Kambarbakis v G & L Scaffold Contracting Pty Ltd - [2008] QCA 262

SUPREME COURT OF QUEENSLAND

CITATION:

Kambarbakis v G & L Scaffold Contracting P/L [2008] QCA 262

PARTIES:

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

FILE NO/S:

Appeal No 10828 of 2007
SC No 6132 of 2007

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 September 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2008

JUDGES:

McMurdo P, Holmes JA and Muir JA
Separate reasons for judgment of each member of the Court, Holmes and Muir JJA concurring as to the order made, McMurdo P dissenting

ORDER:

Appeal dismissed with costs

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 DECISIVE CHARACTER – where appellant suffered injury to neck after falling from scaffolding on 12 December 2003 – where appellant sought medical advice relating to his injury, and found himself unable to work on many occasions – whether there was a material fact of a decisive character beyond the means of knowledge of the defendant prior to the relevant day, being 12 December 2005

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – DISTINCTION – APPEALS IN THE STRICT SENSE – where r 765(2) of the Uniform Civil Procedure Rules 1999 (Qld) provides that an appeal from the decision of a single judge of the Supreme Court other than as to a final decision in a proceeding is brought by way of an appeal in the strict sense – whether the appeal concerns a final decision in the proceeding

Limitation of Actions Act 1974 (Qld), s 30(1)(c), s 31(2)
Personal Injuries Proceedings Act 2002 (Qld), s 59(2)(b)
Supreme Court of Queensland Act 1991 (Qld), s 69
Uniform Civil Procedure Rules 1999 (Qld), r 8, r 744, r 765(1), r 765(2)

Byers v Capricorn Coal Management Pty Ltd [1992] Qd R 306, distinguished
Cheney v Spooner (1929) 41 CLR 532; [1929] HCA 12, cited
De Innocentis v Brisbane City Council [2000] 2 Qd R 349; [1999] QCA 404, considered
Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257; [2008] HCA 13, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Fuller v Bunnings Group Ltd [2007] QCA 216, distinguished
Healy v Femdale Pty Ltd [1993] QCA 210, distinguished
Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437, cited
Hordyk v Carruthers Contracting, unreported, Muir J, Queensland, SC No 11358 of 2006, 16 January 2007, distinguished
House v The King (1936) 55 CLR 499; [1936] HCA 40, cited
Meddings v Council of the City of Gold Coast [1987] 1 Qd R 528, cited
Warren v Coombes (1979) 142 CLR 531;

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: [2008] QCA 262
Decision Date: 5 September 2008

CaseChat Overview and Summary

In the matter of Kambarbakis v G & L Scaffold Contracting Pty Ltd, the court addressed an issue concerning the limitation of actions in relation to personal injury claims. The appellant, Kambarbakis, had suffered a neck injury in a fall from scaffolding on 12 December 2003. Kambarbakis sought to extend the limitation period beyond the statutory bar, arguing that the material facts of his injury were not known to the respondent, G & L Scaffold Contracting Pty Ltd, until a later date. The primary focus of the case was whether Kambarbakis had a material fact of a decisive character that was beyond the means of knowledge of the respondent prior to 12 December 2005.

The legal issues at the core of this case were whether the appellant's cause of action accrued on the date of the injury, or if the period for bringing the action could be extended due to a lack of knowledge of the material facts. The court was required to determine the point at which Kambarbakis' cause of action accrued and if the statutory limitation period could be postponed due to the appellant's lack of knowledge of the full extent of his injuries. Additionally, the court had to consider the procedural aspect of the appeal, specifically whether it was an appeal in the strict sense or by way of rehearing under rule 765(2) of the Uniform Civil Procedure Rules 1999 (Qld).

The court found that the appellant's cause of action accrued on the date of the injury, 12 December 2003, and that there were no material facts of a decisive character that were beyond the means of knowledge of the respondent. Consequently, the extension of the limitation period was not justified. Furthermore, the court ruled that the appeal was an appeal in the strict sense, not by way of rehearing, given that it did not concern a final decision in the proceeding. The appeal was dismissed with costs awarded to the respondent.

Orders

Orders of the court

Appeal dismissed with 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:	Kambarbakis v G & L Scaffold Contracting P/L [2008] QCA 262
PARTIES:	LUKE PAUL KAMBARBAKIS (applicant/appellant) v G & L SCAFFOLD CONTRACTING PTY LTD ACN 085 440 017/ ABN 61 085 440 017 (respondent/respondent)
FILE NO/S:	Appeal No 10828 of 2007 SC No 6132 of 2007
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 September 2008
DELIVERED AT:	Brisbane
HEARING DATE:	7 May 2008
JUDGES:	McMurdo P, Holmes JA and Muir JA Separate reasons for judgment of each member of the Court, Holmes and Muir JJA concurring as to the order made, McMurdo P dissenting
ORDER:	Appeal dismissed with costs
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 DECISIVE CHARACTER – where appellant suffered injury to neck after falling from scaffolding on 12 December 2003 – where appellant sought medical advice relating to his injury, and found himself unable to work on many occasions – whether there was a material fact of a decisive character beyond the means of knowledge of the defendant prior to the relevant day, being 12 December 2005 APPEAL AND NEW TRIAL – RIGHT OF APPEAL – NATURE OF RIGHT – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – DISTINCTION – APPEALS IN THE STRICT SENSE – where r 765(2) of the Uniform Civil Procedure Rules 1999 (Qld) provides that an appeal from the decision of a single judge of the Supreme Court other than as to a final decision in a proceeding is brought by way of an appeal in the strict sense – whether the appeal concerns a final decision in the proceeding Limitation of Actions Act 1974 (Qld), s 30(1)(c), s 31(2) Personal Injuries Proceedings Act 2002 (Qld), s 59(2)(b) Supreme Court of Queensland Act 1991 (Qld), s 69 Uniform Civil Procedure Rules 1999 (Qld), r 8, r 744, r 765(1), r 765(2) Byers v Capricorn Coal Management Pty Ltd [1992] Qd R 306, distinguished Cheney v Spooner (1929) 41 CLR 532; [1929] HCA 12, cited De Innocentis v Brisbane City Council [2000] 2 Qd R 349; [1999] QCA 404, considered Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257; [2008] HCA 13, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Fuller v Bunnings Group Ltd [2007] QCA 216, distinguished Healy v Femdale Pty Ltd [1993] QCA 210, distinguished Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437, cited Hordyk v Carruthers Contracting, unreported, Muir J, Queensland, SC No 11358 of 2006, 16 January 2007, distinguished House v The King (1936) 55 CLR 499; [1936] HCA 40, cited Meddings v Council of the City of Gold Coast [1987] 1 Qd R 528, cited Warren v Coombes (1979) 142 CLR 531;