State of New South Wales (Fire and Rescue NSW) v Sinclair - [2025] NSWPICPD 8

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	State of New South Wales (Fire and Rescue NSW) v Sinclair [2025] NSWPICPD 8
APPELLANT:	State of New South Wales (Fire and Rescue NSW)
RESPONDENT:	Colin Stewart Sinclair
INSURER:	Employers Mutual Limited – TMF
FILE NUMBER:	A1-W7968/23
PRESIDENTIAL MEMBER:	Acting Deputy President Paul Sweeney
DATE OF APPEAL DECISION:	5 February 2025
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 21 February 2024 is revoked. 2. The matter is remitted to another non-presidential member for re-determination. 3. Costs of the appeal to follow the outcome of the re-determination.
CATCHWORDS:	WORKERS COMPENSATION – Imperfections in transcript of hearing – Toll Transport Pty Ltd t/as Global Logistics – TGL Grocery v Andersen [2024] NSWPICPD 64 – whether error in admission of statement evidence – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied – whether error in failing to determine injury – whether error in references to s 19A of the Workers Compensation Act 1987 when determining causation
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms N Compton, counsel
Rankin Ellison Lawyers
Respondent:
Mr J Zheng, solicitor
Masselos & Co Lawyers
DECISION UNDER APPEAL:	Sinclair v State of New South Wales (Fire & Rescue NSW) [2024] NSWPIC 75
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	21 February 2024

INTRODUCTION

Colin Stewart Sinclair (the respondent) is employed as a firefighter by the State of New South Wales (Fire and Rescue NSW) (the appellant). During 2020, he was diagnosed with prostate cancer. This appeal arises from a finding that his employment was a substantial contributing factor to the respondent contracting prostate cancer. The determination of the appeal is complicated by imperfections in the transcript of the arbitration hearing.
The respondent joined the appellant on 9 September 2014. After attending the Alexandria Training College for a period of 3 months, he was deployed as a firefighter at fire stations within the Sydney metropolitan area.
During November 2020, the respondent was found to have elevated prostate specific antigen (PSA) on repeated blood tests. Following further investigation, Dr Richard Haddad, a specialist in general urology, robotic surgery, and urological cancer, concluded that he suffered multifocal prostate cancer “at a young age”.[1] In February 2021, Dr Haddad performed a robotic radical prostatectomy at the Sydney Adventist Hospital. While the respondent has been able to return to the full duties of a firefighter following his prostate surgery, he suffers a degree of incontinence and will remain impotent.
[1] Application to Resolve a Dispute (ARD), pp 74–77.
On 21 December 2020, the respondent gave a Workers Injury Claim Form to the appellant by which he alleged that his prostate cancer resulted from his employment. By a notice dated 29 December 2020 pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the appellant’s workers compensation insurer, Employers Mutual Ltd (EML), stated that:
“· You did not sustain an injury arising out of or in the course of your employment with State of NSW (FRNSW) as required under section 4 of the Workers Compensation Act 1987 (WC Act).
· Your employment with State of NSW (FRNSW) is not a substantial contributing factor to any injury you may have sustained under section 9A of the WC act.
· In the event, your alleged injury is classified as a disease or aggravation of a disease, your employment is not a substantial contributing factor to the contraction of a disease, nor is it a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a pre-existing disease and therefore not compensable under sections 15 and 16 of the WC Act.”[2]
[2] ARD, p 50.
By a further notice dated 21 March 2022, issued pursuant to s 78, EML confirmed that it denied liability in respect of the respondent’s prostate cancer. EML relied on the opinion of Dr David Gorman, a medical oncologist, who furnished a report dated 28 February 2022. The insurer stated that it:
“maintains that you have not established that your primary site prostate cancer arose out of or during the course of your employment with Fire & Rescue NSW, nor was employment the substantial contributing factor”.[3]
[3] ARD, p 44.
After addressing s 19A of the Workers Compensation Act 1987 (the 1987 Act), the notice concluded by stating that:
“Thus, EML disputes liability under sections 4, 9A, 15, 16, 33, 59, 60, 66 and 67 of the [1987] Act.”

THE ARBITRAL PROCEEDINGS

By these proceedings, the respondent claims compensation pursuant to ss 66 and 67 of the 1987 Act in respect of impairment of his urinary and reproductive systems. He also claims indemnity for his medical and hospital expenses pursuant to s 60 of the 1987 Act. The Application to Resolve a Dispute (ARD) alleges that the respondent suffered the disease of prostate cancer “arising from the nature and conditions of his employment”. The deemed date of injury of the disease was 7 December 2020, the date of injury alleged in the claim form.
When the matter came on for a conciliation conference and arbitration hearing before Member Wynyard on 31 January 2024, Mr Carney, of counsel, appeared for the respondent and Ms Compton, of counsel, appeared for the appellant. At the commencement of the arbitration hearing, the appellant objected to the tender of paragraphs [13] to [17] of the respondent’s statement dated 26 April 2023. After argument, the Member admitted the entirety of the respondent’s written evidence. He ruled that the appellant’s objections went to the weight of the evidence rather than its admissibility.[4] As the Member’s ruling on the admission of the statement evidence is the subject of one of the grounds of appeal it will be necessary to return to it below.
[4] Transcript (T) 31 January 2024, T 9.
The arbitration hearing proceeded on the written evidence. Both parties made oral submissions. It was accepted that, as the respondent was an exempt worker, the amendments made to the 1987 Act by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amendments) did not apply.[5] The imperfect transcript records the appellant’s submission that the respondent had not proven a “prima facie case” and had not proven that employment as a firefighter was a substantial contributing factor to his prostate cancer in accordance with s 9A of the 1987 Act. By a Certificate of Determination dated 21 February 2024[6] the Member recorded that the following issues remained in dispute:
“(a) has the [respondent] established a prima facie case, and
(b) if so, was his employment a substantial contributing factor to the onset of his condition.”
[5] Clause 25, Pt 19H, Sch 6 to the 1987 Act.
[6] Sinclair v State of New South Wales (Fire & Rescue NSW) [2024] NSWPIC 75 (reasons).
The Member determined that:
“(1) The [respondent’s] employment was a substantial contributing factor to the development of his injury.”
The Member remitted the issue of permanent impairment as a result of prostate cancer to the President for referral to a medical assessor to determine whole person impairment. He ordered the appellant to pay the respondent’s s 60 expenses on production of accounts/ receipts and/or HIC documentation.
It is from this determination that the appellant brings this appeal.

GROUNDS OF APPEAL

The appellant relies on seven grounds of appeal. They are as follows:
(a) The Member erred in his failure to exclude parts of the evidence of the worker (the interlocutory appeal) (Ground 1).
(b) The Member misdirected himself as to the proper test of causation within ss 4, 9 and 9A of the 1987 Act (Ground 2).
(c) The Member erred in his treatment of s 19A regarding his conclusions (paragraph [88]) (Ground 3).
(d) The Member erred in his treatment of the lay evidence (the respondent worker’s evidence) regarding his conclusion that employment was the substantial contributing factor within the meaning of ss 4 and 9A of the 1987 Act (Ground 4).
(e) The Member erred in his finding that the respondent worker’s employment was a real contributory factor to the development of his prostate cancer (paragraph [117]) (Ground 5).
(f) The Member erred and misdirected himself in his treatment of the statistical evidence regarding his conclusion that employment was the substantial contributing factor within the meaning of ss 4 and 9A of the 1987 Act (Ground 6).
(g) The Member erred in his treatment of the medical evidence and his subsequent conclusions regarding the evidence with respect to his conclusion that employment was the substantial contributing factor within the meaning of ss 4 and 9A of the 1987 Act, and his failure to provide reasoning in his acceptance, and rejection of the relevant expert opinion (Ground 7).

MEDICAL OPINION EVIDENCE

While the Member’s reasons contain a comprehensive account of their evidence, a brief review of the evidence of Dr Edward Korbel and Dr David Gorman may assist in understanding the issues in dispute and the contentions of the parties. Dr Korbel is a urological surgeon who provided a series of reports to the respondent’s solicitor. Dr Gorman is a medical oncologist who provided reports to the appellant’s solicitor.

Dr Korbel

In a report of 9 March 2021,[7] Dr Korbel recorded that the respondent joined the appellant in 2014 and had attained the rank of senior firefighter at the Gordon station. He continued:
“During his period as a firefighter, he has been exposed to smoke and the toxins which come with smoke. There are numerous toxic gases in the smoke. He has been exposed to oxidation and pyrolysis products. He has been exposed to known carcinogens. It 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).”
[7] ARD, p 60.
Dr Korbel recorded the relevant medical history leading to a diagnosis of a “Gleason 4+3=7 adenocarcinoma” of the prostate. He recorded that Dr Haddad performed a robotic-assisted radical prostatectomy on 15 February 2021. In response to the question of whether the respondent’s work was “a substantial contributing factor for his injuries?”, the doctor responded thus:
“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 known or possible carcinogens. He has also been exposed to asbestos in his work. He has been exposed to diesel fumes with products of benzine, 1,3-butadiene 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 [sic] to his prostate cancer.”[8]
[8] ARD, p 61.
In response to a further question in respect of “injury”, the doctor responded thus:
“On the balance of probabilities, this gentleman’s prostate cancer was related to his work as a firefighter and his exposure to various carcinogens in this capacity.”
Dr Korbel expressed the opinion that the respondent had a good prognosis but that it was premature to assess the permanent impairment of his bladder and sexual function as some improvement was possible.
Dr Korbel examined the respondent again on 26 October 2021.[9] He noted that he was back at work and performing full duties as a senior firefighter at the Beecroft Station. He assessed him as suffering from 40% whole person impairment as a result of his prostate cancer and its treatment. He reiterated his opinion that, as the respondent had been exposed to “numerous carcinogens and toxins”, his employment was a substantial contributing factor to his injury and the consequential impairments.
[9] ARD, p 65.
Dr Korbel provided a supplementary report dated 7 September 2023,[10] by which he reiterated his opinion that the respondent’s exposure to the substances listed in his original report would have contributed to the development of the respondent’s prostate cancer “after seven years of service as a firefighter”. The doctor noted that the respondent had “a high-grade prostate cancer”. He also listed under the heading “References” a number of articles from Australia, the United States, and Canada which addressed the risk of cancer in firefighters.
[10] ARD, p 69.
Dr Korbel continued:
“I note that Dr Gorman has confirmed from the studies that 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.”[11]
[11] ARD, p 70.

Dr David Gorman

Dr Gorman saw the respondent on 4 February 2022, and provided a report dated 28 February 2022.[12] After recording the history of the development of the respondent’s cancer, he noted that the Workers Compensation Legislation Amendment (Firefighters) Act 2018 provided for a “qualifying service period for primary site prostate cancer” of 15 years. He continued:
“The evidence suggests that whilst 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.”
[12] Reply to Application to Resolve a Dispute (reply), p 17.
Dr Gorman noted that the respondent’s “main exposure” had been through house fires while he worked at stations in metropolitan Sydney. He assumed that he had “not been involved in any major chemical factory fires”. He also recorded that the respondent was:
“worried about exposure to diesel in the stations where he has worked where there has been minimal ventilation.”
The doctor was asked by the appellant to address causation in the following terms:
“we ask that you have regard to the worker’s length of employment prior to diagnosis and his use of personal protective/inhalation equipment. Please note the word ‘substantial’ has been interpreted as meaning a ‘real or of substance’ casual [sic, causal] connection. Please not [sic, note] a mere increase in risk does not establish a causal connection.”
He responded thus:
“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 [dependent] 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.”
The doctor then proceeded to outline the medical literature on which he relied. He summarised this evidence as follows:
“From the Monash study above, I have also attached extracts (from page 57 and Table 30) which discuss the effect of the duration of exposure. On page 57 of the report in the middle of the page (which I have attached) it is stated that ‘prostate cancer SIRS (Standardised Cancer Incidence Ratios) showed a monotonic increase with service duration and was statistically significantly raised for those who had served for more than ten years’. This is further confirmed in table 30 from the Monash study which I have also attached – there only that group who have worked for more than 20 years had a statistical increased risk (1.26 times the standard prostate cancer risk).”[13]
[13] Reply, p 24.
Dr Gorman provided a further report, dated 24 January 2024,[14] by which he considered the influence of smoking on prostate cancer. He expressed the opinion that there was no conclusive evidence of a causal nexus between smoking and prostate cancer. He did not believe that smoking would have contributed to the development of the respondent’s cancer.
[14] Application to Admit Late Documents (AALD) dated 25 January 2024, p 1.
Dr Gorman also considered the serial reports of Dr Korbel. He stated:
“I note the most recent report from 7 September 2023 that, on the balance of probabilities, his exposures would have contributed to him developing prostate cancer after seven years of service as a firefighter.
As outlined in my original report, I do not agree with this and believe that the exposure is related to the duration of employment.
I have attached an extract from the Final report of the Australian Firefighters Health Study from Monash University dated December 2010 (the ‘Monash Study’). In the middle of page 57 it states that the increased incidence of prostate cancer was only statistically significant after 10 years of service.
As well, I believe that the ‘Up-to-date resource’ I have attached makes very little reference to chemical exposures as a risk and makes no reference to occupational exposures as a risk. I think this confirms that the risk, while present as a firefighter, is small.
Stating that the causative factor is chemical exposure would definitely require increased and substantial exposure to chemicals. I believe that this confirms that my opinion that requiring a substantial exposure is required to increase the risk of prostate cancer materially – Mr Sinclair’s 7 years of service would not have increased the risk substantially.”
Dr Gorman continued:
“As I have outlined above, the risk factors for prostate cancer as outlined in the material attached notes very few environmental carcinogens which definitely increase risk – it again confirms the fact that exposure to carcinogens in the work as a firefighter is unlikely to be a very significant risk factor and therefore, not being a very significant risk factor, requires prolonged firefighting exposure. Shorter than 15 years would not be considered to be enough exposure I believe and this is confirmed by the Monash Study outlined above.”[15]
[15] AALD dated 25 January 2024, p 3.
Annexed to Dr Gorman’s report is a document published by Dr Oliver Sartor “Up-to-date risk factors for prostate cancer” dated December 2023 and an extract from the Final report of the Australian Firefighters Health Study, Monash University, December 2010.

APPELLANT’S SUBMISSIONS

At the commencement of its submissions, the appellant noted that the imperfect transcript of evidence of 31 January 2024 caused difficulty understanding the parties’ arguments or the Member’s rulings. It continued:
“Caution needs to be placed upon the reliance on the transcript with respect to the appeal. Much of the submissions within transcript make little sense, this places considerable burden upon the parties with respect to ensuring procedural fairness regarding the appeal and consideration of the evidence and submission at first instance.”[16]

Ground 1 – Failure to exclude parts of the respondent’s statement

[16] Appellant’s updated submissions dated 5 April 2024 (AS), [2.1].

By this submission the appellant reiterated its argument in respect of the imperfections in the transcript. It stated that:
“It is difficult, upon plain reading of the transcript to have an appreciation for the submissions and subsequent determinations which are being made by any party or the Member himself.”

The appellant noted that the Member’s ruling on its objection to paragraphs [13] to [19] of the respondent’s statement of 26 April 2023 is to be found at [7] to [8] of his reasons. It acknowledges that he ruled that the evidence should be admitted “on the basis that its weight was a matter for the Commission”.[17]
[17] AS, [2.3(1)(d)].
The appellant then summarises five aspects of the respondent’s statement to which it objected and its brief submissions. They are as follows:[18]
“i. ‘… I have been exposed to many toxic substances.’ -- The [respondent] provided no details as to what these toxic substances were or the length of the exposure.
ii. ‘Bushfire smoke’ … ‘Most toxins and chemicals released during a bushfire penetrate the P2masks.’ The Respondent Worker provided no details as to his own exposure to bushfire smoke or how long he was using the P2 masks.
iii. The vague statement that he was ‘exposed to start up diesel particulate’ – again without providing details as to when and for what length he was exposed.
iv. The exposure to carcinogenic in the contaminated turnout clothing – no details as to what stations and when he was exposed to the decontamination.
v. The statement regarding the chemicals which he was exposed to during salvaging – and the words ‘routinely.’ The Respondent Worker’s statement provided no times or dates or periods of exposure to any of the chemicals, nor the types of chemicals the Respondent Worker was exposed to.”
[18] AS, [2.3(1)(f)].
The appellant argues there was no basis for the Member’s conclusion at [102] of his reasons that the respondent’s assertions were supported by other evidence. It submits there was no other evidence of exposure to carcinogens. It reiterates its argument that the respondent’s statement was imprecise and unsatisfactory. The appellant continued:
“The Member failed to consider the extent, (both in terms of quantification and type) of the Respondent Worker’s actual exposure to potential toxins, of which the Respondent Worker provided no actual evidence of any [sic] of his degree of exposure. The Member relied simply upon the opinion of Dr Korbel who noted that the employment of 7 years of service was a substantial contributing factor and accepted that conclusion without evidence as to what exposure had occurred over the 7 years.”[19]
[19] AS, [2.3(1)(j)].
The appellant also rehearsed its argument before the Member that the respondent had not been employed on active firefighting duties for 7 years. Rather, the period of potential exposure to carcinogens and other toxic substances was 53 months. It alleges the Member did not consider this evidence.[20]
[20] AS, [2.3(1)(k)].
The appellant described the respondent’s evidence as a “summary of his employment”; “nothing more than a basic outline”; and a “vague statement”. It argues that the Member did not “weigh up the evidence and determine whether it was accepted and what weight” should be placed upon it.[21]
[21] AS, [2.3(1)(l)–(m)].

Ground 2 – Misdirection as to the test of causation

After referring to the reasoning in Badawi v Nexon Asia Pacific Pty Limited,[22] the appellant asserts that the Member did not apply the principles in Badawi when determining causation. It complains that the Member “rejected the evidence of the [appellant] that causation of prostate cancer in Firefighters was linked to the degrees [sic] of potential exposure.”
[22] [2009] NSWCA 324; 75 NSWLR 503 (Badawi).
The appellant then alleges that the Member erred in using the phrase “real contributory factor” at [117] of his reasons. It reiterates that s 9A imposes a “more stringent causal requirement” than that imposed by “arising out of” the employment in s 4(a). In accordance with the reasoning in Seltsam Pty Limited v McGuiness,[23] it argues that proof of an increase in risk is insufficient to establish causation. It concludes by stating that the Member:
“failed to apply any of the applicable reasons in Badawi and the cases which followed, this was an error in law.”[24]
[23] [2000] NSWCA 29 (Seltsam).
[24] AS, [2.3(2)(i)].

Ground 3 – Section 19A

By this ground of appeal, the appellant attacks the Member’s conclusion at [88] that s 19A of the 1987 Act demonstrated:
“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 appellant argued that s 19A is “presumptive legislation only”. It “played no part” in the determination of injury pursuant to s 4 of the 1987 Act in cases where the temporal preconditions were not met. Secondly, the Member erred in his conclusion at [113] that firefighting had the potential to cause the “cancers listed in schedule 4 … as it has legislative imprimatur in s 19A”. It continued:
“the Member failed to consider that s 19A – links the length of employment to the causative aspect of the cancers listed. The length of exposure is imperative to the conclusion. To say otherwise would mean that even for one day of exposure – a firefighter’s employment would have been causative of the development of the disease – being prostate cancer.”[25]
[25] AS, [2.3(3)(e)].

Ground 4 – Error in treatment of the lay evidence

By this ground the appellant returns to the principles enunciated in Seltsam. It argues that the respondent’s evidence did not establish “any type of degree [sic] of exposure” to potential carcinogens. It reiterates that his evidence “was no more than a vague summary” of potential causes of his cancer and did not establish “the rate of the occupational exposure”.[26]
[26] AS, [2.3(4)(b)].
The appellant also argues that whether employment was a substantial contributing factor to the development of prostate cancer involved a consideration of “the strength of the causal linkage between his employment and his injury.”[27] It refers to the reasoning of McColl JA in Hevi Lift (PNG) Ltd v Etherington,[28] a case concerning the sufficiency of the medical evidence required to support a finding of causal nexus pursuant to s 9A. It argues that in accepting the evidence of Dr Korbel and the respondent, the Member failed to undertake the evaluative process required by s 9A.
[27] AS, [2.3(4)(d)].
[28] [2005] NSWCA 42, [106].

Ground 5 – Misdirection, section 9A

The appellant reiterates that the Member erred in employing the terminology “real contributory factor” at [117]. It again refers to Badawi and to Seltsam. It states that the Member “did not undertake an evaluation upon the balance of probabilities as to the evidence”.[29]
[29] AS, [2.3(5)(b)].
After referring to the reasoning in AV v AW,[30] the appellant alleged that the Member “failed in the evaluative process” required by s 9A:
“Firstly, in accepting the Respondent Worker’s version of events – including the time length and extent of his exposure; and secondly accepting that the medical evidence of Dr Korbel for the Respondent Worker which provided no details regarding the length or extent of the exposure.”
[30] [2020] NSWWCCPD 9, [78].
The appellant concludes this ground by stating that the Member’s failure to “consider the totality of the evidence” was an error of law.

Ground 6 – Misdirection in treatment of the statistical evidence

By this ground the appellant alleges that in his finding at [117] the Member placed no weight “about the journal articles”. It specifically complained that the Member had not recorded that prostate cancer was the most common malignancy affecting men; that it was associated with ethnicity, genetics, and possibly diet; and that in these studies the incidence of cancer for full-time firefighters was only raised “for those who had worked for longer than 20 years”.
The appellant continued that these journal articles:
“concluded at best (or at its highest), that firefighters have an increased risk of exposure to chemicals which are carcinogenic, but importantly there was no trend in the overall increase in risk of cancer – with less than 20 years of service”.[31]
[31] AS, [2.3(6)(b)].
The appellant alleges that the Member failed to consider the “vital conclusion of all the evidence”, that it was the length of the occupational exposure which was relevant to “the legal test as to causation”.[32]
[32] AS, [2.3(6)(c)].

Ground 7 – Failure to provide reasoning for the acceptance or rejection of medical opinion

By this ground of appeal, the appellant argues that as Dr Korbel assumed that the respondent’s “potential carcinogenic” exposure was 7 years, rather than 53 months, the Member should not have preferred his opinion. Conversely, the opinion of Dr Gorman was rejected “without reasons”. “The failure to provide clear reasons as to why one opinion was preferred over the other is an error of law”.[33]
[33] AS, [2.3(7)(b)].
The appellant further argues that it was not open to Dr Korbel to provide evidence as to “occupational chemical exposure”. He was a urologist, not a chemist. It asserts that the doctor provided no basis for his conclusions “regarding the type of chemicals and carcinogens which, he opinions [sic] that the respondent had been exposure [sic] to at work.”
The appellant argues that In the absence of a history of the precise circumstances in which the respondent was exposed to carcinogens, the Member ought to have given Dr Korbel’s opinion “little to no weight”.[34]
[34] AS, [2.3(7)(d)].
Dr Korbel’s opinion provided no consideration of the “statistical literature”. Rather, his opinion was “based solely” on his inadequate history and was based upon the assumption that the presumptive legislation applied. Conversely, he placed no weight on the evidence of Dr Gorman “which was supported by numerous journal articles” which supported a conclusion that the “extent of exposure” was important in the development of occupational prostate cancer.
The appellant’s submission concludes by arguing that the evidence did not demonstrate a “causative medical link between the cancer, the actual exposure at work and the type of chemicals the Respondent worker was exposed to”.

RESPONDENT’S SUBMISSIONS

Ground 1

The respondent submits that the Member overruled the appellant’s objection to the admission of the impugned paragraphs in the statement evidence on the basis that:
“the rules of evidence do not apply in the Commission and the rules of procedural fairness when dealing with the direct evidence of a worker would require their admission.”[35]
[35] Respondent’s submissions (RS), p 1.
The respondent argues that the Member ruled that the weight to be given to his evidence would “depend on the other evidence supporting [it]”. In this case, there was other evidence supporting the respondent’s statement evidence which is clearly set out in [103] of the Member’s reasons.[36] The appellant’s criticism of the Member’s reasoning “go to weight” and were not relevant to the question of exclusion of evidence.
[36] RS, p 1.

Ground 2

The respondent succinctly submitted that at:
“Paragraph 117 of the award while the term ‘real Contribution’ is used it is clear from the first sentence in paragraph 117 that the Member accepts Dr Korbel’ opinion that ‘the workers employment was a substantial contributing factor to the injury’. In this context it is clear the correct test under s 9A was applied by the member.”[37]
[37] RS, p 2.

Ground 3

The respondent submits that the Member’s reference to s 19A at [16] should be construed as a finding that he could not rely on the presumption created by the section. But this did not “exclude him from considering, if on the evidence a workplace injury has occurred.”

Ground 4

The respondent submitted that this ground went to the weight to be given to his evidence. In this case, there was evidence in addition to epidemiological or statistical evidence as to the risk of injury from carcinogens. The Member considered at [110] of his reasons the statistical evidence on which Dr Gorman relied. He was entitled to prefer the evidence of Dr Korbel. He made a positive finding based on that evidence “that injury was caused by exposure to pathogens in the workplace.”[38]
[38] RS, p 2.

Ground 5

The respondent repeated its submission made in respect of Ground 2.

Ground 6

The respondent submitted that the Member “set out in detail” why he did not accept the epidemiological studies relied on by Dr Gorman at [107], [110], and [113] of his reasons.

Ground 7

The respondent submitted that the Member considered the evidence in respect of the duration of the respondent’s exposure at [104] of his reasons. Further, he considered the evidence of Dr Gorman’s opinion at length at [106] to [110] of his reasons. Further, there was “no basis” in the evidence to suggest that Dr Korbel, a urologist, was not qualified to express an opinion on the causation of prostate cancer.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. Subject to being set aside on appeal, the findings and determination of the Member were clearly a final and binding determination of the appellant’s liability to the respondent in respect of his prostate cancer. The determination includes an order that the appellant pay the respondent’s medical and hospital expenses, which were particularised in the ARD, in accordance with s 60.

TRANSCRIPT

The phrase “not transcribable” appears in the transcript of the arbitration hearing on more than 260 occasions. By its submissions the appellant:
“notes that much of the transcript, and in particular the transcription of the Member’s comments and questions, together with responses from both counsels are ‘not transcribable’.”
It followed in the appellant’s submission that “much of the transcript made little sense” and this placed a “considerable burden upon the parties” in considering the submissions at the arbitration hearing on appeal.[39]
[39] AS, [2.1].
After considering the transcript in the light of the submissions, I issued a Direction on 20 November 2024 which required the appellant to address the following:
“(a)    Whether the appellant’s ability to make submissions on appeal has been adversely affected by omissions in the transcript.
(b)     In the Member’s Statement of Reasons dated 21 February 2024 under the heading ‘Submissions’ at paragraphs [59] to [82], the Member summarises the submissions made by the parties at arbitration. Is this an accurate summary of the parties’ submissions put to the Member?
(c)     Does the appellant wish to supplement the transcript by solicitor’s notes of the interlocutory judgment or the evidence or by reference to the recording of the evidence?
(d) Having regard to the issues on appeal, the material that is available (including the Member’s Reasons, the transcript, primary evidence, and any submissions now made on appeal), does the appellant consider the Appeal Application is capable of being fairly and properly heard by a Presidential Member having regard to ss 3, 42 and 43 of the Personal Injury Commission Act 2020? If the answer to this question is no, please set out the reasons why this is so, with reference to the guiding principles, any relevant authority, and the appeal grounds.”
By the Direction the respondent was required to address the same questions. On 25 November 2024, I issued an Amended Direction which also addressed an anomaly in the respondent’s submissions. It invited the respondent to consider the appellant’s amended submissions. The amendment stated:
“It is apparent that the respondent’s submissions dated 26 April 2024 address the appellant’s submissions of 20 March 2024 and not the updated submissions of 5 April 2024. Does the respondent wish to respond to the updated submissions?”

Submissions in response to Direction

By its response to the Direction, the appellant submitted that the omissions in the transcript impeded its ability to make adequate submissions “to some extent.” It accepted that the Member’s summary of the evidence at [59]–[82] was “broadly consistent” with the parties’ submissions:
“save for the particular submissions regarding the interlocutory application concerning the admission of the evidence of the workers [sic] and the details [sic] submissions with respect to the statistical evidence.”[40]
[40] Appellant’s Response to Direction (RD), [2.2].
The appellant continued:
“Having considered the solicitor’s notes, the solicitor’s transcription of the recording and the transcript itself, it is unfortunate that the appellant cannot be certain that all issues have been correctly and adequately summarised by the member, the submissions concerning Dr Korbel and the call logs are examples in which they have not recounted [sic] with enough specificity to enable a proper review of the evidence”.[41]
[41] RD, [2.3].
In response to paragraph [4] of the Direction, the appellant submitted:
“concerning all seven appeal grounds; the appellant submits that in proper consideration of the arguments articulated and the documents available currently, the matter is unable, without adequate access to a transcript, the appeal decision-maker would not be able to discern the actual position articulated at first instance (sic). An absence of the same means the Personal Injury Commission cannot reasonably and fairly determine the appeal.”[42]
[42] RD, [4.9].
In response to paragraph [5] of the Direction, the appellant stated that it pressed the appeal ground based on s 4 of the 1987 Act. It continued:
“The submission on appeal at 2-7 deals with the issue of causation and inter alia -errors [sic] concerning the application of s 4. However, it does not appear to have been sufficiently articulated in the information provided within the transcript.”[43]
[43] RD, [5.1].
The appellant also rehearsed aspects of its argument that the “call logs” demonstrated that the respondent was absent from work or not engaged in fighting fires for substantial periods. It followed that his exposure to carcinogens could not be measured by the duration of his employment by the appellant. This fact was not reflected in the Member’s summary or in the transcript of evidence. The appellant concluded by stating that without a true transcript a Presidential member “could not confidently determine the appeal to be fair to both parties.”[44]
[44] RD, [5.6].
The respondent submitted that the flaws in the transcript did not affect the ability of a Presidential member to decide the appeal. In respect of Ground 1 of the appeal, he argued that:
“The arguments on admissibility of the respondent’s evidence are clearly set out in the Reasons for the Award and the [submissions] completed by the appellant and respondent and either the objections should have been accepted [or] should not have been.”[45]
[45] Respondent’s Response to Direction (RRD), [2a].
The respondent referred to the reasoning in Mosawi v Baron Forge (NSW) Pty Ltd[46] in submitting that an incomplete transcript should not “automatically be a ground of appeal”. The Member’s reasoning in this case was ascertainable from the material before the Commission.
[46] [2022] NSWPICPD 48 (Mosawi).

LEGISLATION

Section 19A of the 1987 Act is as follows:
“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.
(5)     Any period during which an eligible firefighter has served in the capacity of an eligible volunteer firefighter is to be counted towards the service period.
(6)     However, any period during which the eligible firefighter concurrently serves as an eligible volunteer firefighter and engages in firefighting employment is to be counted once only.”

Rule 73 of the Personal Injury Commission Rules 2021 is as follows:
“Guiding principles for applicable proceedings
The appropriate decision-maker for applicable proceedings must, when informing itself or themselves on any matter in the proceedings, have regard to the following principles—
(a)     evidence should be logical and probative,
(b)     evidence should be relevant to the facts in issue and the issues in dispute,
(c)     evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d)     unqualified opinions are unacceptable.”

DISCUSSION

The appellant’s grounds of appeal are repetitious and confusing. Several are unmeritorious. It is ludicrous to suggest that Dr Korbel, a urologist, does not have the requisite specialised knowledge based on his training and experience to express an opinion on the causation of prostate cancer. The doctor’s specialty is the urinary tract. Generally, a specialist medical practitioner can give expert evidence of matters within their specialty.[47] Indeed the evidence of any medical practitioner on a medical issue may be relevant and admissible. There was no evidence to suggest that this case was an exception. There is no proper basis for the submission. Similarly, for reasons that I give briefly below, I am of the opinion that there is no appropriate basis in the evidence to support an argument of error as alleged in Grounds 1 and 5.
[47] See the discussion of the majority in Dasreef Pty Ltd v Hawchar [2011] HCA 21, [37], in the context of the Evidence Act 1995 (NSW).
While the transcript is imperfect, I am satisfied that I can safely and fairly determine Grounds 1 and 5 and the assertion repeated throughout the submissions that the Member misdirected himself in respect of s 9A. I was initially of the opinion that I could determine each of the grounds of appeal. However, a consideration of the issue of “injury” in the light of the parties’ supplementary submissions and a re-reading of the transcript has caused me to conclude that the remaining grounds of appeal cannot be fairly and safely determined.
I propose to briefly address Grounds 1 and 5 of the appeal and then to address the “injury issue” and my reservations about determining the remaining grounds of appeal given state of the transcript.

Ground 1

At the commencement of the arbitration hearing, the appellant objected to paragraphs [13] to [19] of the respondent’s statement dated 26 April 2023. Those paragraphs are as follows:
“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 P2 masks. On task forces during the recent bushfire seasons, breathing apparatus was not provided in the task force 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 on site 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 fire 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.”[48]
[48] ARD, pp 2–4.
The appellant contended that this evidence was not logical and probative. It was vague and inexact. While the respondent stated that he had been exposed to “many toxic substances”, he did not identify those substances. Ms Compton argued that the statement contained “global generalisations” concerning his exposure to carcinogens, his personal protective equipment, the trucks which he operated, and the stations at which he worked as a firefighter. He did not give evidence of his own experience. Rather the respondent’s identification of chemicals/toxins present during bushfires, at the fire station, when driving vehicles and when conducting salvage and overhaul was “opinion evidence” which was the domain of an expert.
The Member admitted the entirety of the statement over the appellant’s objection.[49] Unfortunately, neither the respondent’s submissions nor the Member’s oral ruling on the objections are fully transcribed. It is evident, however, that he addressed aspects of the appellant’s objection. It is quite clear that he held that the appellant’s criticism of the statement went to the question of weight rather than its admissibility.
[49] T 9.
Subsequently, at [91] of his reasons, in dealing with the argument that the respondent’s evidence did not establish a prima facie case, the Member returned to the admissibility of the statement. He said:
“Ms Compton’s objection may well have foundered in an evidence-based jurisdiction in any event, but in this jurisdiction matters of admissibility are in fact matters that usually go to weight.”
In Raulston v Toll Pty Limited,[50] Roche DP stated at [27]:
“… challenges to [a Member’s] exercise of discretion will be in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504–5. Those principles were articulated by Heydon JA (as his Honour then was) (Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274 (Micallef). To succeed with an appeal against [a Member’s] exercise of discretion, the appellant must demonstrate that the [Member]:
‘(a)    made an error of legal principle,
(b)     made a material error of fact,
(c)     took into account some irrelevant matter,
(d)     failed to take into account, or gave insufficient weight to, some relevant matter, or
(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”
[50] [2011] NSWWCCPD 25 (Raulston).
Rule 73, which I have set out above, requires that evidence should be logical and probative, relevant, and not based on speculation, unsubstantiated assumptions or unqualified opinions. In South Western Sydney Area Health Service v Edmonds[51] McColl JA stated that rule 70 of the then Workers Compensation Commission Rules 2003, the equivalent of rule 73 “reflects fundamental principles of the common law concerning admissibility of evidence”. But that statement must be considered in the context of her reasons taken as a whole and the subsequent case law.
[51] [2007] NSWCA 16, [128].
In OneSteel Reinforcing Pty Ltd v Sutton[52] both Allsop P (as his Honour then was) and McColl JA emphasised that on the plain words of the 1998 Act, the rules of evidence did not apply in the then Workers Compensation Commission. At [2], Allsop P stated:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 … s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material”.
[52] [2012] NSWCA 282.
At [59], McColl JA stated that:
“It is nevertheless necessary to be alert to the fact that ‘the rules of evidence, excluded by statute [should not be allowed] to ‘creep back through a domestic procedural rule’’.”
In considering the admissibility of a medical report in Brambles Industries Limited v Bell,[53] Hodgson JA stated at [19]:
“As regards the second matter, the question of admissibility as such does not strictly arise. Section 354 of the [1998 Act] states that the Commission is not bound by rules of evidence. Accordingly, this contention can succeed only if the relevant opinion of Dr Conrad was of no rational probative value, and as such, as a matter of law, of no weight.”
[53] [2010] NSWCA 162 (Bell).
Applying these principles, the appellant has not proven that the Member erred in admitting the evidence at paragraphs [13] to [19] of the respondent’s statement dated 26 April 2023. The appellant commenced its attack on the statement at the arbitration hearing by arguing that paragraph [13] was so vague as to have no probative value. But that paragraph is an introduction to the subsequent identification of chemical substances to which the respondent alleges he was exposed during his employment. These substances and the circumstances of the respondent’s exposure are identified in the following paragraphs.
It is true that there is a lack of precision as to the frequency of the respondent’s exposure to the chemicals alleged to be present at bushfires, in vehicles, and when conducting salvage and overhaul operations after building fires. However, the fact that the evidence is deficient does not render it illogical or of no probative value. The respondent may have had genuine difficulties in recalling precisely when he was exposed to the various substances enumerated in his statement. As the Member found, there were also the firefighter attendance statistics counts which recorded the respondent’s attendance at fires and other emergencies in his role as a firefighter.
The deficiencies in the respondent’s evidence did not prevent the appellant calling evidence to rebut it. The nature of the work of a firefighter and his exposure to the relevant carcinogens at the various stations at which it employed the respondent was surely a matter the appellant was able to address through documentary, statement, or expert opinion evidence.
The second limb of the appellant’s objection to the evidence at the arbitration hearing is that the respondent did not possess the expertise to identify the chemicals to which he was exposed both at the stations and at fires. Generally, the chemical components of smoke, fumes, and material at bushfires, during and after building fires, and in the operation of fire vehicles would be a matter for an expert. However, the respondent is a senior firefighter and might be expected to have a rudimentary knowledge of the matters on which he gave evidence. The evidence is not in the same category as, for example, a witness repeating what he has been told by a doctor for the purpose of establishing a diagnosis. There cannot be any suggestion of unfairness in the admission of this evidence. The appellant had ample opportunity to adduce documentary, lay, or expert evidence addressing the issues raised in the respondent’s statement. Again, the appellant has not established a House v King[54] error.
[54] [1936] HCA 40.
Curiously, in its submissions at [2.3(1)(g)] the appellant concedes that the admission of the statement was open to the Member. It states:
“The Member rejected the objection, and stated that it [w]as a matter for weight regarding the evidence. It was open for him to form that conclusion.”
That submission suggests that the appellant’s counsel was aware of the tenuous basis of this submission. The appellant’s submission next turned to address the Member’s use of the statement evidence in finding for the respondent. The last four paragraphs [2.3(1)(j)–(n)] of the submissions under this ground contain the appellant’s analysis of the duration of the respondent’s exposure as a firefighter to “potential toxins”. They are also relevant to Grounds 4, 6 and 7. These grounds go to the weight to be given to the statement in the context of the entirety of the evidence.

Ground 5

The appellant contends that the Member misdirected himself as to meaning of the phrase substantial contributing factor in s 9A. That submission is not consistent with a fair reading of the Member’s reasons. The appellant refers on several occasions to the Member’s use of the phrase “real contributory factor” at [117]. This is plainly a clerical error. As the Member accurately recited the statutory phrase repeatedly throughout his reasons and accurately recapitulated the applicable law, it is not plausible that he applied an incorrect test in determining the s 9A issue.
At [111] of his reasons, the Member observed that s 9A required the employment to be “a substantial contributing factor, not a ‘significant’ contributing factor”. He set out the seven propositions which the plurality of the Court of Appeal in Badawi[55] stated were correct and uncontroversial. At [112] he recorded a finding of the plurality at [82] which is as follows:
“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.”
[55] Badawi, [48].
At [117] the Member found that he preferred Dr Korbel’s opinion that:
“Mr Sinclair’s employment had been a substantial contributing factor to the development of a high grade prostate adenocarcinoma after seven years’ service”.
At [2] of his reasons the Member stated that an issue for determination was whether the “employment [was] a substantial contributing factor to the onset” of prostate cancer. Subsequently, he found that the respondent’s employment “was a substantial contributing factor to the development of his injury”.
Against the background of the repeated use of the phrase “substantial contributing factor” in the body of his reasons and in his findings and orders and his references to Badawi, the leading appellate case on s 9A, there is no basis for the appellant’s assertion that the Member misdirected himself in respect of the phrase.
The appellant also argues that the Member did not apply “the statutory language and did not apply the correct law as to causation”. That was because he rejected the evidence “that causation of prostate cancer in Firefighters was linked to the degrees [sic] of potential exposure”. That is a criticism of the weight which the Member gave to the respondent’s evidence. It does not suggest misdirection.

Injury

Three of the grounds of appeal refer to s 4 of the 1987 Act. They assert errors of fact and law in determining causation for the purposes of s 4. The issue of “injury” figured prominently in the dispute notices issued by EML on 29 December 2020 and 21 March 2022. It is not readily apparent, however, from a reading of the imperfect transcript that “injury” was an issue ventilated at the arbitration hearing.
Under the heading “Submissions”, the Member recorded that Ms Compton stated the “issue [in dispute] was whether Mr Sinclair’s employment was a substantial contributing factor to his contraction of prostate cancer.”[56] Subsequently, he recorded that she agreed the test was not “significant contributing factor” but “substantial contributing factor”.[57]
[56] Reasons, [64].
[57] Reasons, [73].
At [76] of his reasons, the Member recorded that there was “an exchange” as to whether Ms Compton was submitting that the respondent “had not made out a prima facie case, which she eventually adopted.”
It is not evident from the transcript that the appellant was asked to identify the issues for determination at the commencement of the hearing. The transcript does record that Ms Compton opened the appellant’s submission by stating:
“This case is concerned with whether or not the [respondent’s] employment is the substantial contributing factor to him contracting the disease which is prostate cancer. Now, one thing that I’m going to take you to is the level and the degree upon which [he] has been working as a firefighter because his statement is devoid of all that.”[58]
[58] T 19.19–25.
There are multiple references to substantial contributing factor in the transcript. I have been unable to locate any clear reference to a submission being made to the Member that “injury” or s 4 of the 1987 Act was an issue which required the determination of the Commission. If that was so, one might infer that the appellant conceded, or did not argue, the issue of injury raised in the s 74 notice. Either would involve an acceptance of a causal nexus between the respondent’s employment and his prostate cancer.
The Commission is generally not required to decide issues which are not ventilated in submissions. “It is elementary that a party is bound by the conduct of his case.”[59] In Bell, McColl JA stated that it was not an error to consider the matter which had not been raised at first instance.[60]
[59] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481; Coulton v Holcombe [1986] HCA 33; 162 CLR 1.
[60] Bell, [30].
By its response to my Direction, the appellant submitted that the issue of injury was “clearly put into issue”[61] and was “fairly raised between the parties”[62] at the hearing, although it does not appear to have been “sufficiently articulated in the information provided within the transcript”. I assume this is a criticism of the transcript. By its response to the Direction the respondent accepted that the issue of injury was argued at the hearing.[63] That acceptance is qualified by the assertion that the test for injury put by the appellant in this case was identical to that under s 9A.
[61] RD, [5.1].
[62] RD, [5.3].
[63] RRD, [2.e].

If, as the parties agree, injury was in issue, the Member should have determined it. I suppose it is arguable in the context of the pleading of a disease injury pursuant to s 4(b)(i) that a finding of substantial contributing factor pursuant to s 9A might inexorably lead to a finding of injury. In Badawi the plurality contemplated that there may be circumstances where the “factors sufficient” to satisfy the test of arising out of the employment may also satisfy s 9A.[64] Presumably, the reverse is also true. A finding under s 9A may satisfy a limb of the definition of injury. But that is only of academic interest in this case as the Member made no finding of injury.
[64] Badawi, [85].
Generally, failure to address a central issue raised at a hearing is an error of law.[65] It is unnecessary to finally determine whether that follows in this case. The difficulty in determining whether it was incumbent on the Member to make a finding of injury arises largely from the inadequacy of the transcript. A consideration of this issue has led me to conclude that it is not possible, given the state of the transcript, to fairly determine this issue or the remaining issues arising on this appeal.
[65] Day v SAS Trustee Corporation [2021] NSWCA 71, [37] per Meagher JA; State of NSW v Hunt [2014] NSWCA 47, [43]–[45] per Leeming JA.
As the caselaw demonstrates, imperfections in a transcript will not ordinarily result in a determination being set aside. In Wyong Shire Council v Paterson Giles JA said this:
“Absence of transcript is not a passport to a new trial, or the equivalent of a fresh arbitration in the present case, even if, as appears to have been the case, all concerned thought that the transcript would be forthcoming if necessary”.[66]
[66] [2005] NSWCA 74, [44].
In a recent case involving an imperfect transcript, Toll Transport Pty Ltd t/as Global Logistics – TGL Grocery v Andersen,[67] Phillips P considered ss 3, 42, and 43 of the 2020 Act and Procedural Direction PIC 1 – Conduct of parties during proceeding. Procedural Direction PIC 1 deals with audio recording of proceedings and the provision of transcripts to the parties in certain circumstances. The President addressed the effect of imperfections in the transcript in that case as follows (footnote omitted):
“The power for a Presidential Member to intervene on appeal depends upon being able to identify and correct error. The question for me to determine, consistent with the remarks of Giles JA (above) in Paterson, is whether I am of the view that I can properly and fairly undertake this task in light of the issues with the transcript”.[68]
[67] [2024] NSWPICPD 64 (Andersen).
[68] Andersen, [23].
Against the background of the parties’ agreement that notwithstanding the imperfections in the transcript the matter could proceed on appeal, the President determined that he could:
“discharge my duty to fairly and properly determine this appeal. I am satisfied that based on what I do have and how the appeal has been framed in the grounds, I can identify and correct error (if any) as required by s 352(5) of the 1998 Act.”[69]
[69] Andersen, [35].
I respectfully adopt the President’s reasoning. It is consistent with the earlier caselaw including the President’s decision of Mosawi to which the respondent referred. In view of the complexity of the facts and the state of the transcript in this case, I have reluctantly reached a different conclusion. A consideration of Ground 5 of the appeal, which concerns the Member’s references to s 19A of the 1987 Act, have reinforced that conclusion.
There can be no doubt that the respondent was exposed to carcinogens in his work. The central issue was whether the exposure caused prostate cancer. By Ground 3 of the appeal the appellant attacked the Member’s use of s 19A in considering the causal connection between the respondent’s exposure and his prostate cancer. The Member dealt with s 19A as follows:
“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.”[70]
[70] Reasons, [86]–[88].
As the respondent submitted, the Member plainly held that the presumption in s 19A did not apply. It was necessary for the respondent to establish a causative link between his employment and the prostate cancer on the balance of probabilities. The Member returned to s 19A at [113] of his reasons where he stated that:
“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.”
In accepting Dr Korbel’s opinion, at [116] the Member stated:
“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.”
In considering the appellant’s submission that the respondent’s exposure to carcinogens was of lesser duration than his period of employment, the Member also invoked s 19A. At [104] he stated:
“Similarly, there was no support for Ms Compton’s submission that I should not regard the six years’ employment as representing six years’ exposure, as Mr Sinclair was not on firefighting duties every minute of the day. There was no such a reservation in Schedule 4 of the 1987 Act, which spoke only of 15-year ‘qualifying service period’.”
It is not entirely clear what the Member intended to convey by his statement that s 19A had “some relevance” to the issue of causation. I am inclined to the view that he merely intended to recite the obvious fact that in enacting the amendment of the 1987 Act to insert s 19A, the legislature must have accepted as a matter of policy a connection between service as a firefighter and prostate cancer. It was not a matter that intruded on his determination of the issue of causation in the case. Plainly, s 19A could not be relevant to that issue.
Conversely, in rejecting the appellant’s submission that the six years’ employment did not equate to six years of exposure by analogy with the language of s 19A and Schedule 4 to the 1987 Act, it is arguable that the Member erred. While length of service may be relevant to the issue of causal nexus between the firefighting and prostate cancer, the critical question is whether the respondent’s cumulative exposure to carcinogens caused his cancer. Length of service and duration of exposure may not be commensurate for a variety of reasons. Of course, it must be borne in mind that the respondent alleges that on occasions he was exposed to carcinogens at his station by his proximity to contaminated clothing.
These issues associated with causation can be influenced by minutiae in the evidence and in the submissions. Their determination depends in part on an understanding of the arguments of counsel and the exchanges between counsel and the Member. Unfortunately, passages in the transcript that may be relevant to these issues are particularly obscure. The exchanges at pp 33 and 34 are difficult to understand but the imperfections throughout the transcript mean that reaching conclusions in respect of these issues is precarious. The potential pitfalls are exemplified by my initial mistaken impression that injury had not been in issue at the hearing.

CONCLUSION

Regrettably, I have concluded that I should accept the appellant’s contention that issues raised on the appeal cannot be fairly or safely determined by reason of the state of the transcript. That involves a rejection of the respondent’s brief submission to the contrary. In those circumstances, I see no alternative but to revoke the Member’s award of 21 February 2024 and to order a rehearing.
While I appreciate that remittal of the matter may cause apprehension and considerable delay in finalising the proceedings, it is preferable that the matter be remitted to another non-Presidential member as the determination of complex factual issues are best dealt with at an arbitration hearing. It is appropriate that the matter be expedited and referred to the first available non-Presidential member.

DECISION

The Member’s Certificate of Determination dated 21 February 2024 is revoked.
The matter is remitted to another non-presidential member for re-determination.
Costs of the appeal to follow the outcome of the re-determination.

Paul Sweeney

ACTING DEPUTY PRESIDENT

5 February 2025