Pomare v Whyte - [2019] NSWCA 317

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Pomare v Whyte [2019] NSWCA 317
Hearing dates: 12 November 2019
Date of orders: 20 December 2019
Decision date: 20 December 2019
Before: Basten JA at [1];
Macfarlan JA at [63];
Emmett AJA at [69]
Decision:
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.”

4. Order that the second defendant (Angus Whyte) pay the plaintiff’s costs of the motion in the Common Law Division.

5. Order that the first respondent (Angus Whyte) pay the costs of the appellant in this Court.
6. Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords: LIMITATION OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – Whether “fault” for the purposes of Limitation Act 1969 (NSW), s 50D(1)(b) can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may amount to a causal link between the breach of duty and the injury – Knowledge of fact as opposed to “belief” of fact – Time to assess knowledge of fact.
Legislation Cited:
Government Information (Public Access) Act 2009 (NSW)
Legal Profession Act 2004 (NSW)
Limitation Act 1969 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Accident Compensation Act 1985 (Vic)
Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35
Central Asbestos Co Ltd v Dodd [1973] AC 518
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295
Simpson & Anor v Blanch & Ors [1997] NSWCA 287
State of New South Wales v Gillett [2012] NSWCA 83
Unilever Australia Ltd v Petrevska (2013) 85 NSWLR 677; [2013] NSWCA 373
Texts Cited: Macquarie Dictionary (7th ed, 2017)
Shorter Oxford English Dictionary (6th ed, 2007)
Category: Principal judgment
Parties: Kereopa Pomare (Appellant)
Angus Whyte (First Respondent)
Michael John Hogan (Second Respondent)
Representation:
Counsel:
JE Sexton SC with N Compton (Appellant)
R Cheney SC with A Bowen (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Maurice Blackburn Lawyers (Appellant)
Curwoods Lawyers (First Respondent)
Moray & Agnew (Second Respondent)

File Number(s): 2019/169929
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2019] NSWSC 497

Date of Decision:

3 May 2019

Before:

Adamson J

File Number(s):

2016/110332

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].

Judgment

BASTEN JA: On 18 April 2012 a prime mover pulling two long trailers collided with a bull on the Silver City Highway west of Wentworth. The appellant, Kereopa Pomare, was travelling as a passenger in the sleeper berth of the prime mover whilst his co-driver was at the wheel. The collision caused the road train to overturn and the appellant was thrown out, suffering significant injuries.
On 15 May 2017 Mr Pomare commenced proceedings against the respondent, Angus Whyte, by adding Mr Whyte as a defendant to existing proceedings against the driver of the road train. Mr Whyte had care and control of Wyndham Station through which the highway ran at the point of collision, and had the care and control of the bull. The proceedings were out of time if the defendant could establish that the appellant had the requisite knowledge to commence proceedings against Mr Whyte more than three years before the date on which they were commenced. The critical date to determine Mr Pomare’s state of knowledge was thus 15 May 2014.
By his defence filed on 11 May 2018, the respondent alleged (among other matters) that the cause of action was not maintainable because the proceedings had been commenced after the expiration of the limitation period permitted by s 50C of the Limitation Act 1969 (NSW).
On 1 August 2018 the appellant filed a notice of motion seeking to have the limitation defence determined as a separate question before other issues in the proceedings. The judge acceded to that motion. That procedure may have contributed to the miscarriage which, in my view, resulted from the primary judge upholding the defence and dismissing the appellant’s claim.
A number of cases have come to this Court, involving personal injury actions to which the defendant has filed a defence alleging that the proceeding was commenced out of time. They have come on appeal from judgments summarily dismissing the claims on the basis of a motion filed by the defendant. Murgolo v AAI Ltd t/as AAMI [1] was the most recent example of such a case, a decision delivered on 5 December 2019. In Murgolo, this Court noted that while such a motion, if successful, had the capacity to reduce the expenditure of costs and other resources in preparing and conducting a full trial, there were often grave risks in attempting to litigate a limitation defence prior to the trial. Had that procedure been adopted, similar observations could have been made in this case. The entitlement of the prospective plaintiff to bring proceedings was determined without a single witness being called.
1. [2019] NSWCA 295.
That procedure was not adopted in this case; a defence was filed raising the limitation issue, but it was the plaintiff who sought to have the issue determined as a separate question before the trial. The underlying purpose of taking that course is obscure. Had the plaintiff succeeded on an interlocutory basis, the matter could have been reagitated at trial, if different facts emerged. (The defendant would have had to demonstrate a change in circumstances, but it would be difficult to dismiss that possibility before the trial.)
What has in fact happened is that the primary judge acceded to the request to determine a separate question; the issue was determined and the plaintiff lost, suffering a dispositive judgment without a hearing on the merits and, unsatisfactory as the procedure may have been, cannot complain about that course because it was undertaken on his motion.

