Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Horne v J K Williams Contracting Pty Ltd [2023] NSWCA 58 Hearing dates: 24 February 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Before: Gleeson JA at [1];
Basten AJA at [2];
Griffiths AJA at [69].Decision: (1) Extend time within which to commence the appeal to 1 August 2022.
(2) Dismiss the appeal.
(3) Order that the appellant pay the respondent’s costs in this Court.
Catchwords: TORTS – negligence – duty of care – breach of duty – orange barricades placed on unmade verge of roadway along construction site – cyclist collided with barricade at night – streetlight not at full capacity – light not under control of builder – whether builder should have known light malfunctioning – whether duty of builder to illuminate barricade or place warning signs
LIMITATION OF ACTIONS – personal injury – date cause of action discoverable – when plaintiff knew injury caused by fault of defendant – when plaintiff knew injury sufficiently serious to justify bringing proceedings – actual knowledge established more than three years prior to commencement of proceedings – trial judge erred in relying on principles relevant to constructive knowledge
Legislation Cited: Civil Liability Act 2002 (NSW), s 5B
Limitation Act 1969 (NSW), ss 50A, 50C, 50D
Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Murgolo v AAI Ltd t/as AAMI (2019) 101 NSWLR 376; [2019] NSWCA 295
Pomare v Whyte [2019] NSWCA 317
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320
Category: Principal judgment Parties: Anthony Horne (Appellant)
J K Williams Contracting Pty Ltd (Respondent)Representation: Counsel:
Solicitors:
B Dooley SC / G Hickey (Appellant)
D Villa SC / R Gambi (Respondent)
Law Advice Compensation Lawyers (Appellant)
Hall & Wilcox Lawyers (Respondent)
File Number(s): 2022/0135340 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Civil
- Date of Decision:
- 29 April 2022
- Before:
- Gibson DCJ
- File Number(s):
- 2021/00053128
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 19 January 2017 the appellant, Anthony Horne, and his son Braidon were riding their bicycles in a westerly direction, on the righthand side of the road along Victoria Street, Werrington at around 9pm. As they crossed the intersection of Victoria and William Streets, Mr Horne collided with a water-filled orange-coloured barricade located immediately next to the roadway. The barricade had been placed there as part of the on-going construction works on the Victoria Street site running from William Street to Cottage Street.
On 24 February 2021 Mr Horne commenced proceedings in the District Court against the respondent, J K Williams Contracting Pty Ltd, asserting that it was negligent in failing to ensure that the area around the newly installed barricade was adequately illuminated at night. The street light closest to…
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- Case
- [2023] NSWCA 58
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the respondent owed a duty of care to Mr. Horne, whether that duty was breached, and whether the proceedings were commenced within the relevant limitation period. Specifically, the court considered whether the respondent should have known the streetlight was malfunctioning and whether the respondent had a duty to illuminate the barricades or place warning signs. The court also had to determine when Mr. Horne's cause of action was discoverable for the purposes of the Limitation Act 1969 (NSW), focusing on when he knew his injury was caused by the fault of the respondent and when he knew the injury was sufficiently serious to justify proceedings.
The Court of Appeal found that the trial judge had erred in applying principles of constructive knowledge to the discoverability of the cause of action. The court determined that Mr. Horne had actual knowledge that his injury was caused by the fault of the respondent more than three years prior to the commencement of proceedings. Consequently, the appeal was dismissed.
The Court of Appeal ordered that time to commence the appeal be extended to 1 August 2022, but it dismissed the appeal and ordered that the appellant pay the respondent’s costs in the Court of Appeal.
Orders
Orders of the court
(1) Extend time within which to commence the appeal to 1 August 2022.
(2) Dismiss the appeal.
(3) Order that the appellant pay the respondent’s costs in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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