Harmer v Hare - [2011] NSWCA 229

Court of Appeal

New South Wales

Case Title: Harmer v Hare

Medium Neutral Citation: [2011] NSWCA 229

Hearing Date(s): 28, 29 March 2011

Decision Date: 11 August 2011

Jurisdiction:

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

- Counsel:
S G Campbell SC / B Hull (Appellant)
M Cranitch SC / M B Inglis (Respondent)

- Solicitors:
George Mallos Lawyer (Appellant)
Commins Hendriks (Respondent)

File number(s): 2010/227358

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Sidis DCJ

- Date of Decision: 11 June 2010

- Citation:

- Court File Number(s) 10/227358

Publication Restriction:
Nil

Headnote

Mr Luke Harmer, the appellant, was found to be liable for the very severe injuries suffered by the respondent, Mr Gavin Hare, in a car accident on the 6 th November 1999 in Wagga Wagga, NSW. Both were 21 at the time of the accident. Mr Hare had been driving the car, which belonged to Mr Harmer, as Mr Harmer was too intoxicated to drive. The car had bald tyres, and it had been raining that day. The primary judge, Sidis DCJ, found the immediate cause of the accident to be a combination of a wet road surface and the car's bald tyres causing the car to commence sliding once it entered a roundabout, which the appellant then attempted to correct by increasing speed. Mr Hare was found to be unaware of the condition of the tyres, and Mr Harmer was liable for Mr Hare's injuries as he had a duty to prevent Mr Hare from driving the car.
Mr Hare was awarded $1,301,437.94 in damages, which reflected a reduction of 25% for the contributory negligence of Mr Hare in not undertaking a thorough inspection of the car before driving it. The award by Judge Sidis followed an earlier trial in which her Honour had in fact found for the appellant. This decision was overturned on appeal to this Court, and the matter sent back for redetermination on the basis that her Honour had made a critical error in her determination of the facts.
Mr Harmer now appeals this decision in its entirety. Mr Hare also cross-appeals on the finding of his contributory negligence. For the reasons which follow, the appeal by Mr Harmer should be dismissed with costs, and Mr Hare's cross-appeal should be allowed. Accordingly, once the initial reduction of 25% is again added, the ultimate award to the respondent should be $1,735,250.59.

Judgment

BEAZLEY JA: I agree with Whealy JA.

WHEALY JA: This is a second appeal to this court from decisions given by Sidis DCJ (the primary judge) in relation to a motor vehicle accident that occurred in the suburbs of Wagga Wagga nearly 12 years ago.

At about 8:35pm on 6 th November 1999, Gavin Hare (the plaintiff) was driving a 1980 Ford Falcon sedan registration number QOQ-233, in a northerly direction in Kooringal Road, Wagga Wagga. The vehicle belonged to his long-time friend, Luke Harmer (the defendant) who, with another friend, Wayne Halls, was a passenger in the car at the time. The defendant was substantially intoxicated that evening. Following a suggestion from the plaintiff, shortly before they embarked on the journey, the defendant had allowed the plaintiff to drive the vehicle to their proposed destination. The vehicle, however, was in a dangerous condition. On the case later sought to be made out in the proceedings brought by the plaintiff, Mr Hare did not know that the tyres on the car were completely smooth. They had no tread on them whatsoever. It had been raining that day, on and off, and the roads in the vicinity were wet. There was no dispute at the trial that the defendant was well aware of the condition of the tyres.

The plaintiff and his passengers were on their way to the plaintiff's home at Stillman St in the suburb of Kooringal. A short distance from the defendant's home, the plaintiff drove into a roundabout at the intersection of Kooringal Road and Lake Albert Road. He lost control of the vehicle as it passed through the roundabout. The rear of the vehicle moved to the left of the road towards the gutter, then back to the right, and swung around 180 degrees on the road surface. It collided heavily with a telegraph pole in Kooringal Road. The pole was located about 43 metres from the nearest kerb alignment in Lake Albert Road. The driver's side of the vehicle took the full impact from the collision with the pole. The passengers were relatively unharmed but unfortunately the plaintiff sustained very serious injuries. The most significant injury received by the plaintiff was later described as "extremely severe brain injury". It resulted in cognitive and physical impairment of a substantial kind.

The plaintiff brought proceedings against the defendant in the District Court. The essential nature of the claim was that the defendant, knowing full well that the tyres were completely smooth, nonetheless permitted the plaintiff to drive the vehicle on Kooringal Road that evening. The plaintiff claimed that the accident was caused because the car aquaplaned out of control on the wet road, because of the smooth tyres. The particulars of negligence alleged, inter alia, that the defendant failed to warn the plaintiff of the danger in driving the vehicle, and that he had allowed the plaintiff to drive a vehicle which was not roadworthy.

The defendant's case, as pleaded, put in issue that he had requested the plaintiff to drive the vehicle. Secondly, it asserted that the plaintiff was well aware that the tyres were bald. Importantly, the defence claimed that, in any event, the bald tyres were not a contributing factor to the crash. The loss of control had been caused, so it was claimed, by the manner in which the plaintiff drove the vehicle into or upon the roundabout. The pleading, in addition, contested both the existence and breach of any duty of care. It raised the issue of "obvious risk" and, by virtue of the Civil Liability Act 2002 , denied any obligation to warn. Finally, the defendant raised the issue of contributory negligence.

The proceedings were heard in Wagga Wagga. Evidence was taken over six days in November 2007. At the conclusion of the hearing, the primary judge reserved her decision. On 14 th March 2008, her Honour found a verdict for the defendant. The critical finding the primary judge made was that the plaintiff had known the tyres were bald at the time he undertook to drive the defendant's vehicle. Lest her finding be overturned, her Honour made further findings as to damages and contributory negligence. Had the claim succeeded, the primary judge indicated she would have assessed damages at $1,735,250.59. If it became necessary to assess the plaintiff's contributory negligence, she would have found him 85 per cent responsible for his injuries.

The plaintiff appealed to the Court of Appeal. There, it was argued that her Honour had made a very significant mistake in relation to the evidence that had been given by the plaintiff on the issue as to whether he knew that the tyres were bald at the time he set out on the journey. The primary judge had recorded that the plaintiff had agreed in evidence that he had earlier sold the defendant the wheels that were on the vehicle at the time of the crash. Her Honour then recorded that the plaintiff had said in evidence that the tyres on the wheels were "not real good". Obviously, if the plaintiff had said this, it represented a very significant piece of evidence adverse to his case.

It was common ground on the first appeal, however, that her Honour had made a mistake in attributing this evidence to the plaintiff. It seems most likely that her Honour had been relying upon notes taken at the trial, and that she did not have the advantage of a transcript (the District Court is often at a significant disadvantage during and following a trial because of a lack of transcript). In fact, the plaintiff had been asked whether he remembered the state of the tyres when he sold the wheels to the defendant, and had replied, "Not really, but I suppose good". This was the answer that was recorded in the transcript obtained for the purposes of the appeal. It was her Honour's misunderstanding about this evidence that led her Honour to find "that responsibility for the accident rests with the plaintiff".

The defendant had filed a Notice of Contention in this first appeal. The defendant sought to uphold the primary judge's decision on the ground that, irrespective of the plaintiff's knowledge of the state of the tyres on the vehicle, the crash was caused by the manner in which the plaintiff had driven the vehicle. The loss of control, and hence the accident, was not caused, or contributed to, by the state of the tyres.

In the Court of Appeal's decision, Sackville AJA (with whom Macfarlan JA and Handley AJA agreed) determined that it was not appropriate for the Court of Appeal to resolve the factual issues raised in the Notice of Contention. His Honour said at [65]:-

The primary Judge should evaluate all the evidence, expert and lay, bearing on whether the bald tyres contributed to the crash and, if so, precisely how. This will require findings as to the accuracy or otherwise of the observations of Mr Halls and Ms Harmer. It will also require Detective Inspector Barr's observations to be assessed in the light of the evidence of the experts. To the extent that the opinions of Mr Bailey and Mr Griffiths diverged on material issues, the primary Judge will need to determine whose opinions she prefers.

In relation to the erroneous finding of fact as to the plaintiff's knowledge in relation to the baldness of the tyres, Sackville AJA determined that a substantial wrong or miscarriage had occurred in the proceedings at first instance. In that regard, Sackville AJA said at [70] - [71]:-

...there should be a new trial, limited to determining whether or not the respondent is liable to the appellant in respect of the injuries sustained by him on 6 November 1999 at Kooringal. The principal factual questions that require attention at the retrial have been identified in this judgment ... The new trial should also address afresh, if necessary, any question relating to contributory negligence by the appellant. The new trial should not reconsider the primary Judge's assessment of damages, as the assessment has not been challenged on this appeal.

The primary Judge should conduct a new trial on the basis of the evidence already admitted. However, it should be open to her Honour to admit further evidence, should she consider that such a course is appropriate in the interests of justice, upon application by either party.

Orders were made by the court on 8 th April 2009 to reflect Sackville AJA's conclusions.

I shall return to the observations made by Sackville AJA at a later stage in these reasons when I have set out in more detail the evidence before the primary judge at trial.

Prior to the proceedings being re-listed for hearing in Wagga Wagga, the defendant made application by Motion to adduce additional evidence at the hearing. The motion was opposed by the plaintiff but, following argument, the primary judge determined that she would allow the defendant to adduce the additional evidence. The evidence was a further report from the defendant's expert, Mr Bailey. It was said to arise because of the need to respond to submissions that had been made by the plaintiff's counsel in the Court of Appeal hearing.

The hearing resumed in Wagga Wagga on 1 st September 2009. The further report from Mr Bailey was allowed into evidence over objection. It became Exhibit 14 in the trial. Mr Bailey was cross-examined by the plaintiff's senior counsel, and the parties then addressed the court. Mr Hull, who appeared as counsel for the defendant throughout the proceedings, provided extensive written submissions as well. It appears from a reading of the transcript that the parties endeavoured to address each of the outstanding issues that had been identified by Sackville AJA in the first decision by the Court of Appeal. The primary judge reserved her decision.

On 14 th April 2009, her Honour delivered a 37-page judgment, in which she extensively examined the outstanding issues. They included the issue as to whether the plaintiff had known that the tyres were bald at the time he undertook the relevant journey. They included an evaluation of the expert evidence in the light of the other evidence at trial as to the condition of the road, the surface of the road, and the manner of the plaintiff's driving.

The principal issues of contention between the parties remained, as they had been throughout, whether the tyres had been a significant contributing factor to the accident, or whether it was the manner in which the plaintiff drove into and upon the roundabout that caused the accident. Her Honour concluded that the plaintiff did not know that the tyres were bald, and she rejected any evidence that suggested that he might have known that they were. She concluded that the bald tyres had been the cause of the vehicle's loss of control, and that this occurred prior to the acceleration in the roundabout. Her Honour examined the facts she found in the light of the requirements of the Civil Liability Act 2002 (NSW), and concluded that the defendant had been in breach of his duty of care to the plaintiff "in failing to prevent him from driving the vehicle when it was not roadworthy and in failing to warn him of the risk of harm involved in driving the vehicle with bald tyres on a wet road" (Red, 122). Finally, her Honour found that the plaintiff had been guilty of contributory negligence on his part "in failing to enquire of the defendant concerning the vehicle's condition, or, if the defendant was too intoxicated to provide a sensible answer, to undertake an independent check of its condition". The primary judge assessed the plaintiff's contributory negligence anew and determined it at 25 per cent.

Her Honour refrained from making final orders in the matter. She stood the proceedings over to enable the parties to address the final figures on damages, and to deal with the issues of costs and the former final orders.

A further complication, however, arose in the finalisation of the proceedings. This related to a further report (Exhibit 14) Mr Bailey (the defendant's expert) had been allowed to provide at the resumed hearing. This report addressed evidence given by Detective Inspector Barr at the first trial, that he had observed burn marks on the road at a certain position in the roundabout. Mr Bailey had argued that this evidence supported his contention that the plaintiff had engaged in heavy acceleration prior to the commencement of the slide of the rear of the vehicle in the roundabout, and not after it. It had always been the plaintiff's case that the slide occurred first, and that he then accelerated to power out of the sudden loss of traction. The defendant, on the other hand, always argued that the vehicle had not aquaplaned, but that the heavy acceleration was the cause of the loss of control.

In her second decision, the primary judge had said that she was not persuaded by the further report so as to depart from her initial conclusion that the sliding of the rear of the vehicle preceded the spinning of the wheels under heavy acceleration. Her Honour gave a number of reasons why this was so. Although not itself determinative of her decision, one of those reasons related to the possible ambiguity of where it was Detective Inspector Barr had stated that he observed the burn marks in the roundabout. The primary judge did not think that Detective Inspector Barr's evidence in the original trial meant that the burn marks were in the position Mr Bailey asserted they were in his further report. There was other evidence, however, that fortified her Honour in her conclusion that the slide preceded the heavy acceleration.

On 4 th May 2010, the defendant's solicitor, George Mallos, swore an affidavit in support of a motion by the defendant for leave to re-open the proceedings. The application for leave was heard on 13 th May 2010, when argument was presented before the primary judge as to whether she should allow Detective Inspector Barr to give evidence as to what he had intended to convey by his evidence back in 2007.
On 11 th June 2010, the primary judge gave a reasoned decision determining, in the exercise of her discretion, that she would not allow further evidence to be called on behalf of the defendant. A prominent reason, amongst several, for the decision was her statement that she "considered it unlikely that his further evidence would have a significant impact on the issues in the proceedings" (Red, 157). Her Honour explained why this was so.

The primary judge then dismissed the application for leave to re-open. Her Honour entered a verdict and judgment for the plaintiff in the sum of $1,301,437.94, reflecting the finding she had made as to contributory negligence. Her Honour ordered that the defendant pay the plaintiff's costs of the proceedings on an ordinary basis, up to and including 2 nd November 2007, and on an indemnity basis thereafter.

On 7 th July 2010, the defendant lodged a Notice of Appeal to this Court, asserting the following grounds:-

1. The primary judge erred in making the findings that are challenged in the appellant's Narrative filed under UCPR 51.36(2).

2. The primary judge should have made the contended findings set out in the appellant's Narrative filed under UCPR 51.36(2).

3. The primary judge erred in finding the appellant negligent in the following respects:

(a) The primary judge failed to determine the scope and existence of a relevant duty of care before considering questions of breach;

(b) At [99] the trial judge misdirected herself by reference to the proposition contained in the first sentence of that paragraph; rather:

(i) By reference to s5F Civil Liability Act 2002 the primary judge ought to have determined that the risk of harm arising from the vehicle with bald tyres in wet conditions was an obvious risk; (See her judgment [103] - [104]);

(ii) The primary judge then ought to have applied the statutory presumption of awareness established by s5G of the Act unless the respondent proved on the balance of probabilities that he was not aware of that risk;

(iii) In the alternative to (ii), in considering the statutory exception to the presumption created by s5G the primary judge misdirected herself in the last sentence of [99] by asking the question whether the respondent should have been aware of any obvious risk involving driving the vehicle , rather than whether the respondent had proved on the balance of probabilities that he was not aware of the risk.

(c) At [100] failed to direct herself in accordance with s5H of the Act that a person does not owe a duty of care to warn of an obvious risk;

(d) Erred in law (at [101]) by adjudging the appellant liable by reference to an obligation to prevent harm occurring rather than an obligation to exercise reasonable care.

4. In finding the respondent did not know the tyres on the vehicle were bald, the primary judge erred by:

(a) Reversing the onus of proof; and

(b) Treating the rejection of the evidence of the appellant and his wife that they had informed the respondent of that fact as evidence supporting a finding that the respondent did not know about the tyres.

5. In the alternative, assuming the finding of negligence stands, the primary judge erred in assessing the respondent's contributory negligence at merely 25 per cent, which assessment was outside the bounds of sound discretionary judgment in all the circumstances of the case.

6. The primary judge's discretion refusing the appellant's application to recall Detective Inspector Barr miscarried in that:

(a) She misapprehended the facts she recited at [12] - [14];

(b) Took into account an irrelevant consideration, and made an error of principle, at [15];

(c) Failed to take into account the public interest in the finality of litigation in that hearing the further evidence of Detective Inspector Barr may have avoided the need for a new trial;

(d) Failed to find further evidence of Detective Inspector Barr was clearly relevant to and capable of having significant impact on the issues in the case.

It is necessary to add that the narrative of challenged findings extend to nearly 20 pages. There are, in all, some 23 findings challenged, they being essentially the great majority, if not all, the facts on which her Honour found for the plaintiff. I will not pause here to set them out individually, but will refer to them in some detail when it becomes necessary to consider them against the background of the individual appeal grounds.

The plaintiff, albeit many months later, filed a cross-appeal challenging the primary judge's findings on contributory negligence.

Evidence and issues at trial

Mr Cranitch SC and Mr Michael Inglis appeared for the plaintiff at trial. Mr Hull, as I have said, appeared for the defendant at trial. The plaintiff gave evidence but, unsurprisingly, had no recall of the accident whatsoever. He had been in a coma from the time of the accident to January 2000, and his earliest recall before the accident was in fact some time earlier in 1999, when he was able to recall driving back from Brisbane where he had been living with his father. The intervening months, both before and after the accident, were simply lost to him.

Mr Hull, however, put a version of events to the plaintiff, for his comment. This was, it might be concluded, the basis of the case the defendant wished to make out at trial. In the main, the plaintiff was unable to recall anything about the accident, and hence could make little contribution concerning the specific matters that were put to him relating to the day of the accident. There were other more general matters of which he had some limited recollection. For example, he was able to state positively that he did not know that the defendant had increased the cubic capacity of the engine in his car in 1999. Nor did he know that the cylinder head and camshaft had been machined "to significantly increase the car's power output" (Black, 52). He did not deny that he may have driven the defendant's car on a number of occasions before the accident, but he was unable to recall how often he had driven it. Indeed, he said he could not actually remember driving the vehicle (Black, 55).

Broadly, the scenario suggested to the plaintiff was this: that he had, in the afternoon of the day in question, gone with Wayne Halls and a young man called 'Tim' to Wayne Hall's grandfather's house. This had been for the purpose of collecting two tyres, which were worn but had some legal tread on them. Next, that during the early evening, the defendant came to the plaintiff's house at Stillman Street in a highly intoxicated state. An agreement had been reached between the defendant, Mr Halls and the plaintiff that the three of them would go to a house at Cochrane Street, for the purpose of collecting the defendant's vehicle. The house was the residence of the defendant's girlfriend (now his wife), Ms Rachel Slingo.

It was then suggested to the plaintiff that he had known that the defendant's car had been parked in the backyard of Ms Slingo's house at Cochrane Street for about a month; that he knew that it was parked there because it needed work carried out on it, so as to get it ready for registration; and that he knew that this required the replacement of some joints on the front steering, and that at least two of the car's tyres, being the rear tyres, were bald. To all these suggestions, the plaintiff denied that he had any knowledge.

It was further suggested to the plaintiff that the arrangement between the three young men was that they would go back to Ms Slingo's house and obtain the defendant's car, then bring it back to the plaintiff's home so that the two tyres that had been obtained earlier in the day could be fitted to the wheels. The plan was that they would then drive out to Elizabeth Avenue, near the Wagga Wagga City Airport, to do "burn outs". The plaintiff, however, was unable to recall any of the matters put to him in this regard by Mr Hull.

Counsel then suggested to the plaintiff that when the trio had arrived at Ms Slingo's house, she, in the presence of the plaintiff, had warned the defendant about driving the car because the tyres were bald and it was raining. Counsel was suggested to the plaintiff that he had simply grabbed the keys to the defendant's car, started the engine and backed it out onto the roadway. It was then suggested that the defendant had moved to the driver's window of the car and insisted on driving, only to be rebuffed by the plaintiff, who said, "You're too pissed, mate". The defendant and Wayne Halls then travelled in the car as passengers. The plaintiff was unable to recall any of these matters.

Counsel next suggested that, when the vehicle approached the roundabout at the intersection of Lake Albert Road and Kooringal Road, the plaintiff "planted it" to get through the intersection before another car on his right had entered the intersection (Black, 62). He suggested that the wheels began to spin, and that the car lost control "because of the acceleration". It spun around almost 180 degrees, and collided with the telegraph pole. The plaintiff said he could remember none of the matters that were put to him. The following brief extract gives the flavour of counsel's suggestion (Black, 63):

Question: And having then planted it and gone into the intersection, you didn't break again I suggest to you. You don't know that, do you?

Answer: No, I don't.

Question: And the thing that stopped you was the pole?

Answer: Yeah.

Question: And from the moment you planted it until you hit the pole, you kept your foot planted on the pedal. It fishtailed to the left with the wheels spinning because the revs were going to the wheels at a great pace. The wheels spin, fishtail to the left, you tried to overcorrect it - sorry, you tried to correct the effect that this was having on the car, and it spun around almost at 180 degrees into the telegraph pole. Do you remember that?

Answer: No, I don't.

It was common ground that the police attended the scene of the accident very shortly afterwards. The contents of the police report were in evidence before the primary judge. The report described the incident in the following terms (Blue, 7):

Vehicle 1 was travelling north in Kooringal Road and when at the intersection on Lake Albert Road where there is a roundabout, travelled through the roundabout and on leaving the roundabout has lost control of the vehicle whereby the vehicle's rear portion moved to the left towards the gutter then flicked back to the right approximately 180 degrees and then collided with electrical pole number 117154, the front driver's door area taking most of the impact.

The occupants of the vehicle had been dropped off earlier... where the witness, Rachel Slingo resides. They left those premises after approximately 15 minutes. The witness was following them in her vehicle and observed the vehicle prior to and at the time of the accident. She is unable to state what speed the vehicle was travelling prior to the collision. After the collision, the witness opened the front nearside door whereby Harmer fell onto the roadway and later moved by ambulance staff. The witness attempted to undo the driver's seatbelt but was unable to...

When spoken to, Passenger 2 (Halls) stated "We came around the roundabout too quick, it was slippery and we lost it."... Whilst at the scene police spoke to the witness Sanford who stated that just before the impact she heard the sound of the vehicle travelling at high speed. She stated that she could hear the vehicle's engine rev, shortly followed by the sound of the impact.

Wayne Halls first gave evidence in the plaintiff's case. He was able to recall the day of the car crash and had a reasonable recollection about the crash itself. He had been drinking, and he thought that the plaintiff had "had a couple of beers as well" (Black, 129).

Mr Halls confirmed that 'Tim', the plaintiff and himself had gone to Mr Halls' grandfather's house at 9 Wilson Street to pick up two tyres. He confirmed that the intention was that later they were going to do "burn outs" at Elizabeth Avenue (Black, 129). The intention was that they would put the tyres on another car, and then burn the tread off those two tyres.

He further confirmed that the intention of collecting the defendant's car had been to take it to the plaintiff's house at Stillman Street, but he was unable to recall much of what happened at Cochrane Street. For example, he could not recall whether Ms Slingo was there at the time.

In any event, Mr Halls stated that, as the car approached the roundabout on Kooringal Road, there was nothing about the plaintiff's driving that gave him any cause for concern. His description of what happened appears at Black, 131 - 132:-

Question: When you got to the intersection, do you remember going into the intersection?

Answer: Vaguely.

Question: At some point during the intersection did you feel something happening with the car?

Answer: Yeah, the back end -

Question: When I say the intersection, I'm talking about the roundabout?

Answer: Yeah, the back end slid towards the gutter.

Question: What happened then?

Answer: Gavin tried to correct it, overcorrected and we ended up sliding down the road the opposite way.

Question: When he tried to correct it, did you hear the engine accelerate?

Answer: I don't recall.

Question: In any event, the first thing you were aware of was that the rear of the car was sliding out, is that correct?

Answer: Yes.

Question: Are you able to say at what point you were at the roundabout when that began to happen?

Answer: Just on the way out of the roundabout.

Mr Halls also stated that he had been through this roundabout on occasions prior to this night. He said that he had had problems in the past with adhesion of his tyres when the roundabout was wet. On those occasions, it was slippery and he had "slipped" in it.

Although he could not recall whether he had, on this night, looked back to see what state the road was in, he was able to say that, when it was wet, "it always had a glaze to it". He said at Black, 133:-

Question: Do you remember what it looked like when it was wet?

Answer: Not really, when it was wet it always had a glaze to it but I don't recall that night.

Question: When you say a glaze, what...

Answer: Sort of glassy.

Question: You would describe it as shiny?

Answer: Yes.

Question: To your knowledge, was something done about the roundabout shortly after this?

Answer: I'm pretty sure it was resurfaced not long after.

Question: About how long after do you think?

Answer: I think it was about a week but I'm not, I'm not a hundred percent sure.

Question: One thing I forgot to ask you, was it a wet night?

Answer: It was, yes.

Question: Was it raining when you left the house, do you recall?

Answer: I don't recall, no.

Question: But you recall it being a wet night?

Answer: It was a wet night, yes.

It appears that Mr Hull may have become concerned that certain matters had not been put in cross-examination to Mr Halls. Whatever the reason, Mr Halls was recalled, although this time as a witness in the defendant's case. Although constrained somewhat by the fact that he was now examining the witness in chief (rather than cross-examining him), Mr Hull revisited several issues. The first was whether Mr Halls could recall hearing Ms Slingo say anything at Cochrane Street before the plaintiff took the keys and manoeuvred the car out onto the roadway. He repeated that he could not and, indeed, was unable to recall whether she had been there or not.

Mr Hull then revisited the issue of the events, as the witness recalled them, occurring in the roundabout. At Black, 265 - 266, the following appears:-

Question: What did you feel when you went through the roundabout in the car?

Answer: The back end of the car slide towards the gutter.

Question: At what point in the...

Answer: Exiting the roundabout.

Question: As you exit the roundabout. If I were to give you a circle with the four points going off it representing the entry from the Cochrane end of Kooringal Road into the roundabout as being one entry into the circle, and below that an entry out of Kooringal Road - you understand what I'm saying to you?

Answer: Yes.

Question: And then another entry into the circle would be Lake Albert Road and at the other side of the circle going out of Lake Albert Road, do you understand what I'm saying?

Answer: Mm-hmm, yep.

Question: Whereabouts on that imaginary circle of those four lines did you feel it?

Answer: More towards the Kooringal - the opposite side of Cochrane Street.

HER HONOUR

Question: Can you do it in terms of a clock face, would it be...

Answer: Roughly 10 o'clock.

HULL

Question: I see, so 12 o'clock is...

Answer: The way we were headed.

Question: The way you were headed. At about 10 o'clock is where you felt sliding to the left, or right. Whilst you were in the car at around that point, the point where you approached the intersection, did you hear anybody say anything?

Answer: No.

...

Question: When you felt the slide to the left, have you got any memory of anything about the speed of the vehicle?

Answer: No.

Question: No memory?

Answer: No memory.

Before turning to the expert evidence, it will be useful to refer to the evidence given by both the defendant and Ms Slingo. (As Miss Slingo had, between the time of the accident and the trial, married the defendant, I shall refer to her from this point on as "Ms Harmer").

The defendant gave a statement to investigators in July 2002. The statement included the following (Blue, 1):-

On that day I had knocked off work at about 10:30am and I went to the pub with a couple of workmates. My car was parked in the rear yard at Rachel's house because the tyres were smooth and I think the front ones were not too bad. I had not used the car for about one month up until that day.

At about 5 to 5:30pm my workmates drove me to Gavin's house and I went into his house. Tim and Wayne were also there. We had a couple of beers at the house and I saw two car tyres in the backyard. Gavin said that I could have them for my car and then we all went around to 2A Cochrane Street to my car.

Tim drove us around to the house and we had come to the house to get my car so that we could put the tyres from Gavin's on the back wheels of the car. Gavin took my car keys off me because he said I was too liquored up. I was pretty full at that time. I remember getting into the front passenger seat of the car and Wayne got in the back. Gavin drove and I remember going around the corner onto Kooringal Street and then through the roundabout. Next thing that I can recall is the car hitting a pole on Gavin's side of the car. I did not recall any of that for about one year and then parts of the accident have come back to me... To my knowledge Gavin was sober when I got to his house, I only saw him drink one or two beers and I know that he had been out all day riding motorbikes...

I have no idea what speed we were doing at the time of the accident. I know that it had been raining, and the road was still wet when we crashed.

In his evidence before the primary judge, the defendant sought to introduce details of two conversations either with the plaintiff or in his presence, which were, if accepted, highly damaging to the plaintiff's case. They had not been mentioned in his July 2002 statement. In a conversation that was said to have taken place at the plaintiff's house before the three men left to go to Cochrane Street, the defendant alleged that he told the plaintiff that his tyres "were no good". Secondly, he gave evidence that, at Ms Harmer's house, she had said to the defendant in the presence of the plaintiff (Black 233):-

You're a fucking idiot. You're not taking that car, it's got bald tyres on the back and its been raining. And where have you been. I've been with the kids all day.

Ultimately, the primary judge rejected the defendant's evidence in relation to each of these statements. They were not consistent with the original statements given either by the defendant or Ms Harmer. In addition, her Honour found that Ms Harmer displayed significant animosity towards the plaintiff. So far as the defendant was concerned, she was highly sceptical of his claim that his memory had "recovered", as he claimed, in matters he now recalled that had not been mentioned in his original statements.

There were other aspects of the defendant's evidence, however, that were of significance. He said he looked at the roadway after he had climbed out of the car. He said it had been raining that day, but on the roadway itself, there were no pools of water that he could see. In cross-examination, however, he agreed that his memory of the whole events of that evening were clouded by the effects of alcohol, and he agreed that he was unable to say on this night whether or not there were pools of water on the roadway. He agreed that the road was wet. He knew it had been raining, he said, "and the road was still wet when we crashed".

In his evidence-in-chief, the defendant said he had not discussed with the plaintiff the nature of the work he was going to do on the car to ready it for registration (Black, 230):-

Not to an extent but I told him of I'm taking it to Rachel's to fix it all up ready to rego.

He stated that the plaintiff had not done any work on the car with him while it was at Ms Harmer's house during that month.

The defendant told Mr Hull that, when the plaintiff came to the roundabout, he "planted it" (meaning he accelerated heavily), and the defendant said to him, "Don't plant it". The defendant described the motor revving highly, and he said (Black, 234):-

We were sidewards, I felt the car actually moving sidewards.

The defendant was cross-examined in relation to the statement he had given to the investigators over 5 years earlier. He maintained that the car "began to lose it" before the roundabout, "just on the start of the roundabout". It was put to him that, while the vehicle was actually in the roundabout, the back began to slide out towards the gutter and the plaintiff responded by trying to save the slide by accelerating rapidly. In relation to the "don't plant it" evidence, it was put to the defendant that there was nothing at all in his July 2002 statement that suggested that such a remark had been passed. The following appears (Black, 248):-

Question: Well, Rachel's not doubt spoke to you about this often since then, hasn't she?

Answer: Yes.

Question: When you were asked on a number of occasions by different people including your solicitor and an investigator about events of the night and things have been suggested to you, haven't they?

Answer: Yes.

Question: So you see, what I'm saying to you is given the unreliability of your memory with the alcohol - and I'm not being critical, trust me?

Answer: Yep.

Question: You can't say for sure whether what you're now saying about matters that don't appear in her statement are matters that might have been suggested to you and sort of form part of what you legitimately believe to be your memory of the events?

Answer: Yes.

Question: Even though it may not be so necessarily?

Answer: Mm.

The defendant was, in general terms, aware that the tyres on his car were bald. He certainly knew the rear tyres were smooth. He was cross-examined about this (Black, 243 lines 5 - 35):

Question: Because you appreciated even then that if you drive cars with bald tyres on a wet road it's likely to be dangerous, is that right? That's what you thought?

Answer: All depends on how you drive but -

Question: Well, that's what you thought at the time, did you?

Answer: Yes.

Question: You didn't say to your friend, "Listen Gavin, we're not going to drive the car tonight, it's got bald tyres". You didn't say that, did you?

Answer: I - not that I can recall.

Question: Indeed, the only thing you can recall is you said, "Get out, I want to drive"?

Answer: Yes.

Question: You could've said to him "Get out, we're not going anywhere tonight because it's got bald tyres. It's my car"?

Answer: I could've.

Question: And if you'd been taking any care as the owner of the car that's what you should've done, isn't it?

Answer: Well, it's - it wasn't up to me who wanted to drive.

Question: It's your car, you have the say as to who drives and who doesn't?

Answer: Yes it was my car.

In her evidence, Ms Harmer gave details of the conversation alleged to have taken place at her house before the plaintiff drove out onto the roadway in the defendant's car. As I have already said, her Honour did not accept that this conversation occurred. Ms Harmer, in fact, agreed that she had moved her car to enable the plaintiff to bring the car from around the back of her house out onto the roadway. Presumably, the plaintiff would not have been able to get the car onto the roadway, had Ms Harmer not undertaken this manoeuvre. Ms Harmer placed her children in her car and followed the defendant's car as it proceeded out onto and along Kooringal Road.

According to Ms Harmer's evidence, the plaintiff suddenly accelerated as he approached the roundabout, presumably to avoid a car which was coming from the right. She said (Black, 274):-

He then suddenly accelerated and went around the roundabout. About three quarters around, which is just as he's coming off the roundabout, the arse end of the car started sliding towards the gutter. He was still accelerating, I could hear it... I could hear the engine revving.

She agreed that the vehicle had slid towards the gutter on the left hand side. She assumed that the plaintiff tried to correct it but the vehicle "flipped around" and slid up the road sideways, into the pole. Ms Harmer maintains that she herself proceeded through the roundabout "slowly". Ms Harmer was cross-examined about the statement she had given the police immediately after the collision. This was recorded in Senior Constable Roesler's notebook, as follows (Blue, 55):

I was following them, we had just left 2A... I was just coming off the roundabout when I saw them hit the pole. I saw the rear of the car slide out and hit the pole. Gavin was driving the vehicle. I don't know if Gavin had been drinking, he wasn't drinking at home.

Ms Harmer agreed that she had given this statement. She further agreed that when her car was in the roundabout, the defendant's vehicle was still in the roundabout but right on the edge, "between the roundabout and where you go off". She agreed that on the version she gave, she had stopped her car to allow the other car to pass, entered into the roundabout and then "saw them losing it". She agreed that she had also spoken to an investigator and said (Black, 280):-

As I was going through the roundabout, I saw the back of Luke's car slide sideways towards the gutter as it was going out of the roundabout. Then it has done a 180 degree turn as it went up the road... and the driver's side of the car hit the pole on the same side of the road. The road was wet and shiny at the time of the accident... and it was then resurfaced about a week or so later.

It was pointed out to her in cross-examination that, in neither of these statements, had she said anything about "speed". She agreed that she did in fact say, when an investigator asked her, that "Gavin did not drive the car too fast". She agreed that she had said nothing about the motor "revving". It then emerged that there were in fact two written statements in 2002 made by Ms Harmer, one in July and one in November. The latter statement became MFI "7". The witness said she had been unhappy with what she said in her first statement and, for that reason, had some further discussions with the investigator. This resulted in the November 2002 statement. It was in this document, she had, for the first time, said (Black, 284):-

As he went into the roundabout he accelerated very hard and about three quarters of the way around... the car started to slide. The car was about out of the roundabout and the break lights did not come on at all. I could hear the revving sound of the car motor accelerating very hard, and it was obvious he was trying to power out of the slide.

It was put to Ms Harmer that this statement was consistent with the fact that the plaintiff had tried to power out of the slide (after it occurred) and that he had over-corrected the steering. Ms Harmer agreed that she had seen the back of the car start to swing out at some point "in the roundabout". She marked on Exhibit Q a circle to indicate where she had been when she saw the car "swing out". This latter point was marked on the exhibit with a cross. It was indicated to be on the north-eastern side of the intersection of the roundabout, and just near its exit. By contrast, Ms Harmer's "circle" was on the south-eastern side of the roundabout, just within the entry to it (Black, 287). Ms Harmer indicated that when she had said, in her oral evidence, that the car began to slide about "three quarters of the way around", she meant to indicate the position that was shown on Exhibit Q, namely a position quite close to the exit of the roundabout. It was pointed out to her that in her November 2002 statement, she has used the expression "about three quarters of the way around the roundabout", and she agreed that this was intended to refer to the point "quite close to the exit of the roundabout". This was the point, she agreed, where the slide commenced. She agreed that when she spoke to the police that night, she said nothing about "acceleration through the intersection". She agreed that, at the time of the accident, the roadway was "wet and shiny". Ms Harmer's markings on Exhibit Q are reproduced in these reasons as Appendix " A ".

There were two police officers called. The first was Senior Constable Linda Roesler. The second was Detective Inspector Barr. These witnesses were called by the defendant. I shall set out briefly the evidence of Senior Constable Roesler. I shall, however, leave Detective Inspector Barr's evidence until after I have examined briefly the expert evidence.

Senior Constable Roesler produced her copy of an extract from her notebook, made shortly after 8:40pm on 6 th November (Exhibit 9). She confirmed that she had taken a brief statement from each of Ms Harmer and Mr Halls. She had recorded her observations in the notebook, to the effect that each of the tyres on the defendant's vehicle was completely smooth. She had also made a brief entry which summarised her observations of the accident. She had written (Blue, 57):-

Rear to gutter

Kick back 180

Then into pole.

The witness said (referring to a diagram in her notebook) (Black, 298):-

This here is basically my observations of how the vehicles travel through the intersection. It's - as it's come out of the roundabout from markings on the roadway the vehicle's travel near to the gutter and then it's kicked back 180 degrees into the pole.

The following evidence was then elicited:-

Question: Now, how did you look at the marks that the vehicle left on the roadway?

Answer: Sorry, did I?

Question: Did you?

Answer: Yes I did.

Question: And how long have you been investigating accidents on roadways in the Wagga district?

Answer: I've been a police officer for 22 years in Wagga and I've been - of that 22 years I was a highway patrol officer for 13 years, which is what I was at the time of this accident.

Question: And what observation did you make about the marks that were on the road?

Answer: The marks on the road - the roadway was wet, although it wasn't - there was no laying water on the roadway anywhere. It had been slightly raining earlier and there was no water in the gutters or anything like that. The - I could see tyre marks on the roadway near the gutter, on the actual cement section which is only within a - 30 centimetres from the gutter. And then I could actually see the path the vehicle's taken and then where the wheel marks then have gone close to the centre of the roadway from the back of the vehicle, indicating the back of the vehicle has turned completely around where the car has then moved towards the pole and the driver's side of the door impact.

Question: Can you describe the marks? Were they marks consistent with braking or -

Answer: No, the marks were consistent with a tyre that's lost traction and moving in such a force that the wheels as they're spinning around - yeah, they don't have traction but they're still moving across the roadway.

Question: And the diagram you've drawn is not meant to be to scale or anything like that?

Answer: No, that was just a very rough diagram just to show the path... which the car had taken. It doesn't indicate the actual skid marks. The skid marks weren't continuous as such and - yeah. So it just shows the path that the vehicle took.

The diagram is reproduced in these reasons as Appendix " B ".

Expert evidence

The plaintiff's expert was a mechanical engineer, Michael Griffiths. Mr Griffiths' opinions were based essentially on the information contained in the police report and assumptions he was asked to make by the plaintiff's solicitors. He also placed reliance on the plaintiff's claim form, which, broadly speaking, reproduced facts consistent with the statements in the police report.

The first assumption Mr Griffiths made was that speed had not been the factor that had led to the loss of control of the vehicle. Information given to Mr Griffiths indicated that a following vehicle (Ms Harmer's car) was travelling at a similar speed, and had no difficulty in negotiating the roundabout. Mr Griffiths stated (Blue, 9):-

The description of the incident as deduced by police is that as the vehicle was negotiating the roundabout, the rear tyres lost traction, initially causing some clockwise rotation. The vehicle then changed rotational direction, and commenced rotating in an anti-clockwise direction. This appears to have caused the vehicle to have spun through something in the order of 90 degrees, so that the driver's door impacted a power pole on the far side of the roundabout.

Importantly, Mr Griffiths thought that this description meant that the rear wheels of the vehicle lost traction first. All four tyres were bald, and the vehicle was a rear wheel drive.

Mr Griffiths explained that one of the functions of a car's tyres is to pump water out of the tread on wet road surfaces (Blue, 10). As the tyre spins, the tread blocks force water into the grooves, and those channel water out and away from the contact patch, where the tyre meets the road. As the tyre tread wears down, he said, the depths of the grooves become less. This in turn reduces the tyre's ability to remove water. At some point, consequently, a tread will reduce to a point where even a small layer of water on the road will not be able to be pumped away by the tyre. When the water cannot be pumped away, traction is lost. Mr Griffiths explained that, as the amount of water becomes deeper, the tyre can lift up on top of the water as the volume of water in the "bow wave" becomes greater than the tyre's ability to disperse it. Water is incompressible, so that the tyre is lifted off the road and "planes" across the surface of the water. This is commonly described as "aquaplaning".

Mr Griffiths examined research and study materials which, in his opinion, indicated that a zero tread depth on tyres resulted in a 70 percent reduction that should be allowed for in critical speed by drivers on wet road surfaces. He referred to research dealing with the differences of critical cornering speeds for tyres with reduced tread depth (Blue, 12):-

What this means is that a vehicle which could safely negotiate a curve at a speed of mere 90 kilometres an hour in the wet, with tyres with good tread depth, would have to travel around that curve at a speed of less than 40 kilometres an hour to maintain traction in the wet with tyres with tread depth of 2 millimetres or less.

In the final section of his report, Mr Griffiths expressed his conclusions. He acknowledged that the exact conditions and factors which were present in the lead-up to the loss of control of the present crash were not known to him at the time of preparing his report. However, he thought that the reduction in critical speed for tyres on a dry surface, compared with tyres with no tread depth on a wet road surface, was from 40 kilometres per hour down to 21 kilometres per hour. This represented a reduction of approximately one half. He said (Blue, 13):-

This could mean that a driver who, say, slowed from 40 down to 30 kilometres an hour to allow a safe margin for wet conditions with good tread depth tyres, could still be well above the critical speed at the curve of 21 kilometres per hour if the tyres had no tread depth... On this basis, it appears highly likely that the bald tyres were a significant contributing factor to the cause of this crash.

The defendant obtained a report by William Bailey. His first report was dated 23 rd June 2006. At that stage, he had not seen Mr Griffiths' report. Nevertheless, Mr Bailey addressed, within the confines of his expertise, the likely cause of the collision. He too had the advantage of the police report. He also had the statement by Mr Halls which said (Blue 67):-

We came around the roundabout too quick, it was slippery and we lost it.

In addition, Mr Bailey had the advantage of the sketch which had been made by Senior Constable Roesler. Further, he had the November 2002 statement from Ms Harmer, which had asserted that the plaintiff accelerated "very hard" as he went into the roundabout and "about three quarters of the way around the roundabout, the car started to slide with the back of the car going towards the gutter" (Blue, 67). Ms Harmer had also said in her earlier statement that the road was wet and shiny at the time of the accident.

Mr Bailey noted that the alignment of the road surface in the intersection was basically level with cross fall visible between the central island and the kerbs of approximately 3 to 5 percent gradient. He had access to police photographs taken 2 days after the crash. He had not been able, however, to physically examine the road surface, as it existed at the time of the accident. This was because it had been resurfaced by the Local Council a few days after the photographs were taken.

The primary argument advanced by Mr Bailey (based primarily on Ms Harmer's statement) was that this accident was more likely to have been caused by excessive acceleration than by any factor connected with the bald tyres. In that regard, he thought it unlikely that the tyres in this case had initiated aquaplaning, because there would not have been sufficient standing water in the intersection. He defined standing water as "water which comes to the level of aggregate/stones on the road surface" (Blue, 77). Mr Bailey said the main reason why tyres must be replaced when minimum tread depths are reached is because a smooth tyre is likely to initiate aquaplaning when travelling through standing water. He said the tendency to aquaplane increases rapidly with increasing speed. He expressed the opinion that, if standing water was not present on the roadway, and the road surface was in adequate condition to maintain normal contact, then only slight loss of friction would have occurred with a wetting of the road surface. In the present case, he thought that the area of the roundabout near its northern exit (where the police report indicated the rear of the vehicle had swung towards the kerb) was an area with substantial cross fall. If so, this would have precluded the possibility of standing water being in the roundabout during the assumed rainfall conditions at the time. In the absence of standing water, Mr Bailey said there was "no significant possibility that the vehicle aquaplaned" (Blue, 78).

Mr Bailey produced a second report on 28 th September 2006. This addressed the issues raised by Mr Griffiths in his first report. In this second report, Mr Bailey said he agreed with the research which indicated the importance of vehicles operating on public roads using tyres with at least minimum tread depth. He accepted that, under many commonly encountered road conditions, vehicles with reduced tread depth will have substantial reductions in grip between tyre and roadway. However, he thought that the factor of tread depth did not cause "a universal reduction in grip during all wet conditions" (Blue, 92). He said that the potential difference in grip between smooth tyres and tyres with minimum roadworthy tread, on the surface where the plaintiff lost control of the vehicle, would be minimal, for a number of reasons. These were, first, the road gradient ensured no standing water during the weather conditions. This was the point he had made in his first report. Secondly, the road surface would likely to have been washed clean by previous rainfall. Thirdly, the road surface itself (although he had only seen it in photographs) was sufficient to provide substantial subsurface drainage, irrespective of tread depth of tyres. Finally, he thought the vehicle speed at the commencement of control loss was substantially less than the likely impact speed of the vehicle when it hit the pole. He was somewhat critical of the fact that Mr Griffiths did not have the benefit of an inspection of the site where the collision occurred, and may have been unaware of some critical road factors that he thought were relevant. These were the substantial cross falls within the roundabout and in the area where the tyre marks were recorded. These cross falls, he said, would ensure that there was no possibility of standing water being present at the time of the incident. He mentioned, also in this context, the road surface itself as he had described it in his earlier report.

Finally, he was critical of Mr Griffiths' reliance upon some of the research material mentioned in his earlier report. In particular, the table which Mr Griffiths had relied on related to a road surface of "smooth concrete" whereas the road surface in the subject roundabout, as the police photographs demonstrated, was asphalt (high texture). Mr Bailey thought the research rather indicated that there was likely to have been minimal reduction in grip for the Ford Sedan, between treaded and smooth tyres, and he produced research to back up this opinion.

Mr Bailey's conclusions were as follows (Blue, 98):-

As outlined above, the actual road conditions at the time of the crash (even allowing for the uncertainties involved) were substantially different to the conditions needed to cause very high loss of grip per Mr Griffiths' analysis.

By far the most significant factor causing loss of control is continued strong acceleration by Mr Hare in a highly powered vehicle. Continued strong acceleration is indicated by:

Curvature and extent of the skid marks leaving the roundabout to the north

Likely speed at impact exceeding a reasonable speed within the roundabout for a prudent driver in the conditions

Absence of tyre marks which could correspond to pre-impact breaking (ie. fairly straight marks)

and consistent with witness' descriptions of high revving motor sounds, "punching it" (ie. harsh acceleration) and the absence of brake lights pre-impact.

Mr Griffiths was asked to comment on Mr Bailey's second report. Mr Griffiths provided a supplementary report dated 23 rd October 2006. Mr Griffiths stated (Blue, 26 - 27):-

My original report of 20 th July 2006 stated that, for the purposes of evaluating tyre to road surface traction, the road surface was deduced to have been wet.

The police report supplied to me described the road surface as wet, and in particular the police report stated... Roadway was wet. Had been raining prior to accident .

It appears to be an area of potential agreement between William Bailey and myself that:

There is a significant reduction of traction of tyres on a wet surface as compared to a dry surface, and

Tyres with low or no tread depth have less traction on a "wet" road surface than tyres with good tread depth.

William Bailey's proposition is that a road surface where the incident occurred was not wet enough at the time of the incident to behave as a wet road surface, ie. have less traction than a dry road surface...

Exactly how wet the road surface was at the precise time of the crash would appear to be a matter of evidence from on-scene witnesses. The most relevant witnesses' evidence would be those observations made of the road surface at the exact time of the crash.

Mr Griffiths then discussed, in some detail, the different assumptions that he and Mr Bailey had acted upon in providing their reports to their respective solicitors. It will be convenient to set out this part of Mr Griffiths' report (Blue, 27):-

A reading of William Bailey's original and supplementary report indicates that there are differences between the information he was provided with and the assumptions I was asked to make. These include:

I was instructed that the vehicle following Gavin Hare was travelling at approximately the same speed, and that it negotiated the roundabout with no difficulty. William Bailey reports that the driver of the vehicle following Gavin Hare was not able to provide an estimate of Gavin Hare's speed.

William Bailey's report assumes that all surface water had dissipated and whilst the road may have had a wet appearance, it was not wet enough to be acting as a wet road surface. The police report supplied to me described the road surfaces as wet, and I assumed the road was wet enough to be acting as a wet road surface.

William Bailey was provided with information to the effect that the vehicle had entered the roundabout too fast for the wet conditions. I was asked to assume that the driver was negotiating the roundabout in a normal manner.

Whilst William Bailey raises the issues as to how applicable some aspects of the particular research are to this incident, the major variations in opinion on tyre to road surface traction would appear to be more related to the broader assumptions as to what was the extent of wetness of the road surface at the time.

In terms of a layman's understanding of what the subtleties of this research mean in reality for real drivers on real roads, it is my experience that real world driver experience is:

A vehicle's tyres are more likely to skid or slip on a wet road surface, and

A vehicle's tyres are less likely to skid on a wet road surface when they have newer tyres with good tread depth.

In his conclusion Mr Griffiths said that if the assumptions in his original instructions could be substantiated, that is that the road surface was wet enough to behave as a wet road surface, that the driver entered the roundabout at a normal speed for wet conditions, and that he had no prior knowledge and no reason to believe that the tyres were bald, the conclusions in his original report should still stand.

Mr Bailey was asked to respond to Mr Griffiths' supplementary report. This he did in his third report, dated 30 th October 2007. Mr Bailey argued that he had always made the assumption that the road surface at the particular time was "wet" (Blue, 101). But he maintained that there was no standing water in the roundabout, and that therefore there would be likely to be only a small difference in traction/friction available from bald compared to well worn legal tyres. He reiterated once again his proposition that the substantial cross fall in the intersection was more than sufficient to ensure there was no standing water at times other than during heavy rain.

Thus, it may be seen that, when the matter went to trial in November 2007, there was a clear dispute between the two experts. On the one hand, Mr Griffiths accepted the overall thrust of the information he had been provided. This had suggested that the roadway had been wet, that the car went into a slide in the roundabout and then, following the slide, the acceleration came on. It was this sequence, based on the lay evidence, coupled with the description of the road surface he was given, that led Mr Griffiths to maintain that the bald tyres were a significant contributing factor to the loss of traction and subsequent aquaplaning.

Mr Bailey's position was that this was wrong principally because there was unlikely to have been enough water in the intersection to cause loss of traction. The surface was not akin to "smooth concrete". Secondly, Mr Bailey thought that the lay evidence which he had been given suggested that the plaintiff had "planted" the accelerator going into the roundabout and it was this that caused the slide which he then could not correct. In other words, Mr Bailey's argument was that the plaintiff had gone into the roundabout too fast or he had, alternatively, accelerated at the wrong time. The loss of traction had nothing to do with the bald tyres but had everything to do with the acceleration.

The plaintiff's general response to these arguments was that they were simply not supported by the lay evidence. Both Ms Harmer's evidence and that of Mr Hall suggested that the vehicle's slide happened before the heavy acceleration. Moreover, the local witness' evidence was that the road was wet, that the surface was quite smooth, and that the water covering it was of a sufficient depth to cause aquaplaning. There was general evidence to suggest it was slippery in those types of conditions. The plaintiff's counsel, during cross-examination, also suggested to Mr Bailey that there was an area in the intersection which could properly be described as flat, where water would have been more likely to gather and not run away, as he had argued. Moreover, Mr Griffiths had said, during his cross-examination, that he was not convinced the research Mr Bailey had relied upon "was by any means conclusive". Indeed, in re-examination, he said the description of the wet road as "shiny" suggested to him that, whatever the depth of the water on the road, it was sufficient to cover the asperities (Black, 221 - 222). Had they not been covered by the water, the surface would have appeared "rougher". In other words, Mr Griffiths maintained that, depending on the accuracy of the versions given by the local witnesses, it appeared there may well have been sufficient water on the roadway so as to lead to a loss of traction for a car driven with bald tyres through the intersection.

The final witness whose evidence needs to be mentioned was Detective Inspector Barr. He had been the duty officer in Wagga Wagga that night. He arrived at the accident scene shortly after the initial response by police. He said it had been raining just prior to the accident and the roadway was wet. There was water on the roadway, but he did not make any observations as to depth, quantity and volume. He said that he observed "tyre burn marks" leading from the roundabout to the accident site. His evidence as to the location of the burn marks was as follows (Black, 252):-

Question: These burn marks that you saw on the road, where were they? If you can imagine the roundabout as a circle, what part of the circle did you notice them commencing?

Answer: They started from - from memory they started near the apex of the roundabout and continued through the roundabout on to Kooringal Road and leading up to the vehicle finally came to rest.

Question: I'm sorry to be difficult about this but what do you defined as the apex?

Answer: The apex - I would describe the apex as the centre of the roundabout, and coming from Kooringal Road end I'd say that the burn marks commenced near the apex of the roundabout, which is the top of the roundabout. And it gave me certain indications of what may have occurred prior to the collision of the vehicle.

Detective Inspector Barr opined that the burn marks indicated that, prior to the collision, the vehicle was under harsh acceleration. He said that all four tyres were very unroadworthy. They had left the car "in a defective condition as far as I was concerned" (Black, 252).

The witness also described the difference between skid marks and burn marks. He said he saw no evidence of any front wheel lock up and no evidence of any front wheel yaw mark. If, during a collision, the front wheels in particular had been turned, the wheels will actually slide across the road and put a yaw mark on the road. He saw no evidence to suggest a sideways slide. Rather, the marks on the road he saw led him to believe that they were caused by the rear wheels spinning on the road, not braking on the road. He was also asked to examine the diagram that had been drawn by Sergeant Roesler. He was asked to comment about what he was able to see in that diagram compared to what he had seen on the night of the accident. He replied (Black, 256):-

It's a rough indication of the scene. It's a crude diagram. It's certainly not a scientific diagram, and I certainly wouldn't rely on it for measurements and distances and things like that. But it is an indication.

He was also asked:-

Question: In relation to the diagram that she's drawn you can see that there was a movement to the left and a movement to the right and then contact with the pole?
Answer: Yes, that's what the diagram appears to indicate.
Question: Without wishing to suggest, and as obvious in the way it's been drawn, it's not intended to be a scientific analysis, but does that accord in any way with your recollection of the marks you saw on the road?
Answer: It does, and my recollection of the night is that the burn marks on the road were not straight. They were not parallel, say with the centre line of the road or the kerb alignment. They had movement in it which indicated that, to me that the vehicle had some sideways motion under harsh acceleration prior to the collision.

The witness was cross-examined by Mr Cranitch (Black, 258). He agreed with senior counsel that he did not conduct a scientific examination on this night and, indeed, he was not qualified to do so. He agreed that he had simply formed "an impression". He said that the burn marks on the road indicated to him the point "from which the wheels commenced to spin". He agreed that it will often happen in an emergency that a driver will try to accelerate when a car has gone out of control. In re-examination, he said he was unable to say whether the burn marks on the road indicated whether the manoeuvre was an attempt to arrest the skid of the vehicle, or whether it was extreme acceleration followed by the vehicle subsequently losing control. He said (Black, 261):-

If the driver has accelerated to arrest a slide or to regain control of the vehicle, sir, I cannot say that, I don't know.

He agreed that he did not see any skid marks as opposed to burn marks.

The first decision

The primary judge addressed a number of issues in her first decision. The first of these was identified as follows (Red, 18):-

The question was whether in so doing (applying heavy acceleration) he caused the car to slide out of control or whether this acceleration was an attempt to correct the sliding of the rear wheels before he reached the point at which he exited the roundabout.

The critical findings on this point made by the primary judge were, first, that the rear wheels of the car commenced their slide at a point within the roundabout, and that the plaintiff's attempt to correct the slide by applying power to the engine caused the car to spin around and collide with the telegraph pole (Red, 22 Q - T). Secondly, her Honour concluded, after a careful examination, that the plaintiff had been travelling at a speed of less than the estimated impact speed of 50 to 60 kilometres per hour (Red, 26). This was within the speed level advanced by the defendant as being critical for a car with smooth tyres on a wet road. On the basis of Mr Bailey's evidence, her Honour said that she was not satisfied "that speed was the cause of the accident" (Red, 26). Thirdly, she found that the road surface in the roundabout was wet and slippery, either because the asperities had been worn down and it was smooth; or because there was an area of standing water in the depression identified by Mr Griffiths (Red, 29 S - V). The factors that the primary judge thought relevant in coming to this conclusion were (Red, 29):

"(1) The evidence of all witnesses that the road was wet.

(2) Having regard to the evidence of small quantities of rainfall recorded as having fallen on 6 th November 1999, observations of the wet road surface indicated that it had rained, in fact, close to the time of the accident.

(3) Mr Halls described slippery road conditions to Senior Constable Roesler immediately after the accident.

(4) Ms Harmer described the road as "shiny".

(5) The evidence that roadworks were carried out in the roundabout within 1 week of the accident. This evidence "suggested that its surface was in need of some kind of repair".

Consequently, her Honour made findings that, first, the rear wheels began to slide before the car left the roundabout. This was consistent with the evidence given by those present. Secondly, she found that the plaintiff accelerated after the slide commenced, in an effort to power out of the slide. It was this acceleration that caused the wheels to spin and the subsequent loss of control of the car and its collision with the telegraph pole. Thirdly, the primary judge found the speed at which the car was driven at the time the slide commenced, in ordinary circumstances, was not excessive. Further, she found that the road surface was sufficiently wet to cause the bald rear tyres of the car to aquaplane and slide. The primary judge concluded, in these circumstances, that the bald tyres were a substantial contributing factor to the accident.

The first Court of Appeal decision

I have said earlier that the Court of Appeal found that the primary judge had made a mistake in attributing knowledge of the bald tyres to the plaintiff. The matter was remitted to the primary judge to reconsider this issue, and certain other issues raised by the defendant's Notice of Contention. The defendant had argued that, notwithstanding the primary judge's error, her decision should be affirmed on other grounds. Sackville AJA suggested that the Notice of Contention had encapsulated the respondent's arguments as follows (Red, 79):-

3. The rear tyres on the vehicle lost traction because of the manner in which the (appellant) drove the vehicle. He caused the grip of friction at the rear wheels to be broken by travelling too fast through the roundabout and/or by making the strong demand for acceleration while cornering. This caused the vehicle to slide to the left and then to the right in circumstances where the (appellant) could not control the vehicle and it hit the street post at high speed.

4. There was no evidence the asperities were worn down so that the road surface in the roundabout was smooth thereby causing the bald tyres to lose traction.

5. There was no evidence of any standing water on the road surface on the roundabout which was sufficient to cause the bald tyres to lose traction.

Mr Hull, who appeared during the first appeal for the defendant, repeated the substance of the arguments that had been put to the primary judge, based on Mr Bailey's opinions. Sackville AJA noted that, for the defendant to succeed on the Notice of Contention, he had to persuade the Court of Appeal to overturn her Honour's findings that the road surface was wet and slippery at the relevant time because it was worn down to smoothness, or because there had been an area of standing water in the area identified by Mr Griffiths. Even if Mr Hull had been able to overcome this obstacle, it was pointed out that the Court of Appeal would not be in a position, in any event, to make the findings contended for by Mr Hull. This was because the primary judge had not determined which of the opinions in conflict should be accepted. While there was research material that supported Mr Bailey's opinions, his views had been challenged in cross-examination, and Mr Griffiths, by no means, agreed with all of them.

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

The duty to exercise reasonable care in this case obliged the defendant not to allow the plaintiff to drive the vehicle with tyres in such poor condition. That was something that could be achieved quite easily, simply by not letting him have the keys or taking them from him, or by simply refusing him permission to drive the car. In addition, the defendant did not tell the plaintiff that the tyres were bald. Merely giving the plaintiff a warning about the state of the tyres, bearing in mind that their condition rendered the vehicle unroadworthy for the conditions, would not have discharged the defendant's duty to exercise reasonable care to prevent the risk of injury materialising. Mr Campbell SC, I think, recognised the difficulty he faced in this regard. Senior counsel accepted that the provisions of Division 4 of Part 1A have only limited work to do in determining the question of breach of duty: Angel v Hawkesbury City Council [2008] NSWCA 130 at [82] - [87] per Beazley and Tobias JJA (with whom Spigelman CJ, Giles and Campbell JJA agreed). This recognition had, in forensic terms, two consequences. First, Mr Campbell SC focussed very much on the "failure to warn" allegation in the context of "obvious risk". If it were an obvious risk, he argued, there was no duty to warn. Secondly, he endeavoured to argue that the trial judge had fallen into error by expressing the duty, indeed the primary duty, as a duty to "prevent the plaintiff from driving". Mr Campbell SC argued that this manner of description of the duty had led the primary judge into the error identified by Gummow J in Dederer's case . I shall identify this alleged error and comment upon it before returning to the issue of "obvious risk".

