Fitzgerald v Hill & Ors

[2008] QCA 283

Queensland Court of Appeal

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Interrogate

Catchwords

1. Tort Law
2. › Negligence
3. › Duty of Care
4. › Non-delegable Duty
5. › Special Relationships
6. › Owner-operator of martial arts academy and child student
7. › Whether relationship analogous to school authority and pupil
8. › Whether non-delegable duty of care arose
1. Practice and Procedure
2. › Pleadings
3. › Admissions
4. › Withdrawal of Admission
5. › Whether trial judge entitled to act on admission where evidence at trial said to be inconsistent
6. › Uniform Civil Procedure Rules 1999 (Qld), r 188
1. Practice and Procedure
2. › Pleadings
3. › Sufficiency of Pleadings
4. › Whether pleadings sufficiently raised claim of non-delegable duty of care where term not expressly used
1. Appeal
2. › Extension of Time
3. › Interlocutory Orders
4. › Whether extension of time should be granted to appeal interlocutory order after trial conducted on basis of that order
5. › Appropriate time to appeal interlocutory decision affecting central issue at trial
6. › Uniform Civil Procedure Rules 1999 (Qld), rr 5, 744, 745, 748, 765

Quick Take

The owner-operator of a martial arts academy (or similar organised physical activity for children) owes a non-delegable duty of care to child students enrolled at the academy, analogous to the duty owed by a school authority to a pupil. Where an interlocutory order refusing leave to withdraw a pleading admission impacts directly on a central trial issue, the appropriate course is to appeal within the time allowed under the UCPR rather than waiting until after trial. An admission in pleadings under the UCPR is proof of the facts admitted and the trial judge is entitled to act on it; Damberg v Damberg (concerning agreed foreign law) does not apply to such admissions.