State of New South Wales v Culhana

Case [2025] NSWCA 157


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: State of New South Wales v Culhana [2025] NSWCA 157
Hearing dates: 16 June 2025
Decision date: 17 July 2025
Before: Bell CJ at [1];
Leeming JA at [2];
Kirk JA at [97];
McHugh JA at [98];
Free JA at [99]
Decision:

1. To the extent necessary grant leave to appeal.

2. Appeal allowed on ground 1 and otherwise dismissed.

3. Set aside the decision of the Personal Injury Commission constituted by the Acting Deputy President, and remit the State’s appeal under s 352 to the Personal Injury Commission for determination in accordance with law.

4. The State to pay the first respondent’s costs of this appeal.

5. No order as to the costs of the second, third, fourth and fifth respondents.

Catchwords:

WORKERS COMPENSATION — appeal to Presidential member — nature of appeal to Presidential member — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 — Presidential member dismissed appeal on basis that findings made at first instance were "open" and it was insufficient that he would have drawn a different inference — whether appeal governed by principles in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 — effect of amendments in 2011 altering nature of appeal in response to court decisions — subsequent decisions held that right of appeal under s 352 was narrower — whether this Court should depart from those decisions — Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 disapproved

WORKERS COMPENSATION — entitlement to compensation — death benefit — worker sustained post-traumatic stress disorder during employment — death caused by adenocarcinoma — whether death resulted from workplace injury — whether reasoning in Commission wrongly relied merely on an increased risk of death — no error in findings of causation

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW), sch 5 cl 29

Common Law Procedure Act 1899 (NSW), ss 160-164

Crimes Act 1914 (Cth), s 16A

Crown Proceedings Act 1988 (NSW), ss 4 and 5

Equity Act 1901 (NSW), s 82

Interpretation Act 1987 (NSW), s 19

Personal Injury Commission Act 2020 (NSW), s 8

Workers Compensation Act 1987 (NSW), ss 3, 25

Workers Compensation Legislation Amendment Act 2010 (NSW)

Workers Compensation Legislation Amendment Act 2012 (NSW), Schedule 11 item 11, Schedule 6, Part 19H, cl 25

Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 78, 341, 352, 353

Cases Cited:

Aitchison v Director of Public Prosecutions (ACT) [2021] ACTCA 21; 360 FLR 409

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Arena Management Pty Ltd (Receiver & Manager Appointed) v Campbell Street Theatre Pty Ltd (2011) 80 NSWLR 652; [2011] NSWCA 128

Benmax v Austin Motor Co Ltd [1955] AC 370

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424

Brodyn Pty Ltd t/as Time Cost and Quality…

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State of New South Wales v Culhana [2025] NSWCA 157
Case
[2025] NSWCA 157
Decision Date

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an appeal by the State of New South Wales against a decision of a Presidential Member of the Workers Compensation Commission. The dispute concerned whether the death of a worker, who suffered from post-traumatic stress disorder sustained during employment and subsequently died from adenocarcinoma, resulted from a workplace injury.

The primary legal issue before the Court of Appeal was the nature of an appeal to a Presidential Member under section 352 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). Specifically, the court had to determine whether such appeals were governed by the principles established in *Warren v Coombes* (1979) 142 CLR 531, which allows an appellate court to draw its own inferences from the evidence, or whether subsequent amendments to the Act and subsequent decisions had narrowed the scope of such appeals. The court also considered whether the Presidential Member erred in finding causation for the death, particularly if the reasoning relied solely on an increased risk of death.

The Court of Appeal held that the appeal to the Presidential Member was indeed governed by the principles in *Warren v Coombes*. The court reasoned that the amendments to section 352 in 2011 did not fundamentally alter the nature of the appeal to the extent that it became a limited review. The court disapproved of earlier decisions, such as *Raulston v Toll Pty Ltd* [2011] NSWWCCPD 25, which had suggested a narrower scope for such appeals. The court found that the Presidential Member had erred by not independently weighing the evidence and drawing his own inferences, instead deferring to the findings at first instance simply because they were "open". The court concluded that the Presidential Member should have decided for himself which of the competing hypotheses regarding causation was more probable. The appeal was allowed on this ground.

Orders

Orders of the court

was neither glaringly improbable nor contrary to compelling inferences. It was the duty of the Court of Appeal to decide for itself which of the two hypotheses was the more probable. It was the duty of the Court of Appeal to persist in its task of “weighing [the] conflicting evidence and drawing its own inferences and conclusions”, and, ultimately, to decide for itself which of the two hypotheses was the more probable. It did not. The appellant’s second ground is made good. (citations omitted; emphasis added).

63.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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