Horne v J K Williams Contracting Pty Ltd

1. [1]

   GLEESON JA: I agree with Basten AJA.

2. [2]

   BASTEN AJA: On the evening of 19 January 2017, the appellant, Anthony Paul Horne, whilst riding his bicycle on the verge of Victoria Street, Werrington, ran into an orange barricade on the edge of a construction site. The collision dislodged him from his bicycle and he was thrown over the barricade landing on the ground on the other side. As a result, he suffered injuries, the severity of which was difficult to determine given a range of pre-existing disabilities. On 24 February 2021, a little more than four years after the accident, he commenced proceedings in the District Court against the respondent, as the entity responsible for erecting the barricade and failing to provide adequate lighting so that it could be seen by a cyclist in the dark.

3. [3]

   The proceedings came to trial before Gibson DCJ in March 2022. In a judgment delivered expeditiously, on 29 April 2022, the trial judge dismissed the proceedings. She did so primarily on two bases, namely that (i) there was no breach of any duty owed by the respondent to the appellant and (ii) had there been a duty requiring the respondent to take extra steps to guard against such a collision, the failure to take those steps was not causative of the appellant’s injuries, because, even had the barricades been properly lit, the appellant would not have seen them.

4. [4]

   The judge made further contingent findings, one of which (arguably not entirely consistent with a negative finding as to causation) was that had there been negligence, the appellant was 50% contributorily negligent. The judge also considered whether the limitation period had expired, so as to provide a complete defence to the proceedings. She held that it had not. Finally, and again contingently, the judge assessed the loss suffered by the appellant, against the possibility that she was otherwise in error in her conclusions as to liability and causation. Applying the finding of 50% contributory negligence, the judge assessed damages at a little over $39,000.

5. [5]

   On 1 August 2022, the appellant commenced proceedings in this Court challenging the findings in the District Court with respect to liability, contributory negligence and the assessment of damages. A timely notice of intention to appeal was served, but the notice of appeal was filed three days out of time. No issue was raised by the respondent, but it is appropriate to extend time to the date of filing.

6. [6]

   In addition to resisting each ground of appeal, the respondent sought to uphold the judgment below on the basis that the proceedings should have been dismissed because the limitation defence should have been upheld. That contention relied upon findings of fact made by the trial judge which, it was submitted, would have resulted in the defence being upheld, had the judge not misdirected herself as to the legal principles to be applied. By way of reply to the respondent’s notice of contention, the appellant filed a notice of contention seeking to uphold the dismissal of the limitation defence by challenging the findings of fact made by the trial judge.

7. [7]

   Not all the issues raised at trial and in the notice of appeal need to be addressed. For the reasons given below, the judgment for the respondent should be upheld on two bases, each independent of the other and sufficient in itself. First, the judge was correct to find that there was no negligence on the part of the respondent. Secondly, the proceedings should have been dismissed on the basis of the limitation defence.

Factual background

1. [8]

   Four preliminary points should be made. First, an outline of facts is necessary in order to identify the risk of harm against which a defendant is duty-bound to take precautions. As will be explained, there is a level of doubt attending the precise course of travel taken by the appellant on the evening of the accident. That, however, is not an impediment because when assessing the appropriate precautions prospectively, it would be wrong to define the risk of harm with too much precision.

2. [9]

   The second introductory observation is that to obtain an understanding of the accident, it is helpful to have regard to certain photographs which were in evidence. However, the provenance of some of the photographs was in doubt and, as the trial judge correctly noted, photographs can be deceptive.

3. [10]

   Thirdly, there was a curious omission from the evidence. While the plaintiff was giving evidence in chief, he was shown a photograph taken from the court book and was invited to place an “X” where he believed he ran into the barricade. He apparently did so, but a photograph so marked does not appear to have been retained as part of the evidence. The respondent, however, handed up on the hearing of the appeal a photograph bearing a cross which was said to be a copy made by counsel appearing for the respondent at the trial, who had marked his own copy of the photograph to accord with the mark he had seen the appellant place on the now missing original. The mark was accepted by counsel for the appellant as sufficiently accurate for the purposes of the appeal. Again, having regard to aspects of the appellant’s evidence, one may doubt whether, in any event, he was able to give precise and reliable evidence as to the point at which he hit the barricade.

