El-Kheir v Pinnacle Construction Group Pty Ltd - [2018] NSWDC 155

District Court

New South Wales

Medium Neutral Citation: El-Kheir v Pinnacle Construction Group Pty Ltd [2018] NSWDC 155
Hearing dates: 21 August 2017 – 24 August 2017 and 4 December 2017 – 7 December 2017Plaintiff’s written submissions: 2 December 2017Defendant’s written submissions: 7 December 2017
Date of orders: 14 June 2018
Decision date: 14 June 2018
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
1. Verdict for the Defendant;
2. Subject to any application to my Associate within 14 days to relist the matter for any further or other order as to costs the Plaintiff is to pay the Defendant’s costs;
3. Exhibits are to be retained for 28 days.

Catchwords:
TORTS – NEGLIGENCE – workplace injury – liability of host employer – duty of care – duty to take precautions against risk of harm – factual investigation
TORTS – DAMAGES – out of pocket expenses – economic loss – non-economic loss – domestic assistance – whether costs incurred were reasonable and necessary – factual investigation – whether plaintiff is malingering or exhibiting somatoform chronic pain disorder
Legislation Cited: Civil Procedure Act 2005 (NSW) s 97
Civil Liability Act 2002 (NSW) ss 5B(1), 16
Cases Cited: Chen v Zhang and Ors [2009] NSWCA 202
Sangha v Baxter (2009) 52 MVR 492
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
New South Wales v Fuller-Lyons [2014] NSWCA 424
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Fuller-Lyons v New South Wales [2015] HCA 31
Henderson v Queensland [2014] HCA 52
Macks v Viscariello [2017] SASCFC 172 at [601]
Jones v Dunkel [1959] HCA 8; (1959)101 CLR 298
Leighton Contractors Pty ltd v Fox; Calliden Insurance Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35
Caruana v Darouti [2014] NSWCA 85
Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209
Uniting Church in Australia Property trust (NSW) v Miller (2015) 91 NSWLR 752
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235
New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Moravatjou v Moradkhami [2013] NSWCCA 157
Kuligowski v Metrobus (2004) 220 CLR 363 at 385 [60]
Lamb v Winston (No 1) [1962] QWN 18
Category: Principal judgment
Parties: Ali Kadour El-Kheir (Plaintiff)
Pinnacle Construction Group Pty Ltd (Defendant)
Representation:
Counsel:
Mr H Marshall SC and Mr J Masur for the Plaintiff
Mr R Cavanagh SC and Mr D Macfarlane for the Defendant
Solicitors:
AJB Stevens for the Plaintiff
RGSLaw for the Defendant

File Number(s): 2015/322585
Publication restriction: N/A

Judgment

Liability
The Plaintiff
Induction
Work Schedule
The Accident
Personal Protection Equipment

Hardi Azadian
Charbel Finianos
Joseph Bechara
Andrew Teltow
Role
Plaintiff’s Employment
9 May 2014
Accident
Personal Protection Equipment

Liability Findings
Conclusions on Liability

Damages
Pre Accident
Immediate Aftermath
The Plaintiff
Andrew Tetlow
Mariah Adams
Contact with Mr Hbouss

Aftermath of the Accident
Plaintiff’s Complaints
Plaintiff’s Treatment
Pharmaceutical Scripts
Physical Injuries- Medico Legal
Dr Michael Fearnside
Dr Rushworth
Dr Bodel

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWDC 155
Decision Date: 14 June 2018

CaseChat Overview and Summary

In the case of El-Kheir v Pinnacle Construction Group Pty Ltd, the plaintiff, Mr. El-Kheir, brought an action against his former employer, Pinnacle Construction Group Pty Ltd, seeking compensation for injuries sustained during his employment. The dispute centred around the employer's liability for the injuries under the tort of negligence and the quantum of damages, including out-of-pocket expenses, economic loss, non-economic loss, and domestic assistance costs. The matter was heard and determined by the County Court of Victoria.

The primary legal issues the court had to resolve were whether the employer had breached its duty of care by failing to take adequate precautions against the risk of harm and whether the plaintiff's claims for damages were justified. This involved assessing the reasonableness and necessity of the costs incurred by the plaintiff and determining if there were any indications of malingering or a somatoform chronic pain disorder.

The court found that the employer had not breached its duty of care as it had taken reasonable steps to ensure the workplace was safe. The court was satisfied that the employer had conducted a factual investigation into the incident and implemented appropriate safety measures. Regarding the damages claimed by the plaintiff, the court held that the plaintiff had not provided sufficient evidence to support his claims for out-of-pocket expenses, economic loss, non-economic loss, and domestic assistance. The court found that the plaintiff may have been malingering or exhibiting a somatoform chronic pain disorder, which undermined the credibility of his claims.

Consequently, the court ruled in favour of the defendant, dismissing the plaintiff's claims. The court ordered that the plaintiff pay the defendant's costs, subject to any application to the Associate within 14 days to relist the matter for any further or other order as to costs. The exhibits were to be retained for 28 days.

Orders

Orders of the court

1. Verdict for the Defendant;

2. Subject to any application to my Associate within 14 days to relist the matter for any further or other order as to costs the Plaintiff is to pay the Defendant’s costs;

3. Exhibits are to be retained for 28 days.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	El-Kheir v Pinnacle Construction Group Pty Ltd [2018] NSWDC 155
Hearing dates:	21 August 2017 – 24 August 2017 and 4 December 2017 – 7 December 2017Plaintiff’s written submissions: 2 December 2017Defendant’s written submissions: 7 December 2017
Date of orders:	14 June 2018
Decision date:	14 June 2018
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	1. Verdict for the Defendant; 2. Subject to any application to my Associate within 14 days to relist the matter for any further or other order as to costs the Plaintiff is to pay the Defendant’s costs; 3. Exhibits are to be retained for 28 days.
Catchwords:	TORTS – NEGLIGENCE – workplace injury – liability of host employer – duty of care – duty to take precautions against risk of harm – factual investigation TORTS – DAMAGES – out of pocket expenses – economic loss – non-economic loss – domestic assistance – whether costs incurred were reasonable and necessary – factual investigation – whether plaintiff is malingering or exhibiting somatoform chronic pain disorder
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 97 Civil Liability Act 2002 (NSW) ss 5B(1), 16
Cases Cited:	Chen v Zhang and Ors [2009] NSWCA 202 Sangha v Baxter (2009) 52 MVR 492 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 New South Wales v Fuller-Lyons [2014] NSWCA 424 Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 Fuller-Lyons v New South Wales [2015] HCA 31 Henderson v Queensland [2014] HCA 52 Macks v Viscariello [2017] SASCFC 172 at [601] Jones v Dunkel [1959] HCA 8; (1959)101 CLR 298 Leighton Contractors Pty ltd v Fox; Calliden Insurance Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35 Caruana v Darouti [2014] NSWCA 85 Lee v Wickham Freight Lines Pty Ltd [2016] NSWCA 209 Uniting Church in Australia Property trust (NSW) v Miller (2015) 91 NSWLR 752 Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90; 320 ALR 235 New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Moravatjou v Moradkhami [2013] NSWCCA 157 Kuligowski v Metrobus (2004) 220 CLR 363 at 385 [60] Lamb v Winston (No 1) [1962] QWN 18
Category:	Principal judgment
Parties:	Ali Kadour El-Kheir (Plaintiff) Pinnacle Construction Group Pty Ltd (Defendant)
Representation:	Counsel: Mr H Marshall SC and Mr J Masur for the Plaintiff Mr R Cavanagh SC and Mr D Macfarlane for the Defendant Solicitors: AJB Stevens for the Plaintiff RGSLaw for the Defendant
File Number(s):	2015/322585
Publication restriction:	N/A