Hare v Harmer

Case [2008] NSWDC 25

Pending Appeal:

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
DECISION: 1. Verdict for the defendant.
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.


ISSUE 1 – THE CAUSE OF THE ACCIDENT

6 The car the plaintiff was driving at the time of the accident was a 1980 Ford Falcon Sedan. Its V8 engine had been modified to increase its cubic capacity. The cylinder head and camshaft had been machined to increase its power output. These modifications rendered the engine capable of delivering considerable power and acceleration to the wheels of the car when it was in particular power bands. The car was described as having a lumpy cam, that is, the transition through the gear box was not smooth. The engine was noisy when under acceleration.

7 The plaintiff does not remember anything of what occurred on 6 November 1999.

8 The…

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Hare v Harmer [2008] NSWDC 25
Case
[2008] NSWDC 25
Decision Date

CaseChat Overview and Summary

The plaintiff, Hare, brought an action against the defendant, Harmer, claiming damages for personal injuries sustained in a motor vehicle accident. The accident occurred when the plaintiff's car collided with the defendant's car on a wet road. The plaintiff alleged that the defendant was negligent in several respects, including driving at excessive speed, having bald tyres, and driving under the influence of alcohol. The defendant denied the allegations and argued that the accident was caused by the plaintiff's own negligence. The case was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the defendant was negligent, and if so, whether that negligence caused the accident. The court had to determine whether the defendant's speed, bald tyres, and alcohol consumption contributed to the accident, and whether the plaintiff's own negligence also played a role. The court also had to consider whether the risk of harm was obvious to a reasonable person in the defendant's position, and whether the defendant should have taken steps to avoid that risk.

The court found that the defendant was not negligent in the way the plaintiff alleged. The court held that the defendant's speed was reasonable given the road and weather conditions, and that the bald tyres did not contribute to the accident. The court also found that the defendant was not driving under the influence of alcohol, and that the plaintiff's own negligence was the primary cause of the accident. The court held that the risk of harm was obvious to a reasonable person in the defendant's position, and that the defendant had taken reasonable steps to avoid that risk by driving at a safe speed and maintaining his vehicle properly. The court therefore found in favour of the defendant.

The court ordered that the verdict be entered for the defendant, that the plaintiff pay the defendant's costs of the proceedings, and that exhibits be retained for 28 days. The order for costs was suspended until 4pm on 2 April 2008 to allow either party to list the matter for further argument.

Orders

Orders of the court

1. Verdict for the defendant. 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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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