VWA v Holcim (Australia) Pty Ltd - [2022] VSC 150

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2020 04453

VICTORIAN WORKCOVER AUTHORITY	Plaintiff
v
HOLCIM (AUSTRALIA) PTY LTD	Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8, 9, 10, 11, 14, 15, 16 and 21 February 2022
DATE OF JUDGMENT:	31 March 2022
CASE MAY BE CITED AS:	VWA v Holcim (Australia) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 150

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PERSONAL INJURIES – Recovery proceeding brought pursuant to the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic), s 369 – Most facts and issues determined in the related common law proceeding: Trtovac v Total Mix Pty Ltd [2022] VSC 149 – Residual issues determined as required.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	RH Stanley	Wisewould Mahony
For the Defendant	D McWilliams with P Santamaria	Sparke Helmore

HIS HONOUR:

The plaintiff brings this proceeding seeking the recovery of statutory compensation and the like arising out of injuries sustained by Mr Suad ‘Sam’ Trtovac. The claim is brought pursuant to s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act).

Mr Trtovac brought a common law proceeding against his employer and the present defendant. The evidence in that proceeding was received in this proceeding.

In the course of the hearing, discrete aspects of further evidence were led by counsel for the present plaintiff. Submissions of counsel in this proceeding were heard and received in that context.

My reasons in the common law proceeding are delivered at the same time as these reasons: Trtovac v Total Mix Pty Ltd [2022] VSC 149.

In the present proceeding, the issues are –

(a) Factor X – extent of liability;

(b) Factor C – amount paid by the present defendant on judgment in the common law action; and

(c) Factor A – the notional assessment of common law damages absent statutory restrictions.

To some extent, the issues in respect of Factor X are determined by findings made in the common law proceeding. In particular –

(a) Mr Trtovac was injured as a consequence of the negligence of both defendants; and

(b) Mr Trtovac was not guilty of any contributory negligence that contributed to his injury.

That said, in the common law proceeding I was informed that the contribution proceedings between the defendants had been resolved. It follows that I did not there need to determine the extent of their respective contributions to the plaintiff’s injury, loss and damage.

Nonetheless, my reasons in the common law proceeding should make it clear enough that the negligence of the second defendant in that proceeding (the present defendant) was, in my view, greater than that of the first defendant (employer).

Mr Trtovac was injured at the present defendant’s plant and upon the present defendant’s equipment, about which it seems to have been somewhat proprietorial. The present defendant had direct and relatively simple procedures which should have protected the plaintiff. Those procedures were implemented incompletely, but relevantly…

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: [2022] VSC 150
Decision Date: 31 March 2022

CaseChat Overview and Summary

In the matter of a recovery proceeding brought by VWA against Holcim (Australia) Pty Ltd, the dispute arose from the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic), s 369. The proceedings sought to determine the liability of Holcim for the costs associated with a personal injury sustained by an employee. The primary facts and issues were resolved in a related common law proceeding, Trtovac v Total Mix Pty Ltd [2022] VSC 149, which addressed the liability for the injury itself. The court was tasked with resolving the residual issues related to the recovery of costs, as required by the statutory framework.

The central legal issues before the court involved the interpretation and application of the statutory provisions concerning recovery of costs for workplace injuries. Specifically, the court had to determine the extent to which Holcim was liable for the costs incurred by VWA in providing rehabilitation and compensation to the injured employee. This required an examination of the relevant statutory provisions and the interplay with the common law decision, ensuring that the statutory objectives were achieved in the context of the facts established in the common law proceeding.

The court conducted a thorough analysis of the statutory provisions, considering the objectives of the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic). It examined the common law decision for the findings relevant to Holcim's liability and applied those findings to the statutory context. The court concluded that Holcim was indeed liable for the costs claimed by VWA, as the statutory provisions were clear in assigning such liability where an employer is found liable for an injury under the Act. The court’s reasoning was grounded in the statutory language and the factual findings of the related common law proceeding, ensuring consistency and fairness in the application of the law.

The final orders of the court required Holcim to compensate VWA for the costs incurred in providing rehabilitation and compensation to the injured employee, in accordance with the statutory framework. The court determined the specific amount owed and directed Holcim to make the necessary payments within the stipulated timeframe. The decision provided clarity on the residual issues, ensuring that VWA could recover the costs associated with the workplace injury in line with the statutory provisions.

Orders