Barati v One World Metal Recycling Pty Ltd t/as One World Metal Recycling Pty Ltd

[2024] NSWDC 25

District Court

New South Wales

Medium Neutral Citation:

Barati v One World Metal Recycling Pty Ltd t/as One World Metal Recycling Pty Ltd [2024] NSWDC 25

Hearing dates:

13, 14 February 2024

Date of orders:

19 February 2024

Decision date:

19 February 2024

Jurisdiction:

Civil

Before:

Abadee DCJ

Decision:

See paragraph [96]

Catchwords:

NEGLIGENCE – work injury common law damages claim – worker employed to dismantle motor vehicle for parts – worker injured when struck by torsion bar of a motor vehicle

DAMAGES – dispute about current and future earning capacity – whether defendant has evidential burden to adduce evidence of work opportunities and income likely to be produced – whether greater discount for vicissitudes should be made beyond the conventional allowance

Legislation Cited:

Civil Liability Act 2002 (NSW)

Work Health Regulation 2017 (NSW)

Work Health Safety Act 2011 (NSW)

Workers Compensation Act 1987 (NSW), ss 151A, 151D

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

Fox v Wood (1981) 148 CLR 438

Gower v State of New South Wales [2018] NSWCA 132

Jones v Dunkel (1959) 101 CLR 298

Kallouf vMiddis [2008] NSWCA 61

Mead v Kerney [2012] NSWCA 215

Wyong Shire Councilv Shirt (1980) 146 CLR 40

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mr Nazer Barati (Plaintiff)
One World Metal Recycling Pty Ltd trading as One World Metal Recycling Pty Ltd (Defendant)

Representation:

Counsel:
D Del Monte (Plaintiff)
D Stiles (Defendant)

Solicitors:
WD Hunt & Associates (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2022/00304462

Publication restriction:

Nil

REASONS FOR JUDGMENT

introduction

1. For a short period of about 10 days up to 8 July 2016, the plaintiff, Mr Barati, was employed by the defendant (which, for ease of reference, I will call ‘the employer’). On that date, he was attempting to remove a torsion bar in the course of dismantling a motor vehicle and cutting the metal up into pieces. He suffered an injury to his right hand and asserts that he also suffered a secondary psychological injury. Mr Barati’s hand injury required no less than four operations.

2. By this proceeding, commenced on 12 October 2022, Mr Barati sues the employer for damages at common law, pursuant to the operation of the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). He asserts negligence and also asserts a non-compliance with statutory provisions in the Work Health Safety Act 2011 (NSW) and certain regulations under the Work Health Regulation 2017 (NSW). Mr Barati claims damages for past and future economic loss, calculated from the date of the injury to the statutory retirement age. Separately although relatedly, he claims loss of past and future superannuation and a loss of employment entitlements.

3. The employer admits that it owed Mr Barati a non-delegable duty of care, given that Mr Barati was under its control, supervision and direction. But the employer disputes its liability (including causation) and quantum. The employer also specifically pleaded as defences, or limitations upon the recovery of damages, contributory negligence, failure to mitigate and indicated (which was uncontroversial) its right to obtain credit for its workers’ compensation payments to Mr Barati under the Workers Compensation Act.

4. The issues were essentially whether the employer’s liability was established and the extent of his current and future earning capacity; although there are other issues arising from the pleadings which I will also address.

The application for leave

5. Shortly before the hearing commenced, Mr Barati filed a notice of motion, whereby he formally sought leave to commence the action (nunc pro tunc). That application was heard concurrently with the hearing generally and the employer indicated that it was neutral on the question of leave.

6. The plaintiff was required to bring his common law claim by 8 July 2017. The claim was about 1 year and 7 months’ late, taking into account when the plaintiff gave notice (for the purposes of s 281 of the 1998 Act.

7. In Gower v State of New South Wales [2018] NSWCA 132, the Court of Appeal identified that an applicant for leave must establish:

1. a sufficient and acceptable explanation for relevant periods of delay;

2. a reasonably arguable claim in negligence against the employer;

3. the absence of significant prejudice to the employer so as to render the trial unfair.

8. The workers compensation insurer to the employer was notified of the plaintiff’s injuries on 11 July 2016. Evidence indicates that the plaintiff first instructed solicitors as to his statutory entitlements on 13 December 2017.

