State of New South Wales v Allen

The case of *State of New South Wales v Allen* involved an appeal to the Supreme Court of New South Wales from a decision of the Compensation Court. The dispute concerned a claim for workers' compensation by the dependants of a deceased stock inspector, Mr. Allen, who had died from pancreatic cancer. The dependants alleged that his death was caused or contributed to by his exposure to carcinogenic substances, specifically arsenic-containing compounds and DDT, during his employment.

The primary legal issues before the court were whether the Compensation Court judge had erred in law by finding that the evidence was capable of supporting a conclusion that the deceased's pancreatic cancer was caused or contributed to by his employment, and whether the judge had correctly applied the principles of workers' compensation law in assessing the claim. Specifically, the court considered whether Professor Stewart's expert opinion, which concluded that the deceased's malignancy was reasonably attributable to his exposure to arsenic and DDT, constituted sufficient evidence to establish the claim on the balance of probabilities, notwithstanding criticisms of the underlying studies and the deceased's pre-existing pancreatitis.

The Supreme Court, in its reasoning, focused on whether the Compensation Court judge had made an error of law in accepting Professor Stewart's opinion as sufficient evidence to establish the claim. The judge had found that Professor Stewart's hypothesis, linking the deceased's pancreatic cancer to his occupational exposure to DDT and arsenic, was a "rational hypothesis" and supported by the lay evidence regarding exposure and the report on chemical concentrations. The judge concluded that, on the balance of probabilities, there was a probable connection between the deceased's exposure and his cancer, and that this was sufficient to satisfy the legal test for compensation. The court affirmed that the Compensation Court judge was not required to determine the question with scientific certainty, but rather to assess the evidence on the balance of probabilities.

The appeal was dismissed, and the cross-appeal was allowed, indicating that the Supreme Court upheld the Compensation Court's finding that the evidence was capable of supporting the claim, and that the judge had correctly applied the relevant legal principles.