Pomare v Hogan

Pomare v Hogan - [2019] NSWSC 497 - NSWSC 2019 case summary — Zoe

[4]

Onus of proof

Because it is the second defendant who has pleaded the limitation issue, he bears the onus of establishing the defence to the civil standard of the balance of probabilities: s 140(1) of the Evidence Act 1995 (NSW). The second defendant still bears the onus in circumstances where the Court has ordered, on the plaintiff's application, that the matter be determined as a separate question. However, one forensic consequence of the success of the plaintiff's application for a separate question is that the plaintiff could decide, as he has done, not to give evidence on the determination of the separate question. Such a forensic choice would not have been open to him had his application for a separate question failed since he would be a necessary witness in the principal proceedings. This case is to be distinguished from the case of State of New South Wales v Gillett [2012] NSWCA 83 where it was the defendant, State of New South Wales, which had made the application for determination of the limitation issue as a separate question: see [110] (per Beazley JA, McColl, Campbell, Young and Whealy JJA agreeing).
It was submitted by Mr Stone SC, who appeared with Ms Compton for the plaintiff, that no inference ought be drawn against the plaintiff for not having given evidence since the second defendant had been granted leave to serve interrogatories on him, which had been answered. I reject the submission. The answering of interrogatories does not make the plaintiff a witness, as was appreciated by the plaintiff's solicitors when they declined the second defendant's solicitor's request to make him available for cross-examination. The plaintiff was plainly a person who could have given relevant evidence on the separate question which turns on his knowledge up until the relevant date. His decision not to give evidence has the following consequences: it cannot be used to make up any deficiency in the evidence adduced by the second defendant; evidence adduced by the second defendant which might have been contradicted by the plaintiff can be accepted more readily if the plaintiff fails to give evidence; and that I may more comfortably draw an inference which is otherwise open if the plaintiff could have given evidence to dispute it: Jones v Dunkel (1959) 101 CLR 298 at 312 (Menzies J); [1959] HCA 8. As Kitto J said at 308: "[A]ny inference favourable to the plaintiff [in this case, the second defendant] for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant [in this case, the plaintiff] and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus [the defendant's employee] had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference . . ."

[7]

Other facts established by the evidence

Because of the number of disputes and proceedings to which the accident has given rise I propose to identify the relevant persons, their insurers and their solicitors at the outset. Party Description Insurer (if applicable) Solicitor Proceedings Breeze Logistics Pty Ltd Owner of refrigerated truck being pulled by prime mover National Transport Insurance Thomsons Commenced Breeze Proceedings in District Court against Hogan, Colonial, Gatlet Pty Ltd and Whyte (the Breeze Proceedings) Colonial Freight Lines (NT) Pty Ltd Employer of Mr Pomare and Mr Hogan QBE (for workers compensation) Maurice Kerrigan, for QBE Victorian WorkCover Authority (see below) brought proceedings to recover workers compensation (the Recovery Proceedings) (Colonial) Gatlet Pty Ltd Owner, manager, trustee of Wyndham Estate CGU Insurance McCabes (by subrogation from insurer) Third defendant in Breeze Proceedings Hogan, Michael Driver of the prime mover, employee of Colonial Freight Lines (NT) Pty Ltd CTP insurer of prime mover is Insurance Commission of Western Australia Maurice Blackburn (Dandenong for WC claim; First defendant in current proceedings; first defendant in Breeze Proceedings. Maurice Blackburn (Parramatta) for claim against Whyte (Majed Issa) Pomare, Kereopa Passenger in road train, employee of Colonial Freight Lines (NT) Pty Ltd Maurice Blackburn (Dandenong for WC claim; Plaintiff in current proceedings Maurice Blackburn (Parramatta) for claim against Whyte (Danielle De Paoli) Prime mover Vehicle involved in collision CTP insurer: Insurance Commission of Western Australia Moray & Agnew (CTP) Conducting defences in proceedings where Hogan is defendant pursuant to rights of subrogation. Victorian WorkCover Authority Responsible for workers compensation payments to Hogan and Pomare Wisewould Mahoney Commenced proceedings in the County Court in Melbourne against Whyte, seeing recovery of workers compensation payments (Recovery Proceedings) Whyte, Angus Owner of Black Angus Bull and Wyndham Estate CGU Insurance McCabes in Breeze Proceedings; Curwoods in present proceedings Fourth defendant in Breeze Proceedings; defendant in the Recovery Proceedings; second defendant in current proceedings

[8]

Admissions made in interrogatories

The plaintiff has admitted in answers to interrogatories that while he was lying beside the road after the accident on 18 April 2012, the first defendant told him that he had hit a bull or a cow. The plaintiff has also admitted that, within a short period of the accident, he knew that the road train had collided with a Black Angus bull, which was owned by the second defendant, who also owned or had control over a property which abutted the Silver City Highway where the accident occurred. Shortly after the accident the plaintiff saw an ABC news report which quoted the second defendant as saying that: "A gate had come open, it was either left open or came open". Although the plaintiff did not know how the bull came to be on the road, he admitted that he "knew that a bull should not be on a road".
On 24 April 2012, the plaintiff signed a Workers Injury Claim form which is referred to further below.
The plaintiff first contacted lawyers in relation to the accident in May 2012. He initially spoke to his cousin, a lawyer at Maurice Blackburn in Melbourne. He was subsequently referred to the Perth office of Maurice Blackburn because his employer was registered in Western Australia. However, he was referred back to Melbourne as he was told that the workers compensation claim had to be lodged there. There was a gap in contact with lawyers as the plaintiff's calls were not being returned.
In March 2013 the plaintiff was referred to the Dandenong office of Maurice Blackburn to obtain advice about his workers compensation claim under the Victorian workers compensation legislation. The plaintiff had a conference with a solicitor on 12 March 2013 to discuss his workers compensation claim. The solicitor he consulted referred him to the Compulsory Third Party section of the NSW Personal Injury Department at Maurice Blackburn in Parramatta. On 19 March 2013 the plaintiff had a telephone conference with a solicitor at Maurice Blackburn in Parramatta about a possible motor vehicle accident claim.

