Barati v One World Metal Recycling Pty Ltd t/as One World Metal Recycling Pty Ltd - [2024] NSWDC 25 - NSWDC 2024 case summary — Zoe

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

[2024] NSWDC 25

District Court of NSW|2024-02-14

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-02-14

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

introduction

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.
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.
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.
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.

[2]

[4]

Expert evidence

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

[8]

Psychological injury

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.
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.
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.
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.
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).
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.

[16]

Capacity to work

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

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

At a glance

Court

Decision date

Source

Judgment (27 paragraphs)

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Legislation Cited (5)

Cases Cited (6)