Hare v Harmer [2008] NSWDC 25

Pending Appeal :

New South Wales District Court

CITATION: Hare v Harmer [2008] NSWDC 25

HEARING DATE(S): 31 October, 1,2,5,6,7 November 2007

JUDGMENT DATE: 14 March 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

1. Verdict for the defendant. DECISION: 2. The plaintiff is to pay the defendant's costs of the proceedings. This order is suspended until 4pm on 2 April 2008 to allow either party to list the matter for further argument. 3. Exhibits will be retained for 28 days.

CATCHWORDS: Motor vehicle accident - Causation - Speed - Bald Tyres - Wet Road - Obvious risk - Alcohol

LEGISLATION CITED: Civil Liability Act 2002

PARTIES: Gavin Brian HARE Luke HARMER

FILE NUMBER(S): Wagga Wagga 86/2004

COUNSEL: Plaintiff - M Cranitch SC - M B Inglis Defendant - B Hull

SOLICITORS: Plaintiff - Commins Hendricks Defendant - George Mallos

JUDGMENT

1 Gavin Hare was very seriously injured on 6 November 1999 when the car he was driving crashed into a telegraph pole on Kooringal Road, Kooringal, a suburb of Wagga Wagga.

2 The car belonged to his friend, Luke Harmer, who is the defendant. All four of its tyres were completely smooth. The road surface was wet at the time of the crash.

3 The crash occurred after the rear wheels slid to the left as the plaintiff drove the car through the roundabout at the intersection of Kooringal Road and Lake Albert Road.

4 There was no issue that the plaintiff suffered severe injuries with ongoing significant disabilities.

5 The issues were: (1) The cause of the crash. The plaintiff contended that he lost control of the car on the wet road because the rear wheel tyres were bald. The defendant contended that the cause was the speed at which the plaintiff drove the car. (2) If bald tyres were the cause of the crash, whether the defendant was negligent in permitting the plaintiff to drive his car when it was not roadworthy. (3) Whether the plaintiff took a risk that was obvious in driving a car, knowing it was not roadworthy. (4) Whether responsibility for risk taking as between the plaintiff and the defendant is to be dealt with by the application of the principles of contributory negligence. (5) The quantum of damages, if any, to be awarded to the plaintiff.