Tazleem v Certain Underwriters at Lloyds Listed in Annexure “A”

1. [1]

   The plaintiff was born in Fiji in 1989. He was injured on 9 February 2018, when he was working at an industrial premises in South Windsor. He has sued the defendants for damages arising from his injuries.

The proceedings

1. [2]

   The primary relevant legislation for these proceedings is the Civil Liability Act 2002 (NSW) (the ‘CLA’) and the Workers Compensation Act 1987 (NSW) (the ‘WCA’).

2. [3]

   The proceedings were originally filed in the District Court on 5 February 2021, and then transferred to this Court on 17 December 2024, because it was thought the extent of the claim would exceed the District Court’s jurisdiction.

3. [4]

   The plaintiff’s pleaded claim against the first defendant is for modified common law damages, originally including non-economic loss, past and future economic loss, past and future medical expenses, and past and future domestic care expenses. By the end of the hearing the scope of the claim had been reduced. Past care was no longer pursued and future care was limited.

4. [5]

   Pursuant to the relevant workers compensation legislation, the claim against the second defendant is for economic loss only (s 151G of the WCA).

5. [6]

   The two defendants are not the alleged tortfeasors. The first defendant is the public liability insurer of Better Truck Repairs Pty Ltd (‘BTR’). This company is in liquidation. The first defendant was joined pursuant to the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW). A term of the insurance contract is at the core of the first defendant’s defence.

6. [7]

   The second defendant is standing in the shoes of the now de-registered JP Business Consulting Pty Ltd (‘JPBC’). JPBC was a labour hire company which allegedly employed the plaintiff and provided his services to BTR. So much is admitted by the second defendant. I note however, that the first defendant asserts that BTR employed the plaintiff. If so, BTR’s public liability policy would not, says the first defendant, respond to the plaintiff’s claim. This is the insurance point.

7. [8]

   The second defendant has a cross-claim against the first defendant seeking contribution to any damages for which the second defendant is found to be liable.

8. [9]

   There was no cross-claim by the first defendant against the second defendant. I gave leave, by consent, to the first defendant to file a cross-claim at the end of the hearing. The first defendant’s cross-claim was filed on 10 February 2026, and, if it is liable to the plaintiff, seeks contribution and indemnity from the second defendant.

9. [10]

   The second defendant abandoned a limitation defence it had pleaded which would have necessitated an application pursuant to s 151D of the WCA.

10. [11]

    The plaintiff alleges his injuries were caused by the breach of the duty of care owed to him by BTR and JPBC. Both defendants admitted that BTR and JPBC owed the plaintiff a duty of care and that each of BTR and JPBC had, respectively, breached their duty.

11. [12]

    Both defendants alleged contributory negligence on the plaintiff’s part.

12. [13]

    The first defendant’s position on breach is subject to its reliance on the terms of the insurance contract between it and BTR, as mentioned above. If the point is valid the first defendant will be absolved of liability to the plaintiff. In final submissions the plaintiff conceded that if it lost, because of the insurance point against the first defendant, then it would also lose against the second defendant, notwithstanding the admissions that had been made by the second defendant. The admissions, however, were put forward in aid of the plaintiff’s case against the first defendant.

The plaintiff, before the accident

1. [14]

   A significant portion of the plaintiff’s family lived in Australia, including his sister Mrs Rehana Rahenaaz Dargan, his grandfather Mr Tahir Hussain and his uncle Mr Mohammed Ayub Khan. Mr Hussain and Mr Khan did not strictly conform to the relationship of grandfather and uncle but were treated by the plaintiff as having this status.

2. [15]

   The plaintiff was healthy before he started work at BTR. There is no suggestion that he came to Australia with any relevant pre-existing condition.

3. [16]

   The plaintiff, after high school, had undertaken an apprenticeship in Fiji as an automotive and diesel mechanic from May 2008 to May 2012. Including his apprenticeship, he worked for about 10 years in this occupation. He came to Australia, on a student visa, on 19 January 2018. He was sponsored, and funded, by his uncle.

4. [17]

   Upon his arrival in Australia the plaintiff took up residence with his uncle in a premises in Hinchinbrook. Also living in the same house were his sister, his brother-in-law, his brother-in-law’s parents, and his sister’s son. His brother-in-law’s father is also the plaintiff’s uncle.

5. [18]

   The plaintiff’s uncle, Mr Khan, is a schoolteacher. He also seems to have a construction and renovation business in which he takes on jobs to supplement his income. The plaintiff said Mr Khan did not have a builder’s licence. Mr Khan had obviously been very kind to the plaintiff including assisting with his move to Australia and providing him with accommodation and funds.

6. [19]

   In addition, Mr Khan gave the plaintiff money to purchase tools which he kept in his utility. The utility and the tools are featured in the surveillance that was relied upon by the defendants.

7. [20]

   Shortly after his arrival in Australia the plaintiff posted his resume on Seek and Indeed job finding sites. He received a call from BTR asking him to attend for an interview. He did so and spoke to Mr Joe Sultana, a principal of BTR. He was asked to commence, and did commence, working at BTR on 31 January 2018.

8. [21]

   As far as the plaintiff was concerned, he was taking up employment with BTR and he had never heard of JPBC. He first became aware of JPBC’s involvement in early 2019 when his solicitor told him that JPBC had been his employer. In one of many examples of a casual treatment of detail, if not of truth, the plaintiff stated in his supplementary statement dated 7 December 2023 that:

9. [22]

   I am satisfied that the plaintiff was unaware of the involvement of JPBC in his employment until well after the accident. However, the plaintiff received his first payment of wages on 15 February 2018. The payment was from JPBC. Assuming he was paid fortnightly in arrears, this would indicate that he received his salary from JPBC from the beginning of his work at BTR. This is a strong indication of the plaintiff being employed by JPBC. The plaintiff may well have been entirely unaware of the details (of his employer) on the payslip.

The accident

1. [23]

   On 9 February 2018, the plaintiff went to work at BTR. The morning was apparently quiet and then, at around 2pm, Mr Sultana asked him to repair the bucket of an excavator. This is a heavy piece of equipment, weighing in excess of a ton.

2. [24]

   The bucket had a cutting-edge which required repair. The bucket was attached to the tines of a forklift. The plaintiff described his task in this way:

3. [25]

   In order to carry out this task the plaintiff needed to remove the bucket from the forklift tines. He could not do so. He tried to contact Mr Sultana but was unable to reach him. He asked another person, Mr David McCormack, the floor manager, for directions but Mr McCormack was also unable to assist.

4. [26]

   The plaintiff then asked an apprentice, Kye, for help and between them they tried unsuccessfully to remove the bucket from the tines. Ultimately the bucket did suddenly detach from the tines leading to the plaintiff’s injury. Rather than describe what occurred it is more appropriate to rely on the CCTV footage which captures the incident (Exhibit B).

The plaintiff, after the accident

1. [27]

   The plaintiff was unconscious. He was transported to Westmead Hospital by helicopter and admitted to the hospital. The discharge summary states:

2. [28]

   The hospital noted that on arrival the plaintiff was “agitated, and required ketamine, morphine and midazolam for sedation.” A CT scan of his left elbow “demonstrated lateral bony fragments and avulsions.” A backslab was applied to his elbow.

3. [29]

   Fractures to his skull and cervical spine were excluded.

4. [30]

   The plaintiff was discharged on 11 February 2018, to be followed up by his general practitioner. He was to return to the neurosurgery department after two weeks for an MRI scan of his neck.

5. [31]

   The plaintiff’s general practitioner, Dr Ijaz Khan, referred him to an orthopaedic surgeon, Dr Herald, who he saw for the first time on 22 February 2018. The plaintiff was complaining of pain in his neck and his elbow. Dr Herald referred him for further scanning and saw him again on 23 February 2018. Dr Herald found that the left elbow was still swollen and unstable. A disc prolapse had been identified in the plaintiff’s neck but there was no nerve compression. The neck was stable. Physiotherapy was suggested for the plaintiff’s neck and left elbow.

6. [32]

   On 24 August 2018, Dr Herald performed a left elbow ostectomy on the plaintiff to repair a damaged ligament which was hampering the extension of his elbow. The surveillance suggested there was little or no continuing inability to extend the left elbow.

7. [33]

   On 25 May 2021, Dr Nair, a spinal surgeon, performed a lumbar microdisectomy on the plaintiff’s lower back at the L4/5 level. Dr Nair thinks a revision of the surgery is necessary.

8. [34]

   One of the issues in the case is whether the plaintiff’s lower back condition (in particular the condition necessitating surgery), was caused by the accident at BTR. Drs Dias, Nair, and Wallace think it was; Drs Dalton and Burrow disagree. I will return to this controversy below.

The plaintiff’s credit

1. [35]

   The defendants, in particular through cross-examination conducted by the first defendant, made a concerted attack on the plaintiff’s credit. The primary paths of attack were through surveillance of the plaintiff and inconsistencies in his various evidentiary statements.

2. [36]

   Plaintiff’s counsel gave this frank, and blunt, assessment of his client’s credit in his closing submissions:

3. [37]

   Putting aside the comment about treating doctors, I entirely accept counsel’s assessment. Notwithstanding his concession, the plaintiff still managed to craft a case on damages exceeding $2m.

4. [38]

   The surveillance concentrated on the plaintiff doing ‘building worker’ tasks for his uncle and electrical tasks with his grandfather. The doing of the tasks contradicted a good deal of the plaintiff’s evidence and the manner of his actions was often at odds with his descriptions of his disabilities.

5. [39]

   The plaintiff accepted he helped his uncle and grandfather (an electrician) from time to time. He gave various estimates of the amount of time, the most being up to 20 hours a week. In the surveillance, the plaintiff is seen doing various tasks, apparently without restriction, which included lifting, bending, standing, and twisting and various other movements which he said, in his statements, that he could not do, and told medical examiners that he was unable to perform.

6. [40]

   The plaintiff responded with a defence of ‘good days and bad days’ and the use of pain-killing medication.

7. [41]

   The surveillance is a very small picture over a long time and must be treated with caution. The use of pain-killers can logically assist a person’s ability to do tasks which would otherwise be restricted because of pain.

8. [42]

   Nevertheless, the concessions made by plaintiff’s counsel indicate the force of the surveillance and led to both a ‘correcting’ evidentiary statement by the plaintiff and a substantial amendment of his damages claim.

9. [43]

   Another telling fact in the surveillance is the plaintiff’s use of a Ford utility vehicle. He said he purchased the vehicle from his workers compensation lump sum payout. The vehicle had some mechanical problems, so he bought a new model, but also featuring the same features of a dual cab with a tray behind it. The plaintiff kept a lot of tools in the enclosed tray, suggesting not only their use but their frequent use. The nature of the vehicle itself, classically a ‘tradies’ vehicle, suggests the plaintiff was working regularly, using the vehicle and his tools. As I have mentioned above, the tools were purchased with funds from Mr Khan, but they were owned by the plaintiff.

10. [44]

    The second subject of attack on the plaintiff’s credit concerned his evidence about where he was living at certain times. There is no doubt that when the plaintiff arrived in Australia he stayed with his sister in Hinchinbrook.

11. [45]

    The plaintiff married, under Islamic Law, but not Australian Civil Law, in June 2021. His wife had been previously married and had a daughter who was living with her. Their residence was in Bungarribee.

12. [46]

    Following the marriage the plaintiff and his wife occupied a ‘granny’ flat on the Hinchinbrook premises. They moved into his wife’s former matrimonial home in Bungarribee in mid-2023. The latter is about a 15-minute drive from the Hinchinbrook address. Despite this, the plaintiff persisted in his evidentiary statements and in histories given to medical and other experts to assert that he continued to live in the main house in Hinchinbrook.

13. [47]

    The plaintiff admitted that in continuing to state that he lived in Hinchinbrook after his move to Bungarribee, he had lied. Whether the plaintiff lived at one address or the other might be seen as of little importance. However, the use of the wrong address does have these significant consequences:

    1. (1)

       Each time the plaintiff was visited by an expert at the Hinchinbrook address for purposes of assessing his home needs, the assessment was made of the wrong premises. From a practical point of view this was important because the Hinchinbrook address (unlike the Bungarribee residence) is a two-storey residence with the plaintiff apparently having his bedroom upstairs. This led to comments by the experts on the necessity to use the stairs. There were other aspects to the assessments, for example lawnmowing, which simply considered the wrong address.

    2. (2)

       The plaintiff’s use of the wrong address included the assertion of assistance from his sister in relation to everyday tasks. It was however his wife, after their marriage, who should have been providing the information to the experts.

    3. (3)

       The evidentiary statements contain confirmations of their truth including an acknowledgement by the plaintiff that he “may be liable for prosecution if I wilfully stated anything which I know to be false or do not believe to be true.” Even if he had good reason to hide his residence at his wife’s home, that does not excuse his willingness to give, in effect, false testimony.

14. [48]

    In my view, and especially when coupled with the effect of the surveillance evidence, the plaintiff’s credit was significantly dented to the extent that, without independent corroboration, his evidence must be treated with caution.

15. [49]

    In respect of corroboration, I think there are three witnesses whose evidence could have clarified or added to the case put forward by the plaintiff, but they were not called. The witnesses are the plaintiff’s uncle, his sister, and his wife.

16. [50]

    The plaintiff’s uncle could have clarified the amount and type of work done by the plaintiff. The plaintiff’s sister could have described his needs while he resided in Hinchinbrook. The plaintiff’s wife could have described his current needs and the assistance, if any, that he still requires.

