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

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

The plaintiff failed to establish, on the balance of probabilities, that his injury resulted from any act or omission of the defendant, or that the risk which materialized was foreseeable and not insignificant so as to give rise to a duty to take precautions under Civil Liability Act 2002 (NSW) s 5B(1). The evidential foundation to link the repositioning of the starter bar to the defendant or its failure was insufficient. The plaintiff’s case was also undermined by findings on credibility, evidence of malingering, and unreliable claims regarding losses and injuries. Accordingly, no breach of duty by the defendant was established and the plaintiff’s claim fails.

Parties
Plaintiff: Ali Kadour El-Kheir; Defendant: Pinnacle Construction Group Pty Ltd
Jurisdiction
Australia
Judgment Date
14 June 2018
Procedural Posture
Civil / Verdict After Trial
Outcome
Claim dismissed (Verdict for the Defendant)
Legal Topics
Workplace Injury, Duty of Care, Liability of Host Employer, Out of Pocket Expenses, Economic Loss, Non Economic Loss, Domestic Assistance, Evidential Reliability
Torts Negligence Workplace Injury Duty of Care Liability of Host Employer Out of Pocket Expenses Economic Loss Non Economic Loss +2 more

Case Brief

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Parties

Ali Kadour El-Kheir

Plaintiff

Pinnacle Construction Group Pty Ltd

Defendant

Procedural Posture

Civil / Verdict After Trial

Legal Issues

  1. 1 Whether the defendant owed and breached a duty of care to the plaintiff as a host employer at a construction site
  2. 2 Whether the defendant's conduct caused or contributed to the plaintiff’s injury
  3. 3 Whether damages claimed for economic and non-economic loss were reasonable and necessary

Ratio Decidendi

The plaintiff failed to establish, on the balance of probabilities, that his injury resulted from any act or omission of the defendant, or that the risk which materialized was foreseeable and not insignificant so as to give rise to a duty to take precautions under Civil Liability Act 2002 (NSW) s 5B(1). The evidential foundation to link the repositioning of the starter bar to the defendant or its failure was insufficient. The plaintiff’s case was also undermined by findings on credibility, evidence of malingering, and unreliable claims regarding losses and injuries. Accordingly, no breach of duty by the defendant was established and the plaintiff’s claim fails.

Court Disposition

Claim dismissed (Verdict for the Defendant)

Orders

  • Verdict for the Defendant
  • Plaintiff to pay the Defendant's costs, subject to any application made within 14 days for any further or other order as to costs