State of New South Wales v Culhana

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.