17. [51]

    The plaintiff, in re-examination, sought to explain his wife’s absence from the proceedings. Her relationship with her previous husband had been traumatic, she recently had a miscarriage, and she was emotionally reluctant to give evidence. I fully understand all of these reasons and will not draw an inference against her. However, the absence of her evidence does strengthen the drawing of an inference against the plaintiff’s sister who could have instead given evidence about the plaintiff’s ongoing condition.

18. [52]

    No reason was given for either the plaintiff’s uncle or sister not being available to give evidence. I draw an inference that their evidence would not have assisted the plaintiff’s case.

19. [53]

    I note at this stage that, presumably because of the success of the attack on the plaintiff’s credit, and in turn because of the absence of corroborating witnesses, the plaintiff abandoned his claim for past care and for future care other than for short periods following future surgery.

20. [54]

    Another consequence of my conclusions on the plaintiff’s credit is their influence upon the medical evidence, in particular where histories taken by experts have been simply incorrect.

21. [55]

    Drs Dalton (a physician and rehabilitation specialist) and Dias (an occupational physician) highlighted this element in their concurrent oral evidence. Although Dr Dias had not greatly retreated from his opinions in the joint report with Drs Dalton and Burrow, I think in oral evidence, faced with a series of powerful assumptions of fact derived from the surveillance evidence, Dr Dias did back down somewhat from his position.

22. [56]

    I will return to the medical evidence below. Suffice to say at this stage, that my credit findings favoured my acceptance of the views of Drs Dalton and Burrow. I am also satisfied that the assumptions (as contained in MFI 1) put to Drs Dias and Dalton were accurate reflections of the evidence before me.

23. [57]

    I note that Dr Burrow did not participate in the concurrent oral evidence because he was overseas. No point was taken by any party as to his absence.

The insurance point

1. [58]

   I think the starting point is the Contract Agreement between JPBC and BTR dated 1 September 2016. The following are some relevant terms of the agreement:

2. [59]

   The insurance policy issued by the first defendant to BTR had an insurance period from 23 May 2017 until 23 May 2018. The plaintiff’s accident fell within this period. The certificate of insurance, which forms part of the policy, states:

3. [60]

   In respect of the policy, I first of all note that a pleaded defence arising from cl 8.2.2 was not pressed.

4. [61]

   The plaintiff conceded that any damages he recovered from the first defendant should be reduced by $50,000 consistent with the excess and consistent with ss 4 and 7 of the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).

5. [62]

   Clause 7 of the insurance policy is headed Exclusions and begins:

6. [63]

   An employee is defined in cl 9.3:

7. [64]

   The first defendant’s point is simple: The plaintiff was an employee, as defined in cl 9.3, therefore falling within the scope of cl 7, and in particular subcl 7.9. Consequently, the plaintiff’s injury did not fall under the policy.

8. [65]

   The primary question to arise is: Was the plaintiff employed by BTR or by JPBC?

9. [66]

   The first defendant says BTR was the plaintiff’s employer because:

   1. (1)

      After the plaintiff posted his resume on the job-seeking sites he was contacted directly by BTR.

   2. (2)

      The plaintiff was interviewed by Mr Joe Sultana, of BTR, who offered him employment at BTR as a diesel mechanic. The plaintiff accepted.

   3. (3)

      The agreement with Mr Sultana included a start date (31 January 2018), the rate of pay ($25 per hour gross), the maximum number of hours to be worked each week (20) and that there would be a probationary period.

   4. (4)

      JPBC had no involvement in the engagement of the plaintiff. It certainly did not ‘supply’ the plaintiff to BTR.

   5. (5)

      There was no privity of contract between the plaintiff and JPBC.

   6. (6)

      JPBC played no part in arranging any of the terms of the plaintiff working for BTR.

   7. (7)

      When working, the plaintiff sometimes wore a BTR uniform.

   8. (8)

      The plaintiff only became aware of JPBC’s existence some months after his accident.

10. [67]

    The first defendant also relied upon the following matters which occurred after the plaintiff was injured:

    1. (1)

       On 11 February 2018, Mr Sultana signed an incident report as the plaintiff’s employer.

    2. (2)

       On 15 February 2018, Mrs Sultana sent to an email to JPBC giving JPBC the plaintiff’s contact details and calling him a “New Empolyee (sic)”.

11. [68]

    The plaintiff says that the above factors are not conclusive. The agreement between BTR and JPBC set up a system in which any person working at BTR automatically became an employee of JPBC. This was a commercial reality and indicative of the manner of doing business as between JPBC and BTR.

12. [69]

    Further, the plaintiff submitted, that to allow the plaintiff to be seen as an employee of BTR would be to effectively sanction an injustice engineered by the first defendant to avoid liability.

13. [70]

    The second defendant, consistent with the plaintiff’s case, admitted that JPBC was the plaintiff’s employer. JPBC’s workers compensation insurer after, presumably, investigating the claim, accepted the plaintiff was employed by JPBC and commenced paying him workers compensation. It paid over $400,000 in workers compensation expenses.

14. [71]

    As stated above, the second defendant has a cross-claim against the first defendant seeking contribution arising from BTR’s negligence. The second defendant’s case against the first defendant I think permits the admissions made as to employment by the second defendant to be relevant to the relationship between the plaintiff and BTR.

15. [72]

    I suggested to the first defendant that evidence concerning employment of the plaintiff could have been usefully provided by Mr Sultana, or even Mrs Sultana and that it was open to me to draw an inference that their evidence would not have assisted the first defendant.

16. [73]

    My suggestion was rejected on the basis that the Sultanas were not in the first defendant’s camp and in fact their position, or at least that of BTR, was hostile to the first defendant because the first defendant was denying indemnity under the policy.

17. [74]

    I disagree with the first defendant’s analysis of its relationship to BTR. The first defendant was not denying liability under the policy; to the contrary it was doing no more than stating that the policy did not respond to the plaintiff’s particular set of facts because he was an employee of BTR and not someone covered by its public liability policy. The first defendant was never denying liability to BTR for circumstances that arose under the policy.

18. [75]

    Further, the evidence disclosed that Mr and Mrs Sultana were involved in records of interview with a person acting for the first defendant, the interviews taking place in February and March 2022.

19. [76]

    Mr Sultana is alleged by the first defendant to have been the person who made the employment contract with the plaintiff. He is the obvious person to substantiate this allegation, which if correct, lets the first defendant out of the proceedings. It is to be remembered that the first defendant’s allegation is not simply one of employment of the plaintiff but of an employment contract with details as to conditions such as rates of pay and hours to be worked. These are details which Mr Sultana was alleged to have agreed with the plaintiff and he, presumably, would have been in a position to substantiate, or not, these details.

20. [77]

    In my view Mr Sultana, and probably also Mrs Sultana, were squarely in the first defendant’s camp and their absence from giving evidence entitles me to draw an inference that their evidence would not have assisted the first defendant. I do draw that inference.