[17]

Other evidence known to the plaintiff or his solicitors before 15 May 2014

I have included in the paragraphs below the material which was received by the plaintiff or his solicitors before 15 May 2014. As there is no evidence from the plaintiff or his solicitors to the contrary, I infer that, consistent with the fiduciary duties they owed to him, the plaintiff's solicitors informed him of matters which came to their attention which were relevant, or potentially relevant to, his legal rights and remedies.
On 11 January 2013 Maurice Kerrigan, QBE's solicitors, wrote to QBE. The letter contained the following paragraph: "According to an ABC Rural Report dated 20 April 2012, Mr Whyte confirmed that approximately 50 cattle and the bull had escaped from his property through a gate that had been left open. A copy of the report is attached."
On 24 April 2013 QBE wrote to Maurice Blackburn in Dandenong (the solicitors for the plaintiff's workers compensation claim) and provided to them, at their request, a copy of their claim file documentation, which I infer contained the letter dated 11 January 2013 referred to above.
On 23 September 2013, Danielle De Paoli of Maurice Blackburn in Parramatta (the solicitors for the plaintiff in the motor vehicle claim and the solicitors in the current proceedings) sent an internal memorandum relating to the circumstance that another solicitor in the firm, Majed Issa, was representing Mr Hogan in a claim against the farmer (Mr Whyte) whose bull escaped the property. Ms De Paoli referred to the circumstance that her client, the plaintiff, had three potential causes of action "which we intend to pursue", which included "a claim against the owner of the farm whose Angus bull escaped" as well as a claim against the driver (Mr Hogan). I infer from this communication that the plaintiff's solicitor (and therefore the plaintiff by reason of the inference referred to above) knew that Mr Hogan, through Maurice Blackburn, in Parramatta, was claiming damages against Mr Whyte, in circumstances which were relevantly identical to the plaintiff's circumstances, as both Mr Pomare and Mr Hogan had suffered injuries when the vehicle in which they were travelling collided with the bull.
On 27 September 2013 QBE wrote to Maurice Blackburn in Parramatta in response to their letter dated 11 September 2013 asking for information relevant to the plaintiff's "WorkSafe claim". QBE refer to the information that was provided to Maurice Blackburn in Dandenong (see above) and asked for a signed authority from the plaintiff, authorising provision of further information. The plaintiff completed an authority on 11 October 2013. By letter dated 21 October 2013 Maurice Blackburn provided the signed authority to QBE.
On 19 November 2013 QBE wrote to Maurice Blackburn in Parramatta indicating that it had decided to release further "claim file documentation" which had been received or created since a previous release was made on 24 April 2013 and enclosed the information.
On 3 January 2014, Moray & Agnew, the solicitors for the Insurance Commission of Western Australia, the compulsory third party insurer of the prime mover, wrote to Maurice Blackburn in Parramatta and said: "With regard to any intended litigation we inform you that there are other proceedings on foot in the District Court of New South Wales involving, as we understand, the owner of the Black Angus Bull and owner of the trailers attached to the prime mover."
I infer that the "other proceedings on foot" was a reference to the proceedings referred to below which had been commenced by Breeze Logistics Pty Ltd (Breeze) in the District Court in New South Wales on 1 May 2013 (the Breeze Proceedings).
On 13 January 2014 Maurice Blackburn in Parramatta wrote to Moray & Agnew and asked for a copy of the pleadings in the Breeze proceedings referred to in their letter of 3 January 2014. By email dated 26 February 2014, Moray & Agnew enclosed an authority for the plaintiff to sign regarding receipt of the documents from the Breeze Proceedings. Mr Jessop, the lawyer from Moray & Agnew also said: "I also took a call from Barrie Fudge and Associates, on Monday. I was informed that the property damage proceedings are back in court on Thursday, next week. I understand Mr Fudge acts for the plaintiff in those proceedings."
On 18 March 2014 (according to a file note made by Mylinh L'Estrange of Wisewould Mahoney), Ms L'Estrange of Wisewould Mahoney, who acted for the Victorian WorkCover Authority, spoke to Nelufer, an assistant to Ms De Paoli, the lawyer at Maurice Blackburn in Parramatta who was advising the plaintiff) and had a conversation to the following effect, as recorded in the file note: "N [Nelufer] says the worker [Mr Pomare] is only bringing a motor vehicle claim against the trucking company and is not intending to bring a civil liability claim against Angus Whyte. They have only just filed the claim form with Insurance Commission of Western Australia so nowhere near settlement. They have written to QBE asking for a list of payments. Moray and Agnew in NSW have responded to the claim form. I clarified that we act for VWA [Victorian WorkCover Authority] and that we have no right of recovery against the trucking company as they were the employer and were indemnified by the VWA. I asked that they provide me with a copy of the claim form. N asked that I email her my request and clarifying how we are involved and she will pass onto Danielle [De Paoli]."
On 18 March 2014 Wisewould Mahony sent an email to Maurice Blackburn in Parramatta in which they said: "Under section 138 of the Accident Compensation Act 1985 [(Vic)], the VWA [Victorian Workcover Authority] is entitled to recover compensation payments it has made from negligent third parties. We have been allocated a section 138 recovery regarding an incident in which your client, Kereopa Pomare, was injured in a motor vehicle accident. The VMA's recovery claim also pertains to worker Michael Hogan, who, as the driver of the truck, was also injured in the accident. Our client's recovery claim does not affect your client's entitlement to compensation. We have issued recovery proceedings against Mr Angus Whyte in the County Court of Victoria at Melbourne to recover compensation paid to your client and Mr Hogan. We enclose a copy of the Writ and Statement of Claim along with a copy of the Defence for your information. As discussed, we would be grateful to receive a copy of the worker's claim form filed against the trucking company; along with any other liability information obtained by your client in relation to the incident. We would appreciate if you could keep us informed of any developments in your client's proceeding. In turn, we will keep you apprised of any development in the 138 recovery proceeding." [Emphasis added.]
The writ and statement of claim enclosed with the letter showed that the Victorian Workcover Authority had commenced proceedings in the County Court of Victoria at Melbourne against the second defendant seeking reimbursement of workers compensation payments made to Mr Hogan and Mr Whyte and indemnity for any such payments to be made in the future (the Recovery Proceedings). The relevant allegation of negligence was: "7. The incident was caused as a result of the act, default or negligence of the Defendant, his servants or agents PARTICULARS OF ACT, DEFAULT OR NEGLIGENCE (a) Failing to properly close all gates to his property; (b) Failing to properly lock all gates to his property; (c) Failing to implement self-closing gates on the property; (d) Exposing the workers to risk of injury, which could have been avoided by reasonable care."
The defence filed by Mr Whyte in the Recovery Proceedings contained the following response to paragraph 7 of the statement of claim: "He denies each and every allegation contained in paragraph 7. If a gate was left open (which is not admitted) then it was left open by third parties."
On 24 March 2014 Ms L'Estrange of Wisewould Mahony wrote to Maurice Blackburn in Parramatta and asked Ms De Paoli to confirm that the plaintiff (Mr Pomare) objected to giving evidence in the Recovery Proceedings currently listed for hearing in the County Court in Melbourne on 23 June 2014.
On 27 March 2014 Maurice Blackburn in Parramatta wrote to Wisewould Mahony as follows: "We note that the matter of the Victorian WorkCover Authority v Angus Whyte is listed in the County Court of Victoria in Melbourne on 23 June 2014. We advise that our client, Mr. Kereopa Pomare, objects to the giving of evidence in this matter. Our client is intending on commencing Court proceedings against either or both of the driver of the vehicle or alternatively the owner of the animal which was on the road way. Our client does not wish to give evidence in the matter of the Victorian WorkCover Authority v Angus White until such time as his action concludes."
On 2 April 2014 Maurice Blackburn in Parramatta wrote to Wisewould Mahony asking whether "Angus Whyte, owner of the Angus bull which appeared on the roadway, is insured" and also whether "the Defendant" (whom I infer to be Mr Whyte in this context) "was prosecuted in relation to the circumstances of this accident".

