Anderson v Gofish Pty Ltd - [2017] QSC 30

SUPREME COURT OF QUEENSLAND

CITATION:

Anderson v Gofish Pty Ltd & Ors [2017] QSC 30

PARTIES:

NEVILLE SCOTT ANDERSEN

(plaintiff)

v
GOFISH PTY LTD ACN 071 663 011

(first defendant)
CIVIL MINING AND CONSTRUCTION PTY LTD ACN 102 557 175
(second defendant)
DOWNER EDI WORKS PTY LTD ACN 008 709 608
(third defendant)
PROBUILD CIVIL PTY LTD ACN 010 870 587
(fourth defendant)
EMBERWELL PTY LTD ACN 010 448 530
(fifth defendant/third party)
VSL AUSTRALIA PTY LTD ACN 000 528 914
(sixth defendant/second third party)
DEPLIN PTY LTD ACN 010 392 908
(seventh defendant)
AAI LIMITED ACN 005 297 807
(eighth defendant)
TES QLD PTY LTD ACN 136 425 682
(third third party/respondent)

FILE NO/S:

No BS6128 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for extension of time

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

23 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2017

JUDGE:

Boddice J

ORDER:

Orders as per draft, initialled by me and placed with the papers

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the plaintiff suffered catastrophic injuries requiring limb amputation when a concrete parapet fell on him at a worksite during it’s unloading - where the plaintiff became aware of contractual obligations between relevant parties out of time – where the plaintiff applies to extend the limitation period - whether new information constitutes a material fact of a decisive character – whether extension of time should be granted

Limitation of Actions Act 1974 (Qld) s 31
Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)

Dick v University of Queensland (2000) 2 Qd R 476; [1999] QCA 474, applied
Honour v Faminco Mining Services Pty Ltd [2009] QCA 352, cited
NF v State of Queensland [2005] QCA 110, cited
Moriarty v Sunbeam Corporation Limited (1988) 2 Qd R 325; [1988] FC 024, cited

COUNSEL:

M K Conrick for the applicant

M O’Sullivan for the respondent

SOLICITORS:

DM Wright and Associates for the applicant

Lander and Rogers for the respondent

On 21 June 2016, the plaintiff commenced this proceeding against the first to eighth defendants claiming damages for personal injuries sustained by him on 7 December 2011 when he was struck by a precast concrete bridge parapet weighing approximately 3.3 tons. The parapet had dislodged from a semitrailer during an unloading process involving a mobile crane at a construction site near Cooroy in the State of Queensland.
Each defendant has filed Notices of Intention to Defend and Defences and Notices Claiming Contribution. The second, third and fourth defendants also issued a Third Party Notice against the fifth and sixth defendants and a further entity, Trades Employment Services Pty Ltd (TES) on 8 August 2016.
By application, filed 23 December 2016, the plaintiff sought an order, pursuant to s 31 of the Limitations of Actions Act 1974 (Qld) (“the Act”), for the…

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 Anderson v Gofish Pty Ltd

Details

AGLC: Anderson v Gofish Pty Ltd [2017] QSC 30
Case: [2017] QSC 30
Decision Date: 23 February 2017

CaseChat Overview and Summary

The case of Anderson v Gofish Pty Ltd involved the plaintiff, a heavy transport driver, who suffered catastrophic injuries resulting in the amputation of both his right arm and leg when a concrete parapet fell on him at a construction worksite. The plaintiff sought an extension of the limitation period to institute proceedings against the defendant, TES, which was engaged by the joint venture responsible for the site to supply skilled labour, including site supervisors. The limitation period for the commencement of proceedings had expired by the time the plaintiff filed the application on 23 December 2016. The plaintiff argued that he was unaware of critical contractual obligations between the relevant parties, which only came to light after the limitation period had lapsed, and thus, he should be granted an extension of time.

The court was required to determine whether the new information, which constituted a material fact of decisive character, justified an extension of the limitation period under s 31 of the Limitations of Actions Act 1974 (Qld). The court also needed to decide if the plaintiff had a reasonable excuse for failing to comply with the statutory requirements of the Personal Injuries Proceedings Act 2002 (Qld).

In granting the plaintiff's application for an extension of time, the court found that the plaintiff had satisfied all the necessary requirements under s 31 of the Limitations of Actions Act 1974 (Qld). The court accepted that the plaintiff's lack of knowledge about the critical contractual obligations provided a satisfactory explanation for his failure to comply with the statutory requirements of the Personal Injuries Proceedings Act 2002 (Qld). The court acknowledged that the plaintiff had acted diligently in pursuing the necessary pre-proceeding steps and that his application for an extension was made promptly once he became aware of the relevant information. Consequently, the limitation period for bringing proceedings against TES was extended to 27 February 2017.