21. [78]

    The first defendant submitted that the principles by which a “true employer of an employee” should be gauged were settled and stated by Kirk JA in Agrigrain Pty Ltd v Rindfleish (2024) 335 IR 400; [2024] NSWCA 295, at [31]-[34]:

22. [79]

    In this case the distinction is not between an employer and an independent contractor and there was no written employment contract. The first defendant submitted that a reasonable person in the position of the parties would have understood that Mr Sultana was employing the plaintiff because of the agreed terms that these two persons had reached.

23. [80]

    But I think there is a further factor to be included. Mr Sultana was not necessarily agreeing to employ the plaintiff, rather he was telling the plaintiff the conditions under which he would be working, but the question of employment was one which was to be dictated by the manner in which BTR carried on its business, in particular by its relationship with JPBC where the latter company would assume the role of employer. This analysis is consistent with:

    1. (1)

       JPBC’s workers compensation policy responding to the plaintiff’s claim and making substantial payments for his benefit;

    2. (2)

       there being no suggestion of any workers compensation policy held by BTR, let alone any notification by BTR of the claim to its own workers compensation insurer;

    3. (3)

       JPBC paying the plaintiff’s wages on 15 February 2018, probably his first receipt of wages;

    4. (4)

       there being no suggestion that the plaintiff was ever paid a wage by BTR; and

    5. (5)

       the contractual agreement between BTR and JPBC which envisaged a labour hire relationship between the two companies.

24. [81]

    The plaintiff did commence working according to the conditions set by Mr Sultana. However, the conditions do not necessarily create a contract of employment, they simply dictate the time and manner in which the plaintiff would be working. It is also of no surprise that the plaintiff was interviewed by Mr Sultana who would have been looking for a suitable person to fill the role of a diesel mechanic. This is not a simple role and one in which the person who is to be provided with the service would be closely interested in meeting the prospective worker.

25. [82]

    It is important to distinguish between Mr Sultana hiring the plaintiff as an employee as opposed to arranging for him to work at BTR where he would automatically (because of the agreement between BTR and JPBC) become an employee of JPBC. This is demonstrated by the plaintiff receiving his first payslip from JPBC on 15 February 2018, although the first defendant suggested the payment was made at the direction of Mrs Sultana. I think the point is actually in the plaintiff’s favour because it is consistent with Mrs Sultana, on behalf of BTR, implementing the arrangement with JPBC under the agreement between the two companies.

26. [83]

    This is another example of evidence that Mr or Mrs Sultana might have given about the arrangements made with the plaintiff, raising again the inference that their evidence would not have assisted the plaintiff’s case.

27. [84]

    In Sturesteps v McGrath [2010] NSWSC 169, at [19] Brereton J said:

28. [85]

    I think the payment of wages by JPBC from 15 February 2018 may not be conclusive evidence of employment, but it is one of the indicia pointing in that direction.

29. [86]

    Further, it is not uncommon in a labour hire scenario for a company where the worker is placed to dictate his or her working tasks and conditions or even to require him or her to wear a uniform.

30. [87]

    As to the emails between BTR and JPBC, it is difficult to discern precisely what they mean and can be seen as favouring interpretations for both parties. For example, on 27 March 2018, Mrs Sultana wrote to JPBC, stating:

31. [88]

    EML was JPBC’s workers compensation insurer. JPBC responded to Mrs Sultana the following day:

32. [89]

    This email exchange might be seen as consistent with the plaintiff being an employee of BTR with some administrative payroll payment relationship with JPBC. But there is no evidence of any such relationship. There is only the evidence of the labour hire contract between JPBC and BTR. In addition, why would JPBC immediately respond that the plaintiff had been paid if he was not an employee of JPBC?

33. [90]

    The first defendant’s counsel raised the possibility of EML also being BTR’s workers compensation insurer but added “well, can I say there’s next to no evidence about this question about whether Better Trucks had a workers compensation policy … .” There is certainly not enough evidence for me to make a finding that BTR did have a workers compensation insurer.

34. [91]

    Also equivocal are the emails on 15 February 2018. JPBC asks Mrs Sultana:

35. [92]

    On one reading it would be strange if the plaintiff was employed by JPBC but not on its list of employees. At the same time, if the arrangement with BTR was that JPBC employed all persons working at BTR, then the email is simply stating that BTR has not so far updated its list of persons working at, but not necessarily for, BTR.

36. [93]

    I draw no conclusion from the emails between JPBC and BTR favouring any party in the litigation.

37. [94]

    Another document relied upon by the first defendant is a form signed by Mr Sultana on 11 February 2018 (two days after the injury) where the signature appears under the heading “Employer confirmation”. The document seems to be a report of injury, but as stated by senior counsel for the first defendant: “… it is not 100% clear what this is.”

38. [95]

    Yet again this is an area that might have benefited from evidence by Mr Sultana. I have already said that I draw an inference that his evidence would not have assisted the first defendant, an inference that extends to an explanation of the document described in the previous paragraph.

39. [96]

    As I mentioned above, I think the admission of employment by the second defendant can be taken into account in assessing whether or not the first defendant was the plaintiff’s employer. The strength of the admission goes beyond the pleading in that the second defendant’s evidence is of a claim being made on JPBC’s workers compensation insurer (EML) and that insurer accepting the claim.

40. [97]

    All parties agreed that the plaintiff could not have two employers, rendering the acceptance of employment by the second defendant as a factor in the weighing up of which entity (BTR or JPBC) was the plaintiff’s employer.

41. [98]

    In conclusion, I am satisfied that the commercial scenario in which BTR and JPBC operated meant that upon the plaintiff being accepted as suitable for the position at BTR, that the plaintiff then became an employee of JPBC. I think cll 4 and 10 in particular of the agreement dictate a system in which persons working at BTR become employees of JPBC, the latter company assuming the role of employer in regard to workers compensation and the taking on of obligations, such as inductions and workplace safety, all consistent with being an employer.

42. [99]

    Accordingly, I am satisfied that the insurance policy held with the first defendant responds to the plaintiff’s claim.

43. [100]

    A secondary point arising from the insurance policy, assuming the policy responds to the plaintiff’s claim, concerned whether or not any damages recovered by the first defendant should be reduced by $50,000, being the excess referred to in the policy.

44. [101]

    Ultimately the plaintiff accepted, under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW), that the $50,000 should be taken off any damages found against the first defendant.

45. [102]

    Section 4(2) limits the amount recoverable from the insurer to the amount of the indemnity payable under the contract of insurance. The indemnity under the contract of insurance is subject to the $50,000 excess which suggests that the damages should be reduced by $50,000 because the insurer’s liability to indemnify BTR would only have been referable to damages above $50,000.

Breach of duty

1. [103]

   Consideration of breach of duty by the first defendant obviously proceeds on the assumption that the plaintiff was employed by JPBC.

