Pomare v Whyte

Court of Appeal (NSW)|2019-11-12|Before: Basten JA, Macfarlan JA, Adamson J

Introduction At about 2.30 am on 18 April 2012, the appellant, Mr Kereopa Pomare, was a passenger in a prime mover travelling at approximately 100 km per hour on the Silver City Highway, 85 km west of Wentworth, New South Wales was hauling two refrigerated trailers containing foodstuffs. The prime mover collided with a black Angus bull (the bull) and capsized.

The Silver City Highway runs through a property known as "Wyndham Station" and, at some time prior to the accident, the bull had left a paddock on Wyndham Station where it was grazing. It left the paddock through a gate in the fence around the paddock opening onto the Silver City Highway at a point approximately one kilometre from the site of the accident. At that time, the first respondent, Mr Angus Whyte, was the effective owner, and had the care and control, of Wyndham Station, and was the effective owner, and had the care and control, of the bull.
Mr Pomare was seriously injured as a result of the collision and sought to recover damages from Mr Whyte by proceedings alleging negligence and breach of duty on the part of Mr Whyte in not securing the gate. The proceedings against Mr Whyte were commenced on 15 May 2017 In his defence filed 11 May 2018, Mr Whyte relied on s 50C of the Limitation Act 1969 (NSW) (the Limitation Act), which relevantly provides that certain causes of action for damages that relate to personal injury to a person are not maintainable if brought after the expiration of the period of three years running from and including the date on which the cause of action is, within the meaning of the Limitation Act, discoverable by the plaintiff. The provision had the effect of barring Mr Pomare's claim if Mr Pomare knew or ought to have known, as at the date that is three years prior to the commencement of the proceedings, that the injury suffered by him was "caused by the fault of" Mr Whyte. Before explaining the issues in the appeal, it is desirable to summarise the relevant provisions of the Limitation Act.

The Limitation Act

Division 6 of Pt 2 of the Limitation Act, which consists of ss 50A to 50F, applies, relevantly, to a cause of action for damages that relates to personal injury to a person, regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise. Division 6 applies only to causes of action where the act or omission alleged to have resulted in the injury with which the claim is concerned occurs on or after the commencement of Div 6. It does not apply to a cause of action on a claim under the Motor Accidents Compensation Act 1999 (NSW) (the Compensation Act). The cause of action that Mr Pomare seeks to prosecute arose after the commencement of Div 6 and is not a claim under the Compensation Act.
Section 50C(1) of the Limitation Act relevantly provides that an action on a cause of action to which Div 6 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. The 12 year long-stop limitation period can be extended by a court under Div 4 of Pt 3.
Section 50D(1) relevantly provides that, for the purposes of Div 6, 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. Under s 50D(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. 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.
The matters referred to in s 50D(1) are characterised in the Limitation Act as "facts." Section 50C also requires that the relevant person actually "knows" or that the person "ought to know" the relevant "facts". The use of the word "fact" to describe that which the person knows or ought to know gives some support to a construction of the provision that does not import any element of legal knowledge. However, the meaning of the term must be ascertained by reference to the whole of the provision and the possibility that, at least in some circumstances, the fact identified in s 50D(1)(a), namely injury or death, is of a different quality from the facts identified in s 50D(1)(b) and s 50D(1)(c). The use of "fact", in the singular, to describe a composite of inferences or the result of an evaluation, also has significance in construing the provision. [25]
The meaning of word "fault" in s 50D(1)(b) is not necessarily confined to something that engages legal liability. The word is used a indicating a "fact" that consists of a relationship between the injury or death, on the one hand, and the "fault" of the defendant, on the other. That relationship is that of causation. [26] That is to say, the injury or death must be shown to have been caused by "fault".
Section 50D must be construed in its context in the Limitation Act as a whole. In that regard, sub-div 3 of Div 3 of Pt 3 has some bearing. Part 3 deals with the postponement of the bar and sub-div 3 deals with discretionary extensions for latent injury. The purpose of sub-div 3 is to provide a procedure for a further discretionary extension of limitation periods where the plaintiff was unaware of the fact, nature, extent or cause of a relevant injury at the relevant time. [27] Section 60G, which is in sub-div 3, applies to a cause of action founded on negligence, nuisance or breach of duty for damages for personal injury. Under s 60G, if the court decides that it is just and reasonable to do so, it may order that the limitation period for such a cause of action be extended. However, under s 60I, a court may not make such an order unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered, or (ii) was unaware of the nature or extent of personal injury suffered, or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period; and (b) the application is made within three years after the plaintiff became aware, or ought to have become aware, of all three matters listed in para (a).
The contrast of the inquiry into the connection between an injury and the defendant's "act or omission", in s 60I(1)(a)(iii), and the inquiry as to the connection between an injury and "the fault of the defendant", in s 50D(1)(b) is relevant to the construction to be given to "fault". The word "fault" ordinarily signifies a failing, an error or culpability or cause for blame [28] or deficiency, something wrongly done, responsibility for something wrong, culpability. [29] In s 60I(1)(a)(iii), the inquiry is as to a connection between the relevant injury and the relevant act or omission. That is an element in the cause of action irrespective of being aware of a legal responsibility. However, s 50D(1)(b) addresses the causal connection between the injury and an act or omission that can be characterised as wrongful, in the sense that the person responsible for the act or omission incurs a legal liability. In that regard, it contemplates the concept in Roman Law of culpa, the fault of a wrongdoer for which the wrongdoer is held responsible.
Section 50D calls for an inquiry as to the "facts" that the relevant person knows or ought to know at a point in time. In that regard, the relevant person will be treated as knowing a fact that would have been ascertained by the person had the person taken all reasonable steps to ascertain the fact at the relevant point in time. [30] The relevant point in time will not necessarily be the first time at which the person believed that he or she knew those facts. That inquiry raises questions of the concept of knowing. To know something is to perceive or understand as fact or truth or apprehend with clearness and certainty something, to be cognisant or aware of, to have knowledge or clear and certain perception, as of fact or truth, ought to be cognisant or aware, as of some fact, circumstances or recurrence [31] or to recognise, perceive, be acquainted with a thing or be aware or appraised of something. [32] Thus, ordinarily, a person cannot "know" something that is not the fact or true. Ultimately, the determination of the truth of the relevant fact, as between the relevant person and the defendant, will be a matter for the Court. That suggests that the concept of "know", when used in s 50D(1), refers to a belief about the truth of the relevant fact, refers to the relevant person's awareness of circumstances or evidence that is capable of supporting a conclusion that the injury in question was caused by an act or omission of the defendant giving rise to legal responsibility. As a practical matter, the person will have a belief that certain matters can be established. That belief may be held on firm grounds or on shaky grounds and is likely to involve an assessment of varying matters that may be difficult of quantification. In any event, the question of what a relevant person "knows" is different from the question of whether a solicitor would be in a position to give a certificate in accordance with the requirements of the Legal Profession Act 2004 (NSW) that a proposed claim has prospects of success. [33] However, "knowing" a relevant fact for the purposes of s 50D(1) may involve the making of an evaluative judgments in relation to primary facts. Such an evaluative judgment may depend on professional advice.
A cause of action will be "discoverable" within the meaning of s 50C where the plaintiff knows or ought to know all of the factors necessary to give rise to liability on the part of the prospective defendant. That is to say, the person knows or ought to know that there is a causal relationship between the injury and the defendant's "fault". The requirement that the fault be that of the defendant, who may not be the actual wrongdoer, supports that construction. [34]
There is no need for the person on question to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise. The use of the word "fault" signifies that, while it is not necessary for the relevant person to be aware of the legal characterisation of the entitlement to recover damages in terms of negligence, nuisance, breach of duty or otherwise, there must be a perception that the relevant conduct of the prospective defendant gives rise to legal responsibility that is actionable, such that the injured person is entitled to be compensated for the injury caused by that "fault". That is to say, since actionability is one of the factors necessary to establish liability, actionability must be known before s 50D(1)(b) is satisfied. [35]

The Proceedings

On 11 April 2016, Mr Pomare's solicitors filed a statement of claim on his behalf against the second respondent, Mr Michael Hogan, who was the driver of the prime mover at the time of the collision. The statement of claim did not allege fault on the part of Mr Hogan but alleged that the accident was "a blameless accident" within the meaning of the Compensation Act. Section 7B of the Compensation Act relevantly provides that injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. In proceedings on a claim for damages in respect of the injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary. The phrase blameless motor accident is defined in s 7A of the Compensation Act as a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.
On 19 December 2016, Mr Hogan filed a defence to Mr Pomare's statement of claim in which he denied that the accident was a blameless accident, on the basis that it was caused by Mr Whyte, alleging that Mr Whyte owned the bull and had not kept it confined within Wyndham Station, behind a secure fence. On 15 May 2017, Mr Pomare filed an amended statement of claim joining Mr Whyte as second defendant (the Amended Statement of Claim). On 11 May 2018, Mr Whyte filed a defence in which he relied on s 50C of the Limitation Act.
On 5 March 2019, on the application of Mr Pomare, made by notice of motion filed on 1 August 2018, a judge of the Common Law Division (the primary judge) ordered that there be decided separately from and prior to all other questions in the proceedings the question of whether or not, by 15 May 2014, Mr Pomare knew or ought to have known of the fact that his injuries were caused by the fault of Mr Whyte, 15 May 2014 being the date three years prior to the filing of the Amended Statement of Claim commencing the proceedings against Mr Whyte. On 3 May 2019, for reasons published on that day, the primary judge answered the question "yes" and ordered Mr Pomare to pay Mr Whyte's costs of the proceedings.
The primary judge found that, prior to 15 May 2014, Mr Pomare knew or ought to have known that his injury was caused by the fault of Mr Whyte in failing to ensure that the gate through which the bull escaped and ventured onto the Silver City Highway was not adequate to contain the bull. Her Honour found that Mr Pomare believed, prior to 15 May 2014, that the reason why the bull was on the Silver City Highway was that Mr Whyte had left the gate open or that the gate had come open. Her Honour found that Mr Pomare understood that Mr Whyte had admitted as much to the police and when interviewed by a reporter from the Australian Broadcasting Commission (the ABC). She found that Mr Pomare's belief was sufficient to establish that he knew that Mr Whyte had left the gate open or that it had come open. Her Honour observed that Mr Pomare did not give evidence that his belief changed as a result of anything that is solicitors advised or told him, or provided to him, or for any other reason. Her Honour drew the inference that Mr Pomare's belief remained the same at all times up to 15 May 2014 and beyond. Her Honour drew the inference that Mr Pomare's belief was based in part on what he heard from Mr Hogan and in part from the ABC report. In the absence of evidence from Mr Pomare, her Honour did not infer that he did not have any other source for his belief.
The legal advice given to Mr Pomare prior to 15 May 2017 was summarised by the primary judge. On 3 November 2015, Mr Pomare's counsel, Mr Andrew Stone, confirmed advice that had been given prior to the expiry of the limitation period on 18 April 2015 to the effect that Mr Pomare was better off resting on his workers' compensation rights than pursuing either a public liability or compulsory third party claim that "he appeared destined to lose". There was no further advice in relation to a potential claim against Mr Whyte since it was accepted that the three-year limitation period that had begun to run from the date of the accident had expired. On 18 November 2015, Mr Stone confirmed instructions for proceedings to be commenced on behalf of Mr Pomare against Mr Hogan and the need to provide a full and satisfactory explanation for the delay. Mr Stone said that Mr Pomare was "initially keen" to be pursuing Mr Whyte but that senior counsel had pointed out that there were no prospects of winning "that case". Mr Stone advised that, at that time, the only hope of "winning a case" was to succeed with an argument on the available evidence concerning a narrow interpretation of s 7A of the Compensation Act.
The primary judge held that 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. Her Honour held that the duty owed to users of the highway was to ensure that the fences and gates were in a condition adequate to contain the animals. [36] Her Honour found that Mr Whyte had control over Wyndham Station and the cattle, including the bull. Mr Pomare was a passenger in the prime mover being driven on a public highway and had no control over the means by which Mr Whyte used to keep his animals within the boundaries of Wyndham Station. Her Honour held that it was reasonably foreseeable that if one of Mr Whyte's animals escaped from the confines of Wyndham Station and ventured onto the public highway, there would be a collision with any passing vehicle that would cause injury to the driver and any passengers. Her Honour found that the risk of harm would be substantial, having regard to the speed of vehicles on the highway, their potential mass and the mass of the bull. Her Honour found that the risk would be greater at night because the reach of the headlights was considerably less than the available sight distance in daylight.
The primary judge concluded that, if Mr Whyte had, as Mr Pomare believed, left the gate open or was otherwise responsible for the gate being open, Mr Whyte would be liable to him under ordinary principles of negligence. Her Honour considered that it was not necessary for Mr Pomare to know any other essential factor in order to know that his injuries were caused by the fault of Mr Whyte. Her Honour concluded the obvious and reasonable precaution that Mr Whyte was obliged to take was to close the gate or take reasonable steps to keep the gates closed.
The primary judge observed that later information came to light, in the form of Mr Whyte's defence in proceedings brought for the recovery of workers' compensation paid to Mr Pomare, which cast doubt on the objective correctness of Mr Pomare's belief that the bull had escaped because Mr Whyte himself had left the gate open. However, Mr Pomare did not give evidence that he no longer knew, or held the belief, that Mr Whyte had left the gate open, or was responsible for the gate being open, as at 15 May 2014. Her Honour drew the inference from references in legal advice given to Mr Pomare on 18 November 2015, that Mr Pomare was "keen" to bring a claim against Mr Whyte, whom he believed to be responsible for his injury. Her Honour was satisfied that Mr Pomare believed Mr Whyte to be at fault because he had left the gate open or that the gate, being defective, had opened or had been left open. Her Honour found that none of the advices given to Mr Pomare by his lawyers had been shown to be sufficient to disabuse him of his belief, which endured until 15 May 2014, in the absence of any evidence from him that the advices given to him had that effect. Rather, 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.
The primary judge observed that s 50D is not premised on a hypothetical inquiry as to whether, had Mr Pomare commenced proceedings in 2014, Mr Whyte would have defended them and on what basis. Mr Whyte's case was that the evidence showed that Mr Pomare himself actually had the requisite knowledge before the relevant date. Her Honour rejected the contention advanced on behalf of Mr Pomare that the inquiry was as to when Mr Pomare's solicitors would have been in a position to certify that his claim had reasonable prospects of success and as to whether it would be wise to pursue the proceedings.

The Appeal

It would follow from the orders made by the primary judge that Mr Whyte was entitled to a verdict in his favour. Mr Pomare served notice of intention to appeal on the respondents on 31 May 2019 and, on 2 August 2019, filed notice of appeal from the orders made by the primary judge. In his notice of appeal, Mr Pomare seeks leave to appeal to the extent that leave is necessary. In the circumstances, the resolution of the preliminary question in favour of Mr Whyte resolved the proceedings against him on a final basis. Accordingly, leave to appeal is not required.
None of the factual findings made by the primary judge is challenged in the appeal. Rather, Mr Pomare asserts error on the part of her Honour in analysing the legal import of the facts as found. The grounds of appeal in Mr Pomare's notice of appeal of 2 August 2019 are that the primary judge erred: 1. in conflating the lay opinions expressed by Mr Pomare in his motor accident claim as his knowledge of the fact that his injuries were caused by the fault of Mr Whyte; 2. in finding that knowledge of the fact referred to in s 50D(1)(b) does not involve receiving legal advice that a claim has reasonable prospects of success; 3. by having regard to what her Honour identified as "the evident purpose of the legislation" rather than applying the text of s 50D; 4. by equating a finding of Mr Pomare's belief in the moral culpability of Mr Whyte with knowledge on his part of legally actionable fault; 5. in finding that the purpose of the provisions was not to provide an open-ended limitation period that is dependent upon the opinions of legal advisors; and 6. in finding that it was not necessary for Mr Pomare to know any essential factor other than that Mr Whyte left the gate open or was otherwise responsible for the gate being open, in order for Mr Pomare to know that his injuries were caused by the fault of Mr Whyte.
Mr Pomare says in his notice of appeal that the primary judge ought to have found as follows:

it was necessary for Mr Pomare to receive legal advice that Mr Whyte was legally liable to him for his injuries in order for him to know that his injuries were caused by the fault of Mr Whyte;
there was no evidence that Mr Pomare received legal advice prior to 15 May 2014 that the fault of Mr Whyte was legally causative of his injuries;
there was no evidence that Mr Pomare received legal advice prior to 15 May 2014 that Mr Whyte was legally at fault in respect of the bull being on the highway; and
there was no evidence that Mr Pomare received legal advice prior to 15 May 2014 that he could not prove that Mr Whyte was negligent in respect of his injuries.

In his written submissions, Mr Pomare formulated the issues for determination on the appeal as follows: 1. whether s 50D(1)(b) requires that a defendant pleading a defence under the Limitation Act must prove that the plaintiff received legal advice, more than three years before the action was commenced, to the effect that there is legally actionable fault on the part of that defendant; and 2. whether Mr Whyte discharged that onus in this case. Mr Pomare contends that the answer to the first question is "yes" and that Mr Whyte did not prove, and the primary judge did not find, that, prior to 15 May 2014, Mr Pomare had received legal advice to the effect that there was "legally actionable fault" on the part of Mr Whyte.
The primary judge found that Mr Pomare believed Mr Whyte "to be at fault because he had left the gate open or that the gate, being defective, had opened or had been left open". Mr Pomare asserts that that belief concerning "fault" was not proved to be a belief concerning "legally actionable fault" as distinct from "moral culpability". That assertion was made because there was no evidence of any legal advice having been given to Mr Pomare positively suggesting that his belief concerning "fault" was a valid basis for a legal claim against Mr Whyte. Further, there was no evidence that Mr Pomare himself was capable of assessing legally actionable fault. Rather, the only evidence of advice that he received prior to 15 May 2014 was negative or equivocal. Accordingly, Mr Pomare asserts, her Honour erroneously conflated his belief concerning moral culpability of Mr Whyte with knowledge of legally actionable fault.
Mr Pomare asserts that the evidence established that the legal advice that he received prior to 2017 did not include positive advice that Mr Whyte was the person legally liable for the condition of the gate and for the bull being on the highway. Rather, he says, the advice was negative in that it was to the effect that there was insufficient evidence to succeed in legal proceedings against Mr Whyte. Further, he says, he did not appreciate and could not reasonably have appreciated that the legal advice he was receiving prior to 2017 concerning Mr Whyte was inadequate or incorrect. He asserts that it is not sufficient, in order to establish the requisite knowledge of fault for the purposes of s 50D, that advice ought to have been given by lawyers to him was to the effect that Mr Whyte was legally liable.

The Knowledge of Mr Pomare

When Mr Pomare was lying beside the road after the accident, Mr Hogan told him that he had hit something although Mr Pomare could not remember whether Mr Hogan referred to a bull or cow. Shortly after the collision, Mr Pomare heard that the bull that had been hit by the prime mover belonged to a farmer called Mr Whyte but did not know anything about how the bull came to be on the road. However, he knew that a bull should not be on a road.
On 20 April 2012, the ABC reported that an Angus bull that escaped from its paddock through an open gate had collided with a road train on the Silver City Highway nearly 180 kilometres south of Broken Hill. The report said that the bull died and the driver and passenger were taken to Mildura Hospital with minor injuries. The report also said that the owner of the bull, Mr Angus Whyte from Wyndham Station, had said that it was a grazier's "worst nightmare" and that: "A gate had come open, it was either left open or came open, I don't know … there was about 50 cattle on the road … it was probably the most valuable … he was about two and a half years old, we were lucky no others were hit." Mr Pomare was shown a copy of that report at around the time of the broadcast.
On 24 April 2012, Mr Pomare completed a worker's injury claim form containing questions and answers as follows: "What happened and how were you injured? road train got rolled by a bull thrown out of bunk through roof onto road at 80-90 km … Do you believe that your injury/condition was caused or contributed to by a third party such as a manufacturer or supplier? Please give details if relevant. The farmer who left gate open and his cows and bulls were all over the road." That form was part of an employer injury claim report completed on behalf of Mr Pomare's employer, Colonial Freight Lines (NT) Pty Ltd (Colonial Freight). That form contained the following questions and answer: "Do you believe that the injury/condition was caused or contributed to by the worker, or a third party such as a manufacturer or supplier? Please give details if relevant. CAUSED BY BULL WANDERING OUT OF PADDOCK ONTO THE PATH OF INCOMING TRAFFIC. FARMER HAD FORGOTTEN TO CLOSE THE GATE."
Mr Pomare subsequently spoke to his cousin who works with Maurice Blackburn Lawyers in Melbourne. His cousin arranged for Ms Mariese Bytschkow to contact Mr Pomare. On 14 May 2012, Ms Bytschkow referred Mr Pomare to a lawyer with Maurice Blackburn in Perth because Colonial Freight was a registered business in Western Australia. On 15 May 2012, Mr Pomare was advised by Mr Michael Graham of Maurice Blackburn in Perth that he would send paperwork to Mr Pomare. However, Mr Graham subsequently telephoned Mr Pomare and said that he needed to be referred back to Melbourne as a claim had to be lodged in Victoria and not Western Australia. On 5 June 2012, Mr Pomare spoke to a solicitor in the Dandenong office of Maurice Blackburn, who advised that he could not lodge a WorkCover or motor vehicle accident claim for one year because that was "the legislation in Victoria". Mr Pomare's telephone calls to the solicitor at the Dandenong office were not returned.
On 21 December 2012, Mr Pomare gave a statement to QBE Workers' Compensation (Vic) Ltd (QBE), the insurer of Colonial Freight, in which he said that he drove the prime mover from Braeside to Moama, where they went to a transport yard and picked up two trailers, which they connected to the prime mover to form a road train. They then headed towards Ceduna in South Australia. When they reached Balranald in New South Wales, Mr Pomare stopped driving and Mr Hogan took over the driving of the prime mover. Mr Pomare climbed into the sleeper berth on the prime mover and went to sleep. The next thing he recalled was waking up on his back on the Silver City Highway. It was dark at the time and he could not see the prime mover and did not know where Mr Hogan was. Mr Pomare said he had been told that they hit a bull that had wandered onto the road. He and Mr Hogan were taken to Mildura Hospital and they were both admitted.
On 5 March 2013, a solicitor from the Dandenong Office of Maurice Blackburn arranged for Mr Pomare to see Ms Azmeena Hussain. On 12 March 2013, Mr Pomare had a conference with Ms Hussain and an initial instruction sheet was completed with information provided by Mr Pomare. The instruction sheet relevantly records that the following: "On DOI was asleep in truck. Were driving to WA - my co-driver was driving at the time. The truck hit an angus bull on the road. It was about 2.30am. My colleague saw the bull and swerved to miss it. The truck flipped … I was sleeping in the cabin … the farmer admitted left gate open …" During the conference, Mr Pomare was advised that, since the accident occurred in New South Wales, he needed to speak to the Maurice Blackburn office in Parramatta in order to pursue a motor vehicle accident claim. On 19 March 2013, Mr Pomare had a telephone conference with Ms Brooke Ryan of Maurice Blackburn in Parramatta to discuss a possible New South Wales motor vehicle accident claim.
On 16 April 2013, Mr Pomare completed a "motor accident claim form". In answer to the question whether police action was going to be taken, Mr Pomare said he did not know. However, the name "Mr Angus Whyte" was written in the form as "Name of person charged". In addition, Mr Pomare responded "yes" to the question as to whether the accident was a "blameless accident", and provided the following as to why he thought the accident was blameless: "The farmer's gate was left open in which the farmer's prize bull wandered onto the road (Silver City Highway). The farmer denied leaving gate open, but admitted it later to police. At the time of the accident the farmer was more concerned about his prized Angus bull." Under the heading "Description of the accident", the following was handwritten: "Farmer's prize bull walked onto silver city highway which then it was run over by the roadtrain causing it to flip over, we were heading towards Broken Hill, NSW. As I recall the driver said it, the road train had done a 180° degree spin facing back towards Wentworth. The prime mover and front trailer plus the dolly was still connected. The back trailer had come away from the dolly landed about 50 metres away."
On 24 April 2013, QBE responded to a request from Maurice Blackburn's Dandenong office to provide them with a copy of their claim file documentation. The primary judge drew the inference that the material that was provided included a letter dated 11 January 2013 written to QBE by Maurice J Kerrigan & Associates Pty Ltd, investigators, providing advice in relation to recovery potential. The letter of 11 January 2013 described the circumstances of the injury to Mr Pomare in the following terms: "At approximately 2.30am on Wednesday, 18 April 2012, on the Silver City Highway 75 km north of Wentworth, Hogan saw a black bull standing across the left hand lane and as he moved over [to] the right after decreasing speed, the bull walked into the path of the prime mover and a collision occurred. At the time, it was dark with no street lights and Hogan was driving at approximately 85 km/h. The impact caused the left side of the prime mover to lift off the road and the right hand steering tyre commenced digging into the bitumen on the road. The prime mover and two trailers ended up on the right hand side of the highway, on their right sides. When they came to a stop, they were clear of and off the bitumen surface of the roadway. When the prime mover went over onto its right side, [Mr Pomare] was thrown through an area in the roof that had opened up and out of the sleeping berth. He landed on his back on the side of the roadway. A search for the animal that hit the prime mover was conducted however it could not be found. There was evidence on the road … indicating there had been numerous cattle on the highway. [Mr Pomare] and Mr Hogan were transported to Mildura Base Hospital where they spent two days and one night and then discharged. NSW Police attended the accident scene and the dead bull was identified as belonging to Mr Angus Whyte of Wyndham Station. 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 ABC report was attached to the letter. The letter ended with the following under the heading "Recovery Potential": "There would appear to be a potential for recovery against the owner of the bull, Angus Whyte, for allowing the animal to wander on the highway. At this time, it is not known how the bull escaped from the paddock or the state of the boundary fences around the paddocks."
On 23 September 2013, Ms Danielle De Paoli of Maurice Blackburn's Parramatta office prepared an internal memorandum addressed to principals of Maurice Blackburn relevantly saying as follows: "We have a little situation which has arisen whereby a Chinese Wall may need to be created within the office. … I act for [Mr Pomare] in relation to injuries he sustained in a motor vehicle accident on 18 April 2012. Mr Pomare was asleep in the cabin of a semitrailer whilst the vehicle was being driven by his colleague, Mr Michael Hogan. An Angus bull which had escaped from a nearby farm was in the middle of the road. The driver, Mr Hogan, saw the black bull standing in the path of the truck and swerved to avoid hitting it. The manoeuvre caused the road train to tip on its side. Azmeena Hussain in the Dandenong office is representing Mr Pomare in his Workers' Compensation claim. We have discovered today that Majed Issa is representing the driver of the truck, Mr Michael Hogan in a claim against the farmer whose bull escaped the property. The Traralgon office is representing the driver of the vehicle in his Workers' Compensation claim. In relation to my client, Mr Pomare, he has three potential causes of action which we intend to pursue. These are as follows: 1. A claim against the owner of the farm whose Angus bull escaped. 2. A claim against the driver of the vehicle for having caused the action and/or taking improper evasive action to avoid the collision. 3. In the alternative to the claim against the driver of the vehicle, it may well be an argument that the accident is considered to be a "blameless accident" within the definition of the [Compensation Act]."
On 27 September 2013, QBE wrote to Maurice Blackburn at Parramatta in response to a request for information relevant to Mr Pomare's workers' compensation claim. The letter said on receipt of an authority signed by Mr Pomare permitting QBE to release the information, QBE would be happy to attend to the request. Mr Pomare signed a "General Information Release Authority" to QBE on 11 October 2013.
On 18 October 2013, with the assistance of the Parramatta office of Maurice Blackburn, Mr Pomare completed a statutory declaration in support of an extension of time for making a motor accident claim. In the statutory declaration he said, relevantly, as follows: "3. At approximately 2.30am, I was a passenger in the back of a cabin of a prime mover which was travelling on Silver City Highway, between Wentworth and Broken Hill, in the state of New South Wales. 4. I was asleep in the cabin while my co-worker, Michael Hogan, was driving. The prime mover collided with an Angus Bull which had escaped a property and wandered onto the Silver City Highway. 5. As a result of the collision, I was ejected from the prime mover, landing on the side of the highway. … 57. I … received correspondence dated 3 April 2013, including a Personal Injury Claim Form … for me to complete. I was provided with advice regarding what was required of me to prepare a Statutory Declaration providing a full and satisfactory explanation for the delay in making the claim. … 63. As soon as I was aware of the time limits I acted promptly to rectify the short comings in making a claim. 64. It was not until I consulted with Ms Ryan at Maurice Blackburn that I was aware that there was a time limit within which I had to notify the insurer of a claim. As I am a Victorian resident, I have not ever had to purchase green slip insurance in New South Wales and so I know absolutely nothing in relation to the NSW system for making a claim for injuries sustained in an accident. 65. It is for the above reasons that there has been a delay in lodging a claim."
On 6 January 2014, Maurice Blackburn's Parramatta office received a letter of 3 January 2014 from Moray & Agnew Lawyers, who were acting for the Insurance Commission of Western Australia. The letter informed Maurice Blackburn that there were other proceedings on foot in the District Court involving "the owner of the Black Angus Bull and owner of the trailers attached to the prime mover". Maurice Blackburn responded by letter of 13 January 2014 requesting a copy of the other proceedings presently on foot in the District Court. On 26 February 2014, Ms De Paoli received an email from a lawyer at Moray & Agnew saying that he had been informed that the property damage proceedings were "back in court on Thursday, next week". The primary judge drew the inference that the reference to other proceedings was to an action brought by Breeze Logistics Pty Ltd, the owner of the refrigerated trailer being hauled by the prime mover, against Mr Hogan, Colonial Freight, Mr Whyte and others claiming damages for the spoiling of the cargo in the trailers as a result of the collision.
On 18 March 2014, a telephone discussion occurred between Ms De Paoli's assistant and Ms Mylinh L'Estrange of Wisewould Mahony Lawyers, who were acting for the Victorian WorkCover Authority (the Authority). The assistant said that Mr Pomare was "only bringing a motor vehicle claim against the trucking company" and was "not intending to bring a civil liability claim against Angus Whyte". Later on that day, Ms L'Estrange sent an email to Ms De Paoli's assistant, referring to s 138 of Accident Compensation Act 1985 (Vic), which entitles the Authority to recover, from negligent third parties, compensation payments made by it. Ms L'Estrange said that Wisewould Mahony had been allocated a recovery under s 138 arising out of Mr Pomare's injury in "a motor vehicle accident" and that recovery proceedings had been issued against Mr Whyte in the County Court of Victoria to recover compensation paid to Mr Pomare and Mr Hogan. Copies of the statement of claim and the defence were enclosed. Ms L'Estrange asked to be kept informed of developments in Mr Pomare's proceedings and said that Maurice Blackburn would be apprised of any development in the s 138 recovery proceedings.
The copy of the statement of claim in the proceedings that was enclosed with the email disclosed that Mr Whyte was the defendant and that the Authority sought indemnity from Mr Whyte pursuant to s 138 of the Accident Compensation Act 1985 (Vic) with respect to the payments of compensation made to Mr Hogan and Mr Pomare. The statement of claim alleged that that incident was caused as a result of the act, fault, or negligence of Mr Whyte, his servants or agents in:

failing to properly close all gates to his property);
failing to properly lock all gates to his property;
failing to implement self-closing gates on the property; and
exposing Mr Pomare and Mr Hogan to risk of injury, which could have been avoided by reasonable care.

On 19 March 2014, Ms L'Estrange spoke to Mr Majed Issa of Maurice Blackburn's Parramatta office, who was acting for Mr Hogan. Ms L'Estrange made a file note recording that Mr Issa had advised that Mr Hogan had recently approached Maurice Blackburn for legal assistance but that because Mr Pomare had approached them first, there was a conflict. Mr Issa said that Maurice Blackburn wanted to obtain consent from the parties in Mr Pomare's case "to set up a Chinese Wall at the firm so they can act for both parties". He said that, until that was done, they could not commence proceedings but ultimately were looking to sue Mr Whyte "under the public liability law and/or an animal act claim". Ms L'Estrange advised Mr Issa of the Authority's action against Mr Whyte for recovery of workers' compensation for both Mr Hogan and Mr Pomare. Ms L'Estrange recorded that she understood Mr Pomare was "not going after Angus Whyte" and was only bringing a claim under the motor vehicle accident legislation, and so the Authority's recovery action for compensation paid to Mr Pomare was different.
On 24 March 2014, Ms L'Estrange sent an email to Ms De Paoli's assistant requesting written confirmation that Mr Pomare objected to giving evidence in the proceedings between the Authority and Mr Whyte that were currently listed in the County Court of Victoria at Melbourne on 23 June 2014. The email said that the refusal was on the basis that Mr Pomare was intending to bring an action against "the trucking company and/or Michael Hogan" and did not wish to give evidence in the proceedings between the Authority and Mr Whyte until his own action concluded.
On 26 March 2014, Mr Stone provided written advice to Maurice Blackburn. After referring to statements made by Mr Pomare in the claim form referred to above, Mr Stone observed that Mr Pomare's workers' compensation insurer had issued proceedings against Mr Whyte as the owner of the bull and that in his defence of 12 July 2013, Mr Whyte did not admit that the gate was open. Mr Stone noted that Moray & Agnew had denied liability and reserved the right to contend contributory negligence. He also noted that the workers' compensation insurers had issued proceedings in Victoria against the owner of the bull in respect of workers' compensation payments and repeated that Mr Whyte did not admit the allegations of failing to secure the gate or leaving the gate open. Mr Stone's advice then contained the following: "It is unclear whether the owner of the bull is insured. There is no material available in the brief in relation to liability. I do not have a copy of the police report. I have no information as to the speed at which the truck was travelling or whether he had his headlights on high or low beam. I note from the claim form that the road was said to be dry. I am also unaware of the speed limit on the highway at that point. I do not know whether the bull was standing on the road or ran out onto the road or whether the driver was distracted by anything at the relevant time. I have no information as to whether there were any skid marks on the road etc, - presumably the police attended. There should be police documents. There may have been some prosecution (of the farmer or driver). All of the above will be relevant in relation to whether proceedings should be issued solely against the owner of the bull or against both the owner of the bull and the driver of the truck. Car (or in this case truck) meets cow (or in this case bull) cases (like car meets pedestrian cases) fall for determination upon their facts. …" After referring to two decisions of the Court of Appeal in 2014, concerning collisions between two cars and between a car and a pedestrian, Mr Stone went on as follows: "In such cases, relevant factual issues included the driving conditions, whether the road was wet or dry, whether the cow/pedestrian ran out onto the road or was stationary, the driver's knowledge of the potential presence of livestock, wild life or pedestrians on the roadway, the attentiveness of the driver and any relevant expert evidence. The upshot of the above is that there is no information that would enable me to provide advice in respect of liability as against the driver or farmer at this stage." Mr Stone then referred to the proceedings issued by the workers' compensation insurer against the owner of the bull alleging negligence and said as "we are not under any time pressure, my inclination is to let those proceedings run their course and to learn what we can from them in relation to liability."

Events after 15 May 2014

On 21 May 2014, Mr Stone conferred with Mr Pomare, who provided details about "his usual truck driving routine". Mr Stone reported the meeting in a letter of 22 May 2014 to Maurice Blackburn in which he said: "I advised the client that he had three potential sources of claim: (i) Workers Compensation - he is currently in receipt of workers compensation payments. This can be pursued on a no-fault basis. (ii) Suing the CTP insurer of the truck, on the basis that the driver made some error that contributed to the accident. (iii) Suing the owner of the cow, on the basis that it should not have been on the roadway. Critical to a claim against the cow is determining that the farmer has insurance. In this respect, I note that the workers compensation insurer (the Victorian WorkCover Authority) has instructed solicitors (Wisewould Mahony) to pursue recovery proceedings through the County Court in Victoria. A Defence has been filed on behalf of the farmer (Angus Whyte) by Norris Coates Solicitors in Melbourne. The very good news from our perspective is that Norris Coates advise on their website that they are leading insurance lawyers. You usually only get leading insurance lawyers acting for a farmer in southern New South Wales when there is insurance money behind the farmer. I can comfortably infer that the farmer is insured. Mr Pomare and [his partner] were concerned as to whether litigated proceedings against the driver, the farmer or both would be worthwhile for them financially. They were concerned that most of the money obtained would go to pay lawyers' fees, rather than giving any benefit to Mr Pomare. I advise that we would not be commencing proceedings unless we thought that it would be financially worth their while. With regards who to sue, I said it was still too early to say. We are still awaiting police materials pursuant to a GIPA request. We are still waiting to see what happens in the Victorian County Court proceedings."
On 25 June 2014, Mr Stone provided further written advice to Maurice Blackburn acknowledging documents obtained from New South Wales police pursuant to a Government Information (Public Access) Act 2009 (NSW) (GIPA) request. Mr Stone referred to a Computerised Operational Police System (COPS) record that "animal (bull) deemed to be at fault". After referring to difficulties with a case against Mr Hogan, Mr Stone said "we only win against the farmer if … we can establish that there was some fault on the part of the farmer in allowing the cow to escape". He said that at present they did not have evidence that was likely to allow the case to be won "as against either the truck driver or the bull owner (assuming insurance on the bull owner's part)". After referring to the Authority's case against Mr Whyte, Mr Stone observed: "Perhaps they know something more than we do. 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." Mr Stone suggested further inquiries that needed to be undertaken including speaking to the police as to any inspection of fences and gates and obtaining a plan of "the farmer's property".
On 18 July 2014, Ms De Paoli wrote to Mr Stone saying that she had been advised that the recoveries claim in Victoria had been stalled on the basis that neither Mr Pomare nor Mr Hogan was prepared to give evidence in the proceedings in anticipation of it affecting their own substantive compensation proceedings. Mr Stone responded on 30 July 2014 saying that the fact that Mr Pomare would not give evidence on liability was irrelevant, since he had no relevant recollection. Mr Stone said that there would be no objection to Mr Pomare giving evidence as to the nature and extent of his damages "if it got us a free preview on liability".
On 3 November 2015, Mr Stone provided further written advice to Maurice Blackburn, referring to previous discussions in April 2015, when "it was noted that we had not found a way to win the case, either as a public liability or motor vehicle accident claim". Mr Stone said that, as against the farmer and the presence of a cow on the road, there was no evidence to prove any negligence on the part of the farmer in the light of the police record that it was apparent that persons not lawfully on the property had opened and left open the gate that exited onto the highway. Mr Stone noted that it was agreed that Mr Pomare would be advised that he was better off resting on his workers' compensation rights than pursuing either a public liability or compulsory third party (CTP) claim that he appeared destined to lose.
On 18 November 2015, Mr Stone provided further written advice to Maurice Blackburn in which he referred to a telephone conference with Mr Pomare that morning who had provided instructions to commence proceedings. Mr Stone went on to say: "He 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 for winning a case is to succeed with an argument on the available evidence pushing a narrow interpretation of Section 7A."
On 7 February 2017, Mr Stone provided further written advice to Maurice Blackburn. After referring to the resolution of the proceedings brought by the owners of the trailers against various parties, including Mr Whyte, with a payment of $214,000 from Mr Whyte and Gatlet Pty Ltd (trustee of the Whyte Family Trust), Mr Stone said: "We very much need to know what [the evidence in the proceedings] is. If there is an easier way to win this case through [Mr Pomare] suing the farmer, then that is what we ought to be doing". Mr Stone then referred to "limitations issues", saying that time only started to run "once we have evidence of a potential liability". Mr Stone said that, in his view, they did not have that evidence at that stage, so time had not yet commenced to run. He said: "If we do end up suing the farmer, then I anticipate the limitations point will be raised, but at present, I am not unduly concerned about it."
On 28 March 2017, Mr Stone provided a further written advice to Maurice Blackburn, saying that he had reviewed two volumes of documents produced under subpoena by solicitors involved in the property damage claim. Mr Stone said that, on the basis of the additional material, he was of the view that proceedings should be commenced against Mr Whyte. He said that there would no doubt be a limitations argument but he believed that that could be defeated. He said that it was not until he saw the additional material that he thought there were reasonable prospects of success against Mr Whyte. He said that there were three years left within which to sue "under the NSW limitation regime and the floating limitation period."

Mr Pomare's State of Knowledge as at 15 May 2014

On 15 May 2017, the Amended Statement of Claim was filed. Mr Whyte was joined as a second defendant in those proceedings. The question is whether, in the circumstances outlined above, that was more than three years after Mr Pomare knew or ought to have known the fact that his injury was caused by the fault of Mr Whyte.
Putting aside the operation of the Limitation Act, the question in these proceedings, as between Mr Pomare and Mr Whyte, would be whether the allegations made in the amended statement of claim as against Mr Whyte are made out. The statement of claim makes the following relevant allegations against Mr Whyte:

At or about 2.30 am on 18 April 2012, Mr Pomare was a passenger in the prime mover, which was being driven on the Silver City Highway about 85 km from Wentworth when it collided with the bull, which was on the highway;
As a consequence of that collision the prime mover and one of its trailers overturned and Mr Pomare sustained injury;
Mr Whyte was the owner of Wyndham Station, was the registered proprietor of Wyndham Station and had the care and control of Wyndham Station, including the gates that controlled access to and from Wyndham Station from and to the Silver City Highway, which runs through Wyndham Station;
Mr Whyte was the effective owner of and had the care and control of the bull;
Prior to 2.30 am on 18 April 2018, Mr Whyte gave permission to a group of hunters to access Wyndham Station and supplied the hunters with a wildlife hunting plan;
The use of Wyndham Station for hunting would necessitate the hunters from time to time entering and exiting Wyndham Station by way of gates adjacent to the Silver City Highway;
The fence line of Wyndham Station adjoining the Silver City Highway generally comprised five strands of non-barbed wire with steel star picket posts that were over 40 years old;
Mr Whyte had never made improvements to the fence line in his years operating Wyndham Station;
As at 17 April 2012, Mr Whyte was grazing at least 35 head of cattle and the bull in a paddock on Wyndham Station adjacent to the Silver City Highway;
At some time prior to 2.30 am on 18 April 2012, the bull left the paddock and entered onto the Silver City Highway, most likely through a gate in the paddock that was approximately one kilometre from the location of the collision;
The gate was usually secured by a chain looped between the gate and a star picket and the chain was closed into a loop with a wire hook;
It was possible to secure the wire hook around the chain and not through an eyelet of the chain;
Securing the chain in that manner could give the impression of the gate being securely closed when in fact the chain could slide through the hook and release the gate under light wind or other pressure (such as cattle brushing against the gate);
Better and more secure mechanisms for closing a gate to a paddock so as to ensure it being effectively closed were available at the time;
Mr Whyte knew that the escape of livestock onto the Silver City Highway would pose a risk of harm to passing traffic and it was foreseeable to Mr Whyte that the presence of livestock on the highway created a risk of injury to traffic on the highway;
Mr Whyte owed a duty of care to users of the highway to take reasonable precautions to avoid foreseeable risk of harm to highway users;
Mr Whyte breached the duty of care that he owed to Mr Pomare by: (a) failing to use an adequate latching mechanism on the gate having regard to the use of the paddock for grazing stock adjacent to a main road; (b) failing to ensure that the gate was kept securely closed at all times; (c) failing to check that the gate was closed in circumstances where it was known that the hunters were using the gate; (d) failing to instruct or properly instruct the hunters using the gate as to how it should be secured;
As a consequence of Mr Whyte's breach of duty of care, Mr Pomare suffered injury, loss and damage.

Whether those matters are true, as between Mr Whyte and Mr Pomare, is a matter for determination by the Court, if the proceedings go to trial on the question of Mr Whyte's liability to Mr Pomare. If those matters are made out at trial they would demonstrate that Mr Pomare's injury was caused by the fault of Mr Whyte. The question is whether it can be said that, as at 15 May 2014, Mr Pomare knew or ought to have known the matters alleged in the amended statement of claim, in the sense that he at least believed that they were true and that they could be established at a trial. That is to say, the question is whether he was aware of circumstances or evidence that is capable of supporting the conclusion that Mr Whyte had legal responsibility for his injury. In essence, Mr Pomare contends that he did not know all of those matters in the relevant sense because he had not received legal advice that the relevant matters gave rise to legal liability or responsibility on the part of Mr Whyte.
Mr Pomare earns a living as a truck driver. Assuming his level of education was consistent with that employment, it can be confidently assumed that he had no relevant knowledge of legal responsibility for damage caused by animals. Nevertheless, he concedes that, even so, there would be circumstances where a person in his position may relevantly know of factors that could give rise to liability. For example, Mr Pomare's written submissions in reply of 7 November 2019 accepts that a truck driver might know, in the relevant sense, that the driver of a motor vehicle who proceeds through a red traffic light and collides with another vehicle will have legal responsibility for the damage that is caused. That is to say, there are some circumstances that a layperson must be taken to have understood would lead to legal liability or responsibility. Mr Pomare contends, however, that s 50D(1)(b) requires that, in the present circumstances, it is necessary for Mr Whyte to establish that Mr Pomare received legal advice more than three years before the commencement of proceedings to the effect that there was legally actionable fault on the part of Mr Whyte.
It is significant that Mr Pomare gave no evidence as to his state of belief or knowledge. Accordingly, inferences as to the state of his belief or knowledge that are available to be drawn can be drawn with greater confidence in the absence of his own evidence. [37] Thus, it is clear that, prior to 15 May 2014, Mr Pomare "knew", in the relevant sense, the following matters:

The prime mover in which he was a passenger hit the bull;
The bull was owned by Mr Whyte;
The bull had escaped onto the Silver City Highway when the gate to the paddock was either left open or had come open;
Mr Whyte admitted to the police that the gate had been left open;
Mr Pomare's accident was caused when the bull walked onto the Silver City Highway;
Mr Hogan had made a claim against Mr Whyte on the basis that Mr Whyte was responsible for the injury suffered by Mr Hogan as a consequence of the collision;
The owner of the refrigerated trailer that was damaged in the collision had commenced proceedings against Mr Whyte for recovery of damages; and
The Authority had commenced proceedings against Mr Whyte to recover workers' compensation payments made to Mr Pomare and Mr Hogan as a consequence of the injuries sustained in the collision.

All of those matters were found by the primary judge to be within the knowledge of Mr Pomare in the relevant sense. In essence, the only matter, factor or fact alleged in the amended statement of claim that is not covered by those findings specifically and in terms is the allegation that Mr Whyte had a duty of care to users of the Silver City Highway to take reasonable precautions to avoid foreseeable risk of harm to highway users as a result of livestock escaping onto the Silver City Highway.
Clearly enough, there was no specific evidence that Mr Pomare was formally advised that the owner of land adjacent to a public highway was under a duty to users of the highway not to allow animals to wander onto the highway and that a breach of that duty would give rise to legal liability or responsibility. However, an inference is clearly available that Mr Pomare believed that, if a landowner allowed his livestock to wander unattended on an unlit public highway at night, the landowner would have some legal liability or responsibility to a person injured as a consequence of a motor vehicle colliding with livestock on the highway. The precise nature of or characterisation of the legal liability or responsibility may well not be known to a layperson in the position of Mr Pomare. However, an inference can clearly be drawn, from the statements made by Mr Pomare in the various claim forms as summarised above, that Mr Pomare believed that Mr Whyte had some culpability that gave rise to legal liability or responsibility for the collision in circumstances where he failed to ensure that his livestock did not escape onto the public roadway. It is clear that, well before 15 May 2014, Mr Pomare's legal advisers were conscious of the possibility of a claim being made against Mr Whyte for having allowed his livestock to wander onto the highway. The inference can also be drawn that that possibility was discussed with Mr Pomare by his legal advisers. In circumstances where Mr Pomare elected not to give evidence as to his belief or state of knowledge, those inferences can be drawn with greater confidence.

Conclusion

The inference should be drawn that, prior to 15 May 2014, Mr Pomare had a relevant belief that his injury was caused by the fault of Mr Whyte, such that he must be taken to have known that fact within the meaning of s 50D(1)(b). It follows that the primary judge did not err in concluding that Mr Pomare's claim against Mr Whyte was barred by the Limitation Act. The appeal should be dismissed with costs.

Endnotes

[2019] NSWCA 295.
(2009) 74 NSWLR 454; [2009] NSWCA 35.
[2012] NSWCA 83.
Baker-Morrison at [57].
Baker-Morrison at [59].
Baker-Morrison at [27].
[1973] AC 518 at 531-532 (Lord Reid).
Baker-Morrison at [4].
Baker-Morrison at [39].
Baker-Morrison at [41]; Murgolo at [45].
Tcpt, 29/04/19, p 80(20)-(34).
Judgment at [110] discussed at [55] below.
Judgment at [4].
(1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J); [1959] HCA 8.
Judgment at [51].
Judgment at [52].
Judgment at [19].
Judgment at [28].
Judgment at [44].
Judgment at [50].
Judgment at [67].
Judgment at [74].
Judgment at [105].
Emphasis added.
See Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 (Baker-Morrison) at [25]-[27].
See Baker-Morrison at [28].
See s 60F.
See Macquarie Dictionary (7th ed, 2017) (Macquarie Dictionary), 'fault'.
See Shorter Oxford English Dictionary (6th ed, 2007) (Shorter Oxford English Dictionary), 'fault'.
See s 50D(2).
See Macquarie Dictionary, 'know'.
See Shorter Oxford English Dictionary, 'know'.
See Baker-Morrison at [45].
See State of New South Wales v Gillett [2012] NSWCA 83 at [94].
Ibid at [131].
See Simpson & Anor v Blanch & Ors [1997] NSWCA 287.
See Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8. 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: 20 December 2019

Suitors' Fund Act 1951(NSW)

Legal Profession Act 2004(NSW)

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the decision] On 18 April 2012 the appellant, Mr Kereopa Pomare, was travelling in a prime mover on the Silver City Highway west of Wentworth. The prime mover was travelling approximately 100 km per hour and collided with an Angus bull, causing the prime mover to overturn and Mr Pomare was thrown out, suffering significant injuries. On 15 May 2017 Mr Pomare commenced proceedings against the respondent Mr Angus Whyte, who had care and control of the bull and the property from which the bull had escaped. Mr Pomare sought damages from Mr Whyte, alleging he was negligent and in breach of duty in not securing the paddock gate through which the bull escaped. In his defence Mr Whyte alleged the proceedings were out of time under Limitation Act 1969 (NSW) (Limitation Act), s 50C. The proceedings would be out of time if Mr Whyte could establish that Mr Pomare knew, or ought to have known, that the injury suffered by him was "caused by the fault of" Mr Whyte by 15 May 2014 (being the date three years prior to the commencement of proceedings as against Mr Whyte). A judge of the Supreme Court (the primary judge) ordered that the above question be decided separately and prior to all other questions in the proceedings and on 3 May 2019 the primary judge answered "yes" to the separate question. Mr Pomare appealed from the orders made, seeking leave to the extent necessary. In the circumstances, the resolution of the preliminary question in favour of Mr Whyte resolved the proceedings against him on a final basis, and accordingly leave to appeal was not required. The Court found, allowing the appeal (Basten JA and Macfarlan JA agreeing, Emmett AJA in dissent): Mr Pomare consulted solicitors in relation to recovering compensation with respect to his injuries less than a year after the accident. That constituted a reasonable step taken for the purpose of ascertaining the existence or otherwise of the evaluative fact in issue (being whether his injuries had been caused by fault on the part of Mr Whyte): per Basten JA at [12]-[13]; Macfarlan JA agreeing at [63]. As to knowledge of fault: the concept of "fact" in s 50D(1)(b) describes a composite of inferences or the result of an evaluation. Section 50D requires knowledge, not of moral blameworthiness, but of fault in relation to a cause of action: per Basten JA at [16]-[17]; Macfarlan JA agreeing at [63]. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 at [27] and [39] applied; Central Asbestos Co Ltd v Dodd [1973] AC 518 at 531-532 considered. Section 50D(2) permits an inference that some of the facts identified in sub (1) may only be ascertainable by taking reasonable steps which will often include obtaining legal advice. It may then be accepted that the statutory scheme is consistent with some facts being dependent upon legal (and other professional) advice: per Basten JA at [18]; Macfarlan JA agreeing at [63]. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 at [41]; Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 at [45] applied. As to time to assess knowledge of fact: assessment of whether a person had the relevant knowledge at a particular time is to be undertaken on the basis of the evidence before the Court. That evidence may include matters which only arose after the relevant date: per Basten JA at [20]; Macfarlan JA agreeing at [63]. Original belief, based on ignorance of the relevant facts, does not constitute knowledge for the purposes of s 50D(1)(b). Once it became apparent that Mr Pomare's belief that Mr Whyte was at fault was unfounded, it could no longer be said that he "knew" Mr Pomare was at fault: Basten JA at [23] and [25]; Macfarlan JA at [67]. Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 at [72]-[73]; Unilever Australia Ltd v Petrevska (2013) 85 NSWLR 677; [2013] NSWCA 373; applied. As to evidence relied on to determine knowledge: the evidence before the Court was inconsistent with Mr Whyte having personally left the gate open or having any knowledge that the gate was open prior to the accident. The hunters who had accessed his property on the day of the accident were not in any relevant sense Mr Whyte's employees, agents or delegates. Further, there was no evidence that Mr Pomare knew of the legal principles identified, nor how they were relevant to any possible claim he might have against Mr Whyte: per Basten JA at [37]-[39]; Macfarlan JA agreeing at [63]. On the evidence before the Court, the plaintiff's belief was ill-founded and could not be said to be knowledge: per Basten JA at [41]. There was no finding that before May 2014 the plaintiff had any information as to precisely how the gate came to be open, when Mr Whyte first knew it was open, or as to what steps he should have taken to keep the gate closed, which he had not taken: per Basten JA at [42]; Macfarlan JA at [68]. Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35; applied. The standard to which the "fact" (that Mr Pomare's injury was caused by the fault of Mr Whyte) needed to be proved need not be considered as there was no acceptable evidence from which the Court could have concluded that the fact existed: per Macfarlan JA at [66]. As to the notice of contention: the first contention, that Mr Pomare had conceded that he had the knowledge identified in s 50D(1)(c), when read in context did not extend to any concession as to knowledge of the fault of the defendant and should be rejected: per Basten JA at [51]; Macfarlan JA agreeing at [63]. The second contention, that even if the plaintiff did not know the relevant facts demonstrating fault, he "ought to have known of those facts" should be rejected as the proceedings were not run on this basis before the primary judge and there was no evidence (or submission) allowing a finding that Mr Pomare did not take all reasonable steps: per Basten JA at [55] and [57]; Macfarlan JA agreeing at [63]. Per Emmett AJA The question in these proceedings is whether it could be said that Mr Pomare knew or ought to have known the matters alleged in the statement of claim, in the sense that he at least believed that they were true and that they could be established at a trial. That is to say, the question is whether he was aware of circumstances or evidence capable of supporting the conclusion that Mr Whyte had legal responsibility for his injury: Emmett AJA at [126]. Mr Pomare concedes there would be circumstances where a person in his position may relevantly know of factors that could give rise to liability. Mr Pomare gave no evidence as to his state of belief or knowledge and accordingly inferences that are available may be drawn with greater confidence in the absence of his own evidence: Emmett AJA at [127]-[128]. An inference is available that Mr Pomare believed that, if a landowner allowed his livestock to wander unattended on an unlit public highway at night, the landowner would have some legal liability or responsibility to a person injured as a consequence of a motor vehicle colliding with livestock on the highway. It is also clear that, well before 15 May 2014, Mr Pomare's legal advisers were conscious of the possibility of a claim being made against Mr Whyte for having allowed his livestock to wander onto the highway. The inference can also be drawn that that possibility was discussed with Mr Pomare by his legal advisers: Emmett AJA at [130]. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; applied. It follows from the above that the primary judge did not err in concluding Mr Pomare's claim against Mr Whyte was barred by the Limitation Act and the appeal should be dismissed with costs: Emmett AJA at [131].

(e) evidence relied on to determine knowledge

As recognised in s 50D(3), the Court was entitled to have regard to the conduct and statements, both oral or in writing of Mr Pomare. However, the direct evidence as to his beliefs prior to May 2014 did not rise higher than the statement in the claim form set out above. The source of the information contained in the claim form was not expressly identified, although the reference to a comment made by Mr Whyte to the police suggests that he had access to a police report which had in fact been prepared on 18 April 2012. That report included the following statement: [15] "Animal (bull) deemed to be at fault. Inquiries 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 prize possession of the property owner." However, the judge held that that report was not demonstrated on the evidence to have been available "to the plaintiff or his solicitors prior to 15 May 2014." [16]
The trial judge carefully, and in some detail, summarised the documentary evidence under the following headings: (i) Admissions recorded in business records or other documents, [17] (ii) Other evidence known to the plaintiff or his solicitors before 15 May 2014, [18] and (iii) Advices given by Mr Stone to the plaintiff prior to 15 May 2014. [19] This may be described as the "pre-May 2014 documentation".
The judge then identified further categories of documentation, being: (iv) Material which was in existence prior to 15 May 2014 to which the plaintiff has not been shown to have access before that date, [20] (v) Mr Stone's advices after 15 May 2014 but before 18 April 2015, [21] and (vi) Mr Stone's advices from 18 April 2015 until the filing of the amended statement of claim on 15 May 2017. [22]
The primary judge considered the matters in issue, commencing with the following findings: "[85] 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). [86] 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."
The trial judge's careful statement of submissions and legal principles was not challenged on the appeal. Under a final sub-heading, "The key factors necessary to establish legal liability", the judge commenced with the following observations: "[101] 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."

Orders

Because the primary judge approached the case on a flawed basis, the answer given to the separate question should be set aside, as should the order that the plaintiff pay Mr Whyte's costs of the motion. Those orders made on 3 May 2019 were supplemented on 17 May with orders giving judgment for the second defendant and requiring the plaintiff to pay his costs of the proceedings. These too should be set aside. There is an issue, however, as to what orders should be made in place of the orders set aside.
The appellant submitted that the question identified should have been answered in the negative, namely that the plaintiff did not know more than three years before the commencement of the proceedings that his injuries were caused by the fault of the second defendant. In my view, the correct position is that, on the evidence presented at the hearing of the separate question, Mr Whyte did not establish that Mr Pomare knew, by 15 May 2014, the facts necessary to establish fault on the part of Mr Whyte in allowing the bull to escape. The matter will have to proceed to a trial on the merits of Mr Pomare's claim, assuming the dispute is not settled.
Costs should follow the event, both in this Court and in the Court below.
Accordingly, I propose the following orders: 1. Allow the appeal and set aside orders (1) and (2) made on 3 May 2019 in the Common Law Division, with respect to the determination of the separate question. 2. Set aside orders (1) and (2) made on 17 May 2019 dismissing the proceedings and as to costs. 3. Answer the separate question as follows: "Question: Did the plaintiff know or ought he to have known of the fact that his injuries were caused by the fault of the second defendant by the relevant date? Answer: The second defendant did not establish that the plaintiff knew or ought to have known prior to 15 May 2014 the fact that his injuries were caused by the fault of the second defendant." 1. Order that the second defendant (Angus Whyte) pay the plaintiff's costs of the motion in the Common Law Division. 2. Order that the first respondent (Angus Whyte) pay the costs of the appellant in this Court. 3. Grant the first respondent a certificate under the Suitors' Fund Act 1951 (NSW).
MACFARLAN JA: I agree with the orders that Basten JA proposes and with the reasons that his Honour gives. I add the following observations.
Section 50D of the Limitation Act provides, so far as is relevant to this appeal, for the ascertainment of the first date upon which a plaintiff "knows" of a "fact", namely, that the plaintiff's injury was caused by the fault of the defendant.
To perform this task, the court must find, first, that there is a relevant "fact" and, secondly, when, if at all, the plaintiff came to know of it.

At a glance

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Judgment (9 paragraphs)

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