Horne v J K Williams Contracting Pty Ltd

Court of Appeal (NSW)|2023-02-24|Before: Gleeson JA

Introduction

Four preliminary points should be made. First, an outline of facts is necessary in order to identify the risk of harm against which a defendant is duty-bound to take precautions. As will be explained, there is a level of doubt attending the precise course of travel taken by the appellant on the evening of the accident. That, however, is not an impediment because when assessing the appropriate precautions prospectively, it would be wrong to define the risk of harm with too much precision.
The second introductory observation is that to obtain an understanding of the accident, it is helpful to have regard to certain photographs which were in evidence. However, the provenance of some of the photographs was in doubt and, as the trial judge correctly noted, photographs can be deceptive.
Thirdly, there was a curious omission from the evidence. While the plaintiff was giving evidence in chief, he was shown a photograph taken from the court book and was invited to place an "X" where he believed he ran into the barricade. He apparently did so, but a photograph so marked does not appear to have been retained as part of the evidence. The respondent, however, handed up on the hearing of the appeal a photograph bearing a cross which was said to be a copy made by counsel appearing for the respondent at the trial, who had marked his own copy of the photograph to accord with the mark he had seen the appellant place on the now missing original. The mark was accepted by counsel for the appellant as sufficiently accurate for the purposes of the appeal. Again, having regard to aspects of the appellant's evidence, one may doubt whether, in any event, he was able to give precise and reliable evidence as to the point at which he hit the barricade.

Course of travel

The annexed photographs of Victoria Street, Werrington look in a broadly westerly direction. William Street therefore runs north from Victoria Street. On the evening in question (and as part of a regular activity) the appellant was riding his bicycle west along Victoria Street with his 12-year old son riding another bicycle behind him. He stated that he rode on the righthand side of the road, that is, on the side of any oncoming traffic. In his evidence he explained that heading west on Victoria Street on the lefthand side of the road was "too dangerous, it's an uneven surface, so we ride on the oncoming traffic side. That way, I can keep an eye on any cars coming towards us, and we can then get onto the footpath area, if we need to, very quickly". [1]
He described the lefthand side of the road as being "in really bad condition", saying that there were "a lot of … rifts, I suppose, like that, or places that a front wheel will kick out on you even in the daytime". [2] The plaintiff said that he and his son, Braidon, had departed on their ride at about 8.45pm or 8.50pm and had been riding for four or five minutes down Victoria Street on the righthand side of the road. [3] Although, in the passage set out above, he implied that they only rode on the footpath area when cars were approaching, in describing his ride as they approached the William Street intersection he said: [4] "A. Have a glance down William Street. We can - we can usually see if there's any cars coming up from William, with the glare of the headlights and so forth on the road, and then basically just continue across the same track that we'd always do."
Having crossed the T-intersection with William Street, he continued: "Q. Were you on the roadway, or by this stage, were you up on the grass verge? A. On the verge. Q. When you'd ridden in the past, had you always [ridden] on the grass verge when you went up there? A. Yes. Q. You'd never had any problems moving through that area unobstructed? A. Not at all. It was well maintained. … Q. On the evening of the accident what happened to you after you made your way up onto the verge? A. Probably travelled around about, I'd say, a good 10 metres, and just struck something and landed on my head."
There was some uncertainty in this evidence as to whether he had been riding on the grass verge on the east side of William Street and continued to ride on the verge after crossing William Street, or whether he was on the roadway ready to move onto the grass verge, or whether he had moved onto the grass verge after crossing William Street, because that was where they rode.
Two aspects of the surrounding area may be noted. First, on the part of Victoria Street approaching William Street from the east, there was residential development, and a well-formed grass verge and kerb. The presence of a built kerb on Victoria Street east of William Street, suggests that it might have been hard to move off the road onto the grass verge in the face of oncoming traffic. However, on the west side of William Street, where the accident occurred, there was no existing development on the construction site and the verge appeared to be grass and gravel with no kerb. There was a bus stop immediately to the west of William Street and before the start of the barricades.
Secondly, on the other side of Victoria Street there was no residential development as the street ran roughly parallel to the railway. There was no railway station in the area and the verge could be described as wide, but unmaintained.
In cross-examination, the plaintiff gave the following evidence: [5] "Q. Mr Horne, I think your evidence yesterday was that before you got to William Street as you were travelling along Victoria Street, you were on the road surface rather than the grassed footpath. Is that right? A. Before William Street, correct. Q. As you approached William Street, you and Braidon were effectively on the road, not on the footpath or the grass verge. A. We were on the, like, parking lane."
He agreed there was a formed footpath to the east of William Street along Victoria Street, but said that they did not ride on it because people tended to park cars along driveways across the footpath and the driveways also created dips in the footpath and the grass verge. [6] His evidence in chief was not entirely clear as to whether he rode on the verge before crossing William Street, but it was clarified in cross-examination that he had not done so on the night of the accident. It was not clear how he got out of the way of on-coming traffic before reaching William Street, but nothing turned on that.

State of lighting

The state of the lighting in the area was a significant issue at trial. There was no evidence as to whether there was any natural light following sunset, or from the moon. There was no evidence as to the weather, although it appears to have been dry. There was no evidence to suggest that the area was illuminated in any way by car headlights at the time of the accident. There remained, relevantly, the street lighting. The photographs indicated that there were two streetlights in the area. The first was on the opposite side of Victoria Street at the intersection with William Street; a second light was on the corner of William Street and Victoria Street within metres of the point of collision with the barricades. It appears that the light on the opposite side of Victoria Street was working, but that the light on the corner of William Street was either not operating at all or was giving out very little illumination. The appellant's son was consistent in describing the illumination at the time as "very poor".
Each party called a safety engineer who had prepared a report containing conflicting opinions as to the adequacy of the lighting. A conclave produced a very limited agreement which was recorded in the following terms: "1. It is agreed that if the overhead light at the corner of Victoria and William Streets, Werrington, adjacent to the roadworks was fully operational at the time of the incident then the plaintiff should have seen the barricades in time to avoid them. 2. Responsibility for the said overhead light operating vested in Endeavour Energy and not the defendant."
The other source of artificial lighting was, of course, the lighting on the plaintiff's bicycle. The plaintiff gave evidence that he had a headlight on his bicycle but it was pointing downward so that he could see potholes immediately in front of his wheel, not necessarily so as to be able to avoid them, but to be able to brace if the wheel hit a pothole. There was a question as to whether an adequate light on the bicycle would have given sufficient illumination to allow the plaintiff to see the bright orange barricade, had he been looking ahead.

Risk of harm

Section 5B(1) of the Civil Liability Act 2002 (NSW) formulates a basic principle with respect to the tort of negligence in negative terms, stating that a person "is not negligent in failing to take precautions against a risk of harm unless" the risk was foreseeable, not insignificant and was one against which a reasonable person would have taken precautions. The negative formulation may do little more than reflect the burden of proof which lies upon the injured party. In effect, the section identifies seven elements which must be addressed by a plaintiff claiming damages in negligence. Each relates to the nature of the risk and the possible consequences which may eventuate if the risk materialises.
It has been established in a number of cases that an important task for the plaintiff is to plead an appropriately formulated risk of harm. Similarly, the Court must address the formulation of the risk. As explained by Gummow J in Roads and Traffic Authority of NSW v Dederer, [7] it is important to identify the actual risk of injury in order to assess (i) the likelihood of the risk occurring and (ii) the ability of the defendant to exercise control over the risk.
As further explained by Leeming JA in Uniting Church in Australia Property Trust (NSW) v Miller [8] "[e]ach paragraph within s 5B in terms presupposes a 'risk of harm' against which, so it is alleged, precautions should have been taken".
Section 5B of the Civil Liability Act reads as follows: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
The appellant complained that the trial judge had not identified the risk and thus had not been able to assess the likelihood of its occurrence or the reasonableness of the precautions which ought to have been taken to ameliorate the risk or prevent it materialising. The judge's omission was unsurprising in circumstances where the plaintiff neither sought to formulate a risk in its pleading, nor in its written submissions. The defendant's written submissions at trial (filed 21 March 2022) noted that the risk of harm had not been particularised: par 5. The plaintiff filed written submissions in reply, but made no reference to par 5 of the defendant's submissions.
In fact, the trial judge identified on more than one occasion [9] the importance of "a proper identification of the risk of harm which is asserted to have materialised". Apparently following the form of the parties' submissions, the judge considered whether the risk was foreseeable and not insignificant, without identifying its precise scope.
In ground 2 of the notice of appeal, the appellant asserted that: "The primary judge ought to have found that there was a risk of harm that persons riding bicycles along the public right of way at night might collide with a recently installed barricade, if there was a lack of sufficient warning."
Omitting the last phrase, that may well have been an appropriate formulation of the risk. The last phrase was an attempt to include in the nature of the risk a summary of the appropriate precautions. Properly understood, the risk was a risk of a cyclist riding at night west on the verge on the northern side of Victoria Street along the construction site colliding with the recently installed barricade and suffering physical injury. This identification of the risk encompasses four elements; namely (i) that there was an obstacle impeding the passage of persons or vehicles; (ii) being newly installed, the obstacle might be unexpected; (iii) that the risk only arose at night, being a consequence of the barricades being clearly visible during daylight hours, and (iv) although no doubt the verge was used from time to time by pedestrians, the relevant risk was restricted to use by cyclists.
If the risk did not arise during daylight hours, it would not have arisen if the area were adequately lit at night-time. So much was conceded by the first agreed fact set out above at [21]. The significance of the risk therefore turned on the degree of visibility from time to time.
Having identified the relevant risk, it is necessary to consider whether the risk was "foreseeable", and was "not insignificant", in accordance with pars (a) and (b) of s 5B(1). Further, taking into account the factors identified in subs (2), it was necessary to consider what precautions a reasonable person in the position of the defendant would have taken against such a risk. The first two criteria are (i) the probability that the harm would occur if care were not taken and (ii) the likely seriousness of the harm. These are elements of foreseeability and significance.
The trial judge held that the risk of harm was not foreseeable to the defendant and, the plaintiff had not established that the risk was not insignificant.

Duty of care

Ground 1 in the notice of appeal alleged that the judge erred in failing to identify "the duty of care and its content". The ground continued, stating that the judge "ought to have found that the respondent owed a duty of care to avoid a foreseeable risk of harm". The content of the duty was identified as the obligation to take specified precautions. This approach tended to elide various elements of duty and breach with little reference to the actual circumstances of the accident.
To approach the (undefined) question of duty of care, together with the carefully defined elements in s 5B in a methodical step by step analysis can achieve greater clarity, but can also result in unrealistically precise findings. In Dederer, Gummow J stated: "47 The RTA's duty of care was owed to all users of the bridge, whether or not they took ordinary care for their own safety; the RTA did not cease to owe Mr Dederer a duty of care merely because of his own voluntary and obviously dangerous conduct in diving from the bridge. However, the extent of the obligation owed by the RTA was that of a roads authority exercising reasonable care to see that the road is safe 'for users exercising reasonable care for their own safety'. The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves." [Footnote omitted.]
The interrelationship of this concept of duty with the elements of s 5B is not easy to determine. On the one hand, careless behaviour is readily foreseeable, and the risk of injury to those who are careless of their own safety may be significant. If a reasonable person in the defendant's position would take precautions against such a risk, just because such carelessness is foreseeable, is there, nevertheless, no duty of care owed?
Turning to the particular facts of the present case, it appears to have been assumed that, in placing barricades along the side of the road where people might pass, whether on foot or on a bicycle, the defendant owed such persons a duty of care. However, the judge found that the risk was not foreseeable and was not significant (ignoring for this purpose the double negative which is important in respect of the burden of proof). If the risk of harm were to be defined as the risk of physical injury arising from a collision with the barricade, the risk was undoubtedly foreseeable and not insignificant. However, if the risk were defined as the risk of colliding with the barricade, a different conclusion might result. In particular, the conclusion would depend upon whether it were night time (absent functioning street lights) or daytime.
The judge reached her conclusion by assuming the street lights were functioning, because there was no basis for finding that the defendant knew that one of the street lights was not functioning, nor that it should have had such knowledge. In effect, the trial judge rejected submissions on the part of the plaintiff that in placing the barricades across the verge, the defendant was obliged either to take steps to render them visible to a person cycling along the verge or otherwise take steps to determine whether the street lighting was adequate to render them visible to a person on a bicycle taking reasonable care for his or her own safety. However, on one view, that exercise was an exercise in relation to the precautions which a reasonable person in the defendant's position should have taken. Unlike par (c) in s 5B(1), neither of the criteria specified in pars (a) and (b) uses the language of assessment by a reasonable person in the position of the defendant. Rather, their terms suggest an objective standard.
The trial judge noted that the circumstances did not involve what she described as "Stygian darkness". That was no doubt true, although had there been a power failure and no traffic on the road, such a condition (though very unlikely) might have arisen. In such a case, a cyclist without a headlight capable of illuminating the area ahead, might be expected to travel quite slowly. An obstacle on the verge created as a consequence of the construction work (for example, an extension of the fencing, or barricades being erected) or a parked vehicle, would have been foreseeable obstacles. The fact that the plaintiff was not proceeding with such caution did not mean he was not taking reasonable care for himself, but rather suggested that the darkness was not severe.

Liability - conclusions

The placement of the water-filled barricades was an appropriate measure to protect the construction work (including the construction on the site of a road way and a roundabout adjacent to Victoria Street) and the workers. Compared with a parked car or other possible obstacles on the verge at night, the barricades should have been readily visible to a cyclist taking reasonable care for his or her own safety. That was concededly so if the street lights had been fully functional. One street light was not, but there was no evidence that the respondent knew that, nor ought it to have known that to be the case.
While the respondent owed a duty of care to all users of the road and verge adjacent to its work site, it did not breach its duty in failing to illuminate the area or erect warnings, visible at night to cyclists riding on the incorrect side of the road, albeit on the verge, as to the presence of the barricades. The trial judge was correct to dismiss the plaintiff's claim.

Limitation period

As has been noted, the statement of claim commencing proceedings in the District Court was filed on 24 February 2021. In its defence filed on 8 July 2021, the defendant alleged that the claim was statute-barred by operation of s 50C of the Limitation Act 1969 (NSW).
Because the trial judge dismissed the claim on the basis that there was no breach of duty, she did not need to address the limitation defence. However, against the possibility that she had erred in her conclusions with respect to liability, the judge addressed the limitation issue at [97]-[111]. The judge concluded that the limitation defence must fail: at [111].
As noted above, the respondent filed a notice of contention seeking to reagitate the submission that the cause of action was not maintainable, pursuant to s 50C of the Limitation Act. The respondent submitted that the judge made factual findings, each of which was correct, but which warranted upholding the defence. The appellant disputed the correctness of the factual findings.
The trial judge commenced her discussion of this issue by noting the date on which the accident occurred, and the date on which the statement of claim was filed, and then stating, "[t]he limitation period is three years, and the statement of claim was thus filed approximately 13 months out of time". [10] That statement was not correct: s 50C of the Limitation Act provides that a limitation period of three years runs from the date when the cause of action was "discoverable by the plaintiff". That was not necessarily the date of the accident and, in fact, it rarely would be. This appears from the relevant provisions in the Limitation Act which are as follows: 50A Application of Division - kinds of causes of action (1) This Division applies to a cause of action for damages that relate to the death of or personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise. (2) This Division applies only to causes of action where the act or omission alleged to have resulted in the injury or death with which the claim is concerned occurs on or after the commencement of this Division (as inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002). (3) This Division does not apply to a cause of action on a claim under the Motor Accidents Compensation Act 1999 or the Motor Accident Injuries Act 2017. (4) This section extends to a cause of action that - (a) is a survivor action, or (b) is a compensation to relatives action. … 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire - (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. … 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.
Despite initially suggesting that the limitation period ran from the date of the accident, the trial judge correctly addressed the three facts which the plaintiff must know or ought to know, in accordance with s 50D(1). Although the judge referred to authorities dealing with knowledge and constructive knowledge, this was a case dealing with actual knowledge. The judge stated: "105 The first question is when the discoverability period begins. The following factors are relevant: (a) The plaintiff agreed that he knew full well, very soon after the incident, that he had hit something and had an accident, and he took photographs of the scene and of his helmet. (b) The plaintiff knew he had suffered an injury at the time and sought medical advice 10 days after the accident. He discussed the fact that he was going to bring a claim with his doctors … including Dr Park, whom he saw approximately within one month of the incident, and who told him that the circumstances of the accident sounded 'like a liability claim'. (c) Even before the plaintiff consulted lawyers, which he did very soon after the accident, he was already aware that the party responsible for the construction work was the defendant and was aware of its corporate name. He knew that it would be the construction company responsible for putting up the barricades and doing the roadworks who would be responsible, and he knew the correct corporate identity to be sued. In his own mind, he was satisfied that the party was responsible for his accident was the defendant. (d) The plaintiff also knew that the accident happened because there was insufficient lighting [there] to warn him of the barricades. He notified the defendant by telephone several days or a week after his 29 January 2017 visit to the hospital, when he 'told them that I'd smacked into the barricades and that there's no light there'. He agreed that he had telephoned the defendant because he blamed them for causing the accident. (e) He was sufficiently familiar with the concept of commencing legal proceedings to know that if proceedings were to be commenced [they] would be commenced against the defendant."
The respondent submitted that these findings were sufficient to establish that the date on which the cause of action was discoverable was "very soon after the accident". Although no precise date was specified, it was not necessary to do so: the judge's findings suggest that the plaintiff had the relevant knowledge no later than mid-February 2017, rather than late February 2018, the latter date being three years before the proceedings were commenced.
The respondent submitted that the judge had nevertheless dismissed the defence based on the expiration of the limitation period by posing a further unnecessary and inappropriate question in the following terms: "106 The question was whether the plaintiff also needed to know that he needed an expert report to tell him whether or not there was a liability case against the defendant."