2. [104]

   At the conclusion of the hearing both defendants made it clear that in respect of the entities they insured (BTR and JPBC respectively) they admitted that these entities had breached their duty of care to the plaintiff. This admission, on the part of the first defendant, was only made in case the first defendant did not succeed on the insurance point.

3. [105]

   Breach of duty having been conceded, both defendants alleged contributory negligence on the part of the plaintiff.

Contributory negligence

1. [106]

   Unlike breach, the defendants enthusiastically asserted the existence of contributory negligence. They submitted that:

   1. (1)

      The plaintiff was an experienced and well qualified automotive and diesel mechanic.

   2. (2)

      There was no urgency attached to completion of the task. He could have waited for further instruction.

   3. (3)

      The plaintiff was in ‘charge’ of the job and was dictating his and the apprentice’s actions.

   4. (4)

      The removal of the bucket was an obviously dangerous endeavour. The weight of the bucket and the possibility of it falling off the tines called for significant caution.

2. [107]

   The plaintiff responded that:

   1. (1)

      He did try to seek advice, but Mr Sultana was not available, and Mr McCormack could not help.

   2. (2)

      He was a new employee, still under probation, and felt the job should be completed without delay.

   3. (3)

      While he had done similar work in Fiji, the method used in Fiji had involved putting heavy duty rope through pin holes in the bucket and then using a forklift to lift the sling created by the rope to move the bucket.

   4. (4)

      The plaintiff did not know that a jib was available, and he did not know that an alternative means of removing the bucket could be implemented. As far as he was concerned, he was following the system of work given to him by Mr Sultana.

3. [108]

   The first defendant submitted that contributory negligence should be assessed at about 33%. The second defendant, recognising the higher duty of an employer, suggested 10%. The plaintiff said the figure should be nil, but if there was to be contributory negligence, it should not exceed 10%.

4. [109]

   The plaintiff was a skilled mechanic. He had previously worked on excavator buckets, and he would have been aware that the bucket was very heavy and capable of causing severe injury if it fell to the ground.

5. [110]

   I accept that he would have wished, as a new employee, to have completed the job and to have demonstrated his capacity to have done so. But he did not have to carry on working and he did not have to assume a leadership role in taking on the assistance of the apprentice. He did the ‘right-thing’ in seeking advice from Mr Sultana and Mr McCormack but then carried on despite receiving no further instruction.

6. [111]

   In De Martin & Gasparini Pty Ltd v Bartlett (2025) 339 IR 419; [2025] NSWCA 56 at [26], the Court of Appeal found contributory negligence on the part of a worker who had failed to coordinate the lifting of a pipe with another worker. The same may be said in this case where the plaintiff seems to have taken over the exercise of removing the bucket without properly coordinating his actions with those of the apprentice or by waiting for the return of Mr Sultana.

7. [112]

   The parties referred me, for general principles, to Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34. The principles were expressed in the headnote as follows:

8. [113]

   Section 5R of the CLA is also relevant to the assessment of contributory negligence against the first defendant, however I do not see s 5R as creating a different result to that which would apply to the second defendant.

9. [114]

   Taking into account the relevant principles and applying them to the competing considerations I have set out above, I think contributory negligence should be assessed at 15% against the first defendant. This assessment also gives consideration to the plaintiff calling for help from the apprentice and then dictating the method of work for both himself, and the more junior worker.

10. [115]

    In respect of the second defendant, I agree that the employer’s duty of care is higher than that of an occupier and that contributory negligence against the second defendant should be 10%.

Damages generally

1. [116]

   In a revised claim for damages against the first defendant the plaintiff sought $2,190,000, most of which is economic loss. The next largest component is non-economic loss of $321,500 (40% of a most extreme case).

2. [117]

   The first defendant valued the case at zero because it said the minimal damages that should be awarded were below the $50,000 excess. Although the second defendant was not able to dispute the inclusion of the lower back in the plaintiff’s injuries, for reasons discussed below, it nevertheless restricted a diminution in work capacity to about six months after the back surgery in May 2021.

3. [118]

   The defendants generally attacked the severity of all of the plaintiff’s alleged injuries, relying in part upon the surveillance to contradict the plaintiff’s assertions of disability and limitations of movement. To the extent that the surveillance plays a part, the attack was successful. For example, the plaintiff’s use of his left elbow and right hand as seen in the surveillance is different to his claims about limitation. He is also seen to bend and lift apparently without impairment.

4. [119]

   The plaintiff descending stairs at Bunnings is done in the carefree manner of an unimpeded person. His work up a ladder seems contrary to a person harbouring any disability.

5. [120]

   In addition to the submissions on extent of injury, the first defendant specifically excluded the plaintiff’s lower back condition as being related to the accident. The resolution of this issue is important because inclusion of the lower back as an accident produced injury will significantly increase the assessment of non-economic loss and economic loss, in particular for the future.

6. [121]

   The lower back issue does however highlight an inconsistency not dissimilar to the argument on who was the plaintiff’s employer.

7. [122]

   In order for the second defendant (or at least JPBC) to have been joined to the proceedings the plaintiff required an assessment of his whole person impairment of at least 15% (WCA s 151H). The plaintiff was assessed to have a whole person impairment of 16%, which was the subject of a Complying Agreement pursuant to s 66A of the WCA. The 16% included a component referable to the plaintiff’s lower back thus precluding the second defendant from denying the lower back injury was caused by the accident.

8. [123]

   The plaintiff’s claim for economic loss is his loss of capacity to work as a diesel mechanic. This capacity will be much less if the plaintiff’s lower back is a product of the February 2018 accident.

9. [124]

   I will deal with the lower back point first. There is no doubt the plaintiff has a significant disability in his lower back. Dr Nair, a spinal surgeon, identified, through an MRI scan in August 2019, the existence of disc desiccation at L3/4 and L4/5. Later, on 25 May 2021, Dr Nair performed a lumbar microdisectomy on the plaintiff’s back. Revision of this surgery is envisaged for the future.

10. [125]

    The plaintiff complained to Dr Nair of lower back pain in August 2019. In his evidentiary statement dated 7 December 2023, the plaintiff referred to “worsening pain in my lower back” which led to the referral to Dr Nair. The use of the word “worsening” suggests the existence of back pain for some time prior to August 2019.

11. [126]

    The origin of the plaintiff’s back condition was discussed in a joint report from Drs Dias, Dalton, and Burrow. As already mentioned, Drs Dias and Dalton gave concurrent oral evidence.

12. [127]

    Going back a step, Dr Dias, in his report of 28 September 2020, took this history:

13. [128]

    It is trite to say that a history given to a medical examiner is important to the assessment of injury. This is illustrated by the following oral evidence from Dr Dias:

14. [129]

    Dr Dalton described the accuracy of a history as “very important”.

