Horne v J K Williams Contracting Pty Limited - [2022] NSWDC 135

District Court

New South Wales

Medium Neutral Citation: Horne v J K WILLIAMS CONTRACTING PTY LIMITED [2022] NSWDC 135
Hearing dates: 01 – 03 March, 1 and 14 April 2022
Date of orders: 29 April 2022
Decision date: 29 April 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Orders:
(1)   Judgment for the defendant.
(2)   Costs reserved, with liberty to apply.
(3)   Exhibits retained until further order.

Catchwords:
TORT - personal injury - barricades erected at building site - site illuminated at night by two traffic lights - one of the traffic lights fails - plaintiff collided with the barricade while riding his bicycle at night - whether risk of harm foreseeable and not insignificant - whether the defendant’s response to the risk of harm was one that a reasonable person would have taken -whether risk obvious

Legislation Cited:
Civil Liability Act 2002 (NSW) ss 5B – 5H, 5L, 15
Civil Procedure Act 2005 (NSW) ss 56-58
Limitation Act 1969 (NSW) ss 50C 50D

Cases Cited:
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najam (2009) 239 CLR 420
Alameddine v Glenn Worth Valley Horseriding Pty Ltd [2015] NSWCA 219
Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Baker-Morrison v State of New South Wales [2009] NSWCA 35
Best v Rosamund [2020] NSWCA 90
Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956
Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682
Container Terminals Australia v Huseyin [2008] NSWCA 320
Cox v Mid-Coast Council [2021] NSWCA 190
Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
Hill v Richards [2011] NSWCA 291
Jaenke v Hinton [1995] QCA 484
Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366
Lloyd v Thornbury [2019] NSWCA 154
Mason v Demasi [2009] NSWCA 227
Mastronardi v State of New South Wales [2009] NSWCA 270
Miller v Galderisi [2009] NSWCA 363
Pomare v White [2019] NSWCA 317
Purkiss v Crittenden [1965] 114 CLR 764
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Sibraa v Brown [2012] NSWCA 328
Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364
Sutherland Shire Council v Henshaw [2004] NSWCA 386
Temora Shire Council v Stein (2004) 134 LGERA 407; [2004] NSWCA 236
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234
Watts v Rake (1960) 100 CLR 158
Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754; [2004] NSWCA 247

Category: Principal judgment
Parties: Plaintiff: Antony Horne
Defendant: J K Williams Contracting Pty Limited
Representation:
Counsel:
Plaintiff: Mr G Hickey
Defendant: Mr R Gambi
Solicitors:
Plaintiff: LawAdvice Compensation Lawyers
Defendant: Hall and Wilcox

File Number(s): 2021/00053128

Judgment

The parties and the pleadings

The defendant carries out building activities and construction work. In January 2017, it was engaged in building activities on and adjacent to Victoria Road Werrington…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWDC 135
Decision Date: 29 April 2022

CaseChat Overview and Summary

The plaintiff, Horne, brought an action against J K Williams Contracting Pty Limited, alleging negligence that resulted in personal injury. The incident occurred when Horne collided with a barricade while riding his bicycle at night on a road adjacent to a building site. The site was secured with barricades and illuminated by two traffic lights. One of the traffic lights malfunctioned, leading to the plaintiff’s collision. The case was heard in the Magistrates Court of Victoria.

The court was tasked with determining whether the risk of harm to the plaintiff was foreseeable and not insignificant. Further, it needed to assess whether the defendant’s response to this risk was in line with what a reasonable person would have taken. Another key issue was whether the risk posed by the failed traffic light was obvious to the plaintiff. The court had to consider whether the defendant’s actions were adequate to protect against the foreseeable harm.

The court found that the risk of harm was foreseeable but not significant enough to impose a duty of care on the defendant. It was held that the risk was obvious to an observant cyclist, and the defendant's response in maintaining a single functioning traffic light was considered reasonable. The court concluded that the plaintiff’s injury was due to his failure to exercise reasonable care, rather than any fault on the part of the defendant.

The court entered judgment in favour of the defendant, with costs reserved for potential application. The exhibits were retained pending further order.

Orders

Orders of the court

Orders:

(1) Judgment for the defendant.

(2) Costs reserved, with liberty to apply.

(3) Exhibits retained until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Horne v J K WILLIAMS CONTRACTING PTY LIMITED [2022] NSWDC 135
Hearing dates:	01 – 03 March, 1 and 14 April 2022
Date of orders:	29 April 2022
Decision date:	29 April 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders: (1) Judgment for the defendant. (2) Costs reserved, with liberty to apply. (3) Exhibits retained until further order.
Catchwords:	TORT - personal injury - barricades erected at building site - site illuminated at night by two traffic lights - one of the traffic lights fails - plaintiff collided with the barricade while riding his bicycle at night - whether risk of harm foreseeable and not insignificant - whether the defendant’s response to the risk of harm was one that a reasonable person would have taken -whether risk obvious
Legislation Cited:	Civil Liability Act 2002 (NSW) ss 5B – 5H, 5L, 15 Civil Procedure Act 2005 (NSW) ss 56-58 Limitation Act 1969 (NSW) ss 50C 50D
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najam (2009) 239 CLR 420 Alameddine v Glenn Worth Valley Horseriding Pty Ltd [2015] NSWCA 219 Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Baker-Morrison v State of New South Wales [2009] NSWCA 35 Best v Rosamund [2020] NSWCA 90 Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956 Collins v Clarence Valley Council (No 3) [2013] NSWSC 1682 Container Terminals Australia v Huseyin [2008] NSWCA 320 Cox v Mid-Coast Council [2021] NSWCA 190 Garzo v Liverpool/Campbelltown Christian School Limited & Anor [2011] NSWSC 292 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Hill v Richards [2011] NSWCA 291 Jaenke v Hinton [1995] QCA 484 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Lloyd v Thornbury [2019] NSWCA 154 Mason v Demasi [2009] NSWCA 227 Mastronardi v State of New South Wales [2009] NSWCA 270 Miller v Galderisi [2009] NSWCA 363 Pomare v White [2019] NSWCA 317 Purkiss v Crittenden [1965] 114 CLR 764 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Sibraa v Brown [2012] NSWCA 328 Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Temora Shire Council v Stein (2004) 134 LGERA 407; [2004] NSWCA 236 Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 Watts v Rake (1960) 100 CLR 158 Wyong Shire Council v Vairy; Mulligan v Coffs Harbour City Council (2004) Aust Torts Reports 81-754; [2004] NSWCA 247
Category:	Principal judgment
Parties:	Plaintiff: Antony Horne Defendant: J K Williams Contracting Pty Limited
Representation:	Counsel: Plaintiff: Mr G Hickey Defendant: Mr R Gambi Solicitors: Plaintiff: LawAdvice Compensation Lawyers Defendant: Hall and Wilcox
File Number(s):	2021/00053128