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Holcim (Australia) Pty Ltd v Plain

Holcim (Australia) Pty Ltd v Plain

Case [2025] NSWPICPD 4 20 January 2025

Standard of Proof

Contract Formation

Unjust Enrichment

Workers Compensation Law

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Holcim (Australia) Pty Ltd v Plain [2025] NSWPICPD 4

APPELLANT:

Holcim (Australia) Pty Ltd

RESPONDENT:

Owen Lindsay Plain

INSURER:

Holcim (Australia) Holdings Pty Limited

FILE NUMBER:

A1-W6732/23

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

DATE OF APPEAL DECISION:

20 January 2025

ORDERS MADE ON APPEAL:

1. The Principal Member’s Certificate of Determination dated 18 January 2024 is confirmed.

CATCHWORDS:

WORKERS COMPENSATION – factual determinations – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 discussed and applied – Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied – standard of proof – Briginshaw v Briginshaw [1938] HCA 34 discussed – cl 9 of Sch 3 to the Workers Compensation Act 1987 (the 1987 Act) “current work capacity” and “no current work capacity” – s 32A(1) of the 1987 Act “suitable employment”

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr T Ainsworth, solicitor, and Ms L Fung, solicitor

Hall & Wilcox Lawyers

Respondent:

Mr T Hickey, counsel

MBT Lawyers

DECISION UNDER APPEAL:

Plain v Holcim (Australia) Pty Ltd, W6732/23, 18 January 2024

PRINCIPAL MEMBER:

Mr J Harris

DATE OF PRINCIPAL MEMBER’S DECISION:

18 January 2024

INTRODUCTION AND BACKGROUND

Mr Owen Lindsay Plain (the respondent) was employed by Holcim (Australia) Pty Ltd (the appellant) as a machine operator. On 30 November 2012, the respondent suffered an injury to his left arm, shoulder and neck in the course of his employment when he slipped and fell while re-fuelling an excavator from a fuel tank in the back of a utility truck. The respondent underwent surgery to his left shoulder on 5 February 2013 and was off work for approximately 8 weeks, following which he returned to work under a return-to-work program arranged by the appellant. The respondent continued to work for the appellant despite continuing symptoms until 20 December 2018, when he ceased work. After ceasing work, the respondent utilised his long service leave and annual leave entitlements until 30 April 2019 then claimed weekly payments of compensation. The appellant declined his claim but subsequently agreed (by consent) to pay weekly payments at the rate of $800 per week on an ongoing voluntary basis and consent orders were entered into between the parties on 27 February 2020.
On 21 December 2017, an Approved Medical Specialist appointed by the former Workers Compensation Commission assessed the respondent as having 21% whole person impairment. The respondent was awarded lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). That assessment qualified the respondent for ongoing weekly payments beyond the first 260 weeks of payments by operation of s 39 of the 1987 Act.
On 7 March 2023, the respondent (through his legal representatives) claimed an increase in past payments of weekly compensation from 27 July 2020 on a continuing basis, asserting that there had been a deterioration of his condition. He was certified by his general practitioner as having no capacity…

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.

Continue reading Holcim (Australia) Pty Ltd v Plain

Details

AGLC: Holcim (Australia) Pty Ltd v Plain [2025] NSWPICPD 4
Case: [2025] NSWPICPD 4
Decision Date: 20 January 2025

CaseChat Overview and Summary

Holcim (Australia) Pty Ltd sought a review of a determination that it had failed to discharge the onus of proving that the plaintiff, Mr Plain, had no current work capacity. The dispute arose under the Workers Compensation Act 1987 and was heard by the Supreme Court of New South Wales. The plaintiff, who had previously worked for the defendant, claimed that he was unable to return to work due to a work-related injury. The defendant argued that the plaintiff had the capacity to undertake suitable employment and sought to have the onus of proof shifted to the plaintiff.

The court needed to decide whether the plaintiff had satisfied the onus of proving that he had no current work capacity. The court also had to determine the standard of proof required to establish this and whether the defendant had discharged its own onus in relation to the availability of suitable employment for the plaintiff. The court needed to consider the provisions of section 32A(1) of the Workers Compensation Act 1987 and clause 9 of Schedule 3 of the Act in the context of Briginshaw v Briginshaw and Whiteley Muir & Zwanenberg Ltd v Kerr. The court had to consider the appropriate standard of proof, as well as the meaning of "suitable employment" and "no current work capacity."

The court held that the plaintiff had discharged the onus of proving that he had no current work capacity, and the defendant had failed to discharge the onus of proving that suitable employment was available for the plaintiff. The court applied the Briginshaw standard of proof and found that the plaintiff had proved his case on the balance of probabilities. The court also found that the term "no current work capacity" was not limited to an inability to perform the plaintiff's previous job or any specific job, but rather encompassed an inability to perform any work that was reasonably available to the plaintiff. The court held that the defendant had not discharged its onus in relation to the availability of suitable employment.

The court ordered that the review be upheld, and that the original determination be affirmed. The plaintiff's claim for workers' compensation was therefore successful.

Orders