SUPREME COURT OF QUEENSLAND
CITATION:
Fitzgerald v Hill & Ors [2008] QCA 283
PARTIES:
SEAN FITZGERALD
(plaintiff/first respondent)
v
GLEN MICHAEL HILL
(first defendant/second respondent)
SUNCORP METWAY INSURANCE LIMITED
ACN 83 075 695 966
(second defendant/third respondent)
WAYNE WILLIAM DOBIE
(third defendant/not party to appeal)
CHONG CHUL RHEE
(fourth defendant/not party to appeal)
JAMES TREVOR DICKS
(fifth defendant/not party to appeal)
JOHN IVANOV
(sixth defendant/appellant)FILE NO/S:
Appeal No 8582 of 2007
Appeal No 8749 of 2007
SC No 5751 of 2002
SC No 751 of 2005DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
Application for Extension of TimeORIGINATING COURT:
Supreme Court at Townsville
DELIVERED ON:
16 September 2008
DELIVERED AT:
Brisbane
HEARING DATE:
11 March 2008
JUDGES:
McMurdo P, Holmes JA and Mackenzie AJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
1. In Appeal No 8582 of 2007: appeal dismissed with costs.
2. In Appeal No 8749 of 2007: application for extension of time refused with costs.CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OTHER CASES – plaintiff child was a member of a tae kwon do academy in Townsville – class included children and adults under control of instructor – instructor took class to nearby beach to train – class ran along the side of the road in bare feet at dusk – plaintiff child hit by car while crossing road – sixth defendant was owner-operator of tae kwon do academy – whether the sixth defendant owed the plaintiff a non-delegable duty of care
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – plaintiff pleaded in statement of claim that the sixth defendant was the owner-operator of the tae kwon do academy – sixth defendant admitted that paragraph of the statement of claim in his defence – sixth defendant was refused leave to withdraw that admission – sixth defendant gave evidence at trial that other persons had elements of control over the academy – other evidence led at trial supported admission – whether trial judge could act upon admission
APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – sixth defendant made admission in pleadings that he was the owner-operator of the tae kwon do academy that the plaintiff attended – sixth defendant's application to withdraw admission refused – sixth defendant did not lodge appeal against decision until after final judgment was delivered following the trial – whether sixth defendant should be granted an extension of time to appeal against interlocutory decision – appropriate time to appeal interlocutory decision
Supreme Court Act 1995 (Qld), s 254
Supreme Court of Queensland Act 1991 (Qld), s 69
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 188, r 744, r 745, r 748, r 765
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- AGLC
- Fitzgerald v Hill [2008] QCA 283
- Case
- [2008] QCA 283
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the duty of care owed by the sixth defendant to the plaintiff. The plaintiff argued that the sixth defendant had a non-delegable duty of care, meaning that the duty could not be delegated to others, even if they were also in control of the academy. The sixth defendant contended that the duty was owed to the plaintiff but was delegable to the instructor. The court found that the sixth defendant did owe a duty of care to the plaintiff, but that duty was delegable. The court also found that the trial judge could act upon the admission made by the sixth defendant in the pleadings, as the sixth defendant was unable to withdraw the admission after it was made and evidence at trial supported the admission.
The court further considered the sixth defendant's appeal against the trial judge's decision and his application for an extension of time to appeal an interlocutory decision. The sixth defendant had made an admission in the pleadings that he was the owner-operator of the academy, but later sought to withdraw that admission. The court refused the sixth defendant leave to withdraw the admission, and the sixth defendant did not lodge an appeal against that decision until after the final judgment was delivered following the trial. The court found that the sixth defendant should not be granted an extension of time to appeal against the interlocutory decision, as the appropriate time to appeal such a decision was before the final judgment was delivered.
In summary, the court found that the sixth defendant owed a duty of care to the plaintiff, but that duty was delegable. The court also found that the trial judge could act upon the admission made by the sixth defendant in the pleadings. The court dismissed the sixth defendant's appeal and refused his application for an extension of time to appeal an interlocutory decision. The sixth defendant was ordered to pay costs.
Orders
Orders of the court
1. In Appeal No 8582 of 2007: appeal dismissed with costs.
2. In Appeal No 8749 of 2007: application for extension of time refused with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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