Hare v Harmer

CATCHWORDS: APPEAL - appeal - general principles - interference with Judge's findings of fact - misapprehension of evidence by primary Judge - adequacy of reasons behind factual finding - whether substantial wrong or miscarriage of justice - APPEAL - new trial - whether court should make findings of fact on disputed matters or order new trial

Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) LEGISLATION CITED: District Court Act 1973 (NSW) Suitors' Fund Act 1951 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)

Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375; 70 NSWLR 394 Mastronardi v State of New South Wales [2007] NSWCA 54 CASES CITED: Tory v Megna [2007] NSWCA 13 Warren v Coombes [1979] HCA 9; 142 CLR 531 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816

PARTIES: Gavin Brian Hare (appellant) Luke Harmer (respondent)

COUNSEL: M J Cranitch SC/ M B Inglis (appellant) B Hull (respondent)

SOLICITORS: Commins Hendriks (appellant) George Mallos Lawyer (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 86 of 2004

LOWER COURT DATE OF DECISION: 14 March 2008

LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWDC 25

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40177 of 2008

MACFARLAN JA HANDLEY AJA SACKVILLE AJA

8 April 2009 Gavin Brian HARE v Luke HARMER Judgment 1 MACFARLAN JA: I agree with Sackville AJA. 2 HANDLEY AJA: I agree with Sackville AJA. 3 SACKVILLE AJA: This is an appeal from a judgment of a Judge of the District Court entering a verdict for the defendant. The appellant, the plaintiff in the District Court proceedings, sought damages in respect of serious injuries he sustained in a single car crash that occurred early in the night of 6 November 1999. The appellant was then 21 years of age. 4 The appellant was the driver of a 1980 Ford Falcon sedan ("the Vehicle"), which belonged to the defendant (the respondent in this Court). The Vehicle the appellant was driving crashed into a telegraph pole on Kooringal Road, Kooringal, a suburb of Wagga Wagga. The appellant's case was that the crash occurred because the rear tyres on the Vehicle were bald, causing the Vehicle to slide on a wet road surface as the appellant attempted to drive through a roundabout. The appellant contended that the respondent had breached his duty of care by permitting the appellant to drive a vehicle known to be unroadworthy. 5 The respondent has filed a notice of contention. This seeks to uphold the primary Judge's decision on the ground that, irrespective of the appellant's knowledge of the state of the tyres on the respondent's Vehicle, the crash was caused by the manner in which the appellant drove the Vehicle and was not caused or contributed to by the state of the tyres.

MATTERS NOT IN DISPUTE 6 The appellant and the respondent had been friends from a very early age. In November 1999, they lived virtually opposite each other in the same street. 7 The appellant was driving the Vehicle at the time of the crash. The V8 engine of the Vehicle had been modified to increase its cubic capacity and the cylinder head and camshaft had been machined to increase its power. These modifications rendered the engine capable of delivering considerable power and acceleration to the wheels when it was in particular power bands. 8 The Vehicle had been off the road for about one month prior to the crash. During that period it was parked at the home of Mrs Harmer (then the respondent's girlfriend, now his wife). The respondent worked on the Vehicle there to get it into a condition in which it could be registered. 9 Some time before the crash, the appellant sold the respondent the wheels that were on the Vehicle at the time of the crash. 10 Shortly after 8 pm on 6 November 1999, the appellant drove the Vehicle from Mrs Harmer's house, intending to proceed to the appellant's house. The respondent and Mr Halls, a mutual friend, were passengers in the Vehicle. The crash occurred in the course of the journey to the appellant's house. 11 The crash occurred after the appellant lost control of the Vehicle as he travelled through a roundabout located at the intersection of Kooringal Road and Lake Albert Road. The rear of the Vehicle moved to the left of the road, moved back to the right and ultimately collided with a telegraph pole in Kooringal Road. The light pole was located 43 metres from the nearest kerb alignment in Lake Albert Road. 12 The appellant returned a blood alcohol content of 0.1g per 100 ml when tested after the crash. Nonetheless, the respondent did not rely at trial on s 50 of the Civil Liability Act 2002 (NSW) (which limits recovery of damages for personal injury where the plaintiff was intoxicated at the relevant time, unless the plaintiff is able to establish that the injury was likely to have occurred even if the plaintiff had not been intoxicated). 13 The respondent was very drunk at the time of the crash. The second passenger, Mr Halls, was also affected by alcohol. Mrs Harmer was driving a second car behind the Vehicle driven by the appellant and observed the crash. 14 The Vehicle was not roadworthy, since all four tyres were completely smooth. There was no other relevant defect in the Vehicle. 15 The appellant was seriously injured in the crash and has ongoing disabilities. He could remember nothing of the events of 6 November 1999. The primary Judge assessed the quantum of damages, should liability be established, at $1,735,250.59. The respondent does not challenge this assessment. 16 The road surface was wet at the time of the crash. The appellant applied heavy acceleration as the Vehicle left the roundabout. However, the primary Judge identified one critical question to be whether the appellant, by applying acceleration, caused the car to slide out of control or whether the acceleration was an attempt by the appellant to correct the sliding of the rear wheels that was already underway.

THE PRIMARY JUDGMENT 17 The primary Judge identified (at [5]) four issues, other than the quantum of damