The use of the indefinite article admits of the possibility of other and possibly non-employment related substantial contributing factors: …
(5)     Although the strength of the linkage between the employment and injury is the question in issue, the determination is an evaluative one, leaving a broad area for the personal judgment of the trial judge…
(6)     Being an evaluative matter involving questions of impression and degree, a finding as to relative contributing factors is a finding of fact: …
(7)     The phrase ‘employment concerned’ in s 9A(1) bears the same meaning as ‘employment’ in the phrase ‘arising out of or in the course of employment’: …”
[29] [2009] NSWCA 324 (Badawi).
At [82] the plurality found, relevantly to this case:
“…..The ‘proper link’ in the legislative context was a causal connection expressed by the words ‘a substantial contributing factor’, meaning one that was real and of substance...”
That exposure to firefighting employment had the potential to cause the number of cancers listed in schedule 4 is beyond question, as it has legislative imprimatur in s 19A. The essential difference in the expert evidence is that Dr Gorman relied on the statistics within the Monash University’s Australian Firefighters Health Study to indicate that employment was not a substantial contributing factor. Dr Gorman did not consider whether, notwithstanding the statistics on which the presumptive legislation was based, Mr Sinclair’s exposure was real and of substance. He found Mr Sinclair’s employment not to be a “substantial cause”, because the risk was “not significant”.
I was not assisted by the other literature lodged by the respondent, as it referred to California and involved factors that were not relevant to Australian conditions, as I indicated above.

Dr Korbel

Mr Sinclair’s case is unusual. Dr Haddad, the treating surgeon, described Mr Sinclair’s condition as “a young prostate cancer diagnosis” and that the diagnosis was “unfortunately at a young age.” Dr Gorman helpfully discussed the question of causation, as I have indicated, and there is no evidence that the causes he identified were applicable to Mr Sinclair, except his exposure as a firefighter.
The presumptive legislation is relevant because it demonstrates that there is no doubt that if a firefighter is exposed for over 15 years to these carcinogenic substances and develops prostate cancer, his employment is presumed to be the cause. That does not mean, however, that if a firefighter is exposed for under 15 years he automatically will not develop prostate cancer.
Each case relies on its own facts and I prefer Dr Korbel’s opinion, who whilst acknowledging Dr Gorman’s reservations, nonetheless found that Mr Sinclair’s employment had been a substantial contributing factor to the development of a high grade prostate adenocarcinoma after seven years’ service. In that regard I note that the employment duration at the time
Mr Sinclair was diagnosed was in fact six years (9 September 2014 – November 2020). In view of the nature of the cancer when it was identified and the absence of any other causative factor, the inconsistency is of little moment. Mr Sinclair’s employment was a real contributory factor to the development of his prostate cancer.
Accordingly there will be an award in favour of the applicant.
I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases:
(a)    Date of injury: 7 December 2020 (deemed).
(b)    Matters for assessment: urinary and reproductive systems (prostate cancer).
(c)    Evidence:    ARD and attached documents;
Reply and attached documents, and
Application to Admit Late documents from the respondent dated
25 January 2024.
The respondent will pay the applicant’s s 60 expenses upon production of accounts/receipts and/or HIC documentation.

[2024] NSWPIC 75

21 February 2024