Pomare v Hogan (No 3)

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

It was common ground that the relevant date was 15 May 2014, the amended statement of claim joining the second defendant having been filed three years later on 15 May 2017.

Sections 50C and 50D of the Limitation Act 1969 (NSW) (the Act) relevantly provide:

Because it is the second defendant who has pleaded the limitation issue, he bears the onus of establishing the defence to the civil standard of the balance of probabilities: s 140(1) of the Evidence Act 1995 (NSW). The second defendant still bears the onus in circumstances where the Court has ordered, on the plaintiff’s application, that the matter be determined as a separate question. However, one forensic consequence of the success of the plaintiff’s application for a separate question is that the plaintiff could decide, as he has done, not to give evidence on the determination of the separate question. Such a forensic choice would not have been open to him had his application for a separate question failed since he would be a necessary witness in the principal proceedings. This case is to be distinguished from the case of State of New South Wales v Gillett [2012] NSWCA 83 where it was the defendant, State of New South Wales, which had made the application for determination of the limitation issue as a separate question: see [110] (per Beazley JA, McColl, Campbell, Young and Whealy JJA agreeing).

It was submitted by Mr Stone SC, who appeared with Ms Compton for the plaintiff, that no inference ought be drawn against the plaintiff for not having given evidence since the second defendant had been granted leave to serve interrogatories on him, which had been answered. I reject the submission. The answering of interrogatories does not make the plaintiff a witness, as was appreciated by the plaintiff’s solicitors when they declined the second defendant’s solicitor’s request to make him available for cross-examination. The plaintiff was plainly a person who could have given relevant evidence on the separate question which turns on his knowledge up until the relevant date. His decision not to give evidence has the following consequences: it cannot be used to make up any deficiency in the evidence adduced by the second defendant; evidence adduced by the second defendant which might have been contradicted by the plaintiff can be accepted more readily if the plaintiff fails to give evidence; and that I may more comfortably draw an inference which is otherwise open if the plaintiff could have given evidence to dispute it: Jones v Dunkel (1959) 101 CLR 298 at 312 (Menzies J); [1959] HCA 8. As Kitto J said at 308:

In order to appreciate the context in which the application is brought it is necessary to summarise the relevant facts. I propose to set out the facts which are either not in issue or incontrovertible before turning to the balance of the facts which are established by the evidence.

On 18 April 2012 there was a collision on Silver City Highway between a road train pulled by a Kenworth prime mover driven by Michael Hogan (the first defendant) and a Black Angus bull owned by the second defendant. The plaintiff was asleep in the rear of the prime mover and suffered injuries as a consequence of the accident.

In about March 2013, the plaintiff consulted solicitors for the purposes of obtaining advice about his legal rights, including whether he could bring a claim for damages.

On 11 April 2016 the plaintiff’s solicitors filed a statement of claim against the first defendant pursuant to s 7C of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act) in the District Court. The plaintiff alleged in the statement of claim that the accident was a “blameless accident” within the meaning of the MAC Act and, accordingly, did not allege fault on the part of the first defendant. The proceedings were subsequently transferred to this Court.

On 19 December 2016 the first defendant (who was, at that stage, the only defendant) filed a defence in which he denied that the accident was a blameless accident. The basis of the denial was that the accident was caused by the second defendant, who owned the bull, for not keeping the bull confined within his property behind a secure fence.

On 15 May 2017 the plaintiff filed an amended statement of claim, joining the second defendant to the proceedings.

On 11 May 2018 the second defendant filed a defence in which he pleaded a limitation defence under the Act.

Because of the number of disputes and proceedings to which the accident has given rise I propose to identify the relevant persons, their insurers and their solicitors at the outset.

The plaintiff has admitted in answers to interrogatories that while he was lying beside the road after the accident on 18 April 2012, the first defendant told him that he had hit a bull or a cow. The plaintiff has also admitted that, within a short period of the accident, he knew that the road train had collided with a Black Angus bull, which was owned by the second defendant, who also owned or had control over a property which abutted the Silver City Highway where the accident occurred. Shortly after the accident the plaintiff saw an ABC news report which quoted the second defendant as saying that: “A gate had come open, it was either left open or came open”. Although the plaintiff did not know how the bull came to be on the road, he admitted that he “knew that a bull should not be on a road”.

On 24 April 2012, the plaintiff signed a Workers Injury Claim form which is referred to further below.

The plaintiff first contacted lawyers in relation to the accident in May 2012. He initially spoke to his cousin, a lawyer at Maurice Blackburn in Melbourne. He was subsequently referred to the Perth office of Maurice Blackburn because his employer was registered in Western Australia. However, he was referred back to Melbourne as he was told that the workers compensation claim had to be lodged there. There was a gap in contact with lawyers as the plaintiff’s calls were not being returned.

In March 2013 the plaintiff was referred to the Dandenong office of Maurice Blackburn to obtain advice about his workers compensation claim under the Victorian workers compensation legislation. The plaintiff had a conference with a solicitor on 12 March 2013 to discuss his workers compensation claim. The solicitor he consulted referred him to the Compulsory Third Party section of the NSW Personal Injury Department at Maurice Blackburn in Parramatta. On 19 March 2013 the plaintiff had a telephone conference with a solicitor at Maurice Blackburn in Parramatta about a possible motor vehicle accident claim.

The ABC report made on 20 April 2012 said:

The discharge summary from the Mildura Base Hospital recorded the following history:

A report of Dr Chan, surgical registrar at the Mildura Base Hospital recorded a similar history in a report dated 19 April 2012.

In his Worker’s Injury Claim Form signed on 24 April 2012 the plaintiff gave the following answer to the question: “What happened and how were you injured”:

On 21 December 2012, the plaintiff made a statement to a solicitor associated with Maurice Kerrigan, the solicitors for QBE Workers Compensation (Vic.) Ltd (QBE), the relevant workers compensation insurers for Colonial Freight Lines (NT) Pty Ltd, the employer of plaintiff and the first defendant. The plaintiff said, of present relevance:

A solicitor in Maurice Blackburn’s Dandenong office recorded in a document entitled “Workcover initial instruction sheet” dated 12 March 2013 the following instructions:

On 16 April 2013, the plaintiff filled in a form for the purposes of making a motor accident claim. He made a statutory declaration which included the following:

The claim form included the following questions and answers:

The plaintiff provided the name and contact details of the first defendant, whom he identified as a witness to the accident.

On 18 October 2013 the plaintiff made a statutory declaration for the purposes of providing a full and satisfactory explanation for making a late motor vehicle claim. I infer that it was prepared with the assistance of his solicitors, Maurice Blackburn in Parramatta. The plaintiff relevantly said:

I have included in the paragraphs below the material which was received by the plaintiff or his solicitors before 15 May 2014. As there is no evidence from the plaintiff or his solicitors to the contrary, I infer that, consistent with the fiduciary duties they owed to him, the plaintiff’s solicitors informed him of matters which came to their attention which were relevant, or potentially relevant to, his legal rights and remedies.

On 11 January 2013 Maurice Kerrigan, QBE’s solicitors, wrote to QBE. The letter contained the following paragraph:

On 24 April 2013 QBE wrote to Maurice Blackburn in Dandenong (the solicitors for the plaintiff’s workers compensation claim) and provided to them, at their request, a copy of their claim file documentation, which I infer contained the letter dated 11 January 2013 referred to above.

On 23 September 2013, Danielle De Paoli of Maurice Blackburn in Parramatta (the solicitors for the plaintiff in the motor vehicle claim and the solicitors in the current proceedings) sent an internal memorandum relating to the circumstance that another solicitor in the firm, Majed Issa, was representing Mr Hogan in a claim against the farmer (Mr Whyte) whose bull escaped the property. Ms De Paoli referred to the circumstance that her client, the plaintiff, had three potential causes of action “which we intend to pursue”, which included “a claim against the owner of the farm whose Angus bull escaped” as well as a claim against the driver (Mr Hogan). I infer from this communication that the plaintiff’s solicitor (and therefore the plaintiff by reason of the inference referred to above) knew that Mr Hogan, through Maurice Blackburn, in Parramatta, was claiming damages against Mr Whyte, in circumstances which were relevantly identical to the plaintiff’s circumstances, as both Mr Pomare and Mr Hogan had suffered injuries when the vehicle in which they were travelling collided with the bull.

On 27 September 2013 QBE wrote to Maurice Blackburn in Parramatta in response to their letter dated 11 September 2013 asking for information relevant to the plaintiff’s “WorkSafe claim”. QBE refer to the information that was provided to Maurice Blackburn in Dandenong (see above) and asked for a signed authority from the plaintiff, authorising provision of further information. The plaintiff completed an authority on 11 October 2013. By letter dated 21 October 2013 Maurice Blackburn provided the signed authority to QBE.

On 19 November 2013 QBE wrote to Maurice Blackburn in Parramatta indicating that it had decided to release further “claim file documentation” which had been received or created since a previous release was made on 24 April 2013 and enclosed the information.

On 3 January 2014, Moray & Agnew, the solicitors for the Insurance Commission of Western Australia, the compulsory third party insurer of the prime mover, wrote to Maurice Blackburn in Parramatta and said:

I infer that the “other proceedings on foot” was a reference to the proceedings referred to below which had been commenced by Breeze Logistics Pty Ltd (Breeze) in the District Court in New South Wales on 1 May 2013 (the Breeze Proceedings).

On 13 January 2014 Maurice Blackburn in Parramatta wrote to Moray & Agnew and asked for a copy of the pleadings in the Breeze proceedings referred to in their letter of 3 January 2014. By email dated 26 February 2014, Moray & Agnew enclosed an authority for the plaintiff to sign regarding receipt of the documents from the Breeze Proceedings. Mr Jessop, the lawyer from Moray & Agnew also said:

On 18 March 2014 (according to a file note made by Mylinh L’Estrange of Wisewould Mahoney), Ms L’Estrange of Wisewould Mahoney, who acted for the Victorian WorkCover Authority, spoke to Nelufer, an assistant to Ms De Paoli, the lawyer at Maurice Blackburn in Parramatta who was advising the plaintiff) and had a conversation to the following effect, as recorded in the file note:

On 18 March 2014 Wisewould Mahony sent an email to Maurice Blackburn in Parramatta in which they said:

The writ and statement of claim enclosed with the letter showed that the Victorian Workcover Authority had commenced proceedings in the County Court of Victoria at Melbourne against the second defendant seeking reimbursement of workers compensation payments made to Mr Hogan and Mr Whyte and indemnity for any such payments to be made in the future (the Recovery Proceedings). The relevant allegation of negligence was:

The defence filed by Mr Whyte in the Recovery Proceedings contained the following response to paragraph 7 of the statement of claim:

On 24 March 2014 Ms L’Estrange of Wisewould Mahony wrote to Maurice Blackburn in Parramatta and asked Ms De Paoli to confirm that the plaintiff (Mr Pomare) objected to giving evidence in the Recovery Proceedings currently listed for hearing in the County Court in Melbourne on 23 June 2014.

On 27 March 2014 Maurice Blackburn in Parramatta wrote to Wisewould Mahony as follows:

On 2 April 2014 Maurice Blackburn in Parramatta wrote to Wisewould Mahony asking whether “Angus Whyte, owner of the Angus bull which appeared on the roadway, is insured” and also whether “the Defendant” (whom I infer to be Mr Whyte in this context) “was prosecuted in relation to the circumstances of this accident”.

Before addressing the advices given by Mr Stone to the plaintiff (in respect of which I found that there had been an implied waiver of client legal privilege on the basis of fairness: see Pomare v Hogan [2019] NSWSC 496), it is necessary to mention that Mr Stone appeared on behalf of the plaintiff on the separate question. I raised the issue of conflict of interest and was assured by Mr Stone, who conferred with his instructing solicitor, that the issue of conflict had been considered and that he proposed to continue to appear for the plaintiff on this question. I note that none of the advices of Mr Stone were tendered by Mr Cavanagh. All of Mr Stone’s advices that were in evidence were tendered by Mr Stone on behalf of the plaintiff.

On 26 March 2014, Mr Stone provided a written advice to the plaintiff’s solicitors. He referred to the plaintiff’s description of the accident in the motor accident claim form and noted that, as the plaintiff was asleep in the cabin when the accident happened, he assumed that the source was the driver (Michael Hogan). Mr Stone also noted that the workers compensation insurer had issued proceedings against Mr Whyte and that Mr Whyte, in his defence, has not admitted that the gates were open.

Mr Stone continued:

Mr Stone then addressed the Recovery Proceedings as follows:

At the conclusion of the advice, Mr Stone asked his solicitors to obtain a copy of the police file; to find out from the workers compensation insurer whether the farmer was insured or was prosecuted; and to determine from the workers compensation insurer’s solicitors “where the proceedings are at”.

Mr Stone wrote to his solicitors on 14 April 2014 confirming that the Recovery Proceedings had been listed for hearing and that the plaintiff would not be prepared to give evidence (except in answer to a subpoena) in those proceedings until “his civil claim has been completed”.

Documents which were in existence prior to 15 May 2014 to which the plaintiff has not been shown to have access before that date are summarised below. For the reasons that follow, I do not regard them as being relevant to a consideration of the plaintiff’s knowledge before the relevant date for the purposes of the separate question. They are included in order to address Mr Stone’s submissions which are considered below.

The police report for the incident, which was reported at 2.30am on 18 April 2012 recorded:

The evidence revealed that this document was obtained by the plaintiff’s solicitors not later than 23 June 2014 when it was provided to Mr Stone. It has, accordingly, not been shown to have been available to the plaintiff or his solicitors prior to 15 May 2014.

In final address, Mr Cavanagh SC, who appeared with Mr Bowen on behalf of the second defendant, foreshadowed, that he sought leave to tender the worker’s claim form filled in by Mr Hogan. As the document was provided after the close of the oral hearing, I indicated that I would rule on its admissibility in the reasons for decision. Mr Stone objected to the tender.

Mr Cavanagh relied on the following portion of the form:

I accept Mr Stone’s submission that there is no evidence that this document was available to the plaintiff before the relevant date. Although the document may be a business record, the evidence does not permit me to infer that Mr Hogan had personal knowledge of the matters contained in the portion relied upon or that he heard any admission by Mr Whyte to that effect. No source is identified for Mr Hogan’s belief as expressed in the form. I reject the document as irrelevant on the grounds that there is no basis to infer that it was available to the plaintiff before the relevant date. I appreciate that other documents which have been tendered and admitted could also be said to be irrelevant and inadmissible on a similar basis. However, I admitted those documents in the absence of objection.

On 26 April 2012 the second defendant, or someone on his behalf, filled in a “Personal and Public Liability Claim Report”, in which he reported the accident as follows:

On 1 May 2013 Breeze, the owner of the refrigerated trailer attached to the prime mover, commenced the Breeze Proceedings by filing a statement of claim in the District Court claiming damages in negligence against Mr Hogan as first defendant, Colonial Freight Lines (NT) Pty Ltd (which was the employer of the plaintiff and Mr Hogan) as second defendant, Gatlet Pty Ltd (which was alleged to be the owner of Wyndham Station, the property on which the bull had been grazing before it wandered onto the road and of the bull itself) as third defendant and Mr Whyte (who was alleged to have the care and control of Wyndham Station and of the bull and who was the principal of certain hunters who had access Wyndham Station via the gate) as fourth defendant.

The relevant allegations were as follows:

McCabes, lawyers on the record for Gatlet Pty Ltd and Mr Whyte in the Breeze Proceedings, filed a defence for the third and fourth defendants on 6 September 2013 in which they did not admit paragraphs 6, 9, 10, 11 and 12 of the statement of claim. They denied paragraphs 7 and 15 of the statement of claim. As to paragraph 8, they alleged:

As to paragraph 13 of the statement of claim, they denied paragraphs (a)-(c) under the heading “Third and Fourth Defendant” and did not admit paragraph (a) under the heading “The Hunters”.

The evidence showed that these documents were seen by the plaintiff’s legal representatives when they inspected documents produced on subpoena issued by Moray & Agnew (solicitors for the first defendant) in the current proceedings. They were addressed in Mr Stone’s advice of 7 February 2017 (referred to below) and I infer were inspected by the solicitors shortly prior to that date. As referred to above the plaintiff’s solicitors knew of the proceedings by 3 January 2014 and had asked for the pleadings on 13 January 2014. There is no evidence that they received them before the relevant date and I do not infer that they did.

On 9 May 2013 Wisewould Mahony, who acted for the Victorian Workcover Authority in the Recovery Proceedings, wrote to the second defendant in the following terms:

As referred to above, the plaintiff’s solicitors obtained a copy of the pleadings in the Recovery Proceedings by email sent on 18 March 2014, prior to the relevant date.

On 19 March 2014, Ms L’Estrange of Wisewould Mahony spoke to Majed Issa of Maurice Blackburn in Parramatta, who was advising Michael Hogan. Ms L’Estrange’s file note recorded as follows:

Although I do not infer that the solicitor at Maurice Blackburn (Parramatta) who was advising the plaintiff saw this file note, I infer that, as part of the process of obtaining Mr Pomare’s consent to allow Maurice Blackburn (Parramatta) to act for Mr Hogan, that solicitor was informed that Mr Hogan was considering bringing a claim against Mr Whyte.

On 21 March 2014 Wisewould Mahony sent a letter to Mr Hogan, care of Maurice Blackburn in Parramatta, which said:

Mr Stone continued to advise the plaintiff. The plaintiff tendered Mr Stone’s advices for the period from 15 May 2014 (the relevant date for the separate question) to 18 April 2015, being the expiry of the limitation period for actions in tort, otherwise than pursuant to ss 50C and 50D of the Act. I regard the relevance of these documents as scant for the reasons given further below, as they were created after the relevant date and, with notable exceptions, do not bear on the plaintiff’s knowledge at the relevant time.

In an advice dated 22 May 2014, Mr Stone advised the plaintiff that he had “three potential sources of claim”: a workers compensation claim (for which the plaintiff was already in receipt of payments); a claim against the CTP insurer of the truck based on the an “error” on the part of the driver; and “suing the owner of the cow [sic, bull], on the basis that it should not have been on the roadway”.

Mr Stone continued:

Mr Stone recorded his inference that the farmer was insured by naming the firm acting for Mr Whyte in the Recovery Proceedings. Mr Stone expressed the view that it was still too early to say who should be sued as he was still awaiting the police materials and was waiting to see what happened in the Recovery Proceedings. He observed that:

On 25 June 2014 Mr Stone wrote to his instructing solicitors recording receipt of the police material, which he said included a statement from Mr Hogan which was consistent with what the plaintiff had said about the circumstances of the accident. Mr Stone referred to the entry in the police report which said:

Mr Stone noted that the plaintiff would only succeed against the farmer if fault could be shown in allowing the “cow” to escape. He referred to the Recovery Proceedings and said:

On 30 July 2014 Mr Stone advised in a letter to his solicitors:

On 3 November 2015, Mr Stone confirmed previous advice given before the expiry of the limitation period on 18 April 2015 and said:

Mr Stone then opined that there was an argument which would enable the plaintiff to bring the accident within the definition of “blameless motor accident” which would entitle him to sue Mr Hogan and recover from the CTP insurer. There was no further reference in the detailed advice to the potential claim against Mr Whyte, it being then accepted that the three-year limitation period which had begun to run from the date of the accident had expired.

On 18 November 2015 Mr Stone confirmed his solicitors’ instructions to commence proceedings on behalf of the plaintiff against Mr Hogan and the need to provide a full and satisfactory explanation of the delay. Mr Stone said:

It is an agreed fact that documents were produced in answer to a subpoena which was issued on 17 November 2016 in the current proceedings by the District Court of New South Wales at Sydney at the request of Mr Hogan, for whom Moray & Agnew acted by way of subrogation on behalf of the Insurance Commission of Western Australia, and that access to those documents was granted on 2 February 2017.

The subpoena was addressed to McCabes Lawyers who, as referred to above, were the solicitors on the record for Gatlet Pty Ltd and Mr Whyte in the Breeze Proceedings. I infer that the forensic purpose for which the subpoena was issued was to investigate whether the material in the Breeze Proceedings would assist the Insurance Commission of Western Australia, as Mr Hogan’s insurer, to establish that the accident was not a “blameless accident” within the meaning of the MAC Act because it was due to the fault of Gatlet Pty Ltd or Mr Whyte.

The documents produced included a letter dated 3 July 2012 from Thomsons Lawyers, who acted for National Transport Insurance (the insurer of Breeze’s truck) to CGU Insurance (the insurer of Mr Whyte and Galet Pty Ltd) enclosing a copy of an investigator’s report. The letter said:

The documents produced also included a report from Cerno (investigators) dated 3 August 2012, which attached an unsigned statement of Mr Whyte and a second report from Cerno dated 29 August 2012, which attached a signed statement of Mr Whyte.

On 7 February 2017 Mr Stone provided a further written advice to his solicitors which recorded that the Breeze Proceedings had been resolved with a payment to Breeze of $214,000 from Mr Whyte and Gatlet Pty Ltd. Mr Stone said:

Mr Stone addressed the limitation question as follows:

On 28 March 2017, Mr Stone advised by reference to the material which had been produced on subpoena, including the investigation reports referred to above. He recommended commencing proceedings against Mr Whyte.

As referred to above, the amended statement of claim was filed on 15 May 2017.

It was common ground that the plaintiff knew, within a relatively short time of the accident, that he had suffered injury and that it was sufficiently serious to justify the bringing of an action on the cause of action (s 50D(1)(a) and (c) of the Act). The only issue is whether the plaintiff knew or ought to have known of the “fact that the injury . . . was caused by the fault of the [second] defendant”: s 50D(1)(b).

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.

Mr Cavanagh submitted that the evidence established that well before 15 May 2014 the plaintiff knew that the second defendant had admitted leaving the gate open, as reflected in his instructions to his solicitors on 12 March 2013; the details in the claim form dated 16 April 2013 which was the subject of his statutory declaration; and his admission in his answer to interrogatory 10a that “the bull should not be on the road”. Mr Cavanagh also relied on the plaintiff’s knowledge of the ABC report of 20 April 2012 in which the reporter quoted the second defendant as having said: “A gate had come open, it was either left open or came open.” He submitted that this was sufficient for a finding to be made that the plaintiff “knew” that his injuries were caused by the fault of the second defendant.

Mr Cavanagh submitted that each of these matters was known personally by the plaintiff at the relevant time and did not depend on the legal advice he had received. He contended that the legal advice was relevant to show that the plaintiff only sought to join the second defendant when his legal advisers found out that the second defendant’s insurers had settled the Breeze Proceedings by a payment of a substantial sum. He submitted that the plaintiff’s solicitors knew that the plaintiff’s claim, but for the limitation point, was relevantly indistinguishable from the claim brought by Breeze.

Mr Stone contended that the plaintiff did not know that the second defendant had failed to take a precaution which a reasonable person in his position would have taken to avoid a foreseeable risk of injury to persons using the Silver City Highway. He submitted that “there has never been any objective evidence of the [second] defendant leaving the gate open or any admission by the [second] defendant of his leaving the gate open”. He submitted that, until there is proof, or at least reliable evidence of, liability, the plaintiff could not be said to “know” the matter in s 50D(1)(b). Mr Stone contended that where a plaintiff’s belief is based on “rumour”, “scuttlebutt” or information based on something someone heard at the “pub”, it cannot be inferred that the plaintiff had the requisite knowledge.

In order to determine the dispute, it is necessary to address the meaning and purpose of ss 50C and 50D in the context of the Act as a whole as well as, where relevant, the law relating to commencement of proceedings.

Absent the specific provision, time begins to run in a claim for damage in tort when the damage is suffered, that being the date on which the cause of action in tort is complete. The general rule was seen to operate unjustly with respect to plaintiffs who had suffered personal injury, in circumstances where they might not, at the time the injury was first suffered, have appreciated that they had suffered an injury since the symptoms might be latent; or where they might not have appreciated that the injury would be a serious or life-threatening one and may have believed that it was a transient indisposition from which they could expect to recover; or where they might not realise that the injury was the consequence of fault on the part of someone, such as a surgeon or anaesthetist, as a consequence of a procedure conducted while the putative plaintiff was unconscious. The current version of the Act, which applies in the instant case, makes specific provision in Division 6 of Part 2 for personal injury actions, whether “in tort, in contract, under statute or otherwise”: s 50A of the Act.

I am required to prefer an interpretation which would promote the evident purpose of the legislation over one that does not: s 33 of the Interpretation Act 1987 (NSW). The purpose of these provisions is to remedy the injustices referred to above, not to provide an open-ended limitation period which depends on the opinions of legal advisers. The effect of Division 6 is to make the running of time (the limitation period) dependent, not on the date of accrual of a cause of action, which is the position which otherwise applies under the Act, but rather on the date on which the plaintiff knew or ought to have known of three matters: that injury has occurred, which was caused by the fault of the defendant and that the injury was sufficiently serious to justify the bringing of proceedings on the cause of action (being the cause of action ultimately pleaded).

The focus of Division 6 is the knowledge of the plaintiff, not the plaintiff’s legal advisers. This distinction is significant in cases such as Kay v Sydney Airport [2014] NSWSC 744 where the solicitor, but not the plaintiff, knew, or ought to have known of certain matters which were contained in documents in her possession. As the defendant in that case, Alltrack GSE Pty Limited, could not prove that the plaintiff knew of what was contained in the documents until a considerable period after they were received by her solicitors, the defendant could not make out the limitation defence to the plaintiff’s claim. In Kay v Sydney Airport both the plaintiff, Ms Kay, and the solicitor, Ms May, gave evidence about their respective states of knowledge and what had been communicated to the plaintiff and at when it had been communicated. This evidence enabled a finding to be made that Ms Kay did not have the relevant knowledge and was sufficient to defeat the inference which would otherwise have arisen had that evidence not been adduced.

The “fault” of which the plaintiff must be shown have knowledge is legally actionable fault, not moral culpability: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 at [39] (Basten JA, Ipp and Macfarlan JA agreeing). The fact in s 50D(1)(b) is one in respect of which a “legal evaluative judgment appears to be required”: Baker-Morrison v State of New South Wales at [41].

It is of significance that s 50D does not import any requirement that, at the point at which the limitation period starts to run, the plaintiff’s claim have “reasonable prospects of success”. This requirement, which is imposed on legal practitioners, but not individual litigants, operates as a condition precedent to the commencement of proceedings: Legal Profession Uniform Law Application Act 2014 No 16, Sch 2. The requirement has several consequences, including relating to costs and disciplinary matters. By cll 2 and 4 of Sch 2, legal practitioners are prohibited from providing legal services on a claim or defence of a claim for damages or commencing proceedings on behalf of a client without reasonable prospects of success. The test is whether the responsible legal practitioner “reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success”: cl 2(1). A fact is provable only if the practitioner reasonably believes that the material then available to him or her provides a proper basis for alleging that fact: cl 2(2). A claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim: cl 2(4).

It is also of significance that a putative plaintiff has three years from the date on which he or she knows, or ought to know of, the three matters specified in s 50D(1) to commence proceedings. It can be inferred that the legislature considered that this was both a reasonable and sufficient period to allow plaintiffs who had suffered personal injury to make whatever investigations were required, consult legal practitioners and do whatever else was required to commence proceedings if, on proper analysis, the prospects (which would have to be adjudged by a legal practitioner to be reasonable before a statement of claim could be filed) warranted it. It would do violence to the statutory language of Division 6 of Part 2 of the Act to import these latter considerations into a determination of when time begins to run.

Section 50D makes no mention of “provable facts” or material sufficient to allege a fact in, for example, a pleading. Nor is there any requirement that the plaintiff must have received advice that his or her claim has reasonable prospects of success. Nor does s 50D require the plaintiff to “be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise”: Baker-Morrison v State of New South Wales at [39], citing Drayton Coal Pty Ltd v Drain [1995] NSWCA 131. As the Court of Appeal said, at [39] in Baker-Morrison v State of New South Wales:

In Baker-Morrison v State of New South Wales itself, the plaintiff, who was then two years old, was injured when her fingers were caught in the automatic sliding door of the Gosford Police Station. The Court found that the key fact of which the plaintiff’s mother had to be shown to know, or ought to have known, was the availability and practicability of installation of a device to make the sliding door safe: [40]. The Court of Appeal found that this fact was essential for her to be aware that her daughter’s injury was caused by failure on the part of the State to take reasonable care for her safety: [40]. At [40] the Court said:

The Court addressed the meaning of “knows” at [45] as follows:

It can be seen from this passage that the question of knowledge is not to be answered by reference to the availability of admissible evidence but rather to the plaintiff’s belief that certain matters can be established. The statutory words are a sufficient indication of the legislative intention.

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.

In so far as an evaluative judgment is required to determine whether the second defendant is at fault, it is necessary to consider basis of the second defendant’s legal liability to the plaintiff.

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 rule in Rylands v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330, which had the effect of making owners of animals strictly liable in certain circumstances for damage done to those affected when they were not constrained behind fences, was abolished in New South Wales in so far as it applied to damage caused by an animal by Part 3 of the Animals Act 1977 (NSW). It was abolished under the common law by Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 in which the High Court held that the general law of negligence applied. The Court addressed the question whether there were cases where a defendant would have been liable in accordance with Rylands v Fletcher but would not be found to be liable under general principles of negligence and concluded that, because of numerous qualifications to the so-called “rule”, the results in each instance would be no different. The plurality in Burnie Port Authority v General Jones Pty Ltd analysed the question of liability by reference to concepts of control and vulnerability which were considered in Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61.

Applying these principles to the present case, the second defendant had control over his land and his cattle, including the Black Angus bull. The plaintiff was a passenger in a road train being driven up a highway and had no control over the means by which the second defendant used to keep his animals within the boundaries of the property. It was reasonably foreseeable that if one of the second defendant’s animals escaped from the confines of the property and ventured onto the road, there would be a collision with any passing vehicle which would cause injury to the driver and any passengers. The risk of harm would be substantial, having regard to the speed of vehicles on the highway, their potential mass (particularly where the vehicle is, as in the instant case, a road train) and the mass of the animal. The risk would be greater at night because the reach of the headlights is considerably less than the available sight distance in daylight.

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.

Later information came to light, in the form of the second defendant’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 the second defendant himself left the gate open. However, the plaintiff has not given evidence that he no longer knew, or held the belief, that the second defendant had left the gate open, or was responsible for the gate being open, as at 15 May 2014. Indeed, it is open to infer from Mr Stone’s reference, in his advice of 18 November 2015, to the plaintiff having been “initially keen for us to be pursuing the farmer” that the plaintiff was “keen”, as a result of his belief held up to 15 May 2014 and beyond, to bring a claim against the second defendant whom he believed to be responsible for his injuries. As the plaintiff has not given evidence, I feel more comfortable in drawing that inference. I am satisfied that the plaintiff believed the second defendant to be at fault because he had left the gate open or that the gate, being defective, had opened or had been left open. None of the advices given to the plaintiff by his lawyers has been shown to be sufficient to disabuse him of his belief which endured until at least 15 May 2014, in the absence of evidence from the plaintiff that the advices had that effect. As the portions extracted above indicate, 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.

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.

It is not to the point that Mr Stone advised the plaintiff to wait and see what would happen in the Recovery Proceedings and told the plaintiff that there were “no limitation issues” on the basis that time did not run until “we have evidence of a potential liability”. As the Court said in Baker-Morrison v State of New South Wales at [45], it is the knowledge of the plaintiff, not whether the plaintiff’s solicitors can certify reasonable prospects of success that is “the focus of the statutory test.”

Although I have summarised the contents of those advices and the documents which came to the attention of the plaintiff’s solicitors after the relevant date, I am not persuaded that these documents are relevant, except to the limited extent identified above. Section 50D is not premised on a hypothetical inquiry as to whether, had the plaintiff commenced proceedings in 2014, the second defendant would have defended them, and on what basis. I apprehend that Mr Stone 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.

Mr Stone, in effect, conducted the hearing of the separate question as if it were an inquiry as to when the plaintiff’s solicitors would have been in a position to certify that the plaintiff’s claim had reasonable prospects of success and an inquiry into the “wisdom of pursuing proceedings”. Section 50D does not turn on either of these questions.

For the reasons given above, the answer to the separate question, did the plaintiff know or ought he to have known of the fact that his injuries were caused by the fault of the second defendant by the relevant date, 15 May 2014, is “yes”.

I understand the consequences of the determination of the separate question that there ought be an order for judgment in favour of the second defendant. However, as I have not heard the parties on that question, I shall not make such an order until the parties have had an opportunity to consider these reasons.

The parties agreed that there was no reason why cost ought not follow the event.

For the reasons given above I make the following determination and order: