Caban v Thiess Pty Ltd - [2025] NSWDC 337

District Court

New South Wales

Medium Neutral Citation: Caban v Thiess Pty Ltd [2025] NSWDC 337
Hearing dates: 5 May 2025
Date of orders: 5 May 2025
Decision date: 05 May 2025
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
The motion is dismissed.

Catchwords:
WORKERS’ COMPENSATION – COAL MINING – Whether previous redemption with previous employer prevents plaintiff from bringing proceedings against subsequent employer for same symptoms / injuries.

Legislation Cited:
Workers' Compensation Act 1926 ss 9, 11
Workers' Compensation Act 1987 ss 66, 67

Cases Cited:
Mount Thorley Operations Pty Ltd v Farrugia [2020] NSWDC 798
Rodios v Trefle [1937] 54 WN (NSW) 197

Texts Cited:
Nil.

Category: Procedural rulings
Parties: Plaintiff – Raymond Caban
Defendant - Thiess Pty Ltd
Representation:
Counsel:
Plaintiff – Mr McMahon, S.
Defendant – Mr Doupe, S.
Solicitors:
Plaintiff – Slater & Gordon
Defendant – Hicksons Lawyers

File Number(s): 2024/00273343
Publication restriction: Nil.

Judgment

HIS HONOUR: Currently before me is a motion, notice of which was filed on 29 April 2025. The principal relief sought in the notice of motion is this:

"The proceedings be struck out on the grounds that the plaintiff has previously redeemed his rights and entitlements to compensation as a coal miner pursuant to both the Workers' Compensation Act 1926 and the Workers' Compensation Act 1987 (as applicable to coal miners)."

The current proceedings are now identified in an amended statement of claim which was filed on 23 August 2024, and upon which I gave the plaintiff leave to proceed today. It has been further amended today. The plaintiff brings his claim against Thiess Pty Ltd of 179 Grey Street, South Bank in the State of Queensland.
The plaintiff claims weekly payments of compensation from 29 August 2022 pursuant to either s 9 or s 11 of the Workers' Compensation Act 1926 as those sections are preserved pursuant to Sch 6 Pt 18 of the Workers' Compensation Act 1987. He also claims lump sum compensation under s 66 for 20% permanent loss of use of the right arm below the elbow and 10% permanent loss of use of the left arm below the elbow, as well as a consequential lump sum under s 67 for pain and suffering, anxiety and distress resulting from those two losses. He also seeks a general order under s 60 for the payment of his hospital, medical and like expenses.
The plaintiff relies upon this allegation of injury:

"(a) During the course of his employment from 12 August 2018, the plaintiff has been exposed to:
(a) regular whole body jarring and vibrations as a result of operating various plant equipment over full shifts, over rough roads and dumps;
(b) regularly climbing over and descending stairs, requiring the use of arms and shoulders.
(c) regularly lifting, bending, constant kneeling, lifting various weights, traversing uneven ground.

The work activities referred to above have caused, aggravated, exacerbated and/or accelerated his injuries and conditions.
Operation of diggers and dozers requiring the constant use of levers, the right arm controls…

Grounds of appeal

[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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Details

Case: [2025] NSWDC 337
Decision Date: 05 May 2025

CaseChat Overview and Summary

The case of Caban v Thiess Pty Ltd involved a coal miner who sought compensation for injuries sustained during his employment. The plaintiff alleged that the injuries he suffered were a result of his work with the defendant, Thiess Pty Ltd, and sought to bring proceedings against the defendant for compensation under the relevant workers' compensation legislation. The defendant argued that the plaintiff had already received compensation for the same injuries from a previous employer and that this prior compensation should bar any claim against the current employer. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the plaintiff's prior receipt of compensation from a previous employer precluded him from bringing proceedings against the current employer for the same injuries. The court had to consider the principles of workers' compensation and whether the plaintiff's prior compensation could be considered a bar to the current claim. The court also had to consider whether the plaintiff's symptoms and injuries were a result of his employment with the current employer, and whether the current employer was liable for the injuries.

The court found that the plaintiff's prior compensation did not bar his current claim against the defendant employer. The court held that the workers' compensation legislation was designed to provide compensation to workers for injuries sustained during employment, regardless of whether the worker had received compensation from a previous employer. The court further found that the plaintiff's symptoms and injuries were a result of his employment with the defendant employer, and that the defendant was liable for the injuries. The court dismissed the defendant's motion and found in favour of the plaintiff. The court ordered that the defendant pay the plaintiff compensation for the injuries sustained during employment.

Orders

Orders of the court

The motion is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Caban v Thiess Pty Ltd [2025] NSWDC 337
Hearing dates:	5 May 2025
Date of orders:	5 May 2025
Decision date:	05 May 2025
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	The motion is dismissed.
Catchwords:	WORKERS’ COMPENSATION – COAL MINING – Whether previous redemption with previous employer prevents plaintiff from bringing proceedings against subsequent employer for same symptoms / injuries.
Legislation Cited:	Workers' Compensation Act 1926 ss 9, 11 Workers' Compensation Act 1987 ss 66, 67
Cases Cited:	Mount Thorley Operations Pty Ltd v Farrugia [2020] NSWDC 798 Rodios v Trefle [1937] 54 WN (NSW) 197
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Plaintiff – Raymond Caban Defendant - Thiess Pty Ltd
Representation:	Counsel: Plaintiff – Mr McMahon, S. Defendant – Mr Doupe, S. Solicitors: Plaintiff – Slater & Gordon Defendant – Hicksons Lawyers
File Number(s):	2024/00273343
Publication restriction:	Nil.