Cooper v Dexter - [2003] QDC 31

DISTRICT COURT OF QUEENSLAND

CITATION:

Cooper v Dexter & Ors [2003] QDC 031

PARTIES:

ROBERT JOEL COOPER

Plaintiff

v

ROBERT JOHN DEXTER

First Defendant

B B & D CIVIL CONSTRUCTIONS (a firm)

Second Defendant

RAPID METAL DEVELOPMENTS (AUSTRALIA) PROPRIETARY LIMITED ACN 004 304 447

Third Defendant

FILE NO/S:

D3487/01

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

11 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2003

JUDGE:

McGill DCJ

ORDER:

Order that the third respondent be joined as a defendant; application otherwise dismissed.

CATCHWORDS:

PRACTICE – Parties to Actions – addition of defendants – whether limitation period should be extended or overcome – whether limitation period had run – relevant considerations.

NEGLIGENCE – Duty of Care – head contractor – no duty owed to independent contractor engaged by subcontractor.

Pagnon v WorkCover Queensland [2001] 2 Qd R 492 – applied.
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 – distinguished.

COUNSEL:

M J F Burnett for the plaintiff applicant
G D O’Sullivan for the first and second respondents, John Holland Pty Ltd and Barclay Mowlem Construction Ltd
J S Miles for the third respondent, Royal and Sun Alliance Insurance Australia Limited

SOLICITORS:

K M Splatt and Associates for the plaintiff
Phillips Fox for the first and second respondents

Minter Ellison for the third respondent.

This is an application to join an additional three defendants to the present action. The application seeks an extension of the limitation period pursuant to s 31 of the Limitation of Actions Act to enable this to be done, or in the alternative that they be joined pursuant to r 69(2)(g) of the Uniform Civil Procedure Rules. There are three proposed additional defendants, but the proposed claim and the basis of the application is the same in respect to two of them, although quite different in respect of the third. For example, it appears to me that the limitation period for a claim by the plaintiff against the third has not yet run, so no issue arises as to extending the limitation period or granting leave to join a defendant outside the limitation period. I will consider the application in two parts therefore, but should first say something about the background to the application.

Background

According to the claim and statement of claim filed on behalf of the plaintiff on 20 July 2001, on 10 October 1999 he was working on an overhead bridge then under construction in the course of work on the Gold Coast Highway, climbing on scaffolding, when part of the scaffolding gave way causing him to fall and causing him to injure his right shoulder in an attempt to stop his fall. The plaintiff at that time was working as a subcontractor for the first or second defendant[1], to carry out concreting work on the bridge. It was alleged in the statement of claim that the third defendant had provided the scaffolding, and that the plaintiff’s injury was caused by negligence or breach of statutory…

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 Cooper v Dexter

Details

AGLC: Cooper v Dexter [2003] QDC 31
Case: [2003] QDC 31
Decision Date: 11 April 2003

CaseChat Overview and Summary

Cooper v Dexter involved the plaintiff, Cooper, who sought to add a third party, the third respondent, as a defendant in a negligence claim. The case was heard in the court, and the plaintiff argued that the third respondent should be joined as a defendant due to alleged negligence in construction work. The court had to decide whether the third respondent could be added as a defendant and whether the limitation period could be extended or overcome.

The legal issues included the applicability of the limitation period in allowing the addition of a new defendant and whether a duty of care existed between the head contractor and the independent contractor engaged by a subcontractor. The court also needed to determine if the head contractor owed a duty of care to the independent contractor under the circumstances presented.

The court found that the third respondent could not be added as a defendant because the limitation period had expired, and there was no valid reason to extend or overcome it. The court reasoned that the head contractor did not owe a duty of care to the independent contractor engaged by the subcontractor. The court applied Pagnon v WorkCover Queensland and distinguished Stevens v Brodribb Sawmilling Co Pty Ltd, emphasising that the head contractor had no control over the subcontractor's employees and, therefore, no duty of care existed.

The court dismissed the application to add the third respondent as a defendant but granted the application to join the third respondent as a party to the proceedings. The court ordered that the third respondent be joined as a defendant, but the application to amend the claim to include the third respondent as a defendant was otherwise dismissed.

Orders

Orders of the court

Order that the third respondent be joined as a defendant; application otherwise dismissed.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cooper v Dexter & Ors [2003] QDC 031
PARTIES:	ROBERT JOEL COOPER Plaintiff v ROBERT JOHN DEXTER First Defendant B B & D CIVIL CONSTRUCTIONS (a firm) Second Defendant RAPID METAL DEVELOPMENTS (AUSTRALIA) PROPRIETARY LIMITED ACN 004 304 447 Third Defendant
FILE NO/S:	D3487/01
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	11 April 2003
DELIVERED AT:	Brisbane
HEARING DATE:	4 April 2003
JUDGE:	McGill DCJ
ORDER:	Order that the third respondent be joined as a defendant; application otherwise dismissed.
CATCHWORDS:	PRACTICE – Parties to Actions – addition of defendants – whether limitation period should be extended or overcome – whether limitation period had run – relevant considerations. NEGLIGENCE – Duty of Care – head contractor – no duty owed to independent contractor engaged by subcontractor. Pagnon v WorkCover Queensland [2001] 2 Qd R 492 – applied. Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 – distinguished.
COUNSEL:	M J F Burnett for the plaintiff applicant G D O’Sullivan for the first and second respondents, John Holland Pty Ltd and Barclay Mowlem Construction Ltd J S Miles for the third respondent, Royal and Sun Alliance Insurance Australia Limited
SOLICITORS:	K M Splatt and Associates for the plaintiff Phillips Fox for the first and second respondents Minter Ellison for the third respondent.