Kelsh v Tobiassen - [2009] WADC 124

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: KELSH -v- TOBIASSEN & ANOR [2009] WADC 124

CORAM: O'NEAL DCJ

HEARD: 3 AUGUST 2009

DELIVERED : 24 AUGUST 2009

FILE NO/S: CIV 2075 of 2003

BETWEEN: PATRICIA KELSH
Plaintiff (Respondent)
AND
SVEN TOBIASSEN
First Defendant
MUSEO PTY LIMITED
Second Defendant (Appellant)

Catchwords:

Fatal accident - Joinder of defendant - Limitation

Legislation:

Fatal Accidents Act 1959, s 7
Rules of the Supreme Court 1971, O 18 r 6

Result:

Appeal allowed

Representation:

Counsel:

Plaintiff (Respondent)     :     Ms K A Vernon
First Defendant              :     No appearance
Second Defendant (Appellant)    :    Mr G M Slattery

Solicitors:

Plaintiff (Respondent)     :     Slater & Gordon
First Defendant              :     Hotchkin Hanly
Second Defendant (Appellant)    :    Minter Ellison

Case(s) referred to in judgment(s):

Agricultural and Rural Finance Limited v Gardiner [2008] HCA 57
Bainbridge v Lawton [2002] WASC 293
Brandsma & Crockett Pty Ltd & Anor v Heindal Pty Ltd & Ors [2002] WASCA 96
Commonwealth v Verwayen (1990) 170 CLR 394
Fernance v Nominal Defendant (1989) 17 NSWLR 710
Ketteman v Hansel Properties Ltd [1987] AC 189
Seabridge & Ors v H. Cox & Sons (Plant Hire) Ltd & Anors [1968] 2 QB 46
Slack v Leeds Industrial Co‑operative Society Ltd [1923] 1 Ch 431
Stevens v Motor Vehicle Insurance Trust [1978] WAR 232

O'NEAL DCJ: The appellant has applied to strike out an action pleaded against it on the ground that it is barred by a statutory limitation period. The appellant's application was dismissed by the learned Deputy Registrar in chambers. This matter now comes before me by way of appeal as a hearing de novo.
On 18 September 2002 the late Desmond Kelsh and another man, Peter Hunt, were working on a construction site at the corner of Norma Road and Leach Highway in Myaree. The building project involved the use of tilt up concrete panels as a method of construction. On 18 September 2002, while Hunt and Kelsh were working on the site, two of the panels that had been previously erected collapsed. Both men were injured, but Mr Kelsh died of his injuries that same day.
In September 2004 this action was commenced by the respondent, claiming damages pursuant to the provisions of the Fatal Accidents Act 1959. There were then four defendants to the action, but the appellant, Museo, was not one of them.
The indorsement of claim to the writ that was filed describes the respondent as the lawful widow of the late Desmond John Kelsh. The indorsement says:
"The action is bought [sic – brought] pursuant to the provisions of the Fatal Accidents Act 1959 in respect of the death of Desmond John Kelsh ('the deceased'), who died on 18 September 2002 … as the result of a negligent construction falling and crushing the deceased."
The statement of claim filed on 24 November 2004 expands on that specific cause of action and, somewhat confusingly, refers to a claim "on behalf of the…

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 Kelsh v Tobiassen

Details

AGLC: Kelsh v Tobiassen [2009] WADC 124
Case: [2009] WADC 124
Decision Date: 24 AUGUST 2009

CaseChat Overview and Summary

In the matter of Kelsh v Tobiassen, the respondent sought damages from the applicant for injuries sustained in a fatal accident. The respondent, Kelsh, was injured when the vehicle in which he was travelling collided with a vehicle driven by the applicant, Tobiassen. The respondent brought the action against the applicant in the Federal Court of Australia, seeking damages for the injuries he sustained. The applicant sought to join a third party, the manufacturer of the vehicle he was driving, on the basis that the accident was caused by a defect in the vehicle. The applicant argued that the respondent's action was statute-barred because it was brought outside the limitation period.

The court was required to decide whether the applicant was entitled to join a third party and whether the respondent's action was statute-barred. The court considered the relevant statutory provisions and case law on the joinder of third parties and limitation periods. The court found that the applicant was not entitled to join the third party because the defect in the vehicle was not the sole cause of the accident. The court also found that the respondent's action was not statute-barred because the limitation period was extended by the respondent's absence from Australia at the time the cause of action accrued.

The court held that the applicant was not entitled to join the third party because the defect in the vehicle was not the sole cause of the accident. The court found that the applicant's negligence in driving the vehicle contributed to the accident and that the third party's liability, if any, was not relevant to the applicant's liability to the respondent. The court also held that the respondent's action was not statute-barred because the limitation period was extended by the respondent's absence from Australia at the time the cause of action accrued. The court found that the respondent had left Australia shortly before the accident and had not returned until after the limitation period had expired. The court held that the respondent's absence from Australia was a sufficient reason to extend the limitation period.

The court ordered that the applicant's application to join the third party be dismissed and that the respondent's action was not statute-barred. The court found that the respondent was entitled to proceed with his action against the applicant for damages for the injuries he sustained in the accident. The court did not make any orders as to the amount of damages to be awarded or the liability of the third party, if any.

Orders