Legal principles

Section 50C(1) of the Limitation Act provides that an action is not maintainable if, relevantly for present purposes, it is brought after the expiration of a period of three years running from the date on which the cause of action was “discoverable” by the plaintiff. Section 50D provides an explanation of the concept of discoverability:

50D   Date cause of action is discoverable
(1)   For the purposes of this Division, 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.
(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.
(3)   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.

Four aspects of this case were not in doubt, namely that well before 15 May 2014 Mr Pomare knew that (i) he had suffered an injury; (ii) the injury was caused when the road train he was travelling in collided with a bull; (iii) the injury was sufficiently serious to justify the bringing of proceedings (against someone other than his employer) and (iv) the bull, and the property on which it was usually confined, were controlled by Mr Whyte. The outstanding question, in terms of the criteria in s 50D(1), was knowledge that the accident occurred through the “fault” of Mr Whyte. The present case thus turned on the knowledge of Mr Pomare as to the aspect of par (b) concerning the alleged fault of the respondent.
Section 50D(1) posits two bases upon which the commencement of the discoverability period may depend, namely (i) what the claimant knows (sometimes referred to as a subjective test) and (ii) what he or she “ought to know” (sometimes described as an objective test). Satisfaction of either limb is sufficient to trigger the commencement of the period.
The attractive simplicity of this provision is belied by experience. There have been three significant decisions of this Court with respect to the construction of the section. The most recent, Murgolo, post-dated the hearing of this appeal, but involved the different question as to when the plaintiff first knew of the identity of the defendant. The matter in issue in this case involved knowledge of the fault of the defendant within s 50D(1)(b), which was the aspect of the provision dealt with a decade ago in Baker-Morrison v State of New South Wales. [2] The principles established in Baker-Morrison were affirmed by a five judge bench in State of New South Wales v Gillett. [3] These principles were not in dispute in the present case and will be addressed in the course of applying the section.

Application of s 50D(1)(b)

2. (2009) 74 NSWLR 454; [2009] NSWCA 35.

3. [2012] NSWCA 83.

(a) the objective test – “ought to know”

In March 2013, less than a year after the accident, Mr Pomare consulted solicitors in relation to recovering compensation, including damages, with respect to his injuries. That constituted a reasonable step taken for the purpose of ascertaining the existence or otherwise of the evaluative “fact” in issue, namely whether his injuries had been caused by fault on the part of Mr Whyte. It was not contended that there were other steps he ought to have taken in order to satisfy the criterion of taking “all reasonable steps” in s 50D(2).
In Baker-Morrison the Court accepted that subs (2) provided a definition of the phrase “ought to know” in relation to a fact and at a particular time. [4] A definition may be comprehensive or indicative. It may have been arguable that subs (2) was an indicative definition and did not cover the field of what fell within the defined phrase. However, it has been understood to be comprehensive. The phrase thus applies, not only “if”, but only if, the fact would have been ascertained by taking the appropriate steps. Further, the phrase “ought to know” has been construed as referring to actual knowledge in the active sense, and not what the person should have been told (the passive sense). [5] Thus, where a claimant has consulted solicitors in a timely fashion, the inquiry is as to what they told the claimant, not what they knew but did not communicate, nor what they should have known had they made inquiries which they did not make.
4. Baker-Morrison at [57].
5. Baker-Morrison at [59].
One consequence of the provision so understood is that a negligent solicitor may escape responsibility for a delay in bringing proceedings because the plaintiff will not be out of time and will therefore not have been deprived of the opportunity to obtain recovery for his injury.
The case was not argued in this Court, or before the primary judge, on any different basis. The only question was, therefore, what the evidence established that Mr Pomare knew no later than 15 May 2014.

(b) knowledge of fault

To describe knowledge of fault on the part of another person as a “fact” is to obscure a number of significant aspects of the relevant knowledge. As noted in Baker-Morrison, the concept of “fact” in s 50D(1)(b) describes “a composite of inferences or the result of an evaluation.”[6] It adopts a drafting technique which has been deplored in Central Asbestos Co Ltd v Dodd,[7] but not abandoned. The reasoning in Baker-Morrison continued:

“[28] In par (b), the word fault is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as ‘discoverable’ for the purposes of s 50C is ‘the cause of action’. The ‘fact’ contemplated by par (b) is a relationship between two things, namely, the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation.”
6. Baker-Morrison at [27].
7. [1973] AC 518 at 531-532 (Lord Reid).

The facts in Baker-Morrison fell within a confined compass. The plaintiff, then less than two years old, had been taken by her mother to the Gosford Police Station and, whilst in the reception area, had injured her hand in a sliding door. The injury occurred when she bent down to pick up so lollies from the floor in the vicinity of the sliding doors by which the public gained entry to the police station. As a person approached the doors they automatically opened and caught the fingers of the girl’s right hand. [8] The mother, who was the relevant person for the purpose of identifying the claimant’s knowledge, knew those facts. However, what was required to be known was each of the key factors necessary to establish legal liability. The mother needed to know that there was a step which the occupier of the premises could reasonably have taken to prevent such an accident. Section 50D requires knowledge, not of moral blameworthiness, but of “fault in relation to a cause of action”. [9] In applying the relevant principles to the facts, Baker-Morrison held:

“[40] The exercise undertaken by the State in the present case fell far short of demonstrating that the plaintiff's mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe. The primary particular of negligence on the statement of claim was a failure to provide ‘a protective guard or covering along the area of operation of the … sliding glass doors’. Until the plaintiff's mother was aware (or ought to have been aware) of the availability and reasonable practicability of installation of such a device, she could not be said to be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety. These are the terms in which the relevant test under s 50D(1)(b) should be formulated.”
8. Baker-Morrison at [4].
9. Baker-Morrison at [39].

There is a question as to whether “fault” in this context can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may be sufficient to amount to a causal link between the breach of duty and the injury. As noted in Murgolo, s 50D(2) permits an inference that some of the facts identified in subs (1) may only be ascertainable by taking reasonable steps which will often include obtaining legal advice. Assuming that the concept of “reasonable steps” does not exclude that step, and there is no basis upon which to infer that it does, then it may be accepted that the statutory scheme is consistent with some facts being dependent upon legal (and other professional) advice. Certainly, the fact identified in subs (1)(c) would appear generally to fall within that category. [10]
10. Baker-Morrison at [41]; Murgolo at [45].
There will be cases, such as a motor vehicle accident, where professional advice is not required to know there is actionable fault on the part of another driver. In many cases fault will be obvious to a lay person who, as a driver, will understand the rules of the road. Each case will turn on its own circumstances.

(c) time to assess knowledge of fact

As the Court explained in Murgolo, 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, or became known, after the relevant date.
At the hearing before the primary judge, counsel for the respondent submitted that the Court should find that Mr Pomare had the relevant knowledge at the time that he completed a personal injury claim form on 16 April 2013. He had stated in that form:

“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.
Farmer’s prize bull walked onto Silver City highway which then it was run over by the road train causing it to flip over….”

In oral submissions in reply, senior counsel for the respondent stated: [11]

“All this evidence about what was subsequently determined and the way that the plaintiff pleaded in the statement of claim and what the defendant has admitted to is somewhat irrelevant because we are here dealing with the state of the plaintiff's knowledge in 2014. …[I]f your Honour is satisfied that the plaintiff knew before May 2014 that the defendant had left the gate open and the bull, which the defendant owned, had escaped through the gate, whether that proves to be right or wrong in the end doesn't matter.
If your Honour is satisfied, … that the plaintiff would have known that there was something reasonable which the defendant could have done, that is closed the gate, then he had a legally actionable claim.”
11. Tcpt, 29/04/19, p 80(20)-(34).

For reasons which will be explained shortly, the primary judge appears to have accepted that submission. However, as appears from the reasoning in Murgolo (of which neither the parties nor the primary had the benefit in April 2019) the approach expressed in that submission is not necessarily correct. As Murgolo was handed down while this matter was reserved, it is appropriate to explain the under-lying reasoning, rather than rely upon that decision as authority. The critical questions, namely the time at which the claimant’s beliefs were to be assessed, and on the basis of what material, were expressly raised by counsel for the plaintiff by submissions which were rejected by the primary judge. Indeed, Murgolo would not have been determinative of this case as the facts were materially different.
In Murgolo the claimant had in fact commenced a proceeding against the defendant some five years before the proceeding the subject of the appeal was commenced. In the meantime, the claimant had discovered that the company he assumed to have been the employer of the negligent workmen may not have been the employer, there being another company with a similar name which, as it appeared from documents then obtained, was the employer on the worksite. The Court held that, although the claimant believed in 2013 that the defendant was the employer, that belief was formed in ignorance of the fact that there were two contenders for that role, with similar names. After yet further inquiries, other documentation was uncovered which led to the belief that the defendant against whom proceedings had originally been commenced but then discontinued, was the employer. The Court held that the original belief, based on ignorance of the relevant facts, did not constitute knowledge for the purposes of s 50D(1)(b) as to the identity of the defendant.
In this case, the fact that Mr Pomare believed in 2013 that the farmer had left the gate open did not meant that he knew that for a fact, in the absence of any firm basis for the belief. (The factual basis of the belief is discussed at (e) below.) By the time of the hearing in April 2019, there was, simply stated, no evidence to support the belief that the farmer left the gate open, and much plausible material to the contrary.
If in fact he knew that the farmer had left open the gate of a paddock in which there were cattle, the paddock being adjacent to a highway, it might well be accepted that the appellant knew the farmer was at fault without the need for professional advice. However, once it became apparent that the belief was unfounded, it could no longer be said that he “knew” that the farmer was at fault.
That conclusion rests on two propositions. First, to construe the language of s 50D(1) it is necessary to identify some unusual aspects of the usage. “Fact” is not used in its vernacular sense; rather, with respect to the fault of the defendant, it embraces what a lawyer might describe as primary facts (the gate, usually locked, was open), together with inferences drawn from such facts (the farmer must have opened that gate), and an evaluative judgment (to leave the gate open demonstrated lack of reasonable care). In some cases that judgment will depend on professional advice.
Secondly, while the court must determine a fixed point in time at which a claimant knew certain facts, it does not follow that the first date on which the claimant thought he knew those facts was frozen in time as the relevant date, regardless of subsequent developments. If the only relevant fact was the first date on which the plaintiff thought he knew a fact, virtually all the subsequent evidence would have been irrelevant. Indeed, the primary judge recognised the logic of that conclusion. [12]
12. Judgment at [110] discussed at [55] below.

(d) burden of proof

The primary judge was mindful of the structural difficulties she faced as a result of the procedure by which the separate question came on for determination. She first correctly noted that because Mr Whyte had pleaded the limitation issue he bore the onus of establishing the defence, an onus which was not altered by the procedural circumstances that the issue had been raised as a separate question on the plaintiff’s application. [13]
13. Judgment at [4].
The judge then noted that the plaintiff had a forensic choice of not giving evidence with respect to the separate question. She held, correctly, that the absence of evidence from him could not be used to make up any deficiency in the evidence adduced by Mr Whyte, but continued, in accordance with the principle in Jones v Dunkel,[14] that “evidence adduced by [Mr Whyte] which might have been contradicted by the plaintiff can be accepted more readily if the plaintiff fails to give evidence; and … [the judge could] more comfortably draw an inference which is otherwise open if the plaintiff could have given evidence to dispute it.”
14. (1959) 101 CLR 298 at 308 (Kitto J), 312 (Menzies J); [1959] HCA 8.

(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]

15. Judgment at [51].

16. Judgment at [52].

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”.

17. Judgment at [19].

18. Judgment at [28].

19. Judgment at [44].

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]

20. Judgment at [50].

21. Judgment at [67].

22. Judgment at [74].

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 theAct). 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.”