[25]

The pleadings in the Breeze Proceedings

On 1 May 2013 Breeze, the owner of the refrigerated trailer attached to the prime mover, commenced the Breeze Proceedings by filing a statement of claim in the District Court claiming damages in negligence against Mr Hogan as first defendant, Colonial Freight Lines (NT) Pty Ltd (which was the employer of the plaintiff and Mr Hogan) as second defendant, Gatlet Pty Ltd (which was alleged to be the owner of Wyndham Station, the property on which the bull had been grazing before it wandered onto the road and of the bull itself) as third defendant and Mr Whyte (who was alleged to have the care and control of Wyndham Station and of the bull and who was the principal of certain hunters who had access Wyndham Station via the gate) as fourth defendant.
The relevant allegations were as follows: "6. Prior to 2.30 am on 18 April, 2012 the third and/or fourth defendant gave permission to certain hunters to access Wyndham Station. 7. The said hunters were at all material times agents of the third and/or fourth defendant. 8. Whilst acing as agents of the third and/or fourth defendant the hunters exited Wyndham Station via the gate which gives access to a dirt driveway which leads to the Silver City Highway. 9. At the time of entering or alternatively exiting the gate the hunters failed to secure or properly secure the gate. 10. Subsequent to the hunters failing to secure the gate a number of the third defendant's cows and bulls exited the unsecured gate from Wyndham Station and entered the Silver City Highway. 11. On or about 18 April, 2012 at approximately 2.30 am the plaintiff's property was being towed by the second defendant's prime mover being driven by the first defendant on the Silver City highway when it collided with the third defendant's bull. 12. As a result of the collision the plaintiff's property was damaged. 13. The collision was due to the negligence of the first, third and fourth defendants and the hunters. Third and Fourth Defendant (a) failing to secure or check that the gate was closed in circumstances where it was known that the hunters were using the gate; (b) failing to ensure or check that the gate was properly secured in circumstances where it was known that the hunters were using the gate; (c) failing to instruct or properly instruct the hunters using the gate as to how it should be secured. The Hunters (a) failing to secure or properly secure the gate. . . . 15. The third and fourth defendants are jointly and severally liable as principals of their agents the hunters and/or vicariously liable for the actions or omissions of the hunters."
McCabes, lawyers on the record for Gatlet Pty Ltd and Mr Whyte in the Breeze Proceedings, filed a defence for the third and fourth defendants on 6 September 2013 in which they did not admit paragraphs 6, 9, 10, 11 and 12 of the statement of claim. They denied paragraphs 7 and 15 of the statement of claim. As to paragraph 8, they alleged: "The third and fourth defendants deny paragraph 8 of the statement of claim insofar that the hunters were agents of the third and/or fourth defendants and do not admit the balance of the paragraph."
As to paragraph 13 of the statement of claim, they denied paragraphs (a)-(c) under the heading "Third and Fourth Defendant" and did not admit paragraph (a) under the heading "The Hunters".
The evidence showed that these documents were seen by the plaintiff's legal representatives when they inspected documents produced on subpoena issued by Moray & Agnew (solicitors for the first defendant) in the current proceedings. They were addressed in Mr Stone's advice of 7 February 2017 (referred to below) and I infer were inspected by the solicitors shortly prior to that date. As referred to above the plaintiff's solicitors knew of the proceedings by 3 January 2014 and had asked for the pleadings on 13 January 2014. There is no evidence that they received them before the relevant date and I do not infer that they did.

