Pomare v Hogan (No 3) [2019] NSWSC 497

Supreme Court New South Wales

Medium Neutral Citation: Pomare v Hogan (No 3) [2019] NSWSC 497 Hearing dates: 29 April 2019 Decision date: 03 May 2019 Jurisdiction: Common Law Before: Adamson J Decision: 1. The answer to the separate question: "Did the plaintiff know or ought he to have known of the fact that his injuries were caused by the fault of the second defendant by the relevant date?" is "Yes."

2. Order the plaintiff to pay the second defendant's costs. Catchwords: LIMITATION OF ACTIONS – negligence – discoverability limitation period – Limitation Act 1969 (NSW), ss 50C and 50D – whether plaintiff knew or ought to have known of the fact that the injury was caused by the fault of the second defendant – whether plaintiff's belief that farmer who owned bull and adjoining land had left gate open sufficient – neither availability of admissible evidence to prove case nor reasonable prospects of success for claim relevant factors under s 50D – cause of action statute-barred

NEGLIGENCE – collision between road train and Black Angus Bull – consideration of key factors necessary to establish liability Legislation Cited: Animals Act 1977 (NSW), Part 3 Evidence Act 1995 (NSW), s 140 Interpretation Act 1987 (NSW), s 33 Legal Profession Uniform Law Application Act 2014 No 16, Sch 2, cll 2, 3 Limitation Act 1969 (NSW), ss 50A, 50C, 50D, Pt 2, Div 6 Motor Accidents Compensation Act 1999 (NSW), s 7C Cases Cited: Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Drayton Coal Pty Ltd v Drain [1995] NSWCA 131 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kay v Sydney Airport [2014] NSWSC 744 Kondis v State Transport Authority (1984) 154 CLR 672; [1984] HCA 61 New South Wales v Gillett [2012] NSWCA 83 Pomare v Hogan [2019] NSWSC 496 Rylands v Fletcher [1868] UKHL 1; (1868) LR 3 HL 330 Category: Principal judgment Parties: Kereopa Pomare (Plaintiff) Michael John Hogan (First Defendant) Angus Whyte (Second Defendant) Representation: Counsel: A Stone SC/N Compton (Plaintiff) N Jessop, solicitor (First Defendant) R Cavanagh SC/A Bowen (Second Defendant)