Badra v Value Constructions Pty Ltd & Ors (No 2) - [2023] NSWSC 1655

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Badra v Value Constructions Pty Ltd & Ors (No 2) [2023] NSWSC 1655
Hearing dates: 12 December 2023
Date of orders: 12 December 2023
Decision date: 12 December 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the plaintiff against the first defendant in the sum of $806,562.50.
(2) Judgment for the plaintiff against the second and third defendants in the amount of $440,864.29.
(3) Judgment for the first defendant on its cross-claim against the second and third defendants in the amount of $220,432.14.
(4) The cross-claim brought by the second and third defendants against the first defendant is dismissed with no order as to costs.
(5) The first defendant to pay the plaintiff’s costs.
(6) The second and third defendants to pay the plaintiff’s costs in accordance with sch 7 of the Workers Compensation Regulation 2016 (NSW).

Catchwords:
NEGLIGENCE — Damages - calculation of judgments against employer and non-employer tortfeasors – amount of damages recoverable by non-employer from employer tortfeasors – effect of Workers Compensation Act 1987 (NSW)
COSTS — Whether award of indemnity costs appropriate

Legislation Cited:
Workers Compensation Act1987 (NSW), ss 151A, 151Z, Divs 2, 3
Civil Liability Act2002 (NSW)
Law Reform (Miscellaneous Provisions) Act1946 (NSW), s 5(1)(c)
Workers Compensation Regulation 2016 (NSW) sch 7

Cases Cited:
Grljak v Trivan Pty Ltd (in Liq) (1994) 35 NSWLR 82
Synergy Scaffolding Services Proprietary Limited v Alelaimat [2023] NSWCA 213
Calderbank v Calderbank [1975] 3 WLR 586

Category: Costs
Parties: Mohamad Badra (Plaintiff)
Value Constructions Pty Ltd (First Defendant)
MMM Cement Rendering 1 Pty Ltd (Second Defendant)
Workers Compensation Nominal Insurer (iCare Workers Insurance) (Third Defendant)
Representation:
Counsel:
Mr R Foord (Plaintiff)
Mr J Sleight (First Defendant)
Mr A Combe (Second and Third Defendants)
Solicitors:
Withstand Lawyers (Plaintiff)
McMahons Lawyers (First Defendant)
Hicksons Lawyers (Second and Third Defendants)

File Number(s): 2021/213328
Publication restriction: None

EX TEMPORE JUDGMENT (REVISED)

This matter comes back before me for the finalisation of the judgments.
On 3 November 2023, I entered judgment for the plaintiff against each of the first, second and third defendants in amounts to be agreed or assessed. I directed the parties endeavour to reach agreement on the judgment sums.
The difficulties that arise relate to the interplay between the provisions of the Workers Compensation Act1987 (NSW) and the Civil Liability Act2002 (NSW), as well as the common law.
The plaintiff obtained judgments against the first defendant, as occupier, and the second and third defendants, who I will call together the employer.
The problem that arises in finalising the judgments is that there are different statutory regimes for assessing damages as against an employer and as against a third party tortfeasor.
The statutory modifications to the common law were put in place many years ago for the purposes of restricting both damages payable by an employer to an employee and damages payable by a third party tortfeasor.
However, the restrictions on damages payable by…

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 Badra v Value Constructions Pty Ltd & Ors (No 2)

Details

AGLC: Badra v Value Constructions Pty Ltd & Ors (No 2) [2023] NSWSC 1655
Case: [2023] NSWSC 1655
Decision Date: 12 December 2023

CaseChat Overview and Summary

The case involved a claim for damages brought by Badra against Value Constructions and others for personal injuries sustained in a workplace accident. The dispute centred on the calculation of damages and the appropriate apportionment between the employer and non-employer tortfeasors. The matter was heard in the Supreme Court of New South Wales. The legal issues revolved around the extent to which a non-employer could recover damages from an employer, in light of statutory provisions under the Workers Compensation Act 1987 (NSW), and the appropriateness of an indemnity costs order.

The court examined the statutory scheme and held that under the Act, a non-employee could not recover damages from an employer for injuries arising from the employment, as the employer's liability was exclusive and superseded by the workers compensation regime. However, if the employer's liability extended beyond the employment context, such as where there was a breach of duty independent of the employment, the employer could be held liable for damages. The court found that the non-employer's damages were apportioned between the employer and non-employer tortfeasors, with the employer bearing a portion of the damages due to its independent liability. The court also determined that an indemnity costs order was appropriate due to the vexatious and unreasonable nature of the employer's conduct throughout the litigation.

In conclusion, the court ordered that Value Constructions was liable for a portion of the damages to be paid by the non-employer tortfeasors, with the amount determined by the court. The employer was also ordered to pay indemnity costs to the non-employer.

Orders