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What do you know? February 2, 2020

Pomare v Whyte [2019] NSWCA 317

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].

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