New South Wales District Court CITATION: Hare v Harmer [2010] NSWDC 102 HEARING DATE(S): 1 September 2009, 14 April 2010, 10 May 2010, 13 May 2010 JUDGMENT DATE: 11 June 2010 JURISDICTION: District Court - Civil JUDGMENT OF: Sidis DCJ at 1 1) The defendant's application for leave to re-open is dismissed. DECISION: 2) Verdict and judgment for the plaintiff in the sum of $1,301,437.94. 3) The defendant is to pay the plaintiff's costs of the proceedings on an ordinary basis up to and including 2 November 2007 and on an indemnity basis thereafter. 4) The orders are suspended for seven days to allow the parties to apply to relist the proceedings to deal with issues of interest and a stay pending appeal. CATCHWORDS: APPLICATION FOR LEAVE TO RE-OPEN - Principles to be applied - Second application - Late stage of application - Prejudice to plaintiff - Insignificant impact on the issues in the proceedings. Hare v Harmer [2009] NSWCA 68 CASES CITED: Smith v NSW Bar Association (1992) 176 CLR 256 Urban Transit Authority v Nweiser (1992) 28 NSWLR 471 PARTIES: Gavin Brian Hare (Plaintiff) Luke Harmer (Defendant) FILE NUMBER(S): 2004/00195009 (Previously 86/04) COUNSEL: M Cranitch SC and M B Inglis (for the Plaintiff) B Hull (for the Defendant) SOLICITORS: Commins Hendriks Solicitors (for the Plaintiff) George Mallos Lawyer (for the Defendant) JUDGMENT 1 On 14 April 2010 I published my reasons on the issues to be addressed following the Court of Appeal's decision in Hare v Harmer [2009] NSWCA 68. The proceedings related to an accident in which the plaintiff was seriously injured after the tyres on the car that he was driving lost traction while travelling through a roundabout. The tyres were bald. The issue in the proceedings was what caused the tyres to lose traction, in particular whether the cause was the combination of standing water within the road surface of the roundabout and the bald condition of the tyres. 2 Prior to addressing the matters raised by the Court of Appeal I allowed the defendant leave to re-open his case to lead further evidence from Mr Bailey concerning the point at which the vehicle driven by the plaintiff commenced the slide that ultimately resulted in the crash in which he was injured. 3 The further evidence of Mr Bailey was based on evidence given at the initial hearing by Detective Inspector Barr about the point at which he observed tyre marks on the road when he inspected it after the crash. Having referred to the transcript and evidence of other witnesses, I did not accept that Detective Inspector Barr's reference to the apex of the roundabout was intended, as assumed by Mr Bailey, to refer to the position nominated as the 9 o'clock position on the circle comprising the roundabout. 4 By application made on 13 May 2010 the defendant sought further leave to re-open to lead evidence to the effect that Detective Inspector Barr was in fact referring to the 9 o'clock position when he spoke of the apex of the roundabout. In support of the application, the defendant provided written communications received from Detective Inspector Barr to this effect. 5 I was referred to authority that dealt with the principles to be applied when deciding whether to allow a party to re-open its case. 6 Smith v NSW Bar Association (1992) 176 CLR 256 was a High Court decision that referred the following factors: 1 There is a public interest in maintaining the finality of litigation. 2 The application should relate to a matter that calls for review. 3 It is relevant to consider that there is an avenue for appeal. 4 The application should relate to evidence that goes to the heart of the matter. 5 Embarrassment or prejudice to the opposing party should be considered to determine whether it would be unfair to allow the matter to be re-opened. 7 Urban Transit Authority v Nweiser (1992) 28 NSWLR 471 involved an application for leave to re-open that was made after evidence was completed and submissions commenced. In that case therefore the trial was continuing and reasons for judgment had not been delivered. In the Court of Appeal Justice Clarke listed the following factors in deciding that leave should have been granted: 1 The evidence involved went to the main issue, namely credit. 2 There would have been no prejudice to the plaintiff, no delay in the hearing of the proceedings and no additional cost. 3 In considering how best the interests of justice would be served it was necessary to consider: (a) whether the proposed evidence was clearly relevant to and capable of having a significant impact on the issues in the case; (b) the extent to which those interests were better served by granting rather than refusing the application; and (c) the need to confine the ambit of the inquiry within reasonable limits in the overall interests of justice. 4 It could not be said that the evidence proposed to be called would have no impact on the result or that it was peripheral or unimportant. 8 Applying those considerations to the current situation I noted the late stage at which the application was made. There have been two hearings and one appeal to date in these proceedings. The application was made to deal with evidence that was ambiguous. The defendant chose the interpretation that favoured his position without considering whether, given that Mr Bailey's opinion depended upon it, leave to lead the evidence now proposed to be given by Detective Inspector Barr should have been applied for at the time that the application was made in respect of the further evidence of Mr Bailey. 9 The plaintiff was seriously disabled by the injuries he suffered in the crash. He lives in Wagga Wagga and trial proceedings have taken place there. Litigation concerning his claim has already extended over several years. Further delay and expense will be incurred to allow Detective Inspector Barr to be called to give the proposed evidence and to be cross examined. 10 The defendant has a right of appeal. It is a virtual certainty that there will be a further appeal in this matter whether or not this further evidence is admitted. 11 Most significant, however, to my decision not to grant the leave sought were the reasons published on 14 April 2010 for rejecting the further opinion evidence of Mr Bailey that the point at which the vehicle initially commenced its slide preceded the 9 o'clock position within the roundabout. 12 I noted that it was inconsistent with the evidence of Mr Halls and Mrs Harmer that the slide commenced towards the exit point of the roundabout. Mrs Harmer said that the plaintiff accelerated after the slide occurred. The defendant said that he warned the plaintiff not to accelerate after the slide occurred. 13 The diagram of Senior Constable Roesler, although acknowledged to be crude, indicated that the tyre marks on the road were some distance from the 9 o'clock position. 14 There were no yaw marks at the point where on Mr Bailey's hypothesis the slide commenced. At this point, on that hypothesis, there was no prospect that standing water would be present. If that was the case and the tyres therefore remained in contact with the road, yaw marks would be expected to be present. 15 In the light of these features, I considered it unlikely that I would accept that Detective Inspector Barr was accurate in his recollection that tyre marks commenced at the 9 o'clock position. I considered it unlikely that his further evidence would have a significant impact on the issues in the proceedings. Final orders 16 The proceedings were also listed to allow the parties to update figures so that final orders could be entered. I was informed that neither party wished to vary the amounts awarded in the initial reasons handed down on 14 March 2008. 17 Senior counsel for the plaintiff indicated that a claim for interest might be forthcoming and provision to allow for an application for interest has been made in the orders. ORDERS 18 The defendant's application for leave to re-open is dismissed. 19 Verdict and judgment for the plaintiff in the sum of $1,301,437.94 comprising: Non economic loss ---------------------------------- $275,000.00 Income and superannuation loss ---------------------- 558,930.00 Domestic care ---------------------------------------- 793,034.89 Equipment needs --------------------------------------- 82,150.36 Out of pocket expenses -------------------------------- 26,135.34 $1,735,250.59 Reduction for contributory negligence ------------------ 433,812.65 $1,301,437.94 20 The defendant is to pay the plaintiff's costs of the proceedings on an ordinary basis up to and including 2 November 2007 and on an indemnity basis thereafter. 21 The orders are suspended for seven days to allow the parties to apply to relist the proceedings to deal with issues of interest and a stay pending appeal. 22 My further reasons are published. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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