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Pomare v Hogan (No 3)

Pomare v Hogan (No 3)

Case [2019] NSWSC 497 3 May 2019

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Supreme Court

New South Wales

Medium Neutral Citation: Pomare v Hogan (No 3) [2019] NSWSC 497
Hearing dates: 29 April 2019
Decision date: 03 May 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
1. The answer to the separate 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?” is “Yes.”
2. Order the plaintiff to pay the second defendant’s costs.
Catchwords:
LIMITATION OF ACTIONS – negligence – discoverability limitation period – Limitation Act 1969 (NSW), ss 50C and 50D – whether plaintiff knew or ought to have known of the fact that the injury was caused by the fault of the second defendant – whether plaintiff’s belief that farmer who owned bull and adjoining land had left gate open sufficient – neither availability of admissible evidence to prove case nor reasonable prospects of success for claim relevant factors under s 50D – cause of action statute-barred
NEGLIGENCE – collision between road train and Black Angus Bull – consideration of key factors necessary to establish liability
Legislation Cited: Animals Act 1977 (NSW), Part 3
Evidence Act 1995 (NSW), s 140
Interpretation Act 1987 (NSW), s 33
Legal Profession Uniform Law Application Act 2014 No 16, Sch 2, cll 2, 3
Limitation Act 1969 (NSW), ss 50A, 50C, 50D, Pt 2, Div 6
Motor Accidents Compensation Act 1999 (NSW), s 7C
Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13
Drayton Coal Pty Ltd v Drain [1995] NSWCA 131
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kay v Sydney Airport [2014] NSWSC 744
Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61
New South Wales v Gillett [2012] NSWCA 83
Pomare v Hogan [2019] NSWSC 496
Rylands v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330
Category: Principal judgment
Parties: Kereopa Pomare (Plaintiff)
Michael John Hogan (First Defendant)
Angus Whyte (Second Defendant)
Representation:
Counsel:
A Stone SC/N Compton (Plaintiff)
N Jessop, solicitor (First Defendant)
R Cavanagh SC/A Bowen (Second Defendant)
Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
Moray & Agnew (First Defendant)
Curwoods Lawyers (Second Defendant)

File Number(s): 2016/110332

Judgment

Introduction

Kereopa Pomare (the plaintiff) filed a notice of motion for an order that the limitation question in respect of Angus Whyte (the second defendant, or Mr Whyte) be determined as a separate question. On 5 March 2019 I ordered that this question be determined separately. The parties have since agreed on the formulation of the question as follows:

“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.”

It was common ground that the relevant date was 15 May 2014, the amended statement of claim joining the second defendant having been filed three…

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.

Continue reading Pomare v Hogan (No 3)

Details

AGLC: Pomare v Hogan (No 3) [2019] NSWSC 497
Case: [2019] NSWSC 497
Decision Date: 03 May 2019

CaseChat Overview and Summary

The case involved a plaintiff who was injured in a collision between a road train and a Black Angus Bull. The plaintiff brought a claim for damages against the driver of the road train, who was the first defendant, and the owner of the bull, who was the second defendant. The first defendant sought a summary dismissal of the plaintiff’s claim on the basis that it was statute-barred. The court was required to determine whether the plaintiff’s claim against the second defendant was statute-barred under the Limitation Act 1969 (NSW).

The court considered whether the plaintiff knew or ought to have known of the fact that the injury was caused by the fault of the second defendant. The plaintiff argued that they ought to have known that the farmer who owned the bull and the adjoining land had left the gate open, but the court found that this belief was not sufficient to satisfy the knowledge requirement under s 50C of the Limitation Act. The court also considered whether the availability of admissible evidence to prove the case or reasonable prospects of success for the claim were relevant factors under s 50D of the Limitation Act, but found that they were not. The court held that the cause of action was statute-barred because the plaintiff did not know or ought to have known of the fact that the injury was caused by the fault of the second defendant within the limitation period.

The court ordered that the first defendant’s application for summary dismissal of the plaintiff’s claim be dismissed, but that the plaintiff’s claim against the second defendant be statute-barred. The court held that the plaintiff’s knowledge of the farmer’s alleged fault was not sufficient to satisfy the knowledge requirement under s 50C of the Limitation Act, and that the availability of admissible evidence or reasonable prospects of success for the claim were not relevant factors under s 50D of the Limitation Act. The court found that the cause of action was statute-barred because the plaintiff did not know or ought to have known of the fact that the injury was caused by the fault of the second defendant within the limitation period.

Orders