ITSKOS v EKKLISIRHIS and ORS [1995] NSWCA 211

ITSKOS v EKKLISIRHIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and POWELL JJA 1 March 1995, 29 March 1995.

[1995] NSWCA 211

EMPLOYEE/EMPLOYER — NEGLIGENCE FACTS: The appellant suffered personal injuries whilst working on a demolition site as a sub-contractor of the first defendant. At first instance the appellant alleged negligence on the part of three defendants. The second defendant, Mr Puglia, was engaged by the third defendant, Doperas Pty Ltd, to supervise the building works on the site. The third defendant was the owner of the demolition site. Although the first defendant and the third defendant were both respondents to the appeal, no case was mounted against either of them.

HELD:

(1) The trial judge having determined, upon the basis of certain findings of witness credibility, that the second respondent owed the appellant neither the duty of care which an employer owes and employee, nor any duty of care independent of employment, the trial judge's findings should not be examined.

(2) A worker injured on a construction site may be able to claim in negligence notwithstanding that the injured worker is not an employee of that person.

Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16,

Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301,

Bus v Sydney County Council (1989) 167 CLR 78, considered.

CASES CITED Stevens v Brodribb Sawmilling Co Pty Ltd (1985-86) 160 CLR 16 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bus v Sydney County Council (1989) 167 CLR 78

Mahoney JA The facts are outlined in the judgment of Meagher JA and I shall not repeat them.

The appeal proceeded only against the second respondent. Mr Maxwell, in his argument for the appellant-plaintiff, argued three substantial points: that the plaintiff was the employee of the second defendant; that the plaintiff could claim the benefit of the relevant statutory provisions; and that the second defendant was liable to the plaintiff upon (as it was described) the "proximity" basis.