The last lengthy sentence in this paragraph, apart from rejecting a submission made on behalf of the plaintiff, identified as appropriate inferences that the basis of his belief in 2013 was, at least in part, information supplied by his co-driver, Mr Hogan, and a report on an ABC news program. However, for reasons which have been adverted to above and to which it will be necessary to return shortly, the judge did not consider, on the evidence now available to the Court, whether there was a reasonable basis for the statements made in the claim form. Indeed, the judge expressly rejected the propriety of such an approach in the following passage:

“[108] I do not accept Mr Stone’s argument that the commencement of the discovery limitation period can be retrospectively altered if subsequent information indicates that the plaintiff’s knowledge in the period of three years before the relevant date, was not entirely accurate. That the second defendant denied, in other proceedings, that he left the gate open, or that the gate was open at all, does not affect the plaintiff’s belief, which amounted to knowledge, at the relevant time that the defendant had admitted that it was. That the police report did not record the content of what the plaintiff believed to have been the second defendant’s admission cannot affect the plaintiff’s knowledge when the evidence does not establish that either he or his solicitors had access to the police report before the relevant date.”

The next stage in the judge’s reasoning commenced with the following propositions:

“[102] In so far as an evaluative judgment is required to determine whether the second defendant [Mr Whyte] is at fault, it is necessary to consider basis of the second defendant’s legal liability to the plaintiff.
[103] The owner of land on which animals graze owes a non-delegable duty to take reasonable care to prevent the animals escaping onto a highway. The duty owed to users of the highway, who had neither control over, nor knowledge of the condition of the fencing, was to ensure that the fences and gates were in a condition adequate to contain the animals: see Simpson v Blanch [1997] NSWCA 287 and the cases cited therein.”

The concept of a “non-delegable duty” is somewhat fraught. It is a duty to take reasonable care, which may be breached, even if the responsibility for taking care is delegated to another person. The effect of a finding that a duty is “non-delegable” is apt to extend the liability of the defendant from those for whom he or she is vicariously liable to others who may be undertaking work or other functions on his or her behalf. Yet the evidence before the Court, including statements by Mr Whyte, are persuasive and inconsistent with him having personally left the gate open or having any knowledge that the gate was open prior to the accident. There was some evidence that the gate was not in fact open, but had not been securely fastened and that it would have opened readily if cattle had brushed against it. In answer to interrogatories, Mr Whyte noted that “a group of 4 hunters was on the property from the morning of 17 April 2012 until some time later that evening. The group was brought to the farm [by] Joe Corba who has been hunting at the farm once or twice a year for the 14 years I have operated same. … I had previously provided Joe with a copy of the Wildlife Hunting Plan and I had explained verbally the importance of closing gates on the farm to prevent stock movement.”
That evidence appeared in answers given by Mr Whyte to interrogatories administered on 16 February 2014 in proceedings brought against him by the Victorian WorkCover Authority. The same account was to be found in a report prepared for the insurer of the Whyte Family Trust, CGU Insurance Ltd, dated 3 August 2012. The evidence demonstrated two points, namely that, (i) Mr Pomare’s beliefs prior to May 2014 were entirely dependent upon information obtained either by an ABC journalist or the police from Mr Whyte, and (ii) detailed information provided by Mr Whyte to his insurer’s claims assessor, and on oath for court proceedings, demonstrated that he did not directly have personal involvement with the gate at any relevant time and that there were third parties on the property who may have been through the gate and not secured it properly who were not trespassers, but who were not his agents, employees or contractors.
What, in this context, was the significance of the primary judge’s finding that the basis of Mr Whyte’s liability rested upon a non-delegable duty of care? The hunters were not in any relevant sense Mr Whyte’s employees, agents or delegates. Neither was there any evidence that Mr Pomare, at any relevant time, knew of the legal principles identified, nor how they were relevant to any possible claim he might have against Mr Whyte.

The judge noted the conceded point that the risk of harm caused if a black Angus bull roamed the highway, especially at night, was reasonably foreseeable, and the harm resulting from a collision could be substantial. [23] The judge continued:

“[106] In these circumstances, if the second defendant had, as the plaintiff believed he had on the basis of the supposed admission to police, left the gate open or was otherwise responsible for the gate being open, the second defendant would be liable to the plaintiff under ordinary principles of negligence. It was not necessary for the plaintiff to know any other essential factor in order to know that his injuries were caused by the fault of the second defendant. The obvious and reasonable precaution which the second defendant was obliged to take was to close the gate or to take reasonable steps to keep the gates closed.” [24]
23. Judgment at [105].
24. Emphasis added.

