A mechanic injured while repairing an excavator has won damages in a case that had to determine whether his employer was a labour hire business or the trucking company where he worked.

The NSW Supreme Court has ruled the labour hire company employed Sheik Abdul Tazleem even though he thought he worked for Better Truck Repairs.

Mr Tazleem started work in January 2018 and a month later was injured when trying to remove a one-ton excavator bucket from a forklift. He was taken to hospital unconscious and required surgery.

He sued a group of Lloyd’s underwriters and the workers’ compensation nominal insurer for $2.19 million, and the two groups of insurers lodged cross-claims against each other.

Better Truck Repairs, a company in liquidation, had a public liability policy with the Lloyd’s group, which said that because Mr Tazleem was a Better Truck employee, he was not covered by the policy.

The nominal insurer was standing in the shoes of JP Business Consulting, a deregistered labour hire company.

It admitted JP Business Consulting was the employer and paid Mr Tazleem more than $400,000 workers’ compensation. It lodged a claim against the Lloyd’s insurers arising from Better Truck Repairs’ negligence.

Both insurer groups accepted BTR and JP breached their duty of care to Mr Tazleem, but they alleged contributory negligence by him. 

Judge Michael Elkaim assesses contributory negligence at 15% off Lloyd’s damages and 10% off the employer’s, saying Mr Tazleem knew the risk but carried on with the job.

He says Mr Tazleem was an unreliable witness; his own counsel said at times he was less than truthful and had not provided an accurate history to doctors and occupational therapists.

The court says Mr Tazleem injured his elbow, neck and shoulder, and assesses damages against the Lloyd’s group of $336,846.

The figure is reduced to $286,319 due to contributory negligence, then by a $50,000 excess, giving a total of $236,319.

Damages against the nominal insurer are assessed at $254,105, minus 10% for contributory negligence, giving $228,694.

For the purposes of the cross-claims, liability should be apportioned as 80% to the Lloyd’s group and 20% to the nominal insurer.

Read the judgment here.