Carter v Queensland Formwork Contractors Pty Ltd - [2010] QSC 315

SUPREME COURT OF QUEENSLAND

CITATION:

Carter v Queensland Formwork Contractors Pty Ltd [2010] QSC 315

PARTIES:

BRIAN JAMES CARTER
(applicant)

v
QUEENSLAND FORMWORK CONTRACTORS PTY LTD

ACN 086144238
(respondent)

FILE NO:

S 15 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Bundaberg Supreme Court

DELIVERED ON:

30 August 2010

DELIVERED AT:

Rockhampton

HEARING DATE:

19 August 2010

JUDGE:

McMeekin J

ORDERS:

1. The applications are dismissed.
2. Counsel will be heard as to costs.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where applicant suffered injury to his back in two separate incidents in November and December 2002 during the course of his employment with the respondent – where Notice of Claims were lodged under WorkCover Queensland Act 1996 within time in respect to both incidents – where the claim for the December incident was accepted but the claim for the November incident was rejected – whether an extension of the limitation period to commence an action should be granted in respect of the November incident

Limitation of Actions Act 1974 (Qld), s 30, s 31
WorkCover Queensland Act 1996, s 250, s 253, s 273, s 273A, s 280A, s 305

Castillon v P&O Ports Ltd [2008] 2 Qd R 219; [2007] QCA 364
Gillespie v Swift Australia Pty Ltd [2009] QCA 316
Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112
Greenhalgh v Bacas Training Limited and Ors [2007] QCA 327
Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262
Mason v Toowoomba City Council [2005] 1 Qd R 600; [2005] QCA 46
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431

COUNSEL:

J. Webb for the applicant
G. Crow for the respondent

SOLICITORS:

Suthers Lawyers for the applicant
Gadens Lawyers for the respondent

McMeekin J: The applicant is Brian James Carter. He has two applications now before the Court in respect of an injury he says he sustained in the course of his employment with the respondent, Queensland Formwork Contractors, in November 2002 when he took the weight of an unexpectedly heavy scaffold frame. He applies:

(a) pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (“the Act”) to extend the limitation period applicable to that injury;

(b) pursuant to s 305 of the WorkCover Queensland Act 1996 (WCQA) for leave to commence proceedings in respect of that injury despite noncompliance with the requirements of the WCQA.

The respondent opposes the applications. Two grounds were argued – first that the proposed extension application is futile as Mr Carter is prohibited by statute from bringing proceedings in respect of the injury of November 2002 even if the limitation period was extended. Secondly, that all material facts of a decisive character were within Mr Carter’s means of knowledge years…

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: [2010] QSC 315
Decision Date: 30 August 2010

CaseChat Overview and Summary

In the matter of Carter v Queensland Formwork Contractors Pty Ltd, the primary issue before the court was whether the applicant was entitled to an extension of the limitation period to bring an action in respect of a personal injury claim against the respondent, the employer. The applicant, who was employed by the respondent, suffered a back injury in two separate incidents in November and December 2002. Notices of Claim were lodged within the prescribed time limit under the WorkCover Queensland Act 1996 for both incidents. The claim in relation to the December incident was accepted, while the claim for the November incident was rejected. The applicant sought an extension of the limitation period to commence an action in respect of the November incident, arguing that it was not until the claim for the December incident was accepted that they became aware of the material facts of decisive character relating to the November incident.

The court was tasked with determining whether the applicant's knowledge of the material facts of decisive character was sufficient to extend the limitation period. The court examined the relevant statutory provisions and case law to ascertain the criteria that needed to be met for an extension to be granted. The applicant contended that it was not until the claim for the December incident was accepted that they became aware of the true nature and extent of their injury, which was caused by the cumulative effect of both incidents. The court considered the applicant's argument, but ultimately found that the applicant had sufficient knowledge of the material facts of decisive character at the time the limitation period expired, and therefore, the application for an extension of the limitation period was dismissed.

The court further found that the applicant had not demonstrated any special circumstances that would warrant an extension of the limitation period. The court noted that the applicant had failed to provide a satisfactory explanation for the delay in bringing the action, and that the applicant had not demonstrated any significant prejudice that would result from the expiry of the limitation period. Accordingly, the court dismissed the application for an extension of the limitation period. The court also noted that counsel would be heard as to costs.

Orders

Orders of the court

1. The applications are dismissed.

2. Counsel will be heard as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Carter v Queensland Formwork Contractors Pty Ltd [2010] QSC 315
PARTIES:	BRIAN JAMES CARTER (applicant) v QUEENSLAND FORMWORK CONTRACTORS PTY LTD ACN 086144238 (respondent)
FILE NO:	S 15 of 2006
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Bundaberg Supreme Court
DELIVERED ON:	30 August 2010
DELIVERED AT:	Rockhampton
HEARING DATE:	19 August 2010
JUDGE:	McMeekin J
ORDERS:	1. The applications are dismissed. 2. Counsel will be heard as to costs.
CATCHWORDS:	LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – where applicant suffered injury to his back in two separate incidents in November and December 2002 during the course of his employment with the respondent – where Notice of Claims were lodged under WorkCover Queensland Act 1996 within time in respect to both incidents – where the claim for the December incident was accepted but the claim for the November incident was rejected – whether an extension of the limitation period to commence an action should be granted in respect of the November incident Limitation of Actions Act 1974 (Qld), s 30, s 31 WorkCover Queensland Act 1996, s 250, s 253, s 273, s 273A, s 280A, s 305 Castillon v P&O Ports Ltd [2008] 2 Qd R 219; [2007] QCA 364 Gillespie v Swift Australia Pty Ltd [2009] QCA 316 Glenn Alexander Pikrt v Hagemeyer Brands Australia Pty Ltd [2006] QCA 112 Greenhalgh v Bacas Training Limited and Ors [2007] QCA 327 Kambarbakis v G & L Scaffold Contracting Pty Ltd [2008] QCA 262 Mason v Toowoomba City Council [2005] 1 Qd R 600; [2005] QCA 46 Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325 NF v State of Queensland [2005] QCA 110 Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431
COUNSEL:	J. Webb for the applicant G. Crow for the respondent
SOLICITORS:	Suthers Lawyers for the applicant Gadens Lawyers for the respondent