Orders

Orders of the court

Orders as per draft, initialled by me and placed with the papers

Background

Background to the litigation

By application, filed 23 December 2016, the plaintiff sought an order, pursuant to s 31 of the Limitations of Actions Act 1974 (Qld) (“the Act”), for the time to institute proceedings for damages for the personal injuries suffered by him on 7 December 2011 against TES to be extended to 26 February 2017. The application sought further ancillary relief under the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) and the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”). TES opposes an extension of time. Background The plaintiff is a single man born on 9 July 1960. His regular occupation is that of heavy transport driver. As a consequence of the incident, the plaintiff sustained an amputation of his right dominant arm above the elbow and of his right leg through the hip. The plaintiff alleges he has suffered significant loss, including a loss of his earning capacity in the future. The limitation period for the commencement of proceedings by the plaintiff in respect of the incident in which he suffered personal injuries expired on 7 December 2014. No proceedings were commenced prior to that date having regard to the legislative requirements for the undertaking of pre-proceeding procedures prior to the commencement of formal proceedings. Parties At the time of the incident, the plaintiff was employed as a heavy transport driver by the first defendant. It operated as a labour hire company, hiring the plaintiff’s services to the seventh defendant. The second, third and fourth defendants are members of a joint venture (“Synergy JV”) carrying out contract work in relation to a realignment of a section of the Bruce Highway near Cooroy in the State of Queensland. The joint venture was in occupation of the construction site at which the plaintiff sustained his severe personal injuries on 7 December 2011. The fifth defendant was the operator of the mobile crane on the day in question. Synergy JV had contracted with the fifth defendant to provide mobile crane services to the site, including for the unloading of parapets from transport vehicles. The sixth defendant was contracted by Synergy JV to manufacture and deliver to the site the concrete bridge parapets. The sixth defendant engaged the seventh defendant to deliver the parapets to the site. The eighth defendant is the compulsory third party insurer of the mobile crane and of the prime mover and trailer involved in the incident when the parapet dislodged striking the plaintiff. TES was an entity engaged by Synergy JV to supply skilled labour to the construction site. That skilled labour included supervisors of the site, including supervision of the unloading of materials. At the time of the incident, a supervisor provided by TES, Paul Pulkkimen, was supervising the unloading of the parapets from the delivery vehicle. Pre-proceeding Prior to the institution of this proceeding, numerous steps had been undertaken by the plaintiff, pursuant to the Motor Accident Insurance Act, the Workers Compensation and Rehabilitation Act and PIPA.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A consideration of the circumstances also provides satisfactory explanations for the failure to comply with the statutory requirements of PIPA. Conclusions The plaintiff has established all of the requirements necessary for an extension of time pursuant to s 31 of the Limitation of Actions Act 1974 (Qld). The limitation period for the bringing of proceedings against TES should be extended to 27 February 2017. The plaintiff has also shown reasonable excuse for the failure to comply with the statutory requirements of PIPA. Orders For the abovementioned reasons, on 23 February 2017 I granted the plaintiff’s application. I made orders in terms of the draft, initialled by me and placed with the papers.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Anderson v Gofish Pty Ltd & Ors [2017] QSC 30
PARTIES:	NEVILLE SCOTT ANDERSEN (plaintiff) v GOFISH PTY LTD ACN 071 663 011 (first defendant) CIVIL MINING AND CONSTRUCTION PTY LTD ACN 102 557 175 (second defendant) DOWNER EDI WORKS PTY LTD ACN 008 709 608 (third defendant) PROBUILD CIVIL PTY LTD ACN 010 870 587 (fourth defendant) EMBERWELL PTY LTD ACN 010 448 530 (fifth defendant/third party) VSL AUSTRALIA PTY LTD ACN 000 528 914 (sixth defendant/second third party) DEPLIN PTY LTD ACN 010 392 908 (seventh defendant) AAI LIMITED ACN 005 297 807 (eighth defendant) TES QLD PTY LTD ACN 136 425 682 (third third party/respondent)
FILE NO/S:	No BS6128 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application for extension of time
ORIGINATING COURT:	Supreme Court of Queensland at Brisbane
DELIVERED ON:	23 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2017
JUDGE:	Boddice J
ORDER:	Orders as per draft, initialled by me and placed with the papers
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the plaintiff suffered catastrophic injuries requiring limb amputation when a concrete parapet fell on him at a worksite during it’s unloading - where the plaintiff became aware of contractual obligations between relevant parties out of time – where the plaintiff applies to extend the limitation period - whether new information constitutes a material fact of a decisive character – whether extension of time should be granted Limitation of Actions Act 1974 (Qld) s 31 Personal Injuries Proceedings Act 2002 (Qld) Uniform Civil Procedure Rules 1999 (Qld) Dick v University of Queensland (2000) 2 Qd R 476; [1999] QCA 474, applied Honour v Faminco Mining Services Pty Ltd [2009] QCA 352, cited NF v State of Queensland [2005] QCA 110, cited Moriarty v Sunbeam Corporation Limited (1988) 2 Qd R 325; [1988] FC 024, cited
COUNSEL:	M K Conrick for the applicant M O’Sullivan for the respondent
SOLICITORS:	DM Wright and Associates for the applicant Lander and Rogers for the respondent