Kelly v Secretary, Department of Family and Community Services

The appeal before the Court of Appeal of New South Wales concerned a worker's claim for compensation for a psychological injury. The appellant, Kelly, alleged that the injury arose from a confrontation with a co-worker during working hours, which was related to a personal family dispute. The respondent was the Secretary, Department of Family and Community Services. The core of the dispute was whether the appellant's employment was a "substantial contributing factor" to the injury, as required by the *Workers Compensation Act 1987* (NSW).

The legal issues before the Court of Appeal were whether the Deputy President of the Workers Compensation Commission had erred in law in upholding an appeal from an arbitrator. Specifically, the court considered whether the Deputy President had made an error of law by finding that the arbitrator had made no error of fact, law, or discretion. The court also examined whether the basis for the confrontation needed to be related to employment for the employment to be considered a substantial contributing factor to the injury.

The Court of Appeal reasoned that the Deputy President had erred in law. The court held that the Deputy President had incorrectly determined that the arbitrator had made no error of law. The critical factor was that the confrontation, though stemming from a family dispute, was unlikely to have occurred but for the parties meeting during working hours. This established that the employment was a substantial contributing factor to the injury, even if the underlying cause of the confrontation was personal. The court allowed the appeal, setting aside the Deputy President's orders and reinstating the arbitrator's decision, except in relation to the reinstatement of sick leave. The matter was remitted to the Commission for determination of costs.