McColm v. FKP Constructions Pty Ltd - [2007] QSC 40

[2007] QSC 040

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

WHITE J

No 697 of 2007

BRUCE JEFFREY McCOLM	Applicant
and
FKP CONSTRUCTIONS PTY LTD (ABN 84 009 910 098)	Respondent

BRISBANE

..DATE 09/02/2007

JUDGMENT

HER HONOUR: The applicant seeks an order pursuant to section 59(2)(b) of the Personal Injuries Proceedings Act 2002 for leave to commence proceedings against the respondent for damages for personal injuries sustained on the 25th of October 1999 outside the six-month period after a complying notice of claim was given to the respondent. That section provides:

"1.If a complying notice of claim is given before the end of the period of limitation applying to the claim the claimant may start a proceeding in a Court based on the claim even though the period of limitation has ended.
2.However, the proceeding may be started after the end of the period of limitation only if it is started within:
(a)six months after the notice is given or leave to start the proceeding is granted; or

(b)a longer period allowed by the Court."

The applicant gave a notice of claim on the 24th of October 2002 to the respondent, one day before the expiration of the limitation period. The applicant, who was born on the 13th of November 1961 and is now aged 45 years, sustained a low back injury in a fall in the course of carrying out work as a bricklayer on a commercial development at Mooloolaba known as the Outrigger Hotel.

The applicant was employed as a subcontractor by one Paul Kelly who was engaged as a bricklayer by the respondent who was the principal contractor on the site. Plexform Proprietary Limited carried out the formwork. The applicant claims that he slipped on debris left on a set of stairs then unfinished and fell on his back, suffering serious injury. The applicant has not returned to work since because of pain and other associated symptoms.

The applicant has suggested that flaky pieces of concrete were deposited on the unfinished treads of the stairs by the formworkers. There is said to have been no observable system of cleaning up the site to prevent such incidents from occurring. There are medical certificates attesting to the applicant's back injury or at least a back injury, although it does not seem to be seriously contested that the applicant did sustain an injury at work.

After the accident the applicant was referred by his union representative to a law firm in Brisbane but he found the travel aggravated his symptoms, and on the recommendation of a friend he attended on S J Hoolihan and Associates at the Sunshine Coast in November 2001. There is no evidence that the Brisbane firm did anything to advance the claim. A year later the applicant signed his notice of claim pursuant to the Personal Injuries Proceedings Act, the first notice of the accident which had been received by the respondent, because it seems that although the applicant spoke to a couple of people at 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 McColm v. FKP Constructions Pty Ltd

Details

AGLC: McColm v FKP Constructions Pty Ltd [2007] QSC 40
Case: [2007] QSC 40
Decision Date: 9 February 2007

CaseChat Overview and Summary

McColm v. FKP Constructions Pty Ltd involves a personal injury claim initiated by Bruce Jeffrey McColm against FKP Constructions Pty Ltd, the principal contractor on a commercial development site in Mooloolaba. McColm, who sustained a low back injury in a fall while working as a bricklayer on the site in October 1999, seeks leave to commence proceedings beyond the statutory limitation period under section 59(2)(b) of the Personal Injuries Proceedings Act 2002. The key issue before the court was whether McColm's significant delay in pursuing his claim, which extended beyond the statutory limitation period, justified granting leave to commence proceedings. The court considered the delay's impact on the respondent's ability to defend the claim and the potential prejudice to the respondent's capacity to have a fair trial.

The court noted that McColm's initial delay in giving a notice of claim was due to his inability to complete the necessary procedural steps within the statutory timeframe, though this delay was within the 12-month period. The more substantial delay was attributable to factors outside the legislative regime, primarily due to McColm's lack of communication with his solicitor, S J Hoolihan and Associates, and the firm's eventual bankruptcy. The court found that while McColm was not unconscientious, the delay had led to significant prejudice to the respondent, including the inability to trace witnesses and the respondent's exclusion from joining third parties as joint tortfeasors under Section 40 of the Limitation of Actions Act 1974. Despite the challenges, the court concluded that the delay was too substantial, and the prospects of success for McColm were uncertain. Consequently, the court dismissed McColm's application for leave to commence proceedings.

The court ordered McColm to pay the respondent's costs of and incidental to the application, to be assessed on the standard basis. This decision underscores the importance of timely legal action and the significant consequences of delays in personal injury claims under Queensland law.

Orders