[26]

Correspondence relating to the claim brought by the Victorian Workcover Authority against the second defendant

On 9 May 2013 Wisewould Mahony, who acted for the Victorian Workcover Authority in the Recovery Proceedings, wrote to the second defendant in the following terms: "We act for the Victorian WorkCover Authority in the recovery of worker's compensation from third parties pursuant to s 138 of the Accident Compensation Act 1985. We enclose by way of service a County Court Writ and Statement of Claim dated 6 May 2013. We suggest you make contact with, and forward a copy of the attached Writ and Statement of Claim to your public liability insurer as at 18 April 2012."
As referred to above, the plaintiff's solicitors obtained a copy of the pleadings in the Recovery Proceedings by email sent on 18 March 2014, prior to the relevant date.
On 19 March 2014, Ms L'Estrange of Wisewould Mahony spoke to Majed Issa of Maurice Blackburn in Parramatta, who was advising Michael Hogan. Ms L'Estrange's file note recorded as follows: "Majed advised that Mr Hogan has recently approached them for legal assistance. However, as Mr Pomare has approached them first there is a conflict. They want to obtain consent from the parties in Mr Pomare's case (namely the defendant in that case) to set up a Chinese Wall at the firm so they can act for both parties. So until the above is done then they can't commenced [sic] proceedings but ultimately they are looking to sue Angus Whyte under the public liability law and/or an animal act claim. Advised him [Majed] of our action against Angus Whyte for recovery of both workers compensation. Advised that I will seek an adjournment to our hearing of 23 June 2014 and I will thereafter need to seek instructions re whether we transfer the recovery proceeding to NSW or stay the recovery proceeding pending the outcome of Hogan's case and seek recovery though Hogan. Although as I understand it Pomare is not going after Angus Whyte and only bringing a claim under the motor vehicle accident act so our recovery action for compensation paid to Pomare is different. I will send Majed and email to confirm our involvement."
Although I do not infer that the solicitor at Maurice Blackburn (Parramatta) who was advising the plaintiff saw this file note, I infer that, as part of the process of obtaining Mr Pomare's consent to allow Maurice Blackburn (Parramatta) to act for Mr Hogan, that solicitor was informed that Mr Hogan was considering bringing a claim against Mr Whyte.
On 21 March 2014 Wisewould Mahony sent a letter to Mr Hogan, care of Maurice Blackburn in Parramatta, which said: "We act for the Victorian WorkCover Authority ('the Authority'). We note you act for Mr Michael Hogan in relation a potential civil liability claim against Angus Whyte. We understand that the claim relates to injuries sustained by Mr Hogan on 18 April 2012 when he was driving a road train along the Silver City Highway, Wentworth, NSW, and had to swerved suddenly to avoid colliding with a bull. Please note, should your client bring an action for common law damages in New South Wales and subsequently receive an award of damages or settle a claim in respect of his injuries, the Authority will be entitled to recover the amount of compensation paid to your client in Victoria pursuant to section 85(6) of the Accident Compensation Act 1985 (Vic) ('the Act') from your client directly. We enclose a copy of the section 239A Certificate detailing the compensation paid to date of $117,407.59."

[27]

Mr Stone's advices after 15 May 2014 but before 18 April 2015

Mr Stone continued to advise the plaintiff. The plaintiff tendered Mr Stone's advices for the period from 15 May 2014 (the relevant date for the separate question) to 18 April 2015, being the expiry of the limitation period for actions in tort, otherwise than pursuant to ss 50C and 50D of the Act. I regard the relevance of these documents as scant for the reasons given further below, as they were created after the relevant date and, with notable exceptions, do not bear on the plaintiff's knowledge at the relevant time.
In an advice dated 22 May 2014, Mr Stone advised the plaintiff that he had "three potential sources of claim": a workers compensation claim (for which the plaintiff was already in receipt of payments); a claim against the CTP insurer of the truck based on the an "error" on the part of the driver; and "suing the owner of the cow [sic, bull], on the basis that it should not have been on the roadway".
Mr Stone continued: "Critical to a claim against the cow is determining the farmer has insurance."
Mr Stone recorded his inference that the farmer was insured by naming the firm acting for Mr Whyte in the Recovery Proceedings. Mr Stone expressed the view that it was still too early to say who should be sued as he was still awaiting the police materials and was waiting to see what happened in the Recovery Proceedings. He observed that: [I]f we see the insurer of the farmer paying up for a settlement in [the Recovery Proceedings] or losing [the Recovery Proceedings], then they should be willing to ultimately negotiate and settle with us."
On 25 June 2014 Mr Stone wrote to his instructing solicitors recording receipt of the police material, which he said included a statement from Mr Hogan which was consistent with what the plaintiff had said about the circumstances of the accident. Mr Stone referred to the entry in the police report which said: "Animal (bull) deemed to be at fault. Enquiries made with property/bull owner. It is apparent that persons not lawfully on his property have opened and left a gate open that exited onto the highway. The bull was prized possession of the property owner."
Mr Stone noted that the plaintiff would only succeed against the farmer if fault could be shown in allowing the "cow" to escape. He referred to the Recovery Proceedings and said: "In this case, we have the luxury of sitting back and allowing them to run their case and see how they go. If they win, then litigation becomes a good deal more attractive to us. I strongly recommend that my instructing solicitor hold off substantial additional expenditure on this case (preparing damages) until we see how [the Recovery Proceedings] go."
On 30 July 2014 Mr Stone advised in a letter to his solicitors: "As previously advised in this matter, I am very nervous as to our prospects against either of the defendants. At this stage we have no evidence of any liability on the part of the owner of the cow."

[28]

Mr Stone's advices from 18 April 2015 up until the filing of the amended statement of claim on 15 May 2017

On 3 November 2015, Mr Stone confirmed previous advice given before the expiry of the limitation period on 18 April 2015 and said: "With the three year limitation period due to expire on 18 April 2016 [sic], we agreed that you would advise Mr Pomare that he was better off resting on his workers compensation rights than pursuing either a public liability or CTP claim that he appeared destined to lose."
Mr Stone then opined that there was an argument which would enable the plaintiff to bring the accident within the definition of "blameless motor accident" which would entitle him to sue Mr Hogan and recover from the CTP insurer. There was no further reference in the detailed advice to the potential claim against Mr Whyte, it being then accepted that the three-year limitation period which had begun to run from the date of the accident had expired.
On 18 November 2015 Mr Stone confirmed his solicitors' instructions to commence proceedings on behalf of the plaintiff against Mr Hogan and the need to provide a full and satisfactory explanation of the delay. Mr Stone said: "He [the plaintiff] was initially keen for us to be pursuing the farmer, but I pointed out that we had no prospects of winning that case. At present the only hope we have of winning a case is to succeed with an argument on the available evidence pushing a narrow interpretation of section 7A [of the MAC Act]."
It is an agreed fact that documents were produced in answer to a subpoena which was issued on 17 November 2016 in the current proceedings by the District Court of New South Wales at Sydney at the request of Mr Hogan, for whom Moray & Agnew acted by way of subrogation on behalf of the Insurance Commission of Western Australia, and that access to those documents was granted on 2 February 2017.
The subpoena was addressed to McCabes Lawyers who, as referred to above, were the solicitors on the record for Gatlet Pty Ltd and Mr Whyte in the Breeze Proceedings. I infer that the forensic purpose for which the subpoena was issued was to investigate whether the material in the Breeze Proceedings would assist the Insurance Commission of Western Australia, as Mr Hogan's insurer, to establish that the accident was not a "blameless accident" within the meaning of the MAC Act because it was due to the fault of Gatlet Pty Ltd or Mr Whyte.
The documents produced included a letter dated 3 July 2012 from Thomsons Lawyers, who acted for National Transport Insurance (the insurer of Breeze's truck) to CGU Insurance (the insurer of Mr Whyte and Galet Pty Ltd) enclosing a copy of an investigator's report. The letter said: "1. Liability of insured in negligence As you know, Section 7 of the Animals Act 1977 (NSW) abrogates the prior common law rule which restricted the liability of property owners for damage caused to road users by stray animals. As such, ordinary general principles of negligence will apply. It is clear that your insured had a duty to keep the roadway clear of stray animals which may constitute a hazard for road users. This is surely not in contention. In addition, it is also clear that your insured has breached that duty. You will note from the ATI report that your insured told Mr Milne that local hunters had accessed the Insured's property (with his permission) on the day prior to the incident. Following the incident, your insured investigated the gate which is closest to the accident location and noted that the gate was wide open. As there is no sign of damage to the fencing or gates, the only logical conclusion is that the cattle escaped through the open gate. In fact, you will note from the report that your insured also draws this conclusion. Further, your insured stated to Mr Milne that it appeared to him that the hunters had attempted to slip the securing hook on the gate over the relevant chain. However, to secure the gate properly, the hook must be placed through an eyelet of the chain. As such, your insured concludes that the gate would have swung open when cattle brushed along the gate. Interestingly, as a result of this incident, your insured plans to upgrade the securing mechanism on all of his gates. We note from your letter that you claim that the gates and fencing around the property were in good condition at the time of the incident. However, we note that the ATI report concludes that the fencing and gates (which boarder [sic] onto the Silver City Highway) are in an inferior condition to the gates and fencing within your insured's property. In addition, you have not provided us with any evidence of any maintenance system to check for defects in the fence line and gates. In any event, as discussed, our client does not rely on any defects or inadequacies in the fence line. Rather, our client relies on your client's awareness that hunters had used the gate which abuts the Silver City Highway on the date prior to the incident, and made no enquiries of his own as to whether the gate had been securely fastened. We find this to be remarkable, given the value of his cattle stock and the proximity to the Silver City Highway, a road which regularly accommodates very large vehicles, not unlike our client's vehicle. The risk of large damage and loss in these circumstances was extreme, and your client's omission to check the gate line himself, by his own admission, caused the accident. In addition to the above, Parliament has made its intentions very clear as to the seriousness of these matters. In particular, we draw your attention to your client's statutory duty under Section 139 of the Rural Lands Protection Act 1998 NSW which creates an offence for a property owner to allow his stock to be on a public road without authority to do so. As such, not only is it clear that your client has breached his common law duty to keep the roadway clear of stray animals, it is also clear that he has breached a statutory duty under this Act, which we note creates an offence. 2. Our client's claim We are hereby instructed to put you on notice of our client's claim of $186,856.83 for the damage sustained to our client's vehicle, which we note was a total loss. In addition, our client will be shortly forwarding details of its loss of income claim which will need to be added to this amount."
The documents produced also included a report from Cerno (investigators) dated 3 August 2012, which attached an unsigned statement of Mr Whyte and a second report from Cerno dated 29 August 2012, which attached a signed statement of Mr Whyte.
On 7 February 2017 Mr Stone provided a further written advice to his solicitors which recorded that the Breeze Proceedings had been resolved with a payment to Breeze of $214,000 from Mr Whyte and Gatlet Pty Ltd. Mr Stone said: "We very much need to know what the evidence [in the Breeze Proceedings] is. If there is an easier way to win this case through [the plaintiff] suing the farmer, then that is what we ought to be doing."
Mr Stone addressed the limitation question as follows: "No limitations issues If we do have to join Gatlet Pty Ltd (as owner of Wyndham Station) and/ or Mr Whyte, there should not be any limitations issues. Under the current "floating" NSW limitation period, time only starts to run once we have evidence of a potential liability. In my view, we don't even have that evidence now, so time has not yet commenced to run."
On 28 March 2017, Mr Stone advised by reference to the material which had been produced on subpoena, including the investigation reports referred to above. He recommended commencing proceedings against Mr Whyte.
As referred to above, the amended statement of claim was filed on 15 May 2017.

[29]

The matters in issue

It was common ground that the plaintiff knew, within a relatively short time of the accident, that he had suffered injury and that it was sufficiently serious to justify the bringing of an action on the cause of action (s 50D(1)(a) and (c) of the Act). The only issue is whether the plaintiff knew or ought to have known of the "fact that the injury . . . was caused by the fault of the [second] defendant": s 50D(1)(b).
The plaintiff accepted that he knew before 15 May 2014 that Mr Whyte was the owner of the bull and the relevant property and had care and control of both the bull and the property, its fencing and its gates and that it was foreseeable that the escape of stock onto the Silver City Highway would cause injury.
Mr Cavanagh submitted that the evidence established that well before 15 May 2014 the plaintiff knew that the second defendant had admitted leaving the gate open, as reflected in his instructions to his solicitors on 12 March 2013; the details in the claim form dated 16 April 2013 which was the subject of his statutory declaration; and his admission in his answer to interrogatory 10a that "the bull should not be on the road". Mr Cavanagh also relied on the plaintiff's knowledge of the ABC report of 20 April 2012 in which the reporter quoted the second defendant as having said: "A gate had come open, it was either left open or came open." He submitted that this was sufficient for a finding to be made that the plaintiff "knew" that his injuries were caused by the fault of the second defendant.
Mr Cavanagh submitted that each of these matters was known personally by the plaintiff at the relevant time and did not depend on the legal advice he had received. He contended that the legal advice was relevant to show that the plaintiff only sought to join the second defendant when his legal advisers found out that the second defendant's insurers had settled the Breeze Proceedings by a payment of a substantial sum. He submitted that the plaintiff's solicitors knew that the plaintiff's claim, but for the limitation point, was relevantly indistinguishable from the claim brought by Breeze.
Mr Stone contended that the plaintiff did not know that the second defendant had failed to take a precaution which a reasonable person in his position would have taken to avoid a foreseeable risk of injury to persons using the Silver City Highway. He submitted that "there has never been any objective evidence of the [second] defendant leaving the gate open or any admission by the [second] defendant of his leaving the gate open". He submitted that, until there is proof, or at least reliable evidence of, liability, the plaintiff could not be said to "know" the matter in s 50D(1)(b). Mr Stone contended that where a plaintiff's belief is based on "rumour", "scuttlebutt" or information based on something someone heard at the "pub", it cannot be inferred that the plaintiff had the requisite knowledge.

[30]

The applicable principles

In order to determine the dispute, it is necessary to address the meaning and purpose of ss 50C and 50D in the context of the Act as a whole as well as, where relevant, the law relating to commencement of proceedings.
Absent the specific provision, time begins to run in a claim for damage in tort when the damage is suffered, that being the date on which the cause of action in tort is complete. The general rule was seen to operate unjustly with respect to plaintiffs who had suffered personal injury, in circumstances where they might not, at the time the injury was first suffered, have appreciated that they had suffered an injury since the symptoms might be latent; or where they might not have appreciated that the injury would be a serious or life-threatening one and may have believed that it was a transient indisposition from which they could expect to recover; or where they might not realise that the injury was the consequence of fault on the part of someone, such as a surgeon or anaesthetist, as a consequence of a procedure conducted while the putative plaintiff was unconscious. The current version of the Act, which applies in the instant case, makes specific provision in Division 6 of Part 2 for personal injury actions, whether "in tort, in contract, under statute or otherwise": s 50A of the Act.
I am required to prefer an interpretation which would promote the evident purpose of the legislation over one that does not: s 33 of the Interpretation Act 1987 (NSW). The purpose of these provisions is to remedy the injustices referred to above, not to provide an open-ended limitation period which depends on the opinions of legal advisers. The effect of Division 6 is to make the running of time (the limitation period) dependent, not on the date of accrual of a cause of action, which is the position which otherwise applies under the Act, but rather on the date on which the plaintiff knew or ought to have known of three matters: that injury has occurred, which was caused by the fault of the defendant and that the injury was sufficiently serious to justify the bringing of proceedings on the cause of action (being the cause of action ultimately pleaded).
The focus of Division 6 is the knowledge of the plaintiff, not the plaintiff's legal advisers. This distinction is significant in cases such as Kay v Sydney Airport [2014] NSWSC 744 where the solicitor, but not the plaintiff, knew, or ought to have known of certain matters which were contained in documents in her possession. As the defendant in that case, Alltrack GSE Pty Limited, could not prove that the plaintiff knew of what was contained in the documents until a considerable period after they were received by her solicitors, the defendant could not make out the limitation defence to the plaintiff's claim. In Kay v Sydney Airport both the plaintiff, Ms Kay, and the solicitor, Ms May, gave evidence about their respective states of knowledge and what had been communicated to the plaintiff and at when it had been communicated. This evidence enabled a finding to be made that Ms Kay did not have the relevant knowledge and was sufficient to defeat the inference which would otherwise have arisen had that evidence not been adduced.
The "fault" of which the plaintiff must be shown have knowledge is legally actionable fault, not moral culpability: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 at [39] (Basten JA, Ipp and Macfarlan JA agreeing). The fact in s 50D(1)(b) is one in respect of which a "legal evaluative judgment appears to be required": Baker-Morrison v State of New South Wales at [41].
It is of significance that s 50D does not import any requirement that, at the point at which the limitation period starts to run, the plaintiff's claim have "reasonable prospects of success". This requirement, which is imposed on legal practitioners, but not individual litigants, operates as a condition precedent to the commencement of proceedings: Legal Profession Uniform Law Application Act 2014 No 16, Sch 2. The requirement has several consequences, including relating to costs and disciplinary matters. By cll 2 and 4 of Sch 2, legal practitioners are prohibited from providing legal services on a claim or defence of a claim for damages or commencing proceedings on behalf of a client without reasonable prospects of success. The test is whether the responsible legal practitioner "reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success": cl 2(1). A fact is provable only if the practitioner reasonably believes that the material then available to him or her provides a proper basis for alleging that fact: cl 2(2). A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim: cl 2(4).
It is also of significance that a putative plaintiff has three years from the date on which he or she knows, or ought to know of, the three matters specified in s 50D(1) to commence proceedings. It can be inferred that the legislature considered that this was both a reasonable and sufficient period to allow plaintiffs who had suffered personal injury to make whatever investigations were required, consult legal practitioners and do whatever else was required to commence proceedings if, on proper analysis, the prospects (which would have to be adjudged by a legal practitioner to be reasonable before a statement of claim could be filed) warranted it. It would do violence to the statutory language of Division 6 of Part 2 of the Act to import these latter considerations into a determination of when time begins to run.
Section 50D makes no mention of "provable facts" or material sufficient to allege a fact in, for example, a pleading. Nor is there any requirement that the plaintiff must have received advice that his or her claim has reasonable prospects of success. Nor does s 50D require the plaintiff to "be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise": Baker-Morrison v State of New South Wales at [39], citing Drayton Coal Pty Ltd v Drain [1995] NSWCA 131. As the Court of Appeal said, at [39] in Baker-Morrison v State of New South Wales: "It is the key factors necessary to establish legal liability which must be known."
In Baker-Morrison v State of New South Wales itself, the plaintiff, who was then two years old, was injured when her fingers were caught in the automatic sliding door of the Gosford Police Station. The Court found that the key fact of which the plaintiff's mother had to be shown to know, or ought to have known, was the availability and practicability of installation of a device to make the sliding door safe: [40]. The Court of Appeal found that this fact was essential for her to be aware that her daughter's injury was caused by failure on the part of the State to take reasonable care for her safety: [40]. At [40] the Court said: "The exercise undertaken by the State in the present case fell far short ofdemonstrating that the plaintiff's mother knew, at the relevant time, of anysteps which could and should reasonably have been taken by the occupier ofthe premises to render the sliding door safe."
The Court addressed the meaning of "knows" at [45] as follows: "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 subsection 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."
It can be seen from this passage that the question of knowledge is not to be answered by reference to the availability of admissible evidence but rather to the plaintiff's belief that certain matters can be established. The statutory words are a sufficient indication of the legislative intention.

[31]

