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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
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).