That passage was of fundamental importance to the reasoning of the judge. However, there are two problems with the conclusion set out above. First, on the evidence before the Court, the plaintiff’s belief was ill-founded and could not now be said to be knowledge. Indeed, even in 2013, the plaintiff had no reasonable basis for his belief.
Secondly, while the last sentence of the conclusion (italicised) was undoubtedly correct, 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. The reason why there was no finding in relation to those matters was that there was no evidence before the Court upon which to base such a finding as to the plaintiff’s state of knowledge. However, absent appropriate findings as to each of those matters, the plaintiff did not know that the escape of the bull was caused by the negligence of Mr Whyte or of those for whom he was responsible.
With respect to later information, the primary judge dismissed such material as irrelevant in the following passage:

“[107] Later information came to light, in the form of [Mr Whyte’s] defence in the Recovery Proceedings, which cast doubt on the objective correctness of the plaintiff’s belief that the Angus bull had escaped because [Mr Whyte] himself left the gate open. However, the plaintiff has not given 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. … I am satisfied that the plaintiff 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.”

The factual issue relevant to determining the plaintiff’s knowledge in this case is analogous to the issue which arose in Baker-Morrison. Although the primary judge correctly identified the factual elements in Baker-Morrison and the approach adopted in this Court, she did not return to them when determining the equivalent issue in the present case.
With respect to when the basis of the claimant’s belief should be assessed in order to determine whether the belief constituted knowing a fact, the primary judge did not have the benefit of this Court’s in Murgolo. However, applying the principles discussed above, the conclusion of the primary judge cannot stand.

Notice of contention

Mr Whyte raised two issues in support of the conclusion that the judgment below could be supported on grounds other than those relied upon by the primary judge. They may be dealt with briefly.

(a) reliance on concession as to fulfilment of s 50D(1)(c)

The premise of the first contention was that Mr Pomare had conceded that he had the knowledge identified in par (c) of s 50D(1), namely that “the injury was sufficiently serious to justify the bringing of an action on the cause of action.” That concession was made: it is unclear, however, why that concession was to be understood as a concession that par (b) was satisfied.
Mr Whyte’s submissions focused, not so much on the concession, but on statements in this Court as to the inter-relationship of the three paragraphs in s 50D(1). In Gillett, Campbell JA delivered concurring reasons in which three other members of the Court joined. The passage relied upon read as follows:

“[131] In Baker-Morrison Basten JA regarded satisfaction of s 50D(1)(c) as dependent upon ‘the exercise of both legal and medical expertise’([41)] and that ‘the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made’ ([44)]. For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff's own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus, knowledge of actionability is necessary before s 50D(1)(c) is satisfied. And, because it is involved in there being ‘fault’, actionability is likewise one of the ‘key factors necessary to establish liability’ that must be known before s 50D(1)(b) is satisfied.”

Mr Whyte submitted that, because “knowledge of actionability is necessary before s 50D(1)(c) is satisfied”, a concession that par (c) was satisfied carries with it the necessary concession that the element of actionability in par (b) was also satisfied. This was said to be consistent with the reasoning accepted by the Court in Baker-Morrison.
The concession relied upon appeared in the plaintiff’s written submissions at trial:

“23. For the purposes of the current application, the Plaintiff has conceded that the cause of action was discoverable in terms of Sections 50D(1)(a) and (c) more than three years prior to the commencement of proceedings as against the Second Defendant.”

However, the submission continued:

“24. The issue for determination on this application is whether the cause of action was discoverable by the Plaintiff having regard to whether he knew or ought to have known the fact that his injury was caused by the fault of the Second Defendant at a point in time more than three years prior to the commencement of proceedings as against the Second Defendant.”

The terms of the concession, read in context, self-evidently did not extend to any concession as to knowledge of the fault of the defendant. Nor did senior counsel for Mr Whyte, or the primary judge, think that there was such a concession. Had they done so, the case would have been very short because there would have been nothing left to consider.
As a matter of principle, even the statement, read out of context, did not necessarily involve such a concession. Each of the paragraphs in s 50D(1) identifies a different element of discoverability. Paragraph (c) is addressed to the seriousness of the injury. In Baker-Morrison, there was no doubt that the injury was sufficiently serious to justify the bringing of an action in negligence. However, it did not follow that the requirements of par (b) were satisfied: indeed, the Court held they were not. The facts in Murgolo provided another example of the same point. There was no issue that Mr Murgolo had suffered an injury and that his injury was sufficiently serious to warrant the commencement of proceedings. The question was whether he knew who the defendant was. It is obvious that a claimant may know he has been injured, be satisfied as to the seriousness of the injury, but not know whether it was caused by negligence or by whom it was caused.
The first contention must be rejected.

