Court dismisses appeal in bicycle accident case
By Rachael Arnold, Mitchell Stein and Emma McDonald
Anthony Horne v J K Williams Contracting Pty Ltd  NSWCA 58
The New South Wales Court of Appeal has unanimously dismissed an appeal from Anthony Horne (Appellant) who suffered injuries when his bicycle collided with a barricade erected by civil construction company J K Williams Pty Ltd (J K Williams) on the edge of a roadway.
Hall & Wilcox acted for J K Williams. The company was successful at first instance and on appeal.
The Appellant was riding his bicycle in a westerly direction, on the right-hand side of the road along Victoria Street, Werrington at around 9.00pm on 19 January 2017. His 12-year-old son was riding behind him.
As they crossed the intersection of Victoria and William Streets, the Appellant collided with a water-filled, orange-coloured barricade located immediately next to the roadway, was dislodged from his bicycle, and thrown over the barricade. The barricade had been placed as part of ongoing construction works.
The Appellant alleged that J K Williams erected the barricade and failed to provide adequate lighting so that it could be seen by a cyclist in the dark. The Appellant gave evidence, which J K Williams could not disprove, that one of two street lights in the vicinity of the barricade was not operational at the time of his accident. Importantly, J K Williams was not responsible for the street lighting.
District Court Judge Gibson dismissed the proceedings, primarily on the bases that there was no breach of any duty owed by J K Williams to the Appellant and, had there been a duty requiring J K Williams to take extra steps to guard against such an accident, the failure to take those steps was not causative of the Appellant’s injuries because, even if the barricades had been properly lit, the Appellant would not have seen them.
Court of Appeal decision
The Appellant’s Notice of Appeal contained 11 grounds of appeal. However, the following grounds were the focus of oral submissions at hearing:
- District Court Judge Gibson failed to identify the ‘risk’ and ‘risk of harm’ as required by Part 1A of the Civil Liability Act 2002 (NSW) section 5B and in not identifying the risk of harm Her Honour could not proceed to find such a risk was not foreseeable, not insignificant and reasonable precautions were not taken;
- Her Honour erred in not finding that precautions which were required to be undertaken included ensuring that the street lighting was operative, and the provision of flashing lighting, signage, and reflective markers ought to have been put in place;
- District Court Judge Gibson failed to properly assess contributory negligence and consider all available evidence; and
- Her Honour failed to properly assess the Appellant’s damages and give any or any adequate reasons in respect of the evaluation of the medical evidence.
In addition to the Appellant’s grounds of appeal, J K Williams filed a Notice of Contention that District Court Judge Gibson ought to have found that the Appellant’s cause of action was not maintainable because the Appellant commenced proceedings outside the three-year discoverability period.
The Appellant complained that Her Honour did not identify the risk of harm and was thus unable to assess the likelihood of its occurrence nor the reasonableness of the precautions which ought to have been taken to reduce or eliminate the risk.
Acting Justice Basten formulated the risk of harm as the:
‘risk of a cyclist riding at night west on the verge of the northern side of Victoria Street along the construction site colliding with the recently installed barricade and suffering physical injury.’
Relevantly, the identification of the risk encompasses four elements:
- that there was an obstacle impeding the passage of the persons or vehicles;
- being newly installed, the obstacle may be unexpected;
- the risk only arose at night, as the barricade was clearly visible during the day; and
- the relevant risk was limited to that posed to cyclists.
There was no doubt that, in placing barricades along the side of the road, J K Williams owed a duty of care to pedestrians or cyclists who may pass. However, Gibson DCJ, by assuming that the street lights were functioning, concluded that the risk of harm that arose was not foreseeable to J K Williams.
The Court of Appeal accepted the Appellant’s evidence that only one street light was working, however, reached the same conclusion as Her Honour that the risk of harm was not foreseeable. The Court of Appeal focused on the fact that the circumstances did not involve stygian darkness, and that the Appellant was riding at speed at the time of the accident.
Acting Justice Basten concluded that the fact the Appellant was not travelling slowly as a result of alleged reduced visibility did not mean that he was not taking reasonable care for his own safety, rather it suggested that the darkness was not severe.
Acting Justice Basten, with whom Justice Gleeson and Acting Justice Griffiths agreed, concluded that the placement of the barricades was an appropriate measure to protect the construction work, which included the construction of a roadway and a roundabout adjacent to Victoria Street, and the workers working on the worksite.
Further, Acting Justice Basten noted that, compared with a parked car or other possible obstacles on the verge of a roadway at night, the barricades should have been readily visible to a cyclist taking reasonable care for their own safety. The Appellant had conceded during submissions that, if both street lights were fully functional, the barricades would have been readily visible. Acting Justice Basten accepted that only one light was working, but there was no evidence that J K Williams knew, or ought to have known that to be the case.
His Honour considered that, while J K Williams owed a duty of care to all users of the road and verge adjacent to its worksite, it did not breach its duty in failing to illuminate the area or erect warnings, visible at night to cyclists riding on the wrong side of the road, as to the presence of the barricades.
The Court of Appeal unanimously dismissed the Appeal.
The Appellant commenced proceedings in the District Court of NSW on 24 February 2021, a little over four years after the accident.
J K Williams pleaded in its Defence that the Appellant’s claim was statute-barred by operation of section 50C of the Limitation Act 1969 (NSW). District Court Judge Gibson concluded that the limitation defence must fail, stating:
‘…I am satisfied that the discoverability period commenced shortly after the accident, but that the plaintiff falls within the parameters of Baker-Morrison in that he put all of these matters into the hands of a solicitor.
I am satisfied that, conformably with Baker-Morrison at , the plaintiff not only took the step of instructing a solicitor but also provided full instructions, including documentation. The plaintiff having taken all reasonable steps, the limitation argument must fail.’
Acting Justice Basten identified two issues with the conclusion reached by District Court Judge Gibson:
- first, Her Honour’s discussion of the Appellant taking ‘all reasonable steps’ is language relevant to constructive knowledge and is not relevant in circumstances where the findings of fact made by Her Honour demonstrated actual knowledge; and
- secondly, District Court Judge Gibson appears to have thought that if a claimant places his or her affairs in the hands of solicitors, the discoverability date will not arise until they commenced proceedings, or at least thought that they were ready to commence proceedings.
The Court of Appeal found that, if the facts as found by the primary judge as to the Appellant’s knowledge are accepted, the cause of action was discovered more than three years before proceedings were commenced and the limitation defence should have been upheld.
The thrust of the Appellant’s submissions was that a cause of action is not discoverable only because the matter is in the hands of solicitors. However, the evidence established in the District Court proceedings was that:
- the Appellant knew, as early as 31 January 2017, that J K Williams installed the barricades;
- the Appellant contacted J K Williams following the accident to advise them of his accident and the insufficient lighting;
- on 3 February 2017, the Appellant’s solicitor sought information from Penrith City Council, which had produced evidence that J K Williams had sought ‘road manager consent’ for heavy vehicles to have access to the worksite on 9 December 2016;
- the Plaintiff saw a neurologist on or around 16 February 2017, who noted ‘he has already seen a solicitor and this will be a third party insurance claim’; and
- discovery proceedings were commenced against J K Williams on 28 August 2018.
Acting Justice Basten concluded that it is the plaintiff’s knowledge, and not that of any agent or solicitor, which is the focus of the statutory test. His Honour noted that this was not a case where the Appellant could deny knowledge of the identity of the responsible party, nor did he do so. Further, he concluded that the Appellant was aware that he had suffered an injury and the note made by the neurologist was powerful evidence as to the Appellant’s state of mind in February 2017.
The Court of Appeal unanimously concluded that the limitation defence should have been upheld. This was considered an independent ground upon which the appeal must be refused.
Important takeaways from decision
The Court of Appeal’s commentary and conclusions with respect to the discoverability period are particularly helpful. Relevantly:
- instructing solicitors does not delay, pause, or stop the limitation period from running.
- it is the knowledge of the plaintiff, rather than that of any agent or solicitor, which is relevant when determining when a cause of action was discoverable or discovered.
- whether a plaintiff took all reasonable steps to determine whether a cause of action exists is not a relevant consideration in the case of actual knowledge on the part of the plaintiff.
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