9. The plaintiff submits, and I accept, that when he spoke with his solicitors, his injuries had not stabilised. Matters were not helped in progressing his claim by certain personal circumstances including the plaintiff’s illiteracy and innumeracy and inability to speak the English language.

10. The defendant does not suggest that the explanation for delay is insufficient, or that the plaintiff’s claim is inarguable or that it has sustained actual prejudice.

11. Leave is granted to the plaintiff, nunc pro tunc, to commence the proceeding.

liability issues

How the accident occurred

Lay evidence

12. Mr Barati said that on the first day of his job, he was told (apparently a person called “Qais”) that someone else could help him: in effect, that he should learn from the example of another employed worker (apparently a person called “Jumar”). He said that he could see how to use a pneumatic gun and had seen how a saw could be used on parts of the car. He said he did not receive instruction as to which parts of a car to dismantle or which parts not to dismantle. He was not informed what a torsion bar was.

13. He said that he had utilised a forklift, but only when his boss was busy. The forklift assisted with flipping the car.

14. On the date of the accident, Mr Barati explained that he was working on a Toyota Hiace utility vehicle for the first time. He had been cutting and sawing it before the vehicle was divided into two parts.

15. Mr Barati said that he was dismantling metal on the back half of the divided vehicle. He tried to unscrew a torsion bar. He explained that he had been told to do this. The bar struck him on his right hand, on the pointer and middle fingers. This shook him. He showed his boss, who arranged for an ambulance.

16. Other aspects of that evidence included that:

• his own brother was a car mechanic;

• he had “a little knowledge” about cars

• ‘Jumar’ had shown him how to use a pneumatic gun and screw driver and had basically explained the task of dismantling a car;

• Over the 10 days that he was employed he had noticed the dismantling of cars by Jumar, who, on his estimate, took apart cars 5 or 6 times a day

• There was no impediment, in terms of communication, to his asking questions of Jumar;

• He did not ask Jumar (or ‘Khais’, his boss) about what to do with the torsion bar

Expert evidence

17. Mr Barati relied upon reports of a mechanical engineering consultant, Dr Robert Casey. These were dated 9 October 2020 and 22 April 2021. Amongst other things, Dr Casey explained the function of a torsion bar. This was to function as a spring that supported a vehicle’s weight bearing onto one of the wheels. The bar is anchored at a fixed end and is then twisted. The force that the spring could generate when released was about a quarter of a vehicle’s weight. Dr Casey emphasised the high speed of release of a torsion bar. Thus, the combination of the weight and the speed of the release of a torsion bar represented a risk of injury to anyone working on the bar. The risk was compounded, Dr Casey explained, because there is no simple way of knowing, by looking at the torsion bar (unlike some other springs used in automotive suspensions), whether it was under torsion or not.

18. Dr Casey inferred from the instructions that he had been given that Mr Barati was undoing a torsion bar that was still under torsion; causing it to rapidly uncoil and to strike Mr Barati.

19. In Dr Casey’s second report, the focus was on what, in the expert’s view, the employer could have done in response to the risk of injury to someone in Mr Barati’s position.

20. The expert said he believed that the employer should have provided instruction to Mr Barati on recognising the torsion bar, as a spring; and instructed him as to the dangers of dealing with springs under suspension and on the way to safely release the tension in a spring.

21. Secondly, the expert considered that the employer should have provided proper equipment to Mr Barati including, also, instruction as to how to use the equipment. There may have a dedicated tool that could be used to release their tension. If that was not available an alternative method would involve the part of the suspension connected to the torsion bar being supported on a jack whilst the suspension component was disconnected from the remainder of the suspension but not the torsion bar. Once disconnected, the jack could be lowered until there was no more tension in the torsion bar.

22. A further alternative method could involve the torsion bar being adjusted by a screw to vary the tension in the spring.

23. Upon being instructed upon Mr Barati’s lack of formal training, Dr Casey said he believed that the employer should have provided training to him as to the proper and safe method of dismantling vehicles and to deal with heavy items in particular. There were a ‘myriad’ of hazards in the process of dismantling.

24. Dr Casey was not required to attend for cross-examination. The employer did not call any ‘competing’ evidence from its own mechanical engineer, or any other liability expert.

Consideration

25. Issues of breach of duty are not addressed in accordance with s 5B (and s 5C) of the Civil Liability Act 2002 (NSW) but rather under the common law; although s 5B(2) might be said to substantially reproduce the Wyong Shire Councilv Shirt ^[1] ‘calculus’.

    1. (1980) 146 CLR 40 per Mason J at 47-48

26. The employer did not dispute that there was a foreseeable and not far-fetched or fanciful risk that personal injury would occur to someone trying to cut the torsion bar as Mr Barati attempted. Further, in my view, it was undeniable that there was a high probability of the risk of injury.

27. In my opinion, and conscious of the need to consider the issue of breach prospectively, it was inadequate simply to allow an inexperienced person who had no known record of dismantling motor vehicles into parts to learn on the job by observation and emulation of other staff without adventive to risks of the kind that materialises. The risk that materialised was so probable as to cause significant (at least) physical injury as to require, as a reasonable precaution, training and instruction to the effect that the attempt to cut the torsion bar should not be attempted at all or, if it was, under the circumstances identified by Dr Casey.

28. There was no evidence of any specific advertence by the employer to the risk or measures to prevent its occurrence.

29. Further, there was no evidence from the employer as to practical impediments to providing specific instruction as to how to do so; or conflicting responsibilities that the employer had.

30. The employer, in substance, unreasonably took no precautions against the risk that came home. The employer was in breach of its duty of care to Mr Barati.

the injuries CAUSED BY THE ACCIDENT

The evidence

31. There was a significant measure of consensus on this topic.

Hand injury

32. Mr Barati gave some evidence about this. He said he had 4 discrete surgical operations on his right hand; three of them being performed by Dr Kirkham. Asked to describe the current situation with his hand, he said it was still ‘shaky’.

33. As to the plaintiff’s physical injuries, Dr Khan (for Mr Barati) and Associate Professor Cumming (for the employer) engaged in a conclave (on 8 December 2023) and in the subsequent joint report, they agreed that on the date of the accident, Mr Barati suffered fractures to his index and middle fingers, and proximal phalanx, of his right hand; leaving him with limited function to the index and middle fingers and limited strength, dexterity and mobility to his right-hand fingers generally. They further agreed that those disabilities were permanent (although Professor Cumming indicated a qualification that this conclusion was affected by his mental state). Still further, they agree that there was decreased movement of the fingers and difficulty for Mr Barati to carry out heavier manual work with his dominant right hand.

Psychological injury

34. By May and June 2018, there had been four surgical operations on the right hand. In June 2018, Dr Kirkham informed Mr Barati that further surgery was unlikely to improve the functioning of his right hand.

35. Mr Barati said that it was this disclosure which prompted him to experience difficulties with his mood. On 4 July 2018, a general practitioner wrote a referral to a psychologist suggesting that Mr Barati had been suffering from PTSD.

36. In two reports prepared by her, the psychologist Maria Hamidi diagnosed him with a Persistent Depressive Disorder (Dysthymia) and a Somatic Symptom disorder. In the last of those reports, she identified, as recurring issues, poor sleep, low motivation and low mood with “minimal improvement” in his condition even after completion of a psychological counselling treatment course. In her first report, she referred to his fatigue and lethargy, poor concentration and focus and indicated that further psychological treatment was unlikely to yield improvement.

37. Two psychiatrists, Dr Kumar (for Mr Barati) and Dr Ingram (for the employer), engaged in a conclave on 2 February 2024 and they produced a joint report dated 5 February 2024.

38. The experts agreed that Mr Barati presented with PTSD when assessed by Dr Kumar. They also agreed that Mr Barati presented depressive symptoms, but disagreed on a diagnosis. Dr Kumar diagnosed a major depressive disorder; whereas Dr Ingram did not consider that Mr Barati had that condition. Nevertheless, Dr Ingram indicated that PTSD always incorporated a degree of depressive symptoms. (Dr Ingram had earlier diagnosed him with an Adjustment Disorder with Mixed Anxiety and Depressed Mood).

39. When asked about his disabilities, they answered with reference to certain spheres of activity. They found impairment in his ‘psychosocial’ functioning in terms of his self-care and personal hygiene. They found significant impairment in his ability to socialise and social functioning and partake in recreational activities and ability to travel. They considered that these disabilities were permanent. They describe his prognosis as guarded.

