Mikes Kampourakis v DCT (NT) Pty Ltd - [2013] NTSC 76

Mikes Kampourakis v DCT (NT) Pty Ltd. [2013] NTSC 76
PARTIES:Mikes Kampourakis

v
DCT (NT) Pty Ltd

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21035186
DELIVERED:  14 NOVEMBER 2013
HEARING DATES:  26-30 November; 3-4 December 2012; 20-21; 25-28 February 2013; 1, 6 and 7 March 2013
JUDGMENT OF:  BLOKLAND J

CATCHWORDS:
NEGLIGENCE – Duty of Care – Contractor akin to Employee - Injury not
caused by breach of duty on the part of the employer – No failure to provide
or enforce safe system of work.

DAMAGES – Assessment of Quantum – Personal Injuries (Liabilities and Damages) Act – Determination as to whole person impairment – Most current AMA Guides preferred – Reliance on previous Guides does not invalidate assessment – 6% whole person impairment appropriate in the circumstances – contributory negligence included in assessment – Personal Injuries (Liabilities and Damages) Act s 18.
Martin v Moore [1999] NTSC 34; McLean v Tedman (1984) 155 CLR 306, cited

Leighton Contractors v Fox (2009) 240 CLR; Martin v Moore [1999] NTSC 34; Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215:3.9; Words and Phrases Legally Defined (Fourth Edition), referred

REPRESENTATION:
Counsel:
Plaintiff:Mr O’Loughlin
Defendant:Mr Clift
Solicitors:
Plaintiff:Priestleys Lawyers
Defendant:MSP Legal
Judgment category classification:    C
Judgment ID Number:  BLO 1318
Number of pages:  52

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Mikes Kampourakis v DCT (NT) Pty Ltd [2013] NTSC 76

No. 21035186
BETWEEN:

Mikes Kampourakis

Plaintiff

AND:

DCT (NT) Pty Ltd

Defendant

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 14 November 2013)
Introduction

This is an action in negligence brought by Mr Mikes Kampourakis (the plaintiff), against DCT (NT) Pty Ltd (the defendant). The material facts forming the basis of the claim are alleged to have taken place on 11 July 2009 when the plaintiff was working as a labourer for the defendant.[1]
It is common ground that the plaintiff had previously notified the defendant of his ABN number, hence at the material time, the plaintiff was not by definition a “worker” under the Workers Rehabilitation and Compensation Act (NT), in the terms of the Act at that time. He may be regarded akin to an employee for the purposes of these proceedings.[2]
The plaintiff alleges that as a result of the defendant’s negligence in failing to establish, maintain and enforce a safe system of work, he has suffered injuries and loss. The plaintiff alleges that on 11 July 2009 he lifted approximately 20 concrete slew valve caps, and placed them over stabilised sand to complete a job on a work site managed by the defendant. The site was in the vicinity of Mel Road and Willes Road, Berrimah. It is claimed that the action of lifting and manoeuvring the slew valve caps caused his injuries. The injuries alleged are: aggravation of pre-existing degenerative changes in the lower lumbar region; back pain; sciatica; leg pain and psychiatric injury. As a result…

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: [2013] NTSC 76
Decision Date: 14 NOVEMBER 2013

CaseChat Overview and Summary

The case of Mikes Kampourakis v DCT (NT) Pty Ltd involved a claim by the plaintiff, Mikes Kampourakis, against the defendant, DCT (NT) Pty Ltd, for damages arising from an alleged injury sustained at work. The plaintiff claimed that he was injured on 11 July 2009 while working for the defendant, who was engaged in installing stormwater drains, pits, and sewers at various sites. The plaintiff alleged that he was unable to access machinery on the site and had to rely on another employee to obtain the keys, which led to the injury. The defendant denied liability and argued that the plaintiff's claim should be dismissed due to the lack of evidence supporting the alleged mechanism of injury.

The primary legal issues in the case were whether the defendant breached its duty of care to the plaintiff and whether the plaintiff's injuries were caused by such a breach. Additionally, the court had to assess the quantum of damages, including determining the extent of the plaintiff's whole person impairment and considering contributory negligence. The court had to decide if the reliance on previous AMA Guides for the assessment of whole person impairment invalidated the assessment and if the 6% whole person impairment was appropriate in the circumstances.

The court found that the surveillance footage and other factors cast doubt on the plaintiff's credibility and the extent of his injuries. The court held that the defendant did not breach its duty of care as there was no failure to provide or enforce a safe system of work. The court concluded that the injury was not caused by the defendant's breach of duty. Regarding the assessment of damages, the court found that reliance on previous AMA Guides did not invalidate the assessment, and a 6% whole person impairment was appropriate. The court also considered the plaintiff's contributory negligence in the assessment of damages.

The court ordered that the plaintiff's claim be dismissed, and no damages be awarded. The court also noted that the plaintiff's contributory negligence was included in the assessment of damages under the Personal Injuries (Liabilities and Damages) Act s 18.

Orders

Orders of the court

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Background

Background to the litigation

Although it is not in any way the sole reason for dismissing the plaintiff’s claim, in this particular case, the surveillance images taken of the plaintiff on behalf of the defendant and tendered in evidence, lead to the conclusion that the extent of any injury suffered by the plaintiff and the extent of any incapacity has been exaggerated by him. The surveillance footage was extensive. The mechanism causing injury as described by the plaintiff, in my opinion is improbable. This, and other factors summarised below inform to some degree, my view of the plaintiff’s overall credibility and reliability. This in turn has led me to the conclusion that the plaintiff’s claim cannot stand. The Plaintiff’s Background The plaintiff gave evidence with the assistance of an interpreter. This assisted the smooth running of the trial and therefore the administration of justice. It is clear the plaintiff’s English is not of a standard that would enable him to give evidence without being at a significant disadvantage. The plaintiff’s daughter informed the Court that the plaintiff’s level of not only English, but also of the Greek language is not advanced.[3] His formal education level is low. He is illiterate, in both English and Greek. Where possible, I have made allowance for these factors when assessing his evidence. The plaintiff moved from Greece to Australia in 1997 and stayed until 2000 to 2001, living in Sydney. He then returned to Greece. He returned to Australia in 2006, working in Sydney until he moved to Darwin in January 2007. After the alleged injury occurred in 2009, he travelled to Greece again, returning to Australia seven months later. He lived in Darwin for a short period and then moved to Sydney in January 2012. The Alleged Mechanism Causing Injury on 11 July 2009 The plaintiff says that he was recruited by his first cousin Nicholas Kambourakis, to work for the defendant company. Nicholas Kambourakis is a director of the defendant company. The plaintiff states he was recruited because Nicholas Kambourakis knew of his capabilities as a labourer. I can readily find the plaintiff is an experienced labourer, given his previous experience labouring in Sydney and with the defendant. Since the alleged incident, he has also worked repairing a boat in Greece. Much of his earlier employment history is as a fisherman. Nicholas Kambourakis employed the plaintiff to install stormwater drains, pits and sewers at various sites where the defendant had development contracts. The plaintiff started working for the defendant in July 2007 and worked exclusively for the defendant company. The plaintiff worked on the Willes Road subdivision for the defendant from 2008 until 2009. During this time he returned to Greece for three and a half to four months. Upon his return he recommenced working at the same subdivision. The plaintiff says that on Saturday 11 July 2009 he and Michael Billis were working together at the Berrimah (Willes Road) site. He tells the Court that on Saturdays he would normally work until 1:00pm. It seems he was content to finish work at 5:30pm that day, whereas, he says, Michael Billis did not want to work that late.[4] He explained that on that day, the developer had a lot of machinery on site; grinders, rollers and excavators. There was also a backhoe on site, owned by the developer; but on the plaintiff’s case, no machine was able to be accessed that day to assist with fitting the slew valve caps.[5] The plaintiff said Michael Billis went looking for keys to access the equipment; the plaintiff believed Michael Billis called Nicholas Kambourakis in order to facilitate access of the equipment. It may also be noted here that Nicholas Kambourakis confirmed Michael Billis’s evidence to the effect that he always had access to the developer’s machinery and still retained the keys at the time of the hearing of this matter. There was no other evidence supporting the plaintiff’s assertion that the relevant machinery was inaccessible on 11 July 2009.

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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