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Within days of arriving in Sydney from Fiji on a student visa in January 2018, Abdul Tazleem began began looking for work as an automotive and diesel mechanic.
He quickly received a call from Better Truck Repairs Pty Ltd, a heavy-vehicle repair business operating from industrial premises in South Windsor.
Tazleem immediately accepted the offer from Joe Sultana – one of the principals of the workshop – of casual work repairing diesel equipment.
He understood he was working for Better Truck Repairs but the workshop operated through a labour-hire arrangement with JP Business Consulting which paid wages and carried workers compensation insurance.
In his first two weeks on the job, Sultana instructed him to repair the cutting edge of an excavator bucket that weighed more than a tonne.
The bucket had been placed on the tines of a forklift and needed to be removed before work could safely proceed.
Tazleem attempted to contact Sultana for instructions but could not reach him. He asked floor manager David McCormack for guidance, but McCormack was unable to assist.
Eventually he enlisted the help of an apprentice. The two men tried to manipulate the heavy bucket so it could be separated from the tines but in the process the massive steel attachment suddenly detached and fell, striking Tazleem and leaving him unconscious.
Emergency services airlifted him to Westmead Hospital. Doctors recorded that he arrived agitated and required sedation with ketamine, morphine and midazolam.
CT scans revealed a left lateral elbow avulsion fracture, scalp abrasions and a cervical spine injury described as mild C4–C5 anterolisthesis.
His elbow was immobilised in a backslab and he remained in hospital for two days before discharge with instructions for neurological follow-up.
In the months that followed the elbow proved unstable and painful. Orthopaedic surgeon Dr Jonathan Herald ultimately performed an elbow ostectomy in August 2018 to repair ligament damage that prevented full extension of the joint.
Tazleem also complained of ongoing neck pain and stiffness, for which physiotherapy was recommended.
In May 2021, spinal surgeon Anil Nair performed a lumbar microdiscectomy at the L4/5 level after MRI scans revealed degenerative disc problems.
The inevitable injury compensation claim was filed that year against JP Business Consulting as employer and Better Truck Repairs as “host”. Both entities raccepted that they had breached their duty of care to provide a safe system of work.
The contest before the Supreme Court of New South Wales concerned only whether he had contributed to his own injury, and the extent of his ongoing disabilities.
Both defendants also alleged that an experienced mechanic ought to have known the excavator bucket was extremely heavy and dangerous: “He ought to have waited for further instruction given that the job was not urgent”.
Justice Michael Elkaim agreed and ruled that contributory negligence should be assessed at 15% in his case against host employer Better Truck Repairs, on the basis that the plaintiff had called for help from the apprentice and then dictated the method of work for them both.
Because the extent of the duty of actual employer – JP Business Consulting – was higher, the judge only apportioned 10% contributory negligence to Tazleem in his case against that party.
A more complex dispute concerned the extent of the injuries.
Some specialists supported the view that his lower-back condition stemmed from the 2018 accident but others concluded the lumbar problem was unrelated and instead reflected degenerative disc disease that emerged months later.
Justice Elkaim preferred the latter opinion, noting that the first complaints of back pain appeared long after the accident and that the plaintiff’s credibility had been undermined by inconsistent acounts and surveillance footage showing him performing physically demanding tasks.
With the lower-back injury excluded from the accident-related damage against the insurer, the court treated the primary injuries as those affecting the elbow and neck.
The judge accepted that the elbow fracture and surgery caused significant pain and temporary disability, and that the cervical injury continued to produce some discomfort.
But event for that, vision showing Tazleem lifting, bending and working with heavy tools contradicted claims of severe long-term impairment.
The court assessed non-economic loss at 25 percent of the most extreme case – yielding general damages of $52,500—before adjustments for contributory negligence and the policy excess.
He was also awarded $65,000 for loss of income after the date of the trial and a further $30,000 for the risk to his income earning capacity in the future.
The total of damages against Better Truck Repairs was $336,846, which after the 15% reduction for contributory negligence, was $286,320.
Categories: metal fabrication injury