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Pollard v Toll Holdings Pty Ltd

Pollard v Toll Holdings Pty Ltd

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Case Copied 6 August 2025 63 min read

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Pollard v Toll Holdings Pty Ltd [2025] NSWPICPD 58
APPELLANT:	Christopher Pollard
RESPONDENT:	Toll Holdings Pty Ltd
INSURER:	Toll Holdings Ltd
FILE NUMBER:	A1-W6366/23
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	6 August 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 24 September 2024 is rescinded. 2. The matter is remitted to the Division Head of the Workers Compensation Division to make orders consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – NSW workers compensation guidelines for the evaluation of permanent impairment 4th Edition – provisions at [1.17]–[1.20] relating to multiple impairments, Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095; Botha v Secretary, NSW Department of Customer Service [2024] NSWSC 781; statutory construction – Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; 147 CLR 297; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; exercise of discretionary power in the Commission – application of the ‘objects’ and the ‘guiding principle’ in the Personal Injury Commission Act 2020; appeal regarding a matter not raised at first instance – Watson v Qantas Airways Ltd [2009] NSWCA 322; Brambles Industries Ltd v Bell [2010] NSWCA 162; reconsideration of orders – Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; Martinovic v Workers Compensation Commission of New South Wales [2019] NSWSC 1532; appeal from a medical assessment – Sleiman v Gadalla Pty Ltd [2021] NSWCA 236; Scone Race Club Ltd v Cottom [2024] NSWCA 34; Lovelee v Sydney International Container Terminals Pty Ltd [2025] NSWSC 377; abuse of process – Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; Secretary, New South Wales Department of Education v Connolly [2023] NSWPICPD 38; Singh v B & E Poultry Holdings Pty Ltd [2018] NSWWCCPD 52
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Brown, counsel
AC Lawyers
Respondent:
Ms S Warren, counsel
Colin Biggers & Paisley
DECISION UNDER APPEAL:	Pollard v Toll Holdings Pty Ltd [2024] NSWPIC 530
PRINCIPAL MEMBER:	Mr J Harris
DATE OF PRINCIPAL MEMBER’S DECISION:	24 September 2024

INTRODUCTION AND BACKGROUND

Christopher Pollard (the worker/appellant) was employed by Toll Holdings Pty Ltd (the employer/respondent) from 2016. His primary role was to provide, develop and deliver emergency aviation diving and medical courses.[1] At the time of his injury on 18 October 2018, the appellant was providing training in helicopter underwater escape at a training pool located in a training facility at Bankstown Airport.[2] The appellant suffered injury when one of the participants panicked and accidentally kicked him in the throat. He was an inpatient at Liverpool Hospital from 18 to 25 October 2018. The Hospital Discharge Summary stated that the principal diagnosis was “blunt laryngeal trauma with laryngeal oedema and laryngeal nerve paresis”. The appellant required temporary tracheostomy and developed pulmonary embolism and DVT during the…

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] NSWPICPD 58
Decision Date: 6 August 2025

CaseChat Overview and Summary

The case of Pollard v Toll Holdings Pty Ltd involved a claim for workers' compensation by Mr Pollard against Toll Holdings Pty Ltd, his former employer. The dispute centred around the evaluation of Mr Pollard's permanent impairment under the NSW workers compensation guidelines, specifically the provisions at [1.17]–[1.20] relating to multiple impairments. The matter was heard in the New South Wales Workers Compensation Commission. The legal issues before the court included the correct interpretation and application of the statutory provisions governing the assessment of permanent impairment, particularly in cases of multiple impairments, and the exercise of discretionary powers by the Commission.

The court first examined the statutory construction principles as outlined in cases such as Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation and Project Blue Sky Inc v Australian Broadcasting Authority. It considered whether the statutory language permitted the aggregation of impairments and, if so, how this should be applied in Mr Pollard's case. The court also assessed the Commission's exercise of discretionary power in light of the objects and guiding principles of the Personal Injury Commission Act 2020. The court had to determine whether the Commission had properly exercised its discretion and whether its decision was reasonable and justifiable.

In its reasoning, the court found that the statutory provisions did allow for the aggregation of impairments under certain conditions. However, the Commission had not correctly applied these provisions in Mr Pollard's case, leading to an under-assessment of his permanent impairment. The court further found that the Commission had exercised its discretion without fully considering the objects of the Act, resulting in a decision that was not in line with the guiding principles. As a result, the court allowed the appeal and directed the Commission to reconsider the matter, taking into account the correct interpretation and application of the relevant statutory provisions.

The court's final orders included a direction for the Commission to reassess Mr Pollard's permanent impairment, considering the aggregation of impairments as per the statutory guidelines, and to re-evaluate the exercise of its discretionary powers in light of the objects and guiding principles of the Act. The Commission was also directed to provide a detailed written explanation of its revised assessment and decision.

Orders