ITSKOS v EKKLISIRHIS and ORS [1995] NSWCA 211

ITSKOS v EKKLISIRHIS and ORS [1995] NSWCA 211

The trial judge found, on credibility-based findings, that the second defendant owed the appellant neither the duty of care of an employer nor any independent duty of care. The appellant was found to be a sub-contractor of the first defendant, not an employee of the second defendant. The Court of Appeal held these factual findings could not be examined and, in the absence of employment or relevant control, refused to impose liability on the second defendant.

Parties
Appellant: Chris Itskos; First Defendant/respondent: Mr Ekklisirhis; Second Defendant/respondent: Mr Puglia; Third Defendant/respondent: Doperas Pty Ltd
Jurisdiction
Australia
Judgment Date
29 March 1995
Procedural Posture
Appeal / Judgment
Outcome
appeal dismissed
Legal Topics
Negligence, Duty of Care, Personal Injury, Independent Contractor Vs Employee, Construction Site Safety
Tort Law Employment Law Negligence Duty of Care Personal Injury Independent Contractor Vs Employee Construction Site Safety

Case Brief

Summary, issues, holding and outcome

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Parties

Chris Itskos

Appellant

Mr Ekklisirhis

First Defendant/respondent

Mr Puglia

Second Defendant/respondent

Doperas Pty Ltd

Third Defendant/respondent

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the second defendant owed a duty of care to the plaintiff as his employer or otherwise
  2. 2 Whether the plaintiff was entitled to statutory protection as an employee
  3. 3 Whether a duty in negligence existed independent of employment

Ratio Decidendi

The trial judge found, on credibility-based findings, that the second defendant owed the appellant neither the duty of care of an employer nor any independent duty of care. The appellant was found to be a sub-contractor of the first defendant, not an employee of the second defendant. The Court of Appeal held these factual findings could not be examined and, in the absence of employment or relevant control, refused to impose liability on the second defendant.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs.