Kambarbakis v G & L Scaffold Contracting Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Kambarbakis v G & L Scaffold Contracting Pty Ltd [2007] QSC 329

PARTIES:

LUKE PAUL KAMBARBAKIS
(applicant)
v
G & L SCAFFOLD CONTRACTING PTY LTD (ABN 61 085 440 017)
(respondent)

FILE NO:

BS6132 of 2007

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

8 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2007

JUDGE:

Mullins J

ORDER:

Application dismissed

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – MATERIAL FACTS OF A DECISIVE CHARACTER – where applicant applies for an order that the period of limitation for the applicant’s cause of action for damages for personal injuries be extended –  where applicant fell from scaffolding erected by the respondent and sustained a neck injury – whether the applicant by the relevant date had the means of knowledge of a material fact of a decisive character relating to his right of action against the respondent – whether the nature and extent of the applicant’s neck injury was a material fact of a decisive character within the means of knowledge of the applicant before the relevant date

Limitation of Actions Act 1974, s 30, s 31

Byers v Capricorn Coal Management Pty Ltd [1990] 2 Qd R 306, distinguished
Healy v Femdale Pty Ltd [1993] QCA 210, distinguished
Hordyk v Carruthers Contracting, unreported, Muir J, SC No 11358 of 2006, 16 January 2007, distinguished   
State of Queensland v Stephenson (2006) 226 CLR 197, considered

COUNSEL:

M Grant-Taylor SC for the applicant
T Matthews for the respondent

SOLICITORS:

Schultz Toomey O’Brien Lawyers for the applicant
Piper Alderman for the respondent

1. MULLINS J: By originating application filed on 18 July 2007 the applicant applies, pursuant to s 31(2) of the Limitation of Actions Act 1974 (the Act), for an order that the period of limitation for the applicant’s cause of action against the respondent for damages for personal injuries arising as a result of an incident that occurred at Kawana Island (the site) on 12 December 2003 be extended, so that it expires on 18 May 2008. If the applicant is successful in obtaining such an extension, he also seeks an order pursuant to s 43 of the Personal Injuries Proceedings Act 2002 that he have leave, despite non-compliance with the requirements of Part 1 of that Act, to commence a proceeding in respect of his claim against the respondent.

1. The applicant swore an affidavit in support of his application.  The respondent relied on the affidavit of its solicitor which exhibited correspondence between the parties’ solicitors and records obtained by the respondent’s solicitors from the two medical centres at which the applicant had been a patient during the relevant period and records relating to the applicant obtained from the Nambour Hospital and Queensland Diagnostic Imaging.  The respondent also relied on an affidavit sworn by its director, Mr Gary Warren.  At the hearing of the application…