4. [11]

   Fourthly, there was, initially, some doubt as to the date on which the accident occurred. Some records report an accident on 10 January 2017; but the agreed date was the evening of 19 January 2017. The change in date followed the production of an invoice from Coates Hire to the respondent, recording delivery of the barricades to the Victoria Street site on 17 January 2017. Clearly the appellant did not collide with the barricade on or at any time before that date. However, one result of the earlier proposed date of the accident was that in response to a notice to produce documents the respondent produced a photograph of the site seen from Victoria Street, taken on 12 January 2017, showing the fencing around the site, without the barricade (Annexure 1 to this judgment). The second photograph is believed to have been taken on or about 29 January 2017 showing the site from near the intersection of William Street (on the right) and Victoria Street, showing the orange barricades (Annexure 2).

5. [12]

   The annexed photographs of Victoria Street, Werrington look in a broadly westerly direction. William Street therefore runs north from Victoria Street. On the evening in question (and as part of a regular activity) the appellant was riding his bicycle west along Victoria Street with his 12-year old son riding another bicycle behind him. He stated that he rode on the righthand side of the road, that is, on the side of any oncoming traffic. In his evidence he explained that heading west on Victoria Street on the lefthand side of the road was “too dangerous, it’s an uneven surface, so we ride on the oncoming traffic side. That way, I can keep an eye on any cars coming towards us, and we can then get onto the footpath area, if we need to, very quickly”. [1]

6. [13]

   He described the lefthand side of the road as being “in really bad condition”, saying that there were “a lot of … rifts, I suppose, like that, or places that a front wheel will kick out on you even in the daytime”. [2] The plaintiff said that he and his son, Braidon, had departed on their ride at about 8.45pm or 8.50pm and had been riding for four or five minutes down Victoria Street on the righthand side of the road. [3] Although, in the passage set out above, he implied that they only rode on the footpath area when cars were approaching, in describing his ride as they approached the William Street intersection he said: [4]

7. [14]

   Having crossed the T-intersection with William Street, he continued:

8. [15]

   There was some uncertainty in this evidence as to whether he had been riding on the grass verge on the east side of William Street and continued to ride on the verge after crossing William Street, or whether he was on the roadway ready to move onto the grass verge, or whether he had moved onto the grass verge after crossing William Street, because that was where they rode.

9. [16]

   Two aspects of the surrounding area may be noted. First, on the part of Victoria Street approaching William Street from the east, there was residential development, and a well-formed grass verge and kerb. The presence of a built kerb on Victoria Street east of William Street, suggests that it might have been hard to move off the road onto the grass verge in the face of oncoming traffic. However, on the west side of William Street, where the accident occurred, there was no existing development on the construction site and the verge appeared to be grass and gravel with no kerb. There was a bus stop immediately to the west of William Street and before the start of the barricades.

10. [17]

    Secondly, on the other side of Victoria Street there was no residential development as the street ran roughly parallel to the railway. There was no railway station in the area and the verge could be described as wide, but unmaintained.

11. [18]

    In cross-examination, the plaintiff gave the following evidence: [5]

12. [19]

    He agreed there was a formed footpath to the east of William Street along Victoria Street, but said that they did not ride on it because people tended to park cars along driveways across the footpath and the driveways also created dips in the footpath and the grass verge. [6] His evidence in chief was not entirely clear as to whether he rode on the verge before crossing William Street, but it was clarified in cross-examination that he had not done so on the night of the accident. It was not clear how he got out of the way of on-coming traffic before reaching William Street, but nothing turned on that.

13. [20]

    The state of the lighting in the area was a significant issue at trial. There was no evidence as to whether there was any natural light following sunset, or from the moon. There was no evidence as to the weather, although it appears to have been dry. There was no evidence to suggest that the area was illuminated in any way by car headlights at the time of the accident. There remained, relevantly, the street lighting. The photographs indicated that there were two streetlights in the area. The first was on the opposite side of Victoria Street at the intersection with William Street; a second light was on the corner of William Street and Victoria Street within metres of the point of collision with the barricades. It appears that the light on the opposite side of Victoria Street was working, but that the light on the corner of William Street was either not operating at all or was giving out very little illumination. The appellant’s son was consistent in describing the illumination at the time as “very poor”.

14. [21]

    Each party called a safety engineer who had prepared a report containing conflicting opinions as to the adequacy of the lighting. A conclave produced a very limited agreement which was recorded in the following terms:

15. [22]

    The other source of artificial lighting was, of course, the lighting on the plaintiff’s bicycle. The plaintiff gave evidence that he had a headlight on his bicycle but it was pointing downward so that he could see potholes immediately in front of his wheel, not necessarily so as to be able to avoid them, but to be able to brace if the wheel hit a pothole. There was a question as to whether an adequate light on the bicycle would have given sufficient illumination to allow the plaintiff to see the bright orange barricade, had he been looking ahead.

Liability of respondent

1. [23]

   Section 5B(1) of the Civil Liability Act 2002 (NSW) formulates a basic principle with respect to the tort of negligence in negative terms, stating that a person “is not negligent in failing to take precautions against a risk of harm unless” the risk was foreseeable, not insignificant and was one against which a reasonable person would have taken precautions. The negative formulation may do little more than reflect the burden of proof which lies upon the injured party. In effect, the section identifies seven elements which must be addressed by a plaintiff claiming damages in negligence. Each relates to the nature of the risk and the possible consequences which may eventuate if the risk materialises.

2. [24]

   It has been established in a number of cases that an important task for the plaintiff is to plead an appropriately formulated risk of harm. Similarly, the Court must address the formulation of the risk. As explained by Gummow J in Roads and Traffic Authority of NSW v Dederer, [7] it is important to identify the actual risk of injury in order to assess (i) the likelihood of the risk occurring and (ii) the ability of the defendant to exercise control over the risk.

3. [25]

   As further explained by Leeming JA in Uniting Church in Australia Property Trust (NSW) v Miller [8] “[e]ach paragraph within s 5B in terms presupposes a ‘risk of harm’ against which, so it is alleged, precautions should have been taken”.

4. [26]

   Section 5B of the Civil Liability Act reads as follows:

5. [27]

   The appellant complained that the trial judge had not identified the risk and thus had not been able to assess the likelihood of its occurrence or the reasonableness of the precautions which ought to have been taken to ameliorate the risk or prevent it materialising. The judge’s omission was unsurprising in circumstances where the plaintiff neither sought to formulate a risk in its pleading, nor in its written submissions. The defendant’s written submissions at trial (filed 21 March 2022) noted that the risk of harm had not been particularised: par 5. The plaintiff filed written submissions in reply, but made no reference to par 5 of the defendant’s submissions.

6. [28]

   In fact, the trial judge identified on more than one occasion [9] the importance of “a proper identification of the risk of harm which is asserted to have materialised”. Apparently following the form of the parties’ submissions, the judge considered whether the risk was foreseeable and not insignificant, without identifying its precise scope.

7. [29]

   In ground 2 of the notice of appeal, the appellant asserted that:

8. [30]

   Omitting the last phrase, that may well have been an appropriate formulation of the risk. The last phrase was an attempt to include in the nature of the risk a summary of the appropriate precautions. Properly understood, the risk was a risk of a cyclist riding at night west on the verge on the northern side of Victoria Street along the construction site colliding with the recently installed barricade and suffering physical injury. This identification of the risk encompasses four elements; namely (i) that there was an obstacle impeding the passage of persons or vehicles; (ii) being newly installed, the obstacle might be unexpected; (iii) that the risk only arose at night, being a consequence of the barricades being clearly visible during daylight hours, and (iv) although no doubt the verge was used from time to time by pedestrians, the relevant risk was restricted to use by cyclists.

9. [31]

   If the risk did not arise during daylight hours, it would not have arisen if the area were adequately lit at night-time. So much was conceded by the first agreed fact set out above at [21]. The significance of the risk therefore turned on the degree of visibility from time to time.

10. [32]

    Having identified the relevant risk, it is necessary to consider whether the risk was “foreseeable”, and was “not insignificant”, in accordance with pars (a) and (b) of s 5B(1). Further, taking into account the factors identified in subs (2), it was necessary to consider what precautions a reasonable person in the position of the defendant would have taken against such a risk. The first two criteria are (i) the probability that the harm would occur if care were not taken and (ii) the likely seriousness of the harm. These are elements of foreseeability and significance.

11. [33]

    The trial judge held that the risk of harm was not foreseeable to the defendant and, the plaintiff had not established that the risk was not insignificant.

12. [34]

    Ground 1 in the notice of appeal alleged that the judge erred in failing to identify “the duty of care and its content”. The ground continued, stating that the judge “ought to have found that the respondent owed a duty of care to avoid a foreseeable risk of harm”. The content of the duty was identified as the obligation to take specified precautions. This approach tended to elide various elements of duty and breach with little reference to the actual circumstances of the accident.

13. [35]

    To approach the (undefined) question of duty of care, together with the carefully defined elements in s 5B in a methodical step by step analysis can achieve greater clarity, but can also result in unrealistically precise findings. In Dederer, Gummow J stated:

14. [36]

    The interrelationship of this concept of duty with the elements of s 5B is not easy to determine. On the one hand, careless behaviour is readily foreseeable, and the risk of injury to those who are careless of their own safety may be significant. If a reasonable person in the defendant’s position would take precautions against such a risk, just because such carelessness is foreseeable, is there, nevertheless, no duty of care owed?

15. [37]

    Turning to the particular facts of the present case, it appears to have been assumed that, in placing barricades along the side of the road where people might pass, whether on foot or on a bicycle, the defendant owed such persons a duty of care. However, the judge found that the risk was not foreseeable and was not significant (ignoring for this purpose the double negative which is important in respect of the burden of proof). If the risk of harm were to be defined as the risk of physical injury arising from a collision with the barricade, the risk was undoubtedly foreseeable and not insignificant. However, if the risk were defined as the risk of colliding with the barricade, a different conclusion might result. In particular, the conclusion would depend upon whether it were night time (absent functioning street lights) or daytime.

16. [38]

    The judge reached her conclusion by assuming the street lights were functioning, because there was no basis for finding that the defendant knew that one of the street lights was not functioning, nor that it should have had such knowledge. In effect, the trial judge rejected submissions on the part of the plaintiff that in placing the barricades across the verge, the defendant was obliged either to take steps to render them visible to a person cycling along the verge or otherwise take steps to determine whether the street lighting was adequate to render them visible to a person on a bicycle taking reasonable care for his or her own safety. However, on one view, that exercise was an exercise in relation to the precautions which a reasonable person in the defendant’s position should have taken. Unlike par (c) in s 5B(1), neither of the criteria specified in pars (a) and (b) uses the language of assessment by a reasonable person in the position of the defendant. Rather, their terms suggest an objective standard.

17. [39]

    The trial judge noted that the circumstances did not involve what she described as “Stygian darkness”. That was no doubt true, although had there been a power failure and no traffic on the road, such a condition (though very unlikely) might have arisen. In such a case, a cyclist without a headlight capable of illuminating the area ahead, might be expected to travel quite slowly. An obstacle on the verge created as a consequence of the construction work (for example, an extension of the fencing, or barricades being erected) or a parked vehicle, would have been foreseeable obstacles. The fact that the plaintiff was not proceeding with such caution did not mean he was not taking reasonable care for himself, but rather suggested that the darkness was not severe.

18. [40]

    The placement of the water-filled barricades was an appropriate measure to protect the construction work (including the construction on the site of a road way and a roundabout adjacent to Victoria Street) and the workers. Compared with a parked car or other possible obstacles on the verge at night, the barricades should have been readily visible to a cyclist taking reasonable care for his or her own safety. That was concededly so if the street lights had been fully functional. One street light was not, but there was no evidence that the respondent knew that, nor ought it to have known that to be the case.

19. [41]

    While the respondent owed a duty of care to all users of the road and verge adjacent to its work site, it did not breach its duty in failing to illuminate the area or erect warnings, visible at night to cyclists riding on the incorrect side of the road, albeit on the verge, as to the presence of the barricades. The trial judge was correct to dismiss the plaintiff’s claim.

Limitation period

1. [42]

   As has been noted, the statement of claim commencing proceedings in the District Court was filed on 24 February 2021. In its defence filed on 8 July 2021, the defendant alleged that the claim was statute-barred by operation of s 50C of the Limitation Act 1969 (NSW).

2. [43]

   Because the trial judge dismissed the claim on the basis that there was no breach of duty, she did not need to address the limitation defence. However, against the possibility that she had erred in her conclusions with respect to liability, the judge addressed the limitation issue at [97]-[111]. The judge concluded that the limitation defence must fail: at [111].

3. [44]

   As noted above, the respondent filed a notice of contention seeking to reagitate the submission that the cause of action was not maintainable, pursuant to s 50C of the Limitation Act. The respondent submitted that the judge made factual findings, each of which was correct, but which warranted upholding the defence. The appellant disputed the correctness of the factual findings.

4. [45]

   The trial judge commenced her discussion of this issue by noting the date on which the accident occurred, and the date on which the statement of claim was filed, and then stating, “[t]he limitation period is three years, and the statement of claim was thus filed approximately 13 months out of time”. [10] That statement was not correct: s 50C of the Limitation Act provides that a limitation period of three years runs from the date when the cause of action was “discoverable by the plaintiff”. That was not necessarily the date of the accident and, in fact, it rarely would be. This appears from the relevant provisions in the Limitation Act which are as follows:

5. [46]

   Despite initially suggesting that the limitation period ran from the date of the accident, the trial judge correctly addressed the three facts which the plaintiff must know or ought to know, in accordance with s 50D(1). Although the judge referred to authorities dealing with knowledge and constructive knowledge, this was a case dealing with actual knowledge. The judge stated:

6. [47]

   The respondent submitted that these findings were sufficient to establish that the date on which the cause of action was discoverable was “very soon after the accident”. Although no precise date was specified, it was not necessary to do so: the judge’s findings suggest that the plaintiff had the relevant knowledge no later than mid-February 2017, rather than late February 2018, the latter date being three years before the proceedings were commenced.

7. [48]

   The respondent submitted that the judge had nevertheless dismissed the defence based on the expiration of the limitation period by posing a further unnecessary and inappropriate question in the following terms:

8. [49]

   The appellant originally provided instructions on 31 January 2017 to a firm of solicitors in Penrith, to act for him with respect to the present claim. This led the judge to reach the following conclusion:

9. [50]

   Two points may be made with respect to these paragraphs. First, although [111] spoke of the plaintiff taking “all reasonable steps”, that is language relevant to constructive knowledge, as set out in s 50D(2): the findings of fact made by the judge demonstrated actual knowledge.

10. [51]

    Secondly, the judge appears to have thought that if a claimant placed his or her affairs in the hands of solicitors, the discoverability date would not arise until they commenced proceedings, or at least thought that they were ready to commence proceedings. That view appears to have derived from statements made in Baker-Morrison v State of New South Wales. [11] Indeed, the judge referred specifically to Baker-Morrison “at [58]” in a passage which the judge had correctly identified at [103] as dealing with the objective test of “ought to know”. That was not the relevant test in the present case. However, in dealing with actual knowledge, I made a number of observations in Baker-Morrison, which the judge did not quote, including, relevantly:

11. [52]

    The reference to the “plaintiff’s mother” in that passage is immaterial for present purposes: the plaintiff in Baker-Morrison was a child at the time she suffered injury on premises occupied by the State; it was the mother’s knowledge which was relevant in that case.

12. [53]

    Aspects of these observations were helpfully expanded upon by Leeming JA in Murgolo v AAI Ltd t/as AAMI: [12]

13. [54]

    The complexities which can arise were explained by Leeming JA in the following paragraphs of Murgolo, but in terms which have no immediate application to the present case.

14. [55]

    The primary judge also referred to Pomare v Whyte, [13] but the reference was to a passage at [57], dealing with constructive knowledge rather than actual knowledge. It is not necessary to refer to the somewhat unusual facts concerning a prized Angus bull wandering onto the Silver City Highway.

15. [56]

    If the facts as found by the primary judge as to the appellant’s knowledge are accepted, the cause of action was not only discoverable but discovered more than three years before proceedings were commenced; the limitation defence should have been upheld.

Challenge to facts found by trial judge as to knowledge

1. [57]

   The findings of fact made by the trial judge were the subject of a notice of contention filed by the appellant with respect to the limitation defence. That is, the appellant contended that the judge had been correct to dismiss the limitation defence, but should have adopted a different factual analysis, namely:

2. [58]

   The thrust of the appellant’s case is that a cause of action is not discoverable whilst ever the matter is in the hands of solicitors, and whatever steps they may or may not be taking.

3. [59]

   As to the first issue, namely the party responsible for creating the supposedly dangerous situation, his evidence was that he already knew who was responsible (namely the respondent) when he saw the Penrith solicitors on 31 January 2017. He also believed it was at fault. His evidence in cross-examination was as follows: [14]

4. [60]

   He was then cross-examined about seeing a neurologist in February 2017 on referral by his general practitioner, when, on 16 February 2017, the neurologist was advised that “he has already seen a solicitor and this will be a third party insurance claim, which I do not do in this practice”. [15]

5. [61]

   The cross-examination continued: [16]

6. [62]

   Some 18 months later, on 28 August 2018, the solicitors commenced proceedings in the District Court naming the defendant as “JK Williams Contracting Pty Limited” but, apparently, for the sole purpose of obtaining preliminary discovery to determine if it were the responsible entity, and if not who was. That step was taken, despite the fact that on 3 February 2017, the solicitor had sought information from the Penrith City Council which had produced evidence in response that the defendant had sought “road manager consent” for heavy vehicles to have access to the site, on 19 December 2016. Further, they had been supplied with photographs showing the defendant’s signage across the fencing behind the barricades and, they appeared at some stage to have obtained an ASIC report showing that, apart from a holding company, the defendant was not part of a group of companies.

7. [63]

   Whatever the solicitors may have thought necessary by way of obtaining confirmation or evidence to support the plaintiff’s claim, none of this material contradicted the factual proposition that the appellant had known from the time of the accident who was responsible. As noted in Baker-Morrison at [45], it is the plaintiff’s knowledge, and not that of any agent or solicitor, which is the focus of the statutory test. Further, despite the difficulties discussed in the cases as to the dividing line between suspicion, belief and knowledge, this was not a case where the appellant could deny knowledge of the identity of the responsible party, nor did he do so.

8. [64]

   Similarly, as the appellant acknowledged in his evidence, and as the trial judge found, he was aware that he had suffered an injury and had sought medical assistance within a fortnight of the accident; he did not deny that he believed the injuries were sufficiently serious to justify the bringing of an action. Indeed, the withdrawal of a neurologist who had originally been approached because proceedings were anticipated is powerful evidence as to the appellant’s state of mind in February 2017.

9. [65]

   None of that is to deny that the solicitors, in a dilatory manner set about obtaining advice from counsel and collecting evidence, none of which impugns the findings of the trial judge as to actual knowledge of the three matters specified in s 50D(1).

10. [66]

    It follows that the expiry of the limitation period defence should have been upheld. That is an independent ground upon which the appeal must be refused.

Conclusions

1. [67]

   In these circumstances it is not profitable to review the contingent finding of the trial judge as to contributory negligence, nor the challenge to the contingent assessment of damages.

2. [68]

   The Court should make the following orders:

   1. (1)

      Extend time within which to commence the appeal to 1 August 2022.

   2. (2)

      Dismiss the appeal.

   3. (3)

      Order that the appellant pay the respondent’s costs in this Court.

3. [69]

   GRIFFITHS AJA: I agree with Basten AJA.