Hare v Harmer [2009] NSWCA 68

New South Wales Court of Appeal

CITATION: Hare v Harmer [2009] NSWCA 68

HEARING DATE(S): 24 March 2009

JUDGMENT DATE: 8 April 2009

JUDGMENT OF: Macfarlan JA at 1; Handley AJA at 2; Sackville AJA at 3

1. Appeal allowed. 2. Set aside Orders 1 and 2 made by the primary Judge on 14 March 2008. 3. Direct that a new trial be held, limited to the question of whether or not the respondent is liable in damages to the appellant in respect of the injuries sustained by the appellant on 6 November 1999 at Kooringal (including, if necessary, determining whether any award of damages should be reduced by reason of the appellant's contributory negligence and, if so, by what proportion). DECISION: 4. Subject to Order 5, direct that the new trial proceed on evidence already admitted by the primary Judge. 5. Direct that the primary Judge may admit further evidence upon application by either party, should her Honour consider it appropriate to do so in the interests of justice. 6. The respondent to pay the appellant's costs of the appeal. 7. The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled. 8. Costs of the trial and of the new trial to be determined by the primary Judge.

CATCHWORDS: APPEAL - appeal - general principles - interference with Judge's findings of fact - misapprehension of evidence by primary Judge - adequacy of reasons behind factual finding - whether substantial wrong or miscarriage of justice - APPEAL - new trial - whether court should make findings of fact on disputed matters or order new trial

Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) LEGISLATION CITED: District Court Act 1973 (NSW) Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)