Holcim (Australia) Pty Ltd v Thomas

[2022] NSWCA 183

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Holcim (Australia) Pty Ltd v Thomas [2022] NSWCA 183

Hearing dates:

24 August 2022

Decision date:

20 September 2022

Before:

Ward P at [1];
Macfarlan JA at [2];
White JA at [3]

Decision:

Summons filed 11 March 2022 seeking leave to appeal is dismissed with no order as to costs.

Catchwords:

WORKERS COMPENSATION – Boilermaker’s deafness – Workers Compensation Act 1987 (NSW) ss 60 and 17 – claim for provision of new hearing aids – where notice of injury of loss of hearing given to worker’s then employer in 1999 – where worker changed employment in 2009 – where worker suffered further hearing loss due to nature of employment after 1999 but did not give notice of further injury to later employer – where finding made that hearing aids were reasonably necessary as a consequence of worker’s hearing loss notified in 1999 – held worker not obliged to give notice of further injury to second employer – first employer liable for consequences of 1999 injury – no question of law

Legislation Cited:

Workers Compensation Act 1987 (NSW)

Workers Compensation Legislation Amendment Act 2000 (NSW)

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Commissioner for Railways v Bain (1965) 112 CLR 246; [1965] HCA 5

Rico Pty Ltd v Road Traffic Authority (1992) 28 NSWLR 679

Sukkar v Adonis Electrics Pty Ltd [2014] NSWCA 459

Category:

Principal judgment

Parties:

Holcim (Australia) Pty Ltd (Appellant/Applicant)
Stephen Thomas (Respondent)

Representation:

Counsel:
L King SC with S Grant (Appellant/Applicant)
C T Barry QC with J Hallion (Respondent)

Solicitors:
Hall and Wilcox (Appellant/Applicant)
Whitelaw McDonald (Respondent)

File Number(s):

2022/5327

 Decision under appeal 

Court or tribunal:

Personal Injury Commission

Citation:

Holcim (Australia) Pty Ltd v Thomas [2021] NSWPICPD 46

Date of Decision:

13 December 2021

Before:

Deputy President Elizabeth Wood

File Number(s):

A1-W428/21

JUDGMENT

1. WARD P: I agree with the reasons of White JA and the making of an order that the application for leave to appeal be dismissed.

2. MACFARLAN JA: I agree with White JA.

3. WHITE JA: This is an application for leave to appeal from a decision of Deputy President Wood of the Personal Injury Commission confirming a certificate of determination made by Senior Member Capel dated 18 May 2021.

4. The application before the Personal Injury Commission concerned a claim by the present respondent, Mr Thomas, that a former employer, the appellant, Holcim (Australia) Pty Ltd (formerly CSR Ltd) (“Holcim”), pay for the cost of new hearing aids. He had been employed by Holcim for many years until he ceased work with it in 2009. He thereafter obtained employment with ACI Operations as a factory worker and was working with ACI Operations at the time of the hearing before the Commission.

5. On 28 June 1999 Mr Thomas’s former solicitor served a notice of claim on Holcim for lump sum compensation for 16.8% binaural hearing loss. Senior Member Capel recorded that the parties negotiated a compromise settlement…