State of New South Wales (Fire and Rescue NSW) v Sinclair [2025] NSWPICPD 8 is a case that demonstrates why presumptive cancer legislation for firefighters was and is required. Mr Sinclair had been employed as a firefighter since 2014. In 2020 he was diagnosed with prostate cancer. After surgery he was able to return to firefighting but with ongoing urological impairment. He sought workers compensation, which was denied.
There was an attempt at arbitration but at the end of those proceedings a number of issues were still in dispute, including whether Mr Sinclair’s work as a firefighter was a ‘substantial contributing factor’ to his cancer. Member Wynyard determined that it was and sent the matter to a medical assessor to determine the level of whole body impairment. Fire and Rescue NSW or, more accurately, the workers compensation insurer, appealed to a Presidential Member of the NSW Personal Injuries Commission.
The Workers Compensation Act 1987 (NSW) s 19A provides that certain cancers are presumed to be caused by employment as a firefighter if certain conditions are met, in particular that the person has been employed in that role for the qualifying period. The qualifying period for prostate cancer is 15 years (Schedule 4). Mr Sinclair had not been employed as a firefighter for 15 years at the time of his diagnosis and so the presumptive legislation did not apply. It was therefore incumbent upon him to bring evidence to establish the necessary causal connection between his work and the cancer.
One ground for the appeal was the argument that Member Wynyard should not have accepted the evidence from Mr Sinclair as to his exposure. They identified (at [33] (italics in original)):
… five aspects of the respondent’s statement to which it objected and its brief submissions. They are as follows:
“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.”
And, at [36] ‘The appellant described the respondent’s evidence as a “summary of his employment”; “nothing more than a basic outline”; and a “vague statement”…’
Acting Deputy President Sweeney rejected most of the grounds of appeal holding (at [78]): ‘The appellant’s grounds of appeal are repetitious and confusing. Several are unmeritorious…’ With respect to the complaint that the respondent’s evidence was too vague and should not have been accepted, the Deputy President said (at [91]-[92]):
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.
As for the argument that the Mr Sinclair could not give evidence as to the nature of toxins to which he had been exposed, the Deputy President said (at [93]):
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… 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.
The appellant also argued that the presiding Member had made an error by relying on s 19A when Mr Sinclair did not meet the qualifying service time of 15 years. Member Wynyard had accepted, based on s 19A that there was a link between service as a firefighter and prostate cancer and that this supported the conclusion that Mr Sinclair’s cancer was caused by his service. Given the presumption 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’ ([116]) and ‘Plainly, s 19A could not be relevant to that issue’ ([119]). But, said the Deputy President, he could not resolve the issue of what the presiding Member had determined and whether there had been an error in reasoning because, through no fault of either party, the transcript of the original hearing was so bad that he could not determine what was said or decided. He ruled (at [122]) ‘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’.
Discussion
The reasons for the outcome in this matter do not set a precedent. The issue that may be of interest is whether s 19A, which says there is a presumption that cancers diagnosed after a relevant qualifying period were caused by firefighting service, has any relevance when deciding whether a cancer diagnosed after a shorter period of service was caused by firefighting. That may be considered after this matter is heard again in the Commission.
In the judgment there were multiple references to the Monash University Final Report, Australian Firefighters Health Study (December 2014) that was, I infer, the basis for the presumptive legislation. That report found ([22]) ‘that below ten years there is not a significantly increased risk of prostate cancer’ (see also [24] and [27). What I infer from that is that if one had a sample of 100 men who were not firefighters and a sample of 100 men who were firefighters with less than 10 years work as a firefighter, the incidence of prostate cancer in the two groups would be, statistically, the same. If the sample of 100 firefighters had 10 or more years exposure as firefighters, then the rate of prostate cancer in the group of firefighters would be higher in a way that is ‘statistically significant’. It is because of that significance that prostate cancer is included in the presumptive legislation and the 15-year qualifying service threshold is there because if you have not had cancer in those 15 years, but get it after, it is statistically likely that it was your service that contributed.
If my understanding is correct then it makes sense that Mr Sinclair has to prove the causal connection, though how one does that I don’t know. Mr Sinclair called an expert who repeated Mr Sinclair’s history and that the various toxins are known carcinogens but without being able to identify exactly how Mr Sinclair’s cancer was triggered, that would be appear to be no more than identifying that yes firefighting exposes firefighters to carcinogens but not that this cancer was caused by them rather than the other contributing factors of ‘ethnicity, genetics, and possibly diet’ ([46]). Having a report that says ‘firefighting exposes firefighters to carcinogens so it is likely that they contributed to this cancer’ does not deal with the study that says ‘but it is only significant after 10-15 years’ and if that was sufficient evidence, it makes the qualifying period irrelevant. It will therefore be important for the issue of what if any support can be drawn from s 19A where a person has been employed as a firefighter for less than the qualifying period to be resolved but not in this decision; and when the matter is reheard the issue may not arise. That issue will have to be left for another day.