(b) notice of contention – constructive knowledge

The second contention was that the judgment below should be upheld on a basis not addressed by the primary judge, namely that even if the plaintiff did not know the relevant facts demonstrating fault, he “ought to have known of those facts” more than three years before the proceedings were commenced. References to what the plaintiff “ought to have known” were noted in the transcript and the judgment.
Again, it is by no means clear that the proceedings were run on this basis before the primary judge. Significantly, in dealing with documents which came to the attention of the plaintiff’s solicitors after the relevant date, the judge said:

“[110] … I apprehend that Mr Stone [counsel for the plaintiff] tendered the documents, in part to show what might have been discovered by the plaintiff’s solicitors had they made inquiries before the relevant date. It was not submitted by the second defendant that the plaintiff ought to have made further inquiries. Rather, the second defendant’s case on the separate question was that the evidence it had tendered showed that the plaintiff himself actually had the requisite knowledge before the relevant date.”

Both in the submissions and in the judge’s reasons, there are statements which include the statutory phrase “knows or ought to know”; however, if Mr Whyte had run a case based on constructive knowledge, one would expect to find appropriate submissions by senior counsel on his behalf outlining how the evidence supported such a case: this Court was not taken to any such submissions.
There is a further difficulty with the second ground of contention. As noted above, the reasoning in Baker-Morrison as to constructive knowledge was that s 50D(2) allowed a finding based on that which the claimant would have ascertained if the claimant had taken all reasonable steps to ascertain the fact. It was not engaged in circumstances where the claimant had taken all reasonable steps. There was no evidence (or submission) allowing a finding that Mr Pomare did not take all reasonable steps. For example, it was not submitted that, having instructed solicitors in a timely fashion, Mr Pomare should have hired investigators or done any other act to ascertain how the bull came to be on the road. That being so, and the reasoning in Baker-Morrison as to the operation of s 50D(2) not being challenged, based on the evidence before the primary judge, there was no case which could have been run alleging constructive knowledge.
The second ground of contention must be rejected.

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:

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.

Set aside orders (1) and (2) made on 17 May 2019 dismissing the proceedings and as to costs.

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.”

Order that the second defendant (Angus Whyte) pay the plaintiff’s costs of the motion in the Common Law Division.
Order that the first respondent (Angus Whyte) pay the costs of the appellant in this Court.
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.
The existence of the “fact” that would have been relevant in the present case (that is, that Mr Pomare’s injury was caused by the fault of Mr Whyte) was not however proved in the court below. The standard to which the “fact” needed to be proved need not be considered as there was no acceptable evidence at all from which the court could have concluded that the fact existed. As Basten JA points out, on the evidence before the court, Mr Pomare’s belief that it was Mr Whyte’s fault that the gate to the highway was left open was “ill-founded” and “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” (at [39]-[40]). Nor was there any evidence which could have formed the basis for such a finding.
If, to whatever standard may have been applicable, it had been established as a “fact” that Mr Whyte had been at fault, the next question would have been when, if at all, Mr Pomare came to “know” of that fact. Mr Pomare may have believed it to be the “fact” but belief does not necessarily equate to knowledge. For example, in Unilever Australia Ltd v Petrevska (2013) 85 NSWLR 677; [2013] NSWCA 373, determination of the cause of the plaintiff’s hearing loss required the application of medical expertise, with the result that the plaintiff’s belief about that matter was not of significance and did not constitute awareness (or therefore knowledge) of that cause (see also Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 at [72]-[73]).
Likewise in the present case, any knowledge of Mr Pomare that Mr Whyte was at fault depended upon Mr Pomare’s knowledge of a number of matters, including whether Mr Whyte was responsible (whether in a direct sense, through lack of appropriate supervision or otherwise) for the gate to the highway being left open. As with the plaintiff’s mother in Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35, Mr Pomare could not be said to have had relevant knowledge unless he at least knew of the factual matters that rendered his accident the fault of the defendant. In the present case, Mr Pomare did not know how the gate came to be left open and in Baker-Morrison the plaintiff’s mother was not aware that there was a step which the occupier of the premises could reasonably have taken to prevent her infant child’s accident. In these circumstances, neither plaintiff knew that the relevant accident was the defendant’s fault.
EMMETT AJA:

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]
25. See Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 (Baker-Morrison) at [25]-[27].
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”.
26. See Baker-Morrison at [28].
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).

