HIGH COURT OF AUSTRALIA MURPHY A.C.J. WILSON, BRENNAN, DEANE AND DAWSON JJ. Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17
ORDER Appeal allowed with costs. Order of the Court of Appeal of the Supreme Court of New South Wales set aside. In lieu thereof substitute the following order:
(i) the appeal be allowed in respect of the cause of action for breach of statutory duty;
(ii) the appeal be dismissed in respect of the cause of action in negligence;
(iii) the appellant in the Court of Appeal to pay the costs of the appeal.
Cur. adv. vult.
The following written judgments were delivered:—
1984, April 4 MURPHY A.C.J.
This is an appeal by special leave from a judgment of the New South Wales Court of Appeal which allowed an appeal from an order of Cross J. extending the limitation period for the commencement of proceedings pursuant to s. 58(2) of the Limitation Act 1969N.S.W. ("the Act"). Section 58(1) of the Act provides:
This section applies to a cause of action founded on negligence nuisance or breach of duty, for damages for personal injury Section 58(2) provides: Where, on application to a court by a person claiming to have a cause of action to which this section applies, it appears to the court that—
(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and
(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of the limitation period,
the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of an action on that cause of action brought by the applicant in that court the limitation period is extended accordingly.
Section 57(1) provides:
(b) the material facts relating to a cause of action include the following—
(i) the fact of the occurrence of negligence nuisance or breach of duty on which the cause of action is founded;
(ii) the identity of the person against whom the cause of action lies;
(iii) the fact that the negligence nuisance or breach of duty causes personal injury;
(iv) the nature and extent of the personal injury so caused; and
(v) the extent to which the personal injury is caused by the negligence nuisance or breach of duty;
(c) material facts relating to a cause of action are of a decisive character if, but only if, a reasonable man, knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—
(i) that an action on the cause of action would (apart from the effect of the expiration of a limitation period) have a reasonable prospect of success…
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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AGLC
Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17
Case
[1984] HCA 17
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Appeal of the Supreme Court of New South Wales concerning a dispute between Mr. Do Carmo (the appellant) and Ford Excavations Pty Ltd (the respondent). The precise nature of the dispute is not detailed in the provided text, but it involved causes of action in both negligence and breach of statutory duty.
The central legal issues before the High Court were whether the Court of Appeal had erred in its determination of the appellant's claims, specifically in relation to the causes of action for negligence and breach of statutory duty. The High Court was required to review the findings of the lower courts on these matters.
The High Court allowed the appeal in part, setting aside the order of the Court of Appeal. The Court found in favour of the appellant on the cause of action for breach of statutory duty, but dismissed the appeal in respect of the cause of action in negligence. Consequently, the appellant was ordered to pay the costs of the appeal to the respondent in the Court of Appeal.
Orders
Orders of the court
ORDER
Appeal allowed with costs. Order of the Court of Appeal of the Supreme Court of New South Wales set aside. In lieu thereof substitute the following order:
(i) the appeal be allowed in respect of the cause of action for breach of statutory duty;
(ii) the appeal be dismissed in respect of the cause of action in negligence;
(iii) the appellant in the Court of Appeal to pay the costs of the appeal.