Consideration

40. There was no real dispute that the plaintiff’s physical injury to the fingers of his right hand and psychological injury were caused by the employer’s negligence. I so find.

contributory negligence

41. The employer principally based its case upon Mr Barati’s evidence elicited in cross-examination, that I have alluded to.

42. The case in this respect was a failure, by an inexperienced worker, to enquire. Very little was said about this defence in the employer’s counsel’s closing submissions; to the point where it even appeared to be abandoned.

43. In my opinion, contributory negligence is not made out. It required proof of the anterior premise that a reasonable person in Mr Barati’s position – effectively a non-English speaking novice tasked to dismantle a motor vehicle – would have appreciated that a risk of injury would arise if he cut the torsion bar as he proceeded to do. Simply put, I do not accept that such a reasonable person would have known any better than Mr Barati.

44. The contributory negligence defence fails.

failure to mitigate

Evidence

45. Mr Barati agreed that it had been suggested to him by his psychologist and rehabilitation consultants engaged by the workers compensation insurer that he take a course in learning to speak English.

46. He agreed that as something that was either incidental to or separate for working with his brother in Afghanistan, before coming to this country, Mr Barati had provided a service in driving people; much like a taxi driver. He also was referred to some involvement in selling rugs in Afghanistan.

47. Mr Barati was challenged as to why he was incapable of trying to learn the English language and it was suggested to him that if he had done so, or would do so, a basic proficiency might open up certain job opportunities for him, such as being a salesperson of rugs, a taxi driver, or deliverer of takeaway food to restaurant patrons. Mr Barati disagreed with these propositions. He said he could not sit for periods. It was generally suggested to him that he was unmotivated to work. Mr Barati’s response was that he could not work.

Submissions

48. As I understood it, the employer argued that Mr Barati simply did not try at all, or try hard enough, to learn English and that his lack of motivation to exercise his admittedly limited working capacity (which the employer said was identified by Dr Ingram) was deliberate. In these circumstances, Mr Barati had not mitigated his loss.

49. The difficulty with this argument is that it is contrary to the preponderant evidence. Even Dr Ingram accepted that Mr Barati had PTSD and that these featured symptoms of depression. In his first report, Dr Ingram disclaimed a suggestion that Mr Barati was malingering. There is no foundation for the proposition that Mr Barati was deliberately unmotivated or feigned a lack of motivation. A lack of motivation was intimately connected with depression that was caused by the employer’s negligence. I also accept the plaintiff’s submission that the employer’s position ignores the unchallenged evidence that the plaintiff has troubles with his concentration and that the difficulty associated with the task of learning a language generally is compounded as time goes on.

50. I reject the argument that Mr Barati failed to mitigate.

QUANTUM issues

Evidence

Mr Barati’s background leading up to the accident

51. The plaintiff’s Counsel tendered a chronology (Exhibit A) which was substantially adopted by the plaintiff when he gave evidence (with the assistance of an interpreter).

52. Mr Barati was born in Kabul, in Afghanistan on 31 December 1987. His father passed away when he was 7 years of age. He said his family was poor. He received no meaningful education in his formative years. In his childhood he occupied his time through small jobs working in a carpet shop, and with a car dealer as a metalworker.

53. He says he cannot read or write. He cannot do mathematics. He does not own or use a computer.

54. He arrived in Australia as a refugee from war-torn Afghanistan in early 2013, by boat. After a period in detention, he moved first to Darwin, and then to Sydney; eventually settling in Auburn and he obtained a 5 year temporary visa which impeded him from working. He received financial support through payments by the Red Cross, Settlement Services International; by the Department of Immigration and Centrelink.

55. Eventually in early 2016, his caseworker informed that he could work and, with that in mind, he obtained a tax file number.

56. In June 2016 he commenced employment with the employer. He explained that this was through family connections. He recalled that he received $900 (net per week) and worked 5 days a week, although he also referred to overtime.

Mr Barati’s evidence of restrictions after the accident

57. Mr Barati explained that since the accident he, who was naturally right-hand dominant; was unable to do many things: he had difficulties going to the toilet; he had to eat with his left hand; he could not cook or clean the house; or lift weighty items, including shopping bags. He could not wear shirts; since he could not do up the buttons. He showers and cleans his teeth irregularly. These circumstances had not occurred prior to his accident.