Dederer's case involved a tragic accident in which a teenage boy had suffered partial paraplegia as a result of diving headfirst from a bridge into an estuary bed in Forster. Diving from the bridge had been a widespread and long standing practice which, remarkably, had not previously caused injury. The Roads and Traffic Authority, together with Great Lakes Shire Council, exercised powers of construction, maintenance and control over the bridge. The Authority and council had erected signs prohibiting diving from the bridge.

It was held by Gummow, Callinan and Heydon JJ (Gleeson CJ and Kirby J dissenting) that the Authority had discharged its duty of care. Its obligation was not to prevent harm, but only to exercise reasonable care to make the bridge safe for users exercising reasonable care for their own safety. The erection of the signs was held to be a reasonable response to the foreseeable risk.

The majority decision was critical of the approach taken both by the trial judge and the majority of the Court of Appeal, whose decision was eventually overturned. Each of the majority members of the Court of Appeal had referred to "the failure of the signs", in the sense that they had not prevented children from jumping off the bridges in considerable numbers. At 349 [54]), Gummow J said:-

The error in that approach lies in confusing the question of whether the RTA failed to prevent the risk-taking conduct with the separate question of whether it exercised reasonable care. If the RTA exercised reasonable care, it would not be liable even if the risk-taking conduct continued.

Gummow J (at 348 [51]) noted that an obligation to exercise reasonable care must be contrasted with an obligation to prevent harm occurring to others. The former, he said, not the latter, is the requirement of the law.

Mr Campbell SC's complaint is that, at paragraph 101 (Red, 122), her Honour had said, "I find that defendant was in breach of his duty of care to the plaintiff in failing to prevent him from driving the vehicle when it was not roadworthy and in failing to warn him of the risk of harm involved in driving the vehicle with bald tyres on a wet road".

I do not consider that the primary judge has been guilty of disobeying the stricture enunciated by Gummow J in Dederer . The plaintiff's particulars of negligence are set out in the Statement of Claim (Red, 3). They include a failure to warn the plaintiff of the danger in driving the motor vehicle and a failure to ensure that the vehicle being driven by the plaintiff was fitted with safe and roadworthy tyres. They next assert that the defendant was negligent, in that he:-

Allowed the plaintiff to drive his vehicle which was not roadworthy and which was not safe to be driven.

The plaintiff's case at trial was that a precaution that would have been taken by a reasonable person in the position of the defendant, in the circumstances, was to refuse to allow the plaintiff to drive the vehicle. I do not consider that her Honour was saying any more than this in the findings she made that I have set out above. It is true that she used the word, "prevent", but she was not asserting that there was an absolute obligation to prevent the plaintiff from coming to harm. Her Honour was merely saying that, in the circumstances of the case, the exercise of reasonable care required the defendant to take the simple step of refusing the defendant permission to drive the unroadworthy vehicle. I do not consider, when the decision is read fairly, that her Honour fell into error in the manner claimed by the defendant.

I return now to the central argument based on "obvious risk". Once it is accepted that the defendant's duty of care went beyond giving a warning, it is not clear that Div 4 of Part 1A of the Civil Liability Act 2002 had any critical role to play. In any event, I do not think that the defendant has shown any error in the finding that the risk was not "obvious" within the meaning of s 5F.

The gravamen of the defendant's complaint arises from paragraph 99 (Red, 121) of the primary judge's decision:-

Nor could he escape liability by claiming that the risk was so obvious that he was not required to warn the plaintiff against driving a vehicle with bald tyres on a wet road. The defendant himself intended to drive the vehicle until the plaintiff prevented him from doing so. In those circumstances I did not accept that the plaintiff should have been aware of any obvious risk involved in driving the vehicle.

The defendant submitted that the issue was not whether the defendant could avoid liability on this basis. Rather, it was whether the plaintiff had displaced the presumption created by section 5G.

What the primary judge was saying was, first, that the plaintiff himself did not know that the tyres were bald. Secondly, there was no evidence to suggest that he had made any observation on the night in question concerning the state of the tyres. Given that it was a dark night, that the car was parked down the side of the house, and that it had been raining shortly before the car was driven away from the house, there was no real opportunity for the plaintiff to have made any such inspection. Moreover, there was no reason why he should have done so. Thirdly, the plaintiff had observed the defendant's insistent and firm intention to drive the vehicle. That was why he intervened and offered to drive the car. The defendant's attitude would not have raised any doubt in his mind as to the condition of the vehicle.

The defendant had argued at trial that the plaintiff at least knew that the vehicle had been off the road and that some work was being done on it for registration, even though he had not been told what that work was. Given the exigencies of the situation, where the plaintiff had been endeavouring to persuade his friend not to drive the car because of his state of inebriation, and all the other circumstances surrounding the decision he made to drive the car himself, rather than let his friend drive, it is, with all due respect, somewhat unrealistic to suggest that the plaintiff did or should have made an inspection of the tyres. Obviously, the plaintiff would have appreciated that driving with bald tyres on a wet and rainy night on a slippery road carried a risk, but the plain fact here was that he did not know that the tyres were bald, and he was not told that they were by the defendant, as he should have been. This situation was not an obvious risk of harm at all. He was permitted to drive a car with bald tyres when he should not have been allowed to do so.

In my opinion, all the arguments about "obvious risk" are misconceived. Moreover, I do not think that the primary judge fell into the error ascribed to her. All that she was saying was that Division 4 of Part 1A ('Assumption of Risk') had no application to the situation. This was not because the plaintiff carried an onus to prove something under section 5G, it was simply because, for all the factual reasons underlying the finding, the risk was not an obvious one in circumstances where the plaintiff simply had no idea that the tyres were bald. Consequently, section 5F had no application to this situation.

Mr Campbell SC, in his final submission on this point, pointed to the apparent inconsistency between this finding in relation to breach, and the finding when her Honour came to consider the plaintiff's responsibility for the crash, on the issue of contributory negligence. I agree that this inconsistency is puzzling, but I would prefer to deal with it separately when I address the defendant's arguments on contributory negligence, and the plaintiff's cross-appeal.

In my view, ground 3 has not been made out.

Ground 4: reversal of onus of proof and associated matters

The defendant's submissions on this ground claim that, in concluding that the plaintiff was not aware that the tyres on the vehicle were bald, the primary judge made important errors of principle relating to where the onus of proof lay. Further, it is claimed her Honour erred in relation to the use that could be made of the rejection by her of the separate evidence of the defendant and his wife, suggesting that the plaintiff did know that the tyres were bald. The argument commences with an undoubtedly correct proposition, namely that in the case of negligence, the burden of proving all the essential facts, whether affirmative or negative, lies upon the plaintiff. The obligation extends to a requirement that the plaintiff prove that the defendant's conduct materially caused the injury ( Roads and Traffic Authority v Royal (2008) 82 ALJR 870 at 897).

Mr Campbell SC argued that the primary judge's findings favourable to the plaintiff on the topic of his awareness or otherwise of the condition of the tyres was explicable only on the basis that she had not been satisfied that the defendant had proved knowledge. If that were so, Mr Campbell SC argued, this was an error of law. It effectively reversed the onus.

I am not satisfied that this ground has been established. The argument advanced does not adequately have regard to the way in which the case proceeded before the primary judge. It was obvious that the plaintiff was unable to give evidence on the topic, and this was a fundamental problem that made this trial a rather unusual one. I do not agree, as Mr Campbell SC argued, that the absence of evidence from the plaintiff on the topic weighed not for him, but against him. Upon correct analysis, it was simply a neutral position entirely explained by the situation that had developed as a consequence of the plaintiff's injuries.

Moreover, the fact he had no recall did not prevent the defendant's counsel from putting to the plaintiff, in great detail, the sequence that the defendant would later urge upon the trial judge. It was very clear what the issues were. For the most part, the plaintiff simply could not recall. The defendant had sought to demonstrate that the plaintiff had known about the condition of the tyres. He called evidence that, if accepted, would have established that this was so. However, the primary judge rejected this evidence, and gave detailed reasons for the rejection. Upon its rejection, there was simply no evidence before the court that could sustain any suggestion that the plaintiff had known about the condition of the tyres. It followed fairly, as a matter of logic, that the plaintiff had established that he did not know the tyres were bald, and this was the finding made. Mr Campbell SC was critical of the fact that (at Red, 120), her Honour had used the phrase, "no evidence" twice. Read fairly, however, I think it is clear that the primary judge simply meant to convey that there was no other evidence than that which had been rejected.

Her Honour fairly weighed up and evaluated a number of inferences that pulled in one direction or perhaps the other on the issue of the plaintiff's knowledge. For example, she referred to the fact that that plaintiff was familiar with the vehicle, and that he had, in the past, worked on it with the defendant, and that it was usually kept at the defendant's home, near to the plaintiff's home. These facts were apt to suggest on the plaintiff's part some knowledge of the vehicle. On the other hand, she recognised the force of the defendant's own evidence-in-chief, that he had not told the plaintiff what work was being done on the vehicle while it had been off the road. Nor had the plaintiff been involved in doing any work on the vehicle during the relevant period. These facts would have favoured the plaintiff's case and sustained an inference that he did not know the tyres were bald. There was also evidence the defendant had purchased new tyres on the vehicle, eight months prior to the crash, although there was no direct evidence that the plaintiff knew this was so. Her Honour considered the inferences that might properly arise from the evidence of Mr Halls that the tyres that had been collected from his grandfather's home had some actual tread on them, and that the plaintiff and his companions had intended to "burn off" this tread in the course of their proposed visit to the area near the airport. Her Honour accepted that there were competing inferences available from this evidence. But she positively rejected drawing an inference unfavourable to the plaintiff that the tyres were to be exchanged because, to the knowledge of the plaintiff, those on the vehicle had no tread that could be "burnt off". The rejection of this unfavourable inference, and the acceptance of a competing inference favourable to the plaintiff, was open to the primary judge and should not be disturbed by this court. Her Honour was entitled to bring this finding, together with the other facts, to bear on the questions where the plaintiff carried the onus.

The primary judge positively rejected the evidence of the defendant and his wife, and found, indeed, that the defendant's evidence was "an invention". The primary judge considered every aspect of the evidence that might have allowed for a finding that the plaintiff had known of the condition of the tyres. This was so whether it arose from inferences, from direct evidence in the plaintiff's case, or whether it arose from the direct evidence of other people. It should not be overlooked that her Honour is a very experienced trial judge, and it would be a very unlikely situation she had misunderstood any aspect of the onus that confronted the plaintiff. I do not think that a fair reading of her decision shows that she did.

I would reject ground 4.

Ground 5: contributory negligence

The defendant claims that, given the findings of the primary judge that the plaintiff was guilty of contributory negligence, a proper appreciation of the entirety of the circumstances should have led to a finding that it was just and equitable to reduce the damages by 100%, so that the plaintiff's claim was defeated entirely. The basis of the argument is that, by proper application of the provisions in the Civil Liability Act 2002 , a reasonable person in the position of the plaintiff either knew or ought to have known that the only precaution against the risk in the present matter was not to drive the vehicle. Moreover, a reasonable person would have taken that precaution because there was a high degree of probability that serious injury would occur if the vehicle was driven with bald tyres on the wet road.

The plaintiff, in his cross-appeal, seeks to reverse the finding that he had been guilty of contributory negligence. His argument is that this finding was simply not open to the primary judge, and that a reading of her Honour's reasons shows this to be so.

The primary judge's dealings with the issue of contributory negligence are, by comparison with the comprehensive and extensive nature of other aspects of her decision, extremely brief. They were mentioned earlier in these reasons. However, for present purposes, I will repeat them:

102. The plaintiff argued against any finding of contributory negligence on the basis that there was no evidence that he was aware that the tyres were bald.

103. However, he must have known that the vehicle had been off the road for some time and that work was necessary to secure its re-registration.

104. I considered therefore that there was negligence on his part in failing to inquire of the defendant concerning the vehicle's condition, or, if the defendant was too intoxicated to provide a sensible answer, to undertake an independent check of its condition.

105. Having regard to his failure to do so, I assessed his contributory negligence at 25%.

In cases governed by the Civil Liability Act 2002 , the question as to whether a person is or is not guilty of contributory negligence is governed, relevantly, by sections 5R and 5S:-

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

5S Contributory negligence can defeat claim

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; Aust Torts Reports 81-815 at [67] and [68], Ipp JA (Giles JA and Hunt AJA agreeing) stated that in determining whether a plaintiff has been contributorily negligent it is necessary to have regard to the plaintiff's personal responsibility for his or her own safety. As Callinan and Heydon JJ remarked in Vairy v Wyong Shire Council (2005) 223 CLR 422, at 483 [220], a person owes a duty:-

... not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized.

These remarks are consistent with the provisions of the Civil Liability Act 2002 , section 5R(1): Consolidated Broken Hill per Ipp JA at 558-559 [67]. Contributory negligence is determined objectively from the facts and circumstances of a case, which includes what the plaintiff knew or ought to have known at the time: section 5R(2)(b); Joslyn v Berryman (2003) 214 CLR 552 at 558 [16].

Kirby J in Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 168 - 169 provided an analysis of appellate review of contributory negligence:-

This Court has said many times that appellate courts must show restraint in disturbing the apportionment ordered for contributory negligence as between a plaintiff and a defendant, having regard to their respective shares of responsibility for the damage. The point is self-evident. Involved in such an apportionment is a comparative examination of the whole conduct of each negligent party in relation to the circumstances of the accident and an evaluation of the comparative importance of the respective acts and omissions of the parties in causing the damage. Such decisions are evaluative and multi-factorial. Generally speaking, a trial judge, who has full knowledge of all of the evidence, will be in a better position to make such an apportionment correctly. An appellate court, even if it would have reached a different conclusion, will usually be hard pressed to identify an error that warrants disturbance of the primary judge's conclusion on such an issue. Tinkering with apportionments is to be discouraged.

On the other hand, an intermediate appellate court is required by its statute to discharge its own functions of appellate review. If error is shown in the apportionment, it is not only entitled but obliged to set the apportionment aside and to substitute its own decision. In a proper case, this Court will uphold the intermediate court's determination in that regard, although sometimes it will be divided over where the correct line is to be drawn.

The defendant's argument is based essentially on her Honour's finding at paragraph 104 set out above. From this, the defendant makes the submission that, first, the condition of the tyres was apparent and, secondly, a cursory check would have made known their baldness. The argument asserts that the dangerous combination of the condition of the tyres and the circumstances of the wetness of the road ought to have been known by a reasonable person in the position of the plaintiff before he commenced to drive the vehicle. Moreover, the defendant's submissions contended that the drunken condition of the defendant, and therefore his unreliability as a source of information, would have been known to a reasonable person in the position of the plaintiff before he commenced to drive the car.

The dangerous combination of the condition of the tyres and the weather conditions was known to the defendant. A reasonable person in his position would have immediately realised the danger in allowing the plaintiff to drive the vehicle. This observation is highly significant on the issue of the defendant's liability, but is not relevant to the question of contributory negligence. The primary judge's principal findings established clearly that the plaintiff simply did not know of the conditions of the tyres. This finding, however, does point to a marked degree of inconsistency with the findings in paragraphs [102] - [104].

The question is: how is this inconsistency to be resolved? In my opinion, it must be resolved by a rejection of the defendant's ground of appeal, and the upholding of the plaintiff's cross-appeal.

The finding at paragraph 103 (he must have known that the vehicle had been off the road for some time, etc) is really a non sequitur in the light of her Honour's findings that the plaintiff did not know that the tyres were bald. I do not consider, in the light of this finding, that it was open to her Honour to find that there was negligence on his part in failing to make inquiry of the defendant "concerning the vehicle's condition". There was no reason for him to do so. A reasonable person in his position would not have done so. More importantly, the allegations of contributory negligence contained in the Amended Defence were expressed as follows:-

Any breach by the defendant of any duty of care owed to the plaintiff (the existence of which and the breach of which is denied) was far outweighed or even overwhelmed by the plaintiff's own contributory negligence in driving the vehicle after drinking and knowing that the road was wet and the tyres were bald, and driving at a speed that was too fast in all the circumstances.

Thus, it will be seen that there is no allegation by the defendant in its pleading that the plaintiff was guilty of contributory negligence in failing to inquire of the defendant "concerning the vehicle's condition". The relevant assertion is that he knew that the tyres were bald, an allegation that was flatly rejected. There was consequently no justification (as the primary judge did) in equating a possible but unproved awareness of the baldness of the tyre with a need to enquire as to "the vehicle's condition". If the plaintiff did not know the tyres were bald (contrary to the pleading) there was no reason for him to enquire as to the vehicle's condition. In my view, her Honour's finding that the plaintiff did not know the tyres were bald, having regard to the case that was pleaded before her, did not permit of a finding of contributory negligence on the basis she ultimately did.

Secondly, there were no findings made by the primary judge to suggest that the plaintiff's level of intoxication, or the speed at which he had driven (in the circumstances) was a contributing factor to the accident. Those aspects of the pleading were not sustained. Finally, her Honour's statement:-

If the defendant was too intoxicated to provide a sensible answer ... [a need] to undertake an independent check of its condition

was purely speculative and did not allow for a finding of contributory negligence. It was, indeed, a purely hypothetical question, and there is no finding made by her Honour that the defendant was intoxicated to such an extent that he could not provide "a sensible answer". The need to undertake an independent check of the vehicle's condition did not, based on the circumstances her Honour found elsewhere in the decision, warrant the conclusion reached.

For these reasons, I would reject ground 5 of the Grounds of Appeal, but would uphold the plaintiff's cross-appeal.

Ground 6: the discretion to permit the defendant to re-open miscarried

I have set out at considerable length the reasoning of her Honour in relation to the decision of 11 th June 2010, in which the application for leave to re-open was refused. In my opinion, her Honour's decision stated the relevant principles simply and directly. None of the matters considered by her Honour were irrelevant. Further, I do not consider that her Honour took into account any considerations which were irrelevant.

The primary judge's decision was essentially a discretionary one. In my opinion, no error has been demonstrated, nor was the result so unreasonable as to warrant interference ( House v The King (1936) 55 CLR 499 at 504, 505).

The defendant argues that her Honour's finding (at paragraph 15 of her decision) was an irrelevant consideration. Her Honour had said (after discussion of the reasons she had given on 14 th April for rejecting the further opinion of Mr Bailey):-

In 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 proceedings.

I do not agree that this was an irrelevant consideration. It was clearly a very important part of her Honour's reasoning in the second decision she had given, and her Honour's reference to it in the re-opening application was not only understandable, but highly relevant to the outcome of the application. Her Honour had accepted that Detective Inspector Barr's additional evidence (as reflected in Mr Bailey's final report) was relevant on the issue, but in the end, she did not think it warranted the disturbance of her critical findings, or that it would have a significant impact on the outcome of the case. There was no element of pre-judgment in this finding, as her Honour clearly proceeded on the basis that the evidence of Detective Inspector Barr, for what it was worth, could be accepted as evidence of his recollection. It was where that piece of evidence stood in relation to other evidence in the case that was important.

In my opinion, no basis has been shown for disturbing the discretion exercised against the defendant on this point.

The orders that I would propose are:

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.

SACKVILLE AJA: I agree with Whealy JA.

**********
APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

Case Title:	Harmer v Hare
Medium Neutral Citation:	[2011] NSWCA 229
Hearing Date(s):	28, 29 March 2011
Decision Date:	11 August 2011
Jurisdiction:
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
- Counsel:	S G Campbell SC / B Hull (Appellant) M Cranitch SC / M B Inglis (Respondent)
- Solicitors:	George Mallos Lawyer (Appellant) Commins Hendriks (Respondent)
File number(s):	2010/227358
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Sidis DCJ
- Date of Decision:	11 June 2010
- Citation:
- Court File Number(s)	10/227358
Publication Restriction:	Nil