Spain v Dipompo Jacs Constructions Pty Ltd

[2009] QCA 323

SUPREME COURT OF QUEENSLAND

CITATION:

Spain v Dipompo Jacs Constructions P/L & Anor [2009] QCA 323

PARTIES:

JOHN SPAIN
(applicant/respondent)
v
WORKCOVER QUEENSLAND
(first respondent/first appellant)
DIPOMPO JACS CONSTRUCTIONS PTY LTD
ACN 079 467 262
(second respondent/second appellant)

FILE NO/S:

Appeal No 3632 of 2009
SC No 11107 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

23 October 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2009

JUDGES:

McMurdo P, Keane and Holmes JJA
Separate reasons for judgment of each member of the Court, Keane and Holmes JJA agreeing as to the orders made, McMurdo P dissenting as to the orders made

ORDERS:

1.   Appeal allowed

2.   Orders of the learned primary judge set aside

3.   Respondent to pay the costs of the application below and of the appeal to be assessed on the standard basis

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – respondent claims he injured his back in November 2002 during his employment with the second appellant – respondent wishes to commence an action against the employer for damages for personal injuries but the limitation period has expired – respondent claims he was unaware of a material fact of a decisive character – whether the nature and extent of injury within respondent's means of knowledge before July 2008 – whether extension should have been granted

Limitation of Actions Act 1974 (Qld), s 31

Beale v Government Insurance of NSW (1997) 48 NSWLR 430, cited
Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136, cited
Castensen v Frankipile Australia [2004] QSC 145, cited
Ditchburn v Seltsam Ltd (1989) 17 NSWLR 697, cited
Healy v Femdale Pty Ltd [1993] QCA 210, cited
Jocumsen v Thiess P/L & Anor [2005] QCA 198, cited
Kambarbakis v G & L Scaffold Contracting P/L [2008] QCA 262, cited
Mifsud v Campbell (1991) 21 NSWLR 725, cited
Mirage Resorts Holdings P/L as Trustee of the Mariners Paradise Property Trust v Brellen P/L [2003] QCA 579, cited
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325, considered
Pizer v Ansett Australia Ltd [1998] QCA 298, cited
Queensland v Stephenson (2006) 226 CLR 197; [2006] HCA 20, considered

COUNSEL:

K F Holyoak for the appellants
R J Lynch for the respondent

SOLICITORS:

McInnes Wilson Lawyers for the appellants
Nathan Lawyers for the respondent

1. McMURDO P: The respondent, John Spain, claims he injured his back in November 2002 in his employment as a construction form worker with the second appellant, Dipompo Jacs Constructions Pty Ltd. He claims the employer did not have in place a safe system of work to cope with the regular heavy lifting required of Mr Spain and this caused his 2002 back injury. He wants to commence an action against the employer for damages for personal…