Harmer v Hare

The case of *Harmer v Hare* concerned an appeal and cross-appeal arising from a motor vehicle accident in which the plaintiff sustained severe brain injuries. The plaintiff was driving a vehicle owned by the defendant, who was a passenger at the time of the accident. The central dispute revolved around the defendant's alleged negligence in failing to prevent the plaintiff from driving the vehicle, which was found to have bald tyres, and the plaintiff's own contributory negligence.

The appellate court was required to determine whether the owner-passenger owed a duty of care to the driver to prevent them from driving a vehicle with bald tyres. Further, the court had to consider whether the plaintiff and defendant were engaged in a joint criminal enterprise, whether the risk of harm was obvious, and the extent to which the plaintiff's own conduct contributed to their injuries. The court also had to review the primary judge's findings of fact, assessing whether they were unsupported by evidence, glaringly improbable, or if the onus of proof had been improperly reversed. The role and potential pitfalls of expert evidence were also implicitly relevant to the court's consideration of the evidence.

The court reasoned that an owner-passenger could owe a duty of care to a driver, particularly where the owner has knowledge of a dangerous defect in the vehicle and the driver is intoxicated. The court found that the primary judge had correctly identified the existence and scope of this duty. Regarding contributory negligence, the court considered whether a reasonable person would have driven the vehicle in its condition and whether the plaintiff had a duty to inspect the vehicle. The court also addressed the defendant's argument that the basis of contributory negligence had not been properly pleaded.

The appeal was dismissed, but the cross-appeal was allowed. The original judgment for the plaintiff in the sum of $1,301,437.94 was set aside, and judgment was entered for the plaintiff in the increased sum of $1,735,250.59. The order as to costs made by the primary judge was affirmed, and the defendant was ordered to pay the costs of the appeal and cross-appeal.