The appellant originally provided instructions on 31 January 2017 to a firm of solicitors in Penrith, to act for him with respect to the present claim. This led the judge to reach the following conclusion: "110 Given all these activities by the plaintiff himself, I am satisfied that the discoverability period commenced shortly after the accident, but that the plaintiff falls within the parameters of Baker-Morrison in that he put all of these matters into the hands of a solicitor. 111 I am satisfied that, conformably with Baker-Morrison at [58], the plaintiff not only took the step of instructing a solicitor but also provided full instructions, including documentation. The plaintiff having taken all reasonable steps, the limitation argument must fail."
Two points may be made with respect to these paragraphs. First, although [111] spoke of the plaintiff taking "all reasonable steps", that is language relevant to constructive knowledge, as set out in s 50D(2): the findings of fact made by the judge demonstrated actual knowledge.
Secondly, the judge appears to have thought that if a claimant placed his or her affairs in the hands of solicitors, the discoverability date would not arise until they commenced proceedings, or at least thought that they were ready to commence proceedings. That view appears to have derived from statements made in Baker-Morrison v State of New South Wales. [11] Indeed, the judge referred specifically to Baker-Morrison "at [58]" in a passage which the judge had correctly identified at [103] as dealing with the objective test of "ought to know". That was not the relevant test in the present case. However, in dealing with actual knowledge, I made a number of observations in Baker-Morrison, which the judge did not quote, including, relevantly: "45 … In common with extension provisions, s 50D refers, somewhat simplistically, to whether the person 'knows' (or ought to 'know') the identified facts. It is rare that facts will be known in any absolute sense: rather, as a practical matter, the person will have a belief that certain matters can be established, usually on the balance of probabilities, which is sufficient for the purposes of legal proceedings. Such a belief may be held on firm grounds or on shaky grounds. The belief is likely to involve an assessment of various matters, none of which can be readily quantified. Questions involving causation, fault and assessment of damages are all susceptible to these kinds of uncertainty. Nevertheless, the chapeau of the sub-section refers to knowledge of identified facts, and not to an assessment of prospects of success in the prospective proceedings. Further, despite the inability to bring proceedings without a solicitor in a position to certify in accordance with the requirements of the Legal Profession Act, it is the knowledge of the plaintiff's mother which is the focus of the statutory test."
The reference to the "plaintiff's mother" in that passage is immaterial for present purposes: the plaintiff in Baker-Morrison was a child at the time she suffered injury on premises occupied by the State; it was the mother's knowledge which was relevant in that case.
Aspects of these observations were helpfully expanded upon by Leeming JA in Murgolo v AAI Ltd t/as AAMI: [12] "96 First, each of paragraphs (a), (b) and (c) identif[ies] a single 'fact' which is known or ought to have been known by the plaintiff. The fact, while singular, must be understood as describing 'a composite of inferences or the result of an evaluation', as Basten JA observed in Baker-Morrison … at [27], or 'an evaluative judgment', as Meagher JA observed in Baggs v University of Sydney Union [2013] NSWCA 451 at [13]. I do not regard there to be any difference of substance between those two descriptions. 97 The composite nature of the 'fact', in the case of s 50D(1)(b), has two distinct dimensions. (1) One flows from the threefold nature of the paragraph, whereby the singular 'fact' incorporates causation, fault and identity. It is in sharp contrast with the separate 'material facts' comprising 'the identity of the person against whom the cause of action lies' and 'the fact that the negligence nuisance or breach of duty causes personal injury' in s 57B(1)(b)(ii) and (iii) (which apply to pre-2002 causes of action). (2) The second is that each of causation, fault and identity is itself an evaluative conclusion, to be derived from primary facts. (In some decisions, reference has been made to the 'key factors': see Baker-Morrison at [39] and Gillett at [94]; once again, I do not regard the different language as material.) It is obvious that causation and fault are themselves conclusions from primary facts, and so too, as this appeal well illustrates, is the identity of the corporate defendant."
The complexities which can arise were explained by Leeming JA in the following paragraphs of Murgolo, but in terms which have no immediate application to the present case.
The primary judge also referred to Pomare v Whyte, [13] but the reference was to a passage at [57], dealing with constructive knowledge rather than actual knowledge. It is not necessary to refer to the somewhat unusual facts concerning a prized Angus bull wandering onto the Silver City Highway.
If the facts as found by the primary judge as to the appellant's knowledge are accepted, the cause of action was not only discoverable but discovered more than three years before proceedings were commenced; the limitation defence should have been upheld.

Challenge to facts found by trial judge as to knowledge

The findings of fact made by the trial judge were the subject of a notice of contention filed by the appellant with respect to the limitation defence. That is, the appellant contended that the judge had been correct to dismiss the limitation defence, but should have adopted a different factual analysis, namely: "a. the appellant was unaware that the injury was caused by the fault of the respondent; b. the appellant was unaware that the injury was sufficiently serious (against a backdrop of other antecedent medical conditions) to justify the bringing of an action on the cause of action; and c. the appellant had taken all reasonable steps to ascertain those facts."
The thrust of the appellant's case is that a cause of action is not discoverable whilst ever the matter is in the hands of solicitors, and whatever steps they may or may not be taking.
As to the first issue, namely the party responsible for creating the supposedly dangerous situation, his evidence was that he already knew who was responsible (namely the respondent) when he saw the Penrith solicitors on 31 January 2017. He also believed it was at fault. His evidence in cross-examination was as follows: [14] "Q. Well, you don't have to be a lawyer. You knew who was responsible for the roadworks and the barricades. A. Fair call. Q. You knew you'd suffered an injury. A. Yes. Q. You knew the accident happened because you say there wasn't sufficient lighting there-- A. Yes. Q. --to warn you of it. A. Yep. Q. You knew, in your own mind, that the party responsible for the accident was the defendant. A. Correct, yeah. Q. And you knew that it was their fault. A. Yeah. Q. And you knew that if you were going to commence proceedings, it would be against JK Williams Contracting Pty Limited. A. As far as I'm aware, yeah."
He was then cross-examined about seeing a neurologist in February 2017 on referral by his general practitioner, when, on 16 February 2017, the neurologist was advised that "he has already seen a solicitor and this will be a third party insurance claim, which I do not do in this practice". [15]
The cross-examination continued: [16] "Q. You'd contacted JK Williams Contracting Pty Ltd to tell them that there was no lighting and you hit the barricade? A. Mm-hm. Q. You knew who to ring, you knew who the construction company was? A. Yeah."
Some 18 months later, on 28 August 2018, the solicitors commenced proceedings in the District Court naming the defendant as "JK Williams Contracting Pty Limited" but, apparently, for the sole purpose of obtaining preliminary discovery to determine if it were the responsible entity, and if not who was. That step was taken, despite the fact that on 3 February 2017, the solicitor had sought information from the Penrith City Council which had produced evidence in response that the defendant had sought "road manager consent" for heavy vehicles to have access to the site, on 19 December 2016. Further, they had been supplied with photographs showing the defendant's signage across the fencing behind the barricades and, they appeared at some stage to have obtained an ASIC report showing that, apart from a holding company, the defendant was not part of a group of companies.
Whatever the solicitors may have thought necessary by way of obtaining confirmation or evidence to support the plaintiff's claim, none of this material contradicted the factual proposition that the appellant had known from the time of the accident who was responsible. As noted in Baker-Morrison at [45], it is the plaintiff's knowledge, and not that of any agent or solicitor, which is the focus of the statutory test. Further, despite the difficulties discussed in the cases as to the dividing line between suspicion, belief and knowledge, this was not a case where the appellant could deny knowledge of the identity of the responsible party, nor did he do so.
Similarly, as the appellant acknowledged in his evidence, and as the trial judge found, he was aware that he had suffered an injury and had sought medical assistance within a fortnight of the accident; he did not deny that he believed the injuries were sufficiently serious to justify the bringing of an action. Indeed, the withdrawal of a neurologist who had originally been approached because proceedings were anticipated is powerful evidence as to the appellant's state of mind in February 2017.
None of that is to deny that the solicitors, in a dilatory manner set about obtaining advice from counsel and collecting evidence, none of which impugns the findings of the trial judge as to actual knowledge of the three matters specified in s 50D(1).
It follows that the expiry of the limitation period defence should have been upheld. That is an independent ground upon which the appeal must be refused.

Conclusions

In these circumstances it is not profitable to review the contingent finding of the trial judge as to contributory negligence, nor the challenge to the contingent assessment of damages.
The Court should make the following orders: 1. Extend time within which to commence the appeal to 1 August 2022. 2. Dismiss the appeal. 3. Order that the appellant pay the respondent's costs in this Court.
GRIFFITHS AJA: I agree with Basten AJA.

