Kitchener v A E Atherton and Sons Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Kitchener v A E Atherton & Sons Pty Ltd [2004] QSC 030

PARTIES:

MICHAEL JOHN KITCHENER
(plaintiff)
v
A E ATHERTON & SONS PROPRIETARY LIMITED
(defendant)

FILE NO:

SC No 3076 of 2003

DIVISION:

Trial

PROCEEDING:

Application for extension of limitation period

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

27 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2004; 3 February 2004

JUDGE:

Chesterman J

ORDER:

1.   Application dismissed

2.   Costs to be assessed on the standard basis

CATCHWORDS:

LIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OF PERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES – KNOWLEDGE OF MATERIAL FACTS – whether certain facts are material facts of a decisive character – whether facts were within the applicant’s means of knowledge prior to the relevant date

COUNSEL:

J R Webb for the plaintiff/applicant
D V C McMeekin SC, with B Hoare, for the defendant/respondent

SOLICITORS:

Suthers Lawyers for the plaintiff/applicant
Bradley & Co Solicitors for the defendant/respondent

1. On 29 April 2003 the applicant commenced proceedings against the respondent in this court seeking damages for personal injury allegedly caused by the negligence of the respondent or its employees.  The applicant’s case is that on 24 February 1998, he was employed by the respondent as a sheet metal worker.  The respondent had contracted with Griffith University to install air conditioning into the fifth floor of the social science building at its Mount Gravatt campus.  The plaintiff was fitting some made up ducting into the ceiling.  To do this he stood on an aluminium ladder at a height of about five feet above the floor.  Other employees, when they fitted brackets to hold the ducting in place, had inserted screws through a partition and into some electrical cabling.  When the applicant brought the duct which he was fitting into contact with the brackets he received an electric shock and was thrown from the ladder. 

1. The facts I have described are not contested.  Nor does the respondent dispute that the applicant has a good arguable case in that it failed to take reasonable care for his safety.  What is in contest is the extent to which the applicant suffered any injury from the mishap and whether the applicant should be allowed to prosecute his claim.  It will be appreciated that proceedings were commenced more than five years after the applicant fell from the ladder.

1. By an application filed on 4 April 2003 the applicant seeks an order that the period of limitation in respect of the incident on 24 February 1998 be extended to

   
   

   9 May 2003 pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) (‘the Act’).

1. Section 30 of the Act provides:

‘(1)For the purposes of this section and sections 31, 32, 33 and 34 –

(a)the material facts relating to a right of action include the following –

(i)     …

(ii)     …

(iii)    the fact that the negligence … causes personal injury;

(iv)    the nature and extent…