Harmer v Hare [2011] NSWCA 229

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Harmer v Hare [2011] NSWCA 229 Hearing dates: 28, 29 March 2011 Decision date: 11 August 2011 Before: Beazley JA at [1] Whealy JA at [2] Sackville AJA at [259] Decision: 1)Appeal dismissed; 2)Cross-appeal allowed; 3)Set aside the order of Sidis DCJ made on 11 th June 2010 entering judgment for the plaintiff in the sum of $1,301, 437.94 and in lieu thereof order that judgment be entered for the plaintiff in the sum of $1,735,250.59; 4)The order as to costs made by Sidis DCJ on 11 th June 2010 is to stand; 5)The defendant is to pay the costs of the appeal and cross-appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - motor vehicle accident - brain damaged plaintiff - existence and scope of duty of care - intoxicated owner passenger in car driven by plaintiff - whether owner had duty to prevent plaintiff from driving vehicle with bald tyres - whether engaged in joint criminal enterprise - whether risk of harm was obvious - contributory negligence - whether a reasonable person would have driven the vehicle - whether plaintiff had duty to inspect vehicle prior to driving - basis of contributory negligence not pleaded. APPEAL - appellate review of findings of fact - were findings unsupported by evidence or inferences unavailable - whether primary judge's findings glaringly improbable - whether primary judge reversed the onus - need to read primary judge's decision fairly. EXPERT EVIDENCE - role of experts - difficulty in choosing between experts - danger of expert acting as advocate for a party - need for experts to heed primary facts. Legislation Cited: Civil Liability Act 2002 (NSW) ss 5B, 5D, 5F, 5G, 5H, 5R, 5S Supreme Court Act 1970 s 75A Cases Cited: Neal v Ambulance Service of New South Wales [2008] NSWCA 346 at [33] - [40] University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68, at 71 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, at 438 Coulton v Holcombe (1986) 162 CLR 1 at 6 - 7 Water Board v Moustakas (1988) 180 CLR 491, at 498 Akins v National Australia Bank (1994) 34 NSWLR 155 at 160 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 per Heydon JA at [14] Hampson v Hampson [2010] NSWCA 359 per Campbell JA Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [10], [27] Devries v Australian National Railways Commission (1993) 177 CLR 472, at 479 Adeel's Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [13] Imbree v McNeilly (2008) 236 CLR 510 at [49], [82] Wingrove & Co Pty Ltd v Sheehy (1961) 35 ALJR 313 RTA v Dederer (2007) 234 CLR 330 at 345 [43], 348 [51], 349 [54] Sydney Water Corporation v Turano (2009) 239 CLR 51 at [45] Insurance Commissioner v Joyce (1948) 77 CLR 39 at 46, 56 - 57 Miller v Miller [2011] HCA 9; 275 ALR 611 at [59], [63] Cook v Cook (2008) 236 CLR 510 at 526 Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 - 48 Waverley Council v Ferreira [2005] NSWCA 418; Aust Torts Reports 81-818 at [45], [47] Roads and Traffic Authority (NSW) v Refrigerated Roadways [2009] NSWCA 263; 53 MVR 502; at [173], [178] - [179] Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 at [54] - [55] Angel v Hawkesbury City Council [2008] NSWCA 130 at [82] - [87] Roads and Traffic Authority v Royal (2008) 82 ALJR 870 at 897 House v The King (1936) 55 CLR 499 at 504, 505 Texts Cited: Review of the Law of Negligence, Commonwealth of Australia, September 2002 Pam Stewart and Anita Stuhmcke, Australian Principles of Tort Law (2nd ed, 2009), 136 Category: Principal judgment Parties: Luke Harmer (Appellant) Gavin Brian Hare (Respondent) Representation: S G Campbell SC / B Hull (Appellant) M Cranitch SC / M B Inglis (Respondent) George Mallos Lawyer (Appellant) Commins Hendriks (Respondent) File Number(s): 2010/227358 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-06-11 00:00:00 Before: Sidis DCJ File Number(s): 10/227358