15. [130]

    In the joint report Dr Dalton’s view was that there was no “evidence the Plaintiff sustained an injury to his lumbar spine ... as a result of the subject accident.” Dr Burrow agreed with Dr Dalton and referred to “a temporal disassociation between symptom reportage and ultimate presentation.”

16. [131]

    Dr Dias was of a different view referring to the injury causing “disc protrusions at the L4/L5 level and associated left lower limb radicular symptoms which manifested gradually over a time period of 12 months following the subject accident and eventually required decompressive lumbar spine surgery in May 2021.”

17. [132]

    The first thing to be noticed about Dr Dias’s opinion in the joint report is that it refers to a gradual manifestation of symptoms over 12 months following the accident. This is arguably different to the history he took, as quoted above, in his report of 28 September 2020. The doctor’s opinion is also of course to a large degree dependent upon the accuracy of the history and, as far as the lower back is concerned, in respect of when the plaintiff began to suffer symptoms in his lower back. Also, Dr Dias did not say that the gradually increasing symptoms would be pain free.

18. [133]

    Arguably Dr Dias impliedly accepted the force of the assumptions which were put to him about the plaintiff:

19. [134]

    Another relevant opinion has been provided by Dr Wallace, an orthopaedic surgeon, retained by the second defendant. His report is dated 13 December 2022. Dr Wallace did not take a history about the commencement of lower back symptoms, rather the history he was given related to the symptoms at the time of the examination on 2 December 2022. Under the heading of Causation, Dr Wallace stated:

20. [135]

    The difficulty with Dr Wallace’s opinion is the absence of a history of the commencement of lower back symptoms. Dr Wallace has, as I read his report, made an assumption that the symptoms are related to the accident. I am therefore unable to rely on Dr Wallace’s opinion in support of the link between the accident and the back condition.

21. [136]

    Returning to Drs Dalton and Burrow, their opinions were as follows. Dr Burrow, in his first report (19 December 2019), noted a lack of a history of lower back pain after the accident and commented:

22. [137]

    In his next report (18 March 2021) Dr Burrow having been supplied with further material including an MRI of the lower back dated 3 September 2020, said that the history given by the plaintiff for not raising lower back problems (because he was concerned about his neck and elbow) was “not credible.” Dr Burrow continued that the back injury was of a “constitutional nature and unrelated to the work incident.”

23. [138]

    In his third report (3 April 2025) Dr Burrow confirmed his opinion that “the lumbar spine did not present for more than 18 months after the work incident and is unrelated to that traumatic work incident.”

24. [139]

    It is also important to note that the history given to Dr Burrow, for example about working, was shown during the oral evidence to be incorrect. Dr Burrow’s own finding on credibility in March 2021 has been substantiated.

25. [140]

    Dr Dalton first saw the plaintiff on 28 November 2023. He recorded a history from the plaintiff that “he started to experience gradually worsening back pain in 2019, and he started to notice gradual onset of pain in the left leg with tingling and numbness in the sole of his foot. He told me that initially the Insurer denied liability for his back injury, and he claimed that he was bedridden from mid 2019 until the end of 2020, or early 2021, and that he would just simply lie in bed and would only get up to have meals and go to the bathroom.”

26. [141]

    As noted above, the “bedridden” claim came under scrutiny in cross-examination when the plaintiff was asked about other family members being able corroborate his evidence.

27. [142]

    I also observe that Dr Dalton also received the dishonest history that the plaintiff, as at November 2023 was single and continuing to live with his sister.

28. [143]

    Dr Dalton concluded that “there is no evidence the plaintiff sustained an injury to the lumbar spine.” He continued:

29. [144]

    In his second report (5 June 2025) Dr Dalton stated:

30. [145]

    I am left in an unsatisfactory position because:

    1. (1)

       There is no history of complaints of lower back symptoms for many months after the accident.

    2. (2)

       The plaintiff is an unreliable witness, calling into question his assertion that he did not mention his back because of the dominance of his neck and elbow injuries.

    3. (3)

       Two doctors (Dalton and Burrow) are firmly of the view that the lower back condition is not related to the accident, not only because they did not believe the plaintiff, but also because there was another explanation for the condition, namely the degenerative process.

    4. (4)

       Dr Wallace, who did find a connection between the accident and the lower back condition, did not have a detailed history from the plaintiff of the progression of back symptoms. Dr Wallace seems to have proceeded on the assumption that the lower back was related to the accident.

    5. (5)

       Dr Dias, who was perhaps the strongest proponent of a conclusion of a connection, accepted that history was an important part of forming an opinion and he accepted that the history he had been given by the plaintiff was not correct.

    6. (6)

       The second defendant is unable, because of previous concessions and the s 66A agreement, to assert that the plaintiff’s lower back condition is not related to the accident.

31. [146]

    In my view the overwhelming weight of the evidence compels a finding that the plaintiff’s lower back condition is not related to the accident, and I make this finding. It is of course to be remembered that the onus to establish causation is always on the plaintiff, as stipulated by s 5E of the CLA.

32. [147]

    The finding however can only be effective in the plaintiff’s case against the first defendant. This is likely to significantly complicate the assessment of damages against each respective defendant and the cross-claim brought by the second defendant.

33. [148]

    I do not see a way around these complications. However, consistent with the parties’ request that I leave final orders for further discussion I will continue to assess damages on the very unusual basis that the lower back condition is not related to the accident in respect of the first defendant and that it is related in respect of the second defendant.

34. [149]

    Finally in this section I wish to make the following comment. My findings concerning the lower back should not be seen as one finding that the lower back is not connected in respect of the first defendant and a separate finding that it is connected in respect of the second defendant. My finding is limited to the first defendant. The fact that damages will be assessed against the second defendant which include consideration of the lower back as being connected to the accident, is not a product of any finding by me to that effect. Rather it is a product of the second defendant’s acceptance of the 16% whole person impairment.

35. [150]

    I make this point because of my concern that there might be a perception of inconsistent findings. There is only one finding about the lower back but, in effect, the second defendant is estopped from denying the inclusion of the lower back or damages associated with it.

Damages against the first defendant

1. [151]

   The plaintiff suggested a finding of 40% of a most extreme case in accordance with s 16 of the CLA. 40% produces a figure of $321,500. The first defendant submitted that 20% was appropriate, which equates to $28,000 under s 16.

2. [152]

   The 40% suggestion includes the lower back as a relevant injury. Excluding the lower back obviously reduces the extent of a most extreme case. The injuries that are left are primarily to the plaintiff’s elbow and his neck (and shoulder) and the limitations and disabilities attached to these injuries. The plaintiff also alleges the psychological and emotional impacts from the accident. In addition, he says he injured his right hand in January 2021 when he fell over. In his evidentiary statement of 7 December 2023, he gave this description of the fall:

3. [153]

   The loss of sensation in the left leg is part of the allegation of the injury to the plaintiff’s lower back. It must follow that if the lower back is excluded as having been caused by the accident, then the injury to the right hand must also be excluded.

4. [154]

   I also understood that the plaintiff’s claim of being bedridden was a product of pain in his lower back. He stated in his oral evidence:

5. [155]

   I do not accept that he was bedridden, at least to the extent that he asserts (over a year) but whatever the case, the claim falls with the exclusion of the lower back condition. The bedridden claim is also an allegation that might have benefited from evidence from the plaintiff’s family, as he conceded:

6. [156]

   This is another justification for drawing an inference that the evidence of relevant family members would not have assisted the plaintiff’s case.

7. [157]

   The plaintiff did have a serious injury to his elbow, and he did have an injury to his neck and shoulder. The elbow injury required surgery in August 2018, and no doubt was the source of a great deal of pain and limitation of movement until the surgery. The plaintiff said that his left elbow continued to be restricted but this is completely at odds with the surveillance which contradicts his evidence both as to range of movement and capacity for use.

8. [158]

   In respect of the plaintiff’s neck, again this would no doubt have been the source of pain and limitation of movement. The plaintiff stated that he continued to suffer from his neck injury.

9. [159]

   The plaintiff does have some medical support for his neck symptoms. Dr Burrow thought there was possibly an “aggravation of pre-existent degenerative disc disease” although he thought that any future problems would be the result of “multilevel disc degeneration” which would occur in any event.

10. [160]

    By the time of the joint report in December 2025, Dr Burrow thought there had been a soft tissue injury to the neck “much like a whiplash injury, and that condition has quite reasonably resolved … .”

11. [161]

    Although Dr Dalton thought the plaintiff’s neck pain was muscular, he did not exclude it as relating to the accident and he suggested “a more targeted exercise program”.

12. [162]

    Dr Dias made the following diagnosis in October 2022:

13. [163]

    Dr Dias maintained his diagnosis in the joint report in December 2025, including the extension of the injury to symptoms in the plaintiff’s left shoulder.

14. [164]

    I am prepared to accept that the plaintiff does have some ongoing pain and discomfort in his neck and left shoulder, but nowhere to the extent that he alleges, nor with the range of limitations that he asserts. No doubt his neck, left shoulder and elbow injuries would have caused him some unhappiness and emotional upset especially in the initial years after the accident and in particular when they might have prevented him from working.

15. [165]

    However, as to the emotional and psychological consequences alleged by the plaintiff, without corroboration I simply do not accept his evidence, again highlighting the absence of evidence that might have assisted his case.

16. [166]

    I think the 20% of a most extreme case suggested by the first defendant is too low, but not by much. I think 25% is the correct assessment. This percentage equates to $52,500.

17. [167]

    Turning now to past economic loss the plaintiff’s schedule was based on an initial loss of $817 net per week but less wages that were paid by JPBC up to 6 November 2018. Thereafter the plaintiff’s net weekly wage was said to increase but with a reduction, from 31 August 2022, of 40% to cater for the plaintiff’s residual earning capacity. The reduction of 40% was an obvious reaction to the plaintiff having been ‘caught out’ by the surveillance.

18. [168]

    The first defendant allowed nine months of past economic loss at $464 per week.

19. [169]

    The respective use of weekly net wages of $464 and $817 is difficult to understand. The plaintiff said he commenced work on an agreed wage of $25 per hour for 20 hours a week. This is $500 per week gross, consistent with a net wage of $464 per week.

20. [170]

    The payslips issued by JPBC however, tell a different story. The payslips that are in evidence commence on 4 April 2018, where the stated hourly rate is $25. This rate continues in the payslips until 8 May 2018, and then from 9 May 2018 doubles to $50 per hour and continues at $50 per hour through to the last payslip for the week ending 3 July 2018.

21. [171]

    The gross rate of $50 per week is consistent with the net wage of $817 per week which is relied upon by the plaintiff, but why the rate doubled is not explained.

22. [172]

    The plaintiff tendered reports from Mr Craig Martin, a rehabilitation specialist. Mr Martin conducted some research into the potential wages of a diesel motor mechanic, including a mechanic working in the mining industry. His figures suggest a net wage as at December 2022 somewhere between $1352 - $1741 as a diesel motor mechanic in Sydney and $1481 - $1983 as a diesel motor mechanic (mining). These figures are for full-time employment. It is unknown whether the plaintiff was eligible, under his visa conditions, to partake in full-time employment. In his opening, counsel for the plaintiff said the plaintiff was working 20 hours per week because of his “visa obligations”.

23. [173]

    The plaintiff’s marriage may well have entitled him to at least permanent residence and the lifting of any work restrictions. But precisely what is his current visa status is unknown. In opening it was suggested the plaintiff was currently on a partnership visa.

24. [174]

    I think I have to do the best I can with the materials available to me, an approach consistent with Fink v Fink (1946) 74 CLR 127 at 143; [1946] HCA 54. I will allow past economic loss at $464 per week from the date of the accident until 8 May 2018, and then at $817 per week until the completion of nine months from the accident.

25. [175]

    Thereafter, taking into account the lower back and right hand not being connected, but continuing symptoms, probably diminishing, in the neck and elbow and also recognising that I am assessing a loss of capacity to do a heavy mechanical job, I think that economic loss should continue until the present time.

26. [176]

    The rate at which it should continue is affected by the plaintiff’s obvious capacity as demonstrated on the surveillance material and by his lack of reliability in describing what he can and cannot do, I think a figure of $100 per week is appropriate.

27. [177]

    The above assessment produces the following figures:

28. [178]

    The total of $65,274 must be reduced by the $7,256.25 paid for work done after the accident, leaving past economic loss at $58,017.75.

29. [179]

    Lost superannuation benefits at 11% are $6,382.

30. [180]

    For the future, the first task is to deal with the requirements of s 13 of the CLA I do not think that s 13 precludes the awarding of a buffer. But it does require the making of certain findings. I am satisfied that but for the accident the plaintiff would have been able to work (under his immigration status) and continued to work in a full-time capacity into the future, although I cannot say he would have done so until retirement age. The plaintiff had started to work in Australia; he married and is likely to remain in Australia. I assume the plaintiff would have continued working as a mechanic although I do not make any assumption as to the specific field in which he would have worked. Suffice to say that as a mechanic he would have earned a similar wage to the roughly $800 per week net (but updated) he was being paid when he stopped working at BTR’s premises.

31. [181]

    I cannot see any reason why the plaintiff would not have been subject to the ‘normal’ vicissitudes of 15%.

32. [182]

    Taking into account the same complexities (no lower back and an unreliable plaintiff) but recognising some continuing disability in the plaintiff’s neck, I think I can only proceed by way of a small buffer. I will allow $30,000 including lost superannuation benefits and also building in the assumption of vicissitudes of 15%.