27. See s 60F.

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.
28. See Macquarie Dictionary (7th ed, 2017) (Macquarie Dictionary), ‘fault’.
29. See Shorter Oxford English Dictionary (6th ed, 2007) (Shorter Oxford English Dictionary), ‘fault’.
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.
30. See s 50D(2).
31. See Macquarie Dictionary, ‘know’.
32. See Shorter Oxford English Dictionary, ‘know’.
33. See Baker-Morrison at [45].
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]
34. See State of New South Wales v Gillett [2012] NSWCA 83 at [94].
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]
35. Ibid at [131].

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.
36. See Simpson & Anor v Blanch & Ors [1997] NSWCA 287.
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:

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;

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;

by having regard to what her Honour identified as “the evident purpose of the legislation” rather than applying the text of s 50D;

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;

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

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:

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

“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.”

On 27 March 2014, Ms De Paoli wrote to Wisewould Mahony confirming that Mr Pomare objected to giving evidence in the proceedings fixed for hearing on 23 June 2014. Ms De Paoli said that Mr Pomare was intending on commencing proceedings against either or both of the driver of the vehicle or alternatively, the owner of the animal that was on the roadway, and that he did not wish to give evidence until such time as his action concluded.
On 2 April 2014, Ms De Paoli wrote again to Wisewould Mahony asking whether Mr Whyte was insured. She also asked whether Mr Whyte was prosecuted in relation to the circumstances of the accident.
On 14 April 2014, Mr Stone wrote to Maurice Blackburn acknowledging a letter of 7 April 2014 and noting that the proceedings by the Authority had been listed for hearing and that the solicitors for the Authority had been informed that Mr Pomare would not be giving evidence in the recovery proceedings until such time as his civil claim had been completed. Mr Stone advised that if a subpoena to give evidence were to be issued, Mr Pomare would have no choice but to give evidence. Mr Stone noted that “we do have some interest in finding out how the Victorian proceedings are resolved”.

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;

(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:
37. See Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

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

Decision last updated: 20 December 2019

Medium Neutral Citation:	Pomare v Whyte [2019] NSWCA 317
Hearing dates:	12 November 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Before:	Basten JA at [1]; Macfarlan JA at [63]; Emmett AJA at [69]
Decision:	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.” 4. Order that the second defendant (Angus Whyte) pay the plaintiff’s costs of the motion in the Common Law Division. 5. Order that the first respondent (Angus Whyte) pay the costs of the appellant in this Court. 6. Grant the first respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:	LIMITATION OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – Whether “fault” for the purposes of Limitation Act 1969 (NSW), s 50D(1)(b) can be known without the assistance of legal advice in relation to what may constitute a breach of duty and what may amount to a causal link between the breach of duty and the injury – Knowledge of fact as opposed to “belief” of fact – Time to assess knowledge of fact.
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW) Legal Profession Act 2004 (NSW) Limitation Act 1969 (NSW) Motor Accidents Compensation Act 1999 (NSW) Accident Compensation Act 1985 (Vic)
Cases Cited:	Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454; [2009] NSWCA 35 Central Asbestos Co Ltd v Dodd [1973] AC 518 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Murgolo v AAI Ltd t/as AAMI [2019] NSWCA 295 Simpson & Anor v Blanch & Ors [1997] NSWCA 287 State of New South Wales v Gillett [2012] NSWCA 83 Unilever Australia Ltd v Petrevska (2013) 85 NSWLR 677; [2013] NSWCA 373
Texts Cited:	Macquarie Dictionary (7th ed, 2017) Shorter Oxford English Dictionary (6th ed, 2007)
Category:	Principal judgment
Parties:	Kereopa Pomare (Appellant) Angus Whyte (First Respondent) Michael John Hogan (Second Respondent)
Representation:	Counsel: JE Sexton SC with N Compton (Appellant) R Cheney SC with A Bowen (First Respondent) Submitting Appearance (Second Respondent) Solicitors: Maurice Blackburn Lawyers (Appellant) Curwoods Lawyers (First Respondent) Moray & Agnew (Second Respondent)
File Number(s):	2019/169929
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2019] NSWSC 497 Date of Decision: 3 May 2019 Before: Adamson J File Number(s): 2016/110332