The key factors necessary to establish legal liability

In the present case the plaintiff was injured by a collision between a road train and a bull which had not been contained on the property to which it belonged. The plaintiff believed, prior to 15 April 2014, that the reason the bull was on the road was that the second defendant had left the gate open or that it had come open. The evidence reveals that the plaintiff understood that the second defendant had admitted as much to the police and when interviewed by the ABC. His belief, which is contained in a statutory declaration made by him in support of his motor accident claim, is sufficient to establish that he knew this to be the case for the purposes of s 50D of the Act. He has not given evidence that his belief changed as a result of anything that his solicitors advised or told him, or provided to him, or for any other reason. In these circumstances I can more comfortably draw the inference that this remained his belief at all material times (including in the period up to the relevant date and beyond). I do not accept Mr Stone's contention that the plaintiff's belief was based on "rumour", "scuttlebutt" or information based on something someone heard at the "pub" since the plaintiff has not given evidence as to the source or basis for his belief, although inferences can be drawn that it was based in part on what he heard from Mr Hogan and from the ABC report. In the absence of evidence from the plaintiff, I do not infer that the plaintiff did not have any other source for his belief.
In so far as an evaluative judgment is required to determine whether the second defendant is at fault, it is necessary to consider basis of the second defendant's legal liability to the plaintiff.
The owner of land on which animals graze owes a non-delegable duty to take reasonable care to prevent the animals escaping onto a highway. The duty owed to users of the highway, who had neither control over, nor knowledge of the condition of the fencing, was to ensure that the fences and gates were in a condition adequate to contain the animals: see Simpson v Blanch [1997] NSWCA 287 and the cases cited therein.
The rule in Rylands v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330, which had the effect of making owners of animals strictly liable in certain circumstances for damage done to those affected when they were not constrained behind fences, was abolished in New South Wales in so far as it applied to damage caused by an animal by Part 3 of the Animals Act 1977 (NSW). It was abolished under the common law by Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 in which the High Court held that the general law of negligence applied. The Court addressed the question whether there were cases where a defendant would have been liable in accordance with Rylands v Fletcher but would not be found to be liable under general principles of negligence and concluded that, because of numerous qualifications to the so-called "rule", the results in each instance would be no different. The plurality in Burnie Port Authority v General Jones Pty Ltd analysed the question of liability by reference to concepts of control and vulnerability which were considered in Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61.
Applying these principles to the present case, the second defendant had control over his land and his cattle, including the Black Angus bull. The plaintiff was a passenger in a road train being driven up a highway and had no control over the means by which the second defendant used to keep his animals within the boundaries of the property. It was reasonably foreseeable that if one of the second defendant's animals escaped from the confines of the property and ventured onto the road, there would be a collision with any passing vehicle which would cause injury to the driver and any passengers. The risk of harm would be substantial, having regard to the speed of vehicles on the highway, their potential mass (particularly where the vehicle is, as in the instant case, a road train) and the mass of the animal. The risk would be greater at night because the reach of the headlights is considerably less than the available sight distance in daylight.
In these circumstances, if the second defendant had, as the plaintiff believed he had on the basis of the supposed admission to police, left the gate open or was otherwise responsible for the gate being open, the second defendant would be liable to the plaintiff under ordinary principles of negligence. It was not necessary for the plaintiff to know any other essential factor in order to know that his injuries were caused by the fault of the second defendant. The obvious and reasonable precaution which the second defendant was obliged to take was to close the gate or to take reasonable steps to keep the gates closed.
Later information came to light, in the form of the second defendant's defence in the Recovery Proceedings, which cast doubt on the objective correctness of the plaintiff's belief that the Angus bull had escaped because the second defendant himself left the gate open. However, the plaintiff has not given evidence that he no longer knew, or held the belief, that the second defendant had left the gate open, or was responsible for the gate being open, as at 15 May 2014. Indeed, it is open to infer from Mr Stone's reference, in his advice of 18 November 2015, to the plaintiff having been "initially keen for us to be pursuing the farmer" that the plaintiff was "keen", as a result of his belief held up to 15 May 2014 and beyond, to bring a claim against the second defendant whom he believed to be responsible for his injuries. As the plaintiff has not given evidence, I feel more comfortable in drawing that inference. I am satisfied that the plaintiff believed the second defendant to be at fault because he had left the gate open or that the gate, being defective, had opened or had been left open. None of the advices given to the plaintiff by his lawyers has been shown to be sufficient to disabuse him of his belief which endured until at least 15 May 2014, in the absence of evidence from the plaintiff that the advices had that effect. As the portions extracted above indicate, the advices were largely concerned with whether the facts could be proved and whether the potential claim against Mr Whyte would have reasonable prospects of success.
I do not accept Mr Stone's argument that the commencement of the discovery limitation period can be retrospectively altered if subsequent information indicates that the plaintiff's knowledge in the period of three years before the relevant date, was not entirely accurate. That the second defendant denied, in other proceedings, that he left the gate open, or that the gate was open at all, does not affect the plaintiff's belief, which amounted to knowledge, at the relevant time that the defendant had admitted that it was. That the police report did not record the content of what the plaintiff believed to have been the second defendant's admission cannot affect the plaintiff's knowledge when the evidence does not establish that either he or his solicitors had access to the police report before the relevant date.
It is not to the point that Mr Stone advised the plaintiff to wait and see what would happen in the Recovery Proceedings and told the plaintiff that there were "no limitation issues" on the basis that time did not run until "we have evidence of a potential liability". As the Court said in Baker-Morrison v State of New South Wales at [45], it is the knowledge of the plaintiff, not whether the plaintiff's solicitors can certify reasonable prospects of success that is "the focus of the statutory test."
Although I have summarised the contents of those advices and the documents which came to the attention of the plaintiff's solicitors after the relevant date, I am not persuaded that these documents are relevant, except to the limited extent identified above. Section 50D is not premised on a hypothetical inquiry as to whether, had the plaintiff commenced proceedings in 2014, the second defendant would have defended them, and on what basis. I apprehend that Mr Stone tendered the documents, in part to show what might have been discovered by the plaintiff's solicitors had they made inquiries before the relevant date. It was not submitted by the second defendant that the plaintiff ought to have made further inquiries. Rather, the second defendant's case on the separate question was that the evidence it had tendered showed that the plaintiff himself actually had the requisite knowledge before the relevant date.
Mr Stone, in effect, conducted the hearing of the separate question as if it were an inquiry as to when the plaintiff's solicitors would have been in a position to certify that the plaintiff's claim had reasonable prospects of success and an inquiry into the "wisdom of pursuing proceedings". Section 50D does not turn on either of these questions.

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (12)

Cited By (2)