A HUGE personal injury settlement for a young worker has resulted in the employer recovering $6.6m paid as compensation plus interest.
The verdict also sends a clear message to contractors and subcontractors. They also will be held accountable.
Omar Baghdadi, a 27 year old process worker suffered catastrophic injuries when he fell from a height at his workplace in 2002.
Baghdadi, whose injuries left him a quadriplegic and brain damaged, was awarded $18.75m following settlement of his damages claim last Thursday.
Baghdadi had initially sued three defendants on the basis that they had failed to take reasonable precautions to prevent injury to him and others at the workplace where building work was being carried out.
The defendants were the owner of the premises where Baghdadi was employed, a building contractor and a subcontractor.
Baghdadi’s legal team argued that the three defendants had failed to issue adequate warnings or take proper precautions for their client’s safety and should be equally liable for the damages payable to him.
The defendants maintained that Baghdadi’s employer should be principally liable for failing to ensure a safe workplace as the employer’s duty of care could not be delegated to them.
The judge disagreed with this argument and decided that the employer’s responsibility should be only 10 per cent.
Under New South Wales legislation, Baghdadi could only sue his employer for wage loss up to a maximum of $884,000 and so the employer’s 10 per cent liability was only $88,400.
The employer had paid Baghdadi $6.6 million as workers compensation and brought a separate claim against the three defendants to recover the compensation paid to Baghdadi.
John Hick, 151Z recoveries partner with TurksLegal said if a third party is responsible for a worker’s injury, then employers and scheme agents should act promptly to pursue a recovery of payments, relying on section 151Z of the Workers Compensation Act 1987.
In a judgment delivered on 7 May 2008, Baghdadi was awarded about $14.5 million plus the cost of funds management and costs of the proceedings to be agreed or assessed.
After including an allowance for funds management, the judgment was increased to $16.87 million plus costs, from which about $6.6 million was required to be paid back to the employer’s insurer on the s151Z recovery claim against the defendants.
“While this was a huge personal injury verdict for a young worker, it was also a great win for the employer who recovered $6.6m in compensation payments and interest,” Sam Kennedy, workplace law partner with TurksLegal, who was acting for the employer said.
Baghdadi’s injuries are so extensive that he requires round-the-clock care by a team of nursing assistants and other carers which costs him about $800,000 a year.
Baghdadi’s carers were not happy with the net figure of $10 million he received in the May judgment, and lodged a notice of intention to appeal.
However, before proceeding with a formal appeal, further negotiations with the three defendants resulted in agreement to increase the judgment to $18.75 million plus $1.5 million for legal costs.
The amended orders were lodged with the Supreme Court on 31 July 2008.
“It is my understanding that the judgment of $18.75 million is the highest personal injury verdict in Australia,” Kennedy said.
The agreement between Mr Baghdadi and the defendants did not affect the employer’s liability, which was limited to 10 per cent of the work injury damages assessment — only $88,400.
“This is because in any action against an employer, including an action by a defendant seeking contribution, the assessment of damages is limited to the plaintiff’s past and future wage loss and cannot include treatment expenses which made up the bulk of the $18.75 million judgment,” Kennedy said.
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