What concerns me about this case, and shows why the presumptive legislation is necessary, was the discussion of the respondent’s evidence. It would be impossible for nay career or volunteer firefighter to be able to point to specific instances over their service and identify what carcinogens they were exposed to, and for how long, on a given day. The best anyone could do is give that sort of narrative – this is what firefighters do and what they are exposed to’ yet that was objected to by the appellant. The Deputy President rejected the argument that this type of narrative evidence was fatal the applicant/respondent’s cause but it does demonstrate why the legislation was required. Without it firefighters would be expected to give details, and be cross-examined about their details, with competing experts giving different opinions as to causation. Arguments like that take up Tribunal time, incur costs and fail to address the needs of the worker. Presumptive legislation removes the need for proof of causation in a case where there will be multiple causal factors- ethnicity, genetics, diet and occupational exposure – and where it is impossible to identify a ‘single’ cause. But exposure to carcinogens as a firefighter, over time, increases the risk and once the qualifying service period is reached, that is sufficient.
Conclusion
Mr Sinclair had not been employed for the qualifying period so the presumption does not apply. It was not possible to tell from the transcript what Member Wynyard had determined with respect to the presumption and how it may have influenced his decision that Mr Sinclair’s service contributed to his cancer so the matter has been sent back to be heard again. Mr Sinclair will again have to prove that his service, not just generic service as a firefighter, was a ‘substantial contributing factor’ to his cancer. How he will do that will be a matter for his lawyers to consider.
This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.
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Australian Emergency Law 
While this article deals with a case in NSW, I believe that I am having a similar experience with presumptive rights legislation in Victoria.
As a CFA volunteer firefighter I was diagnosed with colon cancer which is listed in the legislation as having a qualifying period of fifteen years service with CFA. In my case I had served almost fifteen years, falling short of the qualifying period by a few weeks. This was sufficient grounds to reject my claim for compensation in the first instance. During my subsequent appeals, I was asked to specify a particular occurrence that would have triggered my condition – a task that my oncologist was unable to determine. It also emerged that CFA records of my firefighting experience were incomplete and in some instances incorrect.
As in Mr Sinclair’s case, I as a firefighter, had no knowledge of which carcinogens were present at any given event. While the toxicity of bushfire smoke may be disputed there is no guarantee that no other contaminants are also burning alongside the vegetable components of a bushfire.
I have argued repeatedly that this legislation is flawed in that the insurers insist on being furnished with information that cannot be verifiably supplied.
With regards
David Jenkins, CFA Firefighter
And indeed the point of the legislation was to remove the need for information that cannot be supplied, but as you and Mr Sinclair have discovered, that only helps if you meet the qualifying period. Outside that period the onus is on the applicant to prove the connection with their disease.
Given the main reason for a successful appeal appears to be not meeting the qualifying period, would there be any legal impediment to waiting the clock out and bringing the case again after 15 years?
While private health insurance will use pre-existing conditions to deny a claim, is this ruled out when you have the presumptive legislation?
Absolutely, the workers compensation legislation was based on the idea of a discrete injury, so the relevant date is the date of injury. As it was expanded to include diseases where diseases may take time to develop. For diseased, the deemed date of injury is (usually) the date of the worker makes a claim (Workers Compensation Act 1987 (NSW) s 15). Under the presumptive legislation a cancer is presumed to have been caused by the firefighter’s service “unless the contrary is established” (s 19A(1)). In this case if he waited the relevant period then made a claim the insurer would no doubt point to the date of diagnosis and say that this cancer was not caused by his service. Further s 19A(9) says that for the purpose of the presumptive legislation the date of injury is the date of diagnosis not the date the claim is lodged so the diagnosis having been made, that is the date of injury, and the presumption does not apply and will not apply when he reaches the prescribed qualifying period.
This is indeed, a confusing and challenging legislation to navigate.
My father, a station officer of over 30 years working for Hazmat, was diagnosed with cancer in 2013 and subsequently passed away in 2023 after a lengthy fight and major metastasis of his prostate cancer. He was unable to enjoy his retirement and as such, we have decided to seek legal advice regarding this legislation.
The issue is, in his case, insurers may not pay compensation as he didn’t apply for it and was diagnosed “too early”. What concerns me is how they human is removed from the case when the focus is on the year of the diagnosis. The insurers only accept fault based on a timeline .