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Massouras v Kone Elevators Pty Ltd

Massouras v Kone Elevators Pty Ltd

Case [2020] ACTSC 66 3 April 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Massouras v Kone Elevators Ptd Ltd Pattinson v Kone Elevators Ptd Ltd Shipton v Kone Elevators Ptd Ltd Soesman v Kone Elevators Ptd Ltd
Citation:	[2020] ACTSC 66
Hearing Dates:	23, 29-30 April 2019; 1-9 May 2019; 16-24 September 2019; 5-6 November 2019
DecisionDate:	3 April 2020
Before:	Burns J
Decision:	See [227]-[232]
Catchwords:	CIVIL LAW – NEGLIGENCE – Personal injury – plaintiffs injured when lift malfunctioned – first defendant was engaged by the building manager to conduct maintenance and services to the lift – whether or not the malfunction was occasioned by any negligence on the part of first defendant – if so, whether the injuries alleged to have been suffered by the plaintiffs were caused or materially contributed to by the incident – whether one of the plaintiff’s claim was statute barred – consideration of the medical evidence – assessment of damages
Legislation Cited:	Civil Law (Wrongs) Act 2002 (ACT), ss 42, 43 Court Procedures Rules 2006 (ACT), r 215 Evidence Act 2011 (ACT) s 69, Dictionary Limitation Act 1985 (ACT) ss 16A, 16B, Dictionary Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 68, 69, 70, 72 Workers Compensation Act 1951 (ACT), s 4, Dictionary
Cases Cited:	Averkin v Insurance Australia Ltd [2016] NSWCA 122; 92 NSWLR 68 Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 Leichardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22 Lewis v Nortex Pty Ltd (in Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34. Vitali v Stachnik [2001] NSWSC 303 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Parties:	Kellie Maree Massouras (Plaintiff) Jane Angela Pattinson (Plaintiff) Alison Shipton (Plaintiff) Jessica Soesman (Plaintiff) Kone Elevators Pty Ltd (1st Defendant) The Trust Company Limited (2nd Defendant) Cromwell Corporation Limited (3rd Defendant) Cromwell BT Pty Ltd (4th Defendant) Cromwell Property Securities Limited (5th Defendant) Cromwell Property Services Pty Ltd (6th Defendant) Cromwell Funds Management Limited (7th Defendant) Cromwell Project & Technical Solutions Pty Ltd (8th Defendant) Cromwell Property Group (9th Defendant) Cromwell Property Fund (10th Defendant) Cromwell Diversified Property Trust (11th Defendant)
Representation:	Counsel A Bartley SC with F Tuscano (Plaintiff) P Menzies QC with B K Nolan (23, 29-30 April 2019; 1-9 May 2019); B K Nolan (16-24 September 2019; 5-6 November 2019) (1st Defendant) N Polin SC (2nd-11th Defendants)
Solicitors Ken Cush and Associates (Plaintiff) Moray & Agnew (1st Defendant) McCabe Curwood (2nd-11th Defendants)
File Numbers:	SC 399 of 2016; SC…

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.

Continue reading Massouras v Kone Elevators Pty Ltd

Details

AGLC: Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66
Case: [2020] ACTSC 66
Decision Date: 3 April 2020

CaseChat Overview and Summary

In Massouras v Kone Elevators Pty Ltd, the plaintiffs were injured when a lift they were in malfunctioned and suddenly dropped. The first defendant, Kone Elevators Pty Ltd, was engaged by the building manager to conduct maintenance and services to the lift. The plaintiffs sought compensation for their injuries, alleging that the malfunction was caused by the defendant's negligence. The case raised issues including whether the malfunction was occasioned by any negligence on the part of the defendant, and if so, whether the injuries alleged to have been suffered by the plaintiffs were caused or materially contributed to by the incident. Additionally, the court considered whether one of the plaintiff's claims was statute barred and assessed the damages.

The court held that the malfunction was caused by the defendant's negligence, as the lift had not been properly maintained. The plaintiffs' injuries were directly caused by the malfunction, and the defendant's negligence was a significant contributing factor. The court also found that the plaintiff's claim was not statute barred. In assessing the damages, the court took into account the medical evidence provided by the plaintiffs and determined the appropriate compensation for their injuries.

The court ordered that the defendant was liable for the plaintiffs' injuries and awarded damages accordingly. The specific details of the orders, including the amount of compensation awarded, can be found in the judgement from [227] to [232]. The court emphasised the importance of proper maintenance and adherence to safety standards to prevent such incidents in the future.

Orders

Orders of the court

See [227]-[232]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66

Most Recent Citation

Ryrie v Tanner (No 2) [2020] ACTSC 104

Cases citing this decision · 6 of 6 shown

Maher v Russell
[2022] ACTSC 297 Para 1

…The third case was Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66 ( Massouras ). In that case a woman in her early forties was injured due to a lift malfunction. She suffered neck and shoulder pain and headaches for six weeks after the accident, and roughly four years later learned that she had a disc protrusi…
Kone Elevators Pty Ltd v Shipton
[2021] ACTCA 33 Para 1

…In single reasons for judgment delivered on 3 April 2020, Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66 (primary judgment), the primary judge found that the plaintiff in each proceeding was injured as a result of the stopping of the lift on two occasions during its descent, that Kone was vicariously liable in…
Poole v Zagar
[2021] ACTSC 140

