What happened

In July 2016, after about ten days in the job, Barati injured his right hand while undoing a torsion bar during vehicle dismantling. The bar acted as a spring storing substantial force, but he had not been instructed about the hazard or how to release its tension safely. Hand restrictions remained after several operations, and the Court also accepted accident-related psychological injury.

The issues

Liability turned on whether observation of co-workers was adequate training and whether Barati was at fault for not asking about the danger. Quantum turned on whether any theoretical residual capacity had earning value given his injuries, language, education and skills. The employer also alleged that not learning English was a failure to mitigate his loss and sought a larger discount for future contingencies.

The court's decision

The Court found that specific training and instruction were required and that the employer had taken no reasonable precaution against the hazard. It rejected contributory negligence for a novice's failure to ask about an unrecognised danger and rejected mitigation arguments in light of injury-related problems with motivation and concentration. With no adequate evidence of available jobs and earnings within his remaining capacity, it allowed the economic losses and retained the conventional 15% contingencies discount.

Understanding the figures

The historical damages subtotal was AUD 1,199,245.33. After the agreed s 151A credit of AUD 178,531.68 for workers compensation weekly payments, judgment was entered for AUD 1,020,713.65. Costs were payable by the employer as agreed or assessed, with 14 days to seek variation of the orders; the judgment sum is not represented as take-home recovery after all costs and deductions.

What this case shows

Being able to copy a task is different from understanding an unseen stored-energy hazard. In assessing earning capacity, a medical estimate of limited working hours did not establish that the capacity could produce income. The Court examined the worker's labour market circumstances and the evidence of jobs he could actually perform.

Why another case may differ

This was a common-law employer damages claim within the NSW workers compensation framework, rather than a road accident or a coal-miner exception case. The result depended on unchallenged engineering evidence, substantial medical and vocational agreement and gaps in the employer's employment evidence. Limited English was not treated as an automatic bar to work, and did not justify a higher contingencies discount by itself.

Applying it to your claim

Different facts, evidence or procedures, an appeal, or a change in the law may affect how this decision applies. This is general information, not a report of a case handled by Park & Co Lawyers.

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