Endnotes

Tcpt, p 26(15).
Tcpt, p 26(28).
Tcpt, p 26(32)-(50).
Tcpt, p 27(7).
Tcpt, p 101(50)-102(7).
Tcpt, pp 107(15)-(30), 108(20)-(25).
(2007) 234 CLR 330; [2007] HCA 42 at [59]-[60].
(2015) 91 NSWLR 752; [2015] NSWCA 320 ("Miller") at [106].
Primary judgment at 8 and [63].
Judgment at [97].
(2009) 74 NSWLR 454; [2009] NSWCA 35 (my judgment, with which Ipp and Macfarlan JJA agreed).
(2019) 101 NSWLR 376; [2019] NSWCA 295.
[2019] NSWCA 317.
Tcpt, pp 139 (42)-140(15).
Tcpt, p 141(3).
Tcpt, p 142(35). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2023

HEADNOTE [This headnote is not to be read as part of the judgment] On 19 January 2017 the appellant, Anthony Horne, and his son Braidon were riding their bicycles in a westerly direction, on the righthand side of the road along Victoria Street, Werrington at around 9pm. As they crossed the intersection of Victoria and William Streets, Mr Horne collided with a water-filled orange-coloured barricade located immediately next to the roadway. The barricade had been placed there as part of the on-going construction works on the Victoria Street site running from William Street to Cottage Street. On 24 February 2021 Mr Horne commenced proceedings in the District Court against the respondent, J K Williams Contracting Pty Ltd, asserting that it was negligent in failing to ensure that the area around the newly installed barricade was adequately illuminated at night. The street light closest to the barricade was not functioning properly, leaving the area poorly lit. Mr Horne also claimed that the respondent should have erected signage preceding the construction zone to alert cyclists to the presence of the barricade. Gibson DCJ dismissed the claim, concluding that there was no breach of duty owed by the respondent to the appellant; and, had there been a duty requiring the respondent to take extra steps to guard against such a collision, the failure to take those steps was not causative of the appellant's injuries, because, even had the barricade been properly lit, the appellant would not have seen it. The judge also considered whether the action was commenced after the expiry of the three-year limitation period. The judge dismissed this defence because the appellant had placed his affairs in the hands of solicitors and therefore the discoverability date did not arise until the solicitors were ready to commence proceedings. On appeal the primary issues were whether: (i) the trial judge was correct to find that there was no negligence on the part of the respondent; and (ii) the proceedings should have been dismissed because they were out of time. The Court (Basten AJA, Gleeson JA and Griffiths AJA agreeing) held, dismissing the appeal: As to issue (i) - duty of care and breach (1) It was agreed by the experts that if the street lights were functioning properly, the barricades would have been readily visible to a cyclist taking reasonable care for his or her own safety. There was no basis for finding that the respondent knew that one of the street lights was not functioning, nor that it should have had such knowledge. It was not responsible for the functioning of the street lights. It was not obliged in the exercise of its duty of care to cyclists riding on the verge at night to provide additional illumination, or warning signs: [38]-[41]. As to issue (ii) - limitation period (2) Despite initially suggesting that the limitation period ran from the date of the accident, the trial judge correctly addressed the three matters which the plaintiff must know (or which he ought to have known), for the commencement of the discoverability limitation period, in accordance with the Limitation Act 1969 (NSW), ss 50C and 50D(1): [46]. The judge correctly found that each of the facts was in fact known to the appellant: [63], [64]. (3) In referring to the appellant taking "all reasonable steps" and putting his case in the hands of solicitors, the judge wrongly dismissed the defence because she adopted principles relevant to a case of constructive knowledge: [50], [51]. The proceedings were commenced out of time and should have been dismissed for that additional reason: [49]-[50], [66]. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 discussed

(2019) 101 NSWLR 376

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