57. In cross-examination, Mr Barati was directed to representations in certain documents (Exhibits 1 & 2) indicating that he had told other persons that prior to the accident that he was (dominant) left handed. He adhered to his evidence, however, that he was right handed.

58. He said he felt pain all the time, which he managed with prescribed medicines which he consumes daily. He says this makes him feel dizzy. His evidence indicated limited sleep and when not asleep a certain aimlessness.

Was Mr Barati left-hand or right-hand dominant?

60. This struck me as being a minor issue. The employer relied upon two documents (Exhibits 1 and 2) recording or suggesting that he was left hand dominant and noted the plaintiff’s evidence that he held a pneumatic gun in his left hand in the brief period when he was working. Counsel for the plaintiff objected to the tender these documents and the objections were overruled. But Counsel submitted that it had not been shown that the representations that were recorded had been made in the presence of an interpreter.

61. The plaintiff’s Counsel drew to the Court’s attention many documented references to his client’s right-hand dominance in the medio-legal and medical reports.

62. As suggested, I do not make much of this. It is possible words were lost in translation, but at any rate, Mr Barati has been the subject of extensive physical assessment by a multitude of medical and vocational professionals of his range of physical movement and the existence of restrictions that might impede his work capacity. The restrictions in no way pre-dated the accident and thus were entirely caused by the accident.

Capacity to work

63. Mr Barati gave some evidence that such assistance, as he received from the workers compensation insurer in facilitating his rehabilitation, was ineffective. He asserted that someone had indicated that he would be paid (benefits) a year but Mr Barati would be best advised that prospective employers not know of the injuries or disabilities associated with his fingers. He claimed that they did not help him in any attempt to have an interview or prepare a resume for him. He said he had not worked since the accident.

64. It was also suggested, perhaps implicitly, that notwithstanding the opportunity for Mr Barati to learn to speak English since his arrival in Australia, he had not taken advantage of that opportunity.

65. On 3 April 2020, a rehabilitation consultant (Kelly Lu, of Kairros) sent a report to GIO detailing serial concerns with Mr Barati relating to advancing his vocational goals from April 2017 to May 2019 (Exhibit 3). Ultimately, no employment was obtained.

66. On 16 September 2020, Andrew Hook, a rehabilitation counsellor, reported on an assessment of Mr Barati carried out in July 2020. Mr Hook determined that he was unlikely that Mr Barati could secure new employment on the open labour market and that to sustain employment he would need to find a sympathetic employer willing to provide workplace modifications and arrangements; and, further, his functional restrictions were such that no work options could be identified for his skill base that would reasonably allow him to avoid jobs requiring repetitive hand or arm actions. At the time of the report, Mr Hook concluded that no work options could be matched with Mr Barati’s medical restrictions, assessed functional capacity, education, training or experience.

67. On 17 October 2023, Mr Barati was examined by a rehabilitation consultant, Georgie Lazaridis. Ms Lazaridis observed that he had limited skills: he was unable to communicate in English and had no computer skills. This precluded him from work in administrative or customer service roles. There were no suitable employment options for him at the date of her report. She believed that he was unfit for work from a physical perspective.

68. In their joint report following the conclave, Dr Khan and Associate Professor Cumming agreed that Mr Barati remains unfit for returning to his pre-injury employment. They further agreed that for someone of his circumstances, the injury restricted his employment on the open labour market indefinitely; although Associate Professor Cumming qualified his agreement to this conclusion by positing that if his mental state was different, he may be fit to work for selected duties.

69. In their joint report following their conclave, Dr Kumar and Dr Ingram agree that Mr Barati’s psychological injury has caused him permanent total restrictions in his employment as a scrap metal worker and that he is unfit for his pre-injury duties. It followed that his injury had caused restrictions in his ability to gain employment in the open labour market.

70. But there was some disagreement about the degree of restriction. Dr Kumar considered that Mr Barati was totally incapacitated. To Dr Ingram, he felt that Mr Barati retained some employment capacity; albeit that it was a limited capacity for menial work with a significant limitation. Dr Ingram quantified this as being no more than 10 to 15 hours each week until he reached the age of 65.

71. Nevertheless, they agreed that it was highly unlikely that he would be capable of returning to his pre-injury duties in the future.

The claim for economic loss

72. The plaintiff asserted that at the date of injury, he was working 55 hours a week, and his lawyers were apparently incredulous at the report that he was being paid approximately $900 (net) per week having regard to the hours worked. Mr Barati’s lawyers pursued the employer, and its solicitor, for further information about Mr Barati’s pre-injury earnings, but the response was to the effect that he had only been employed for a week. By dint of requests for particulars and the issue and service of a notice to admit, the plaintiff’s lawyers tried, unsuccessfully, to flush out comparable wage records.

73. The plaintiff submitted that an appropriate measure of Mr Barati’s earning capacity, at the date of the acciedent was the ‘Dismantling Jobs (work salaries) 2022 and Dismantling Salary in Australia – Average Salary documents’. That indicated an average salary of $32.05 per hour. That would equate to a capacity to earn of $1,650 (gross) per week.

74. The parties eventually agreed that in the relevant periods, the comparable wages were stepped between $900 and $950 (net per week). For the claim of past economic loss, the calculations were broken down as follows:

9 July 2016 – 30 June 2017 [51 wks] @ $900 net p.w =	$45,900
1 July 2017 – 30 June 2018 [52 wks] @ $910 net p.w =	$47,320
1 July 2018 – 30 June 2019 [52 wks] @ $920 net p.w =	$47,840
1 July 2019 – 30 June 2020 [52 wks] @ $930 net p.w =	$48,360
1 July 2020 – 30 June 2021 [52 wks] @ $940 net p.w =	$48,880
1 July 2021 – 30 June 2022 [52 wks] @ $950 net p.w =	$49,400
1 July 2022 – 30 June 2023 [52 wks] @ $950 net p.w =	$49,400
1 July 2023 – 14 February 2024 [32 wks] @ $950 net p.w =	$30,400
Total	$367,500

75. A further claim is made for past superannuation, using the rate of 11.5% (a rate that the parties agreed was applicable) of the superannuation guarantee; which yields the sum of $42,262.50.

76. The plaintiff claimed Fox v Wood damages in the amount of $17,821.15.

77. As to the future, Mr Barati invokes principles stated in Mead v Kerney [2012] NSWCA 215 referred to by Macfarlan JA (McColl JA and Sackville AJA agreeing) at [18], [24]-[27]) to submit that whatever theoretical capacity he might have to earn, the employer had not discharged an evidential onus of proving that this capacity had any value, that Mr Barati could exercise, or ‘realise’ it by identifying what work he could do and what jobs were, or were likely to be, available; because of the combination of his physical and psychiatric injuries and his limited transferable skills. He is, it was submitted totally incapacitated.

78. Macfarlan JA also noted ([34]) that the actual history of a worker’s past incapacity (up to judgment) is one of the matters indicating a want of current and future incapacity. The same point was made earlier in Kallouf vMiddis [2008] NSWCA 61 at [80].

79. On that basis, the claim for future economic loss (calculated at $950 per week) to which the multiplier (833.8) is applied, then reducing for vicissitudes yielded a sum of $673,293.50.

80. A further claim for loss of future superannuation, at a rate of 14.61% (a rate which the employer did not dispute) over 31 years yielded a sum of $98,368.18.

81. The aggregate amount for the claim is $1,199,245.33, from which all workers compensation payments made to date are to be deducted.

Consideration

82. I have addressed issues concerning failure to mitigate earlier.

83. The parties agreed that the principal issue at the hearing (on damages) was the extent of the lost earning capacity of Mr Barati since his accident.

Absence of qualifications

84. Mr Barati does not speak, nor understands the English language. He is illiterate and innumerate and only held some unskilled jobs before the accident. He cannot work a computer and requires friends to help him use his mobile telephone

The ineffectiveness of rehabilitation efforts

85. Since the accident he has not returned to work.

86. The employer relied upon evidence in a report to the insurer by the rehabilitation provider (Exhibit 3), in terms of what the vocational “goals” for Mr Barati were. But that evidence and indications that rehabilitation efforts by Kairros had proven not to be effective does not assist the employer in the absence of any other evidence that the employer could have, but did not call, from vocational or earning capacity assessors. In view of the content of the correspondence between the lawyers for the parties comprising Exhibit O, I agree with Mr Barati’s submission that a Jones v Dunkel inference could be drawn from the unexplained failure to serve reports stemming from the arranged examinations; the inference being that those reports did not assist the employer’s case.

87. The suggestions raised by Counsel of Mr Barati during the latter’s cross-examination about potential jobs were not availing. It is difficult to envisage a salesperson of carpet rugs not being required periodically to pull or move rugs for the inspection of a potentially interested purchaser. It is not a safe proposition – for Mr Barati, or other road motorists – for him to be expected over what would, presumably, be a working shift to deliver takeaway food when he can drive only with one hand, has issues with his poor sleeping patterns and concentration difficulties and, as the work capacity assessor, Andrew Hook, wrote, there was the additional circumstance that he would be unable to take his left hand off the steering wheel to signal; even for short journeys. Mr Barati said he did not think he could do these jobs and there was no, or no sufficient, evidence to disprove those views.

Application of Mead v Kerney

88. Counsel for the employer did not dispute the application of the principles stated in Mead v Kerney.

89. I also accept that in the light of the medical evidence that I summarised earlier, the employer did not adduce evidence as to what jobs were available for someone with Mr Barati’s physical and psychological injuries (and other circumstances that placed him at a disadvantage on the open labour market) and what income was likely to be produced. Whilst there may be differences as between Mr Barati’s position and the position of the worker in Mead, the principles remained the same. There was no evidence to indicate how any theoretical residual earning capacity in Mr Barati could be realised and therefore had value.

90. In this regard, I accept the plaintiff’s submissions as to the lack of weight I should attribute to Dr Ingram’s view about Mr Barati’s capacity to work 15 hours a week spread over 3 or 4 days. For one thing, I confess to find it difficult to divine his reasoning for that conclusion on that matter within his report; let alone whether quantified estimates of work capacity truly falls within his specialised knowledge. For another, Dr Ingram had appeared to adjust his views in the light of the conclave to a position not fundamentally dissimilar to Dr Kumar. He misinterpreted comments made by a psychologist, Ms Hamidi, in the latter’s first report (Exhibit L, Ms Hamidi’s second report). His view, from the limited perspective of his speciality, could not redress the problem for the employer stemming from the essential agreement as to lack of earning capacity from the orthopaedic surgeons for both parties and, as indicated, the lack of evidence to indicate what work was available for someone with the plaintiff’s injuries (physical and psychological) even within Dr Ingram’s estimated limit of 15 hours.

Vicissitudes

91. The employer raised another final point, that if I was against it on other arguments, that there should be a further reduction for vicissitudes beyond the conventional 15%. Counsel suggested it should be 25%. The argument was that because of difficulties associated with his inability (or unwillingness) to speak English and work history, if he lost employment with his employer, he would have been unable to find alternative work.

92. As the plaintiff submitted, there was no evidence that the employment with the employer would not have continued. There was no suggestion of any pre-existing injury or problematic work history prior to the date of the accident. In the last respect there was a period of no employment (2013-2016) but that was explained as a consequence of his migration status. An inability to speak English, although disadvantageous, is no insuperable obstacle to employment; especially where, as here, Mr Barati appeared to be connected to a part of the community he felt comfortable with (which helped him get his job with the employer in the first place). I am not persuaded that I should disturb the conventional allowance.

Section 151A deductions

93. By s 151A(1)(b) of the Workers Compensation Act 1987 (NSW), compensation that has already been paid in the form of weekly payments is deducted from the damages awarded, and is to be paid or credited to the person who paid the compensation. It was agreed that this sum was $178,531.68.

Summary and orders

94. Mr Barati has established the employer’s liability and his claimed heads of loss, which are:

Past economic loss	$367,500.00
Past loss of superannuation	$42,262.50
Fox v Wood damages	$17,821.15
Future economic loss	$673,293.50
Future loss of superannuation	$98,368.18
Sub-total	$1,199,245.33
Less credit for wc weekly payments	$178,531.68
Total	$1,020,713.65

95. It is not obvious why costs would not follow the event. If either party wishes to contend otherwise, they have opportunity to seek a variation on that proposed order.

96. The Court makes the following orders:

1. Judgment for the plaintiff for the sum of $1,020,713.65, clear of weekly payments made to the date of judgment (such payments being in the agreed amount of $178,531.68)

2. The defendant is to pay the plaintiff’s costs, as agreed or assessed.

3. If either party wishes to vary the above orders, application is to be made, with supporting evidence, within 14 days of the delivery of these reasons.

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Endnote

Decision last updated: 19 February 2024