…69 CLR 638 Mallett v McMonagle [1970] AC 166 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 Massouras v Kone Elevators [2020] ACTSC 66 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Petrovic v VWA [2018] VSCA 243 Pulling v Yarra Ranges Shire Council [2018] VSC 24…
Massouras v Kone Elevators Ptd Ltd (No 2); Pattinson v Kone Elevators Ptd Ltd (No 2); Shipton v Kone Elevators Ptd Ltd (No 2); Soesman v Kone Elevators Ptd Ltd (No 2)
[2020] ACTSC 181 Para 1

…aintiffs against the first defendant (Kone). At the same time, I entered judgment for the remaining defendants (Cromwell) against the plaintiffs: see [2020] ACTSC 66 (the primary judgment). A number of issues remain to be resolved including:…
Shipton v Kone Elevators Pty Ltd
[2020] ACTSC 129 Para 1

…On 3 April 2020, I ordered that judgment be entered for Mrs Shipton against the first defendant (Kone): [2020] ACTSC 66. Mrs Shipton was awarded damages in the sum of $2,140,246.48. It was subsequently brought to my attention that I had neglected to address Mrs Shipton’s claim for future out of pocket expenses. Th…
Ryrie v Tanner (No 2)
[2020] ACTSC 104 Para 1

…In Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66, a 42 or 43 year old plaintiff (Mrs Pattinson) was injured when a lift malfunctioned. For about six weeks after the incident, she experienced neck pain, shoulder pain and headaches. Thereafter, she experienced intermittent neck pain. Four years after the accide…

View all 6 citing cases →

Cases cited in this decision · 11 of 11 shown

Averkin v Insurance Australia Ltd
[2016] NSWCA 122

…Averkin v Insurance Australia Ltd [2016] NSWCA 122; 92 NSWLR 68 Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286 Leichardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22 Lewis v Nortex Pty Ltd (in Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 Minister for Immigration and Eth…
Sydney Water Corporation v Turano
[2009] HCA 42 Para 1

…sustained by the plaintiff is an essential condition of a legal obligation to take care for the benefit of another: Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 ( Turano ). So much may be accepted. The principle is not in doubt. What is in question is whether the evidence establishes foreseeabilit…
Thomas v State of New South Wales
[2008] NSWCA 316

…of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34. Vitali v Stachnik [2001] NSWSC 303 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310…
Roads and Traffic Authority of NSW v Dederer
[2007] HCA 42 Para 1

…son would take precautions to avoid the risk, it is necessary to identify the relevant risk: Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [59]. In written submissions, counsel for the plaintiffs identified the relevant risk as “the risk of a loose wire intermittently goi…
Leichhardt Municipal Council v Montgomery
[2007] HCA 6 Para 1

…persons in the position of the plaintiffs, at least in relation to the creation of a risk of injury, citing Leichardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22. Kone submitted that the ambit of that duty was to exercise reasonably care in the performance of its work under the contract with the Tr…
Lewis v Nortex Pty Ltd (in liq)
[2002] NSWSC 1083

…HCA 45; 200 CLR 286 Leichardt Municipal Council v Montgomery [2007] HCA 6; 230 CLR 22 Lewis v Nortex Pty Ltd (in Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61;…
Vitali v Stachnik
[2001] NSWSC 303

…LR 330 Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 Thomas v State of New South Wales [2008] NSWCA 316; 74 NSWLR 34. Vitali v Stachnik [2001] NSWSC 303 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310…
Modbury Triangle Shopping Centre Pty Ltd v Anzil
[2000] HCA 61 Para 1

…Kone submitted that foresight of harm is not sufficient to show that a duty of care exists: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254. It submitted that reasonable foreseeability of the class of injury sustained by the plaintiff is an essential condition of a legal obligation to…
Kennedy Cleaning Services Pty Ltd v Petkoska
[2000] HCA 45 Para 1

…at it cannot be classified as an injury for the purposes of the Workers Compensation Act. In Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286, Gleeson CJ and Kirby J, after referring to the decision in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 ( Zickar ), said, at [36], “t…
Zickar v MGH Plastic Industries Pty Ltd
[1996] HCA 31 Para 1

…v Petkoska [2000] HCA 45; 200 CLR 286, Gleeson CJ and Kirby J, after referring to the decision in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 ( Zickar ), said, at [36], “the mere fact that a sudden physiological change is in some way connected with an underlying “disease” process does not, of itself, p…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6

…CLR 22 Lewis v Nortex Pty Ltd (in Liq); Lamru Pty Ltd v Kation Pty Ltd [2002] NSWSC 1083 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 Roads and Traffic Authority of New South Wales v Dederer [2007] HC…

Legislation cited in this decision · 7

Safety, Rehabilitation and Compensation Act 1988 (Cth)
14, 68, 69, 70, 72 5 mentions
Civil Law (Wrongs) Act 2002 (ACT)
42, 43 3 mentions (from Para 1)
Limitation Act 1985 (ACT)
16A, 16B 3 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
215 2 mentions (from Para 1)
Workers Compensation Act 1951 (ACT)
4 2 mentions (from Para 1)
Evidence Act 2011 (ACT)
69 1 mention
Safety, Rehabilitation and Compensation Act 1998 (Cth)
1 mention (from Para 1)