33. [183]

    The claim for past medical expenses is $261,947 which has all been paid by the workers compensation insurer. It obviously contains a proportion relating to the surgery to the plaintiff’s lower back and other treatment associated with his lower back, and perhaps also his right hand.

34. [184]

    The first defendant’s schedule of damages makes no provision for any medical expenses. This is surprising because there is no doubt that there would have been medical expenses associated with the uncontroversial injuries. For example, surgery to the plaintiff’s elbow clearly falls within the damages to be assessed against the first defendant.

35. [185]

    No attempt was made by either the plaintiff or the first defendant to analyse the list of paid medical expenses so as to remove costs associated with the plaintiff’s lower back and right hand.

36. [186]

    There is a list, in the evidence, of payments made by the workers compensation insurer which extends over some 81 pp (Exhibit A, pp 2964 – 3045) containing details of literally hundreds of payments made by the workers compensation insurer.

37. [187]

    Some of the payments are obviously related to the lower back, such as a payment to Dr Nair of $13,348.15 on 5 June 2021 for the back surgery and the associated payment to the anaesthetist (Dr Reddy) of $2,403 on 17 June 2021.

38. [188]

    Some payments seem to cover a number of areas of the body, such as the payment to Castlereagh Imaging of $1,024 on 4 January 2024, which refers to the cervical, thoracic, and lumbar spine.

39. [189]

    My scrutiny of the payments reveals about $77,000 being referable to the plaintiff’s lower back and right hand. Accordingly, I will reduce the claimed figure of $261,947 by $77,000. The result is $184,947. I will specifically give the parties leave to adjust this figure if it is incorrect.

40. [190]

    For the future, there is a claim for neck surgery as suggested by Dr Nair, but with little support from the other medical practitioners. The revised damages schedule suggests that Dr Nair, in his report of 24 September 2024, is recommending surgery to the plaintiff’s neck “in the next year or two”. This is not the way I read the report:

41. [191]

    Dr Nair does not cost the injections. The prevailing medical opinion, I think, is that any continuing neck problems are degenerative and would have existed in any event. However, the possibility of the neck problems being related to the accident, if only through an acceleration of the degenerative change, must be considered and an allowance for future treatment made. I think a figure of $5,000 for all future treatment is appropriate.

42. [192]

    The claim for domestic care is limited to periods in the future after revision surgery to the plaintiff’s lower back. As I have excluded the lower back from damages, this claim must fail.

43. [193]

    A summary of the damages I have found against the first defendant is as follows:

44. [194]

    The total of damages against the first defendant is $336,846.75. After reduction for contributory negligence the figure is $286,319.74. This figure still requires the deduction of the $50,000 excess. The result is $236,319.74.

45. [195]

    ‘Fox v Wood’ damages (derived from Fox v Wood (1981) 148 CLR 438; [1981] HCA 41) were agreed with the second defendant at $4,996.88. If any of this amount is claimable from the first defendant, I will leave it to the parties to discuss and ‘add in’.

Damages against the second defendant

1. [196]

   The second defendant is liable for past and future economic loss, lost superannuation benefits, and Fox v Wood damages. As mentioned, the latter were agreed at $4,996.88.

2. [197]

   The second defendant agreed with the first defendant that past economic loss should not go beyond nine months after the accident. But this submission had a qualification, namely the inclusion against the second defendant of damages arising from the plaintiff’s lower back injury. To cater for this qualification the second defendant extended past economic loss to “basically a period of about six months after that surgery on 21 May 2021.” The submission continued:

3. [198]

   I think I should take the same approach as I took in respect of the first defendant to past economic loss except that I should extend the $817 per week to 6 months after the lower back surgery. Thereafter, as with the first defendant, up to the present I will allow $100 per week.

4. [199]

   Past economic loss is therefore as follows:

5. [200]

   Total past economic loss is $179,377. Past lost superannuation benefits at 11% are $19,731.47.

6. [201]

   For the future, I first of all note that I am not required to comply with s 13 of the CLA but would have reached the same conclusions had I done so. I will take the same approach as for the first defendant but allow a small extra component of $20,000 in respect of the plaintiff’s lower back. The total for future economic loss is $50,000 including lost superannuation benefits and a recognition of normal vicissitudes.

7. [202]

   A summary of damages against the second defendant is as follows:

8. [203]

   The total of the above damages is $254,105.35. After reducing this figure by 10% for contributory negligence, the result is $228,694.82.

Apportionment between the defendants (the cross-claims)

1. [204]

   The first defendant submitted the apportionment of liability between the defendants should be 80% liability on the part of the first defendant and 20% liability on the part of the second defendant. Counsel for the second defendant said: “I couldn’t really say anything contrary to the 80/20”. I took this as an endorsement of the apportionment.

2. [205]

   I agree with the apportionment. To the extent that it is necessary for me to say anything, having regard to the united approach of the defendants, the plaintiff was working under the supervision and direction of the first defendant which immediately suggests a finding of greater liability. The second defendant, as an employer, had a non-delegable duty for the safety of the plaintiff, but it must be recognised that the accident occurred in respect of a single incident entirely under the direction of the first defendant.

3. [206]

   The 80/20 split should be included in the final orders to be discussed by the parties.

Final orders

1. [207]

   The parties agreed that final orders should await my findings on liability, contributory negligence, and damages. The complications imposed by the workers compensation legislation, and in particular the plaintiff’s choice as to which verdict he would enforce, combine to impose a need for delay and the assistance of the parties in the drafting of the final orders.

2. [208]

   In order to assist the parties in this endeavour I summarise my conclusions as follows:

   1. (1)

      The plaintiff was employed by JPBC when the accident occurred.

   2. (2)

      Both BTR and JPBC breached the duty of care respectively owed to the plaintiff.

   3. (3)

      The damages awarded against the first defendant should be reduced by 15% to reflect my finding on contributory negligence.

   4. (4)

      Again, in relation to contributory negligence the damages against the second defendant should be reduced by 10%.

   5. (5)

      Damages, after deduction of $50,000 because of the policy excess, against the first defendant, are assessed in the sum of $236,319.74. This is subject to a Fox v Wood component.

   6. (6)

      Damages against the second defendant are assessed in the sum of $228,694.82.

   7. (7)

      The contributory negligence percentages have been incorporated in the damages figures set out above.

   8. (8)

      For the purpose of the cross-claims, the apportionment of liability as between the defendants is assessed as 80% on the part of the first defendant and 20% on the part of the second defendant.

3. [209]

   I request the parties to bring in agreed short minutes of order both in relation to the plaintiff’s claim and the cross claims. The parties have leave to adjust the damages figures in respect of Fox v Wood damages and past medical expenses. The final orders should include any necessary order against the second defendant arising from s 151D of the WCA.

4. [210]

   My preliminary view on costs is that the defendants should pay the plaintiff’s costs of the proceedings, and there should be no order as to costs on the cross-claims. However, the parties have leave to make submissions should different costs orders be sought.