Luke Harmer v Gavin Brian Hare

[2012] HCASL 21

LUKE HARMER
v
GAVIN BRIAN HARE
[2012] HCASL 21
S304/2011

1. The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of New South Wales (Beazley and Whealy JJA and Sackville AJA) dismissing the applicant's appeal and allowing the respondent's cross‑appeal against orders of a judge of the District Court of New South Wales (Sidis DCJ).

2. In November 1999, the respondent suffered severe injuries in a motor vehicle accident.  The respondent had been driving the applicant's car, in which the applicant was a passenger.  The car's tyres were bald and the road was wet.  The respondent lost control of the vehicle at a roundabout and the vehicle collided with a pole.  As a result of his injuries, which included extensive brain damage, the respondent had no memory of the day of the accident.

3. Sidis DCJ found that the accident was caused by a combination of the bald tyres and the wet road.  Her Honour found that the respondent did not know that the tyres were bald, rejecting evidence given by the applicant and other witnesses which suggested the contrary.  Her Honour held that the applicant was liable for the respondent's injuries on the basis that the applicant should not have permitted the respondent to drive the car or should have warned him of the risk that bald tyres on a wet road presented, but reduced the damages by 25 per cent to reflect the respondent's contributory negligence in not enquiring about, or inspecting, the car before driving it. 

4. The applicant appealed against the finding of liability and the respondent cross-appealed against the finding of contributory negligence.  The Court of Appeal dismissed the applicant's appeal and allowed the respondent's cross‑appeal.  Delivering the judgment of the Court of Appeal, Whealy JA held that it was open to Sidis DCJ to draw the inference, adverse to the applicant, that the respondent did not know that the tyres were bald.  Whealy JA further held that a reasonable person in the respondent's position would not have enquired about or inspected the car.

5. The applicant now seeks special leave to appeal to this Court on the ground that the Court of Appeal erred in upholding Sidis DCJ's critical finding that the respondent did not know that the tyres were bald, arguing that there was no evidence from which that inference could be drawn (the respondent having no memory of the day in question and the evidence of other witnesses on the issue having been rejected).

6. This application raises no question of principle of general public importance which would warrant consideration by this Court.  The essential question raised by this application is one of fact, and its resolution by the Court of Appeal is not attended by sufficient doubt to warrant a grant of special leave to appeal.

7. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
9 February 2012 S.M. Crennan