Today’s correspondent has a question regarding the presumptive cancer legislation – that is legislation that provides that firefighters who develop various listed cancers are presumed to have developed the cancer as a result of their firefighting duties. This entitles them to workers compensation (even for volunteers) without the need to lead evidence to establish the link between their work and their disease. The question is:

What does iCare need to do to meet the test that “the contrary is established” under s10A(1) Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 to overcome the presumption that certain cancers are caused by a person’s firefighting activities? In particular, would it be enough for the insurer to lead evidence that there is some other likely cause of a person’s cancer, or is it necessary to lead specific evidence that firefighting was not the cause?

This is perhaps more relevant for s10A(1)(b) contributing factors – can the insurer simply rely on another cause having been identified? Or is it reasonable for a member to assert, despite something else being identified as the cause of and contributing to the cancer, that firefighting was also a contributing factor (based on the presumption) if the evidence doesn’t explicitly preclude it?

If we’re talking about iCare and the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 then we’re talking about volunteer firefighters in NSW.   Section 10A(1) says:

(1)            In the application of this Act to an eligible volunteer firefighter, it is presumed (unless the contrary is established) that:

(a)            the disease contracted by the worker was contracted in the course of fighting a bush fire, and

(b)           the fighting of the bush fire was a contributing factor to the disease.

That section picks up the language used in s 7 ‘Injuries to Which Part Applies’.  Section 7 says that the Act applies to personal injuries and also to a disease:

… which is contracted, aggravated or exacerbated or which deteriorates in the course of doing anything referred to in subsection (1) or (2) if the doing of that thing was a contributing factor.’

Subsections (1) and (2) refer to firefighting, travelling to a fire, or carrying out associated operation work.  It is unlikely that an single fire can be identified as the cause of a cancer so s 10A(2) goes onto say that the section applies to a person who has been a firefighter for the ‘qualifying service period’ and who has ‘at any time performed firefighting activities’. If those criteria are met then the disease is presumed to have been caused by ‘a’ fire thereby making them eligible for compensation under s 7.

In summary, s 7 says that Act applies to a disease that is contracted when performing various firefighting duties and where those duties have contributed to the development of the disease. Section 10A then says that if the disease is one of the cancers listed in Schedule 4 to the Workers Compensation Act 1987 (NSW) then it is presumed that the requirements in s 7 have been met that is the disease was contracted whilst firefighting and firefighting was a contributing factor.

The words ‘unless the contrary is established’, however, shows that it is a rebuttable presumption. The insurer could lead evidence to show that in a particular case the cancer was not contracted whilst firefighting or that firefighting was not a contributing factor.  For example, if it could be shown that the firefighter had received the diagnosis before they commenced their firefighting duties.

The burden of proof in a civil case is ‘on the balance of probabilities’ (Evidence Act 1995 (NSW) s 140).  In Briginshaw v Briginshaw [1938] HCA 34 Dixon J said (emphasis added):

,,, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

That case was about allegations of adultery and has been raised in other case where allegations of series misconduct are made so that is not analogous to the sort of case we’re discussing but the principle remains – the tribunal must be positively satisfied as to the allegation, in this case that the cancer was not caused by firefighting, and given the consequences the tribunal could not be satisfied ‘by inexact proofs, indefinite testimony, or indirect inferences’.  

Discussion

At first blush the section doesn’t make sense. It is a presumption –it is clear that the cancer is not contracted ‘in the course of fighting a bush fire’ nor is it possible to show that ‘the fighting of the bush fire … [was] a contributing factor to the disease’.  That is, it’s not about a fire. Of course, an insurer could bring evidence to show that it is unlikely that any single fire was the cause of the cancer, hence the need for presumptive legislation.

The section only makes sense if it is read, in context, as if it says:

(1)            In the application of this Act to an eligible volunteer firefighter, it is presumed (unless the contrary is established) that:

(a)            the disease contracted by the worker in the course of fighting bush fires over the qualifying service period and

(b)           the fighting of the bush fires over the qualifying service period was a contributing factor to the disease.

Read like that it would be open to an insurer to establish the contrary – that is it was not the applicant’s firefighting that gave rise to or contributed to their cancer. (Or, to quote WorkSafe Victoria on their discussion of the relevant legislation in that state – ‘The presumption applies unless it can be established that the cancer was not caused by their service’).

An insurer who wanted to prove that the disease was not contracted in the course of their firefighting service or that firefighting was not a contributing factor to the disease would face the same sort of problems most applicants, in the absence of presumptive legislation would face. They would have to bring expert evidence to satisfy the tribunal that firefighting did not contribute to the development of the cancer. It’s hard to imagine what evidence could be that categorical but of course I’m not an oncology expert and there may be cases where that can be shown.

In other disease cases, i.e. diseases not covered by presumptive legislation, the applicant has to prove that their ‘employment was the main contributing factor to contracting the disease’ (Workers Compensation Act 1987 (NSW) s 4, definition of ‘disease injury’; emphasis added).  Under the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) the firefighting need only be ‘a contributing factor’ (s 7(3)).  If firefighting contributed to the development of the cancer, even if there are other causes, the presumption would not be displaced so even if an insurer could show that a volunteer firefighter was exposed to carcinogens at work that would not displace the presumption that their volunteer firefighting was ‘a’ contributing factor to their illness.

Conclusion

The presumptive cancer legislation was designed to get around difficulties of proof and certainly difficulties of proving that a single fire caused a person to develop cancer. If the presumption is to be rebutted it would not be enough for the insurer to lead evidence that there is some other likely cause of a person’s cancer.  The firefighting need only be ‘a’ contributing factor. They would need evidence to establish that it is more likely than not that the firefighting did not contribute to their cancer; that the cancer is unrelated to the volunteer’s firefighting duties. Mere exposure to other possible carcinogens would not be sufficient given the low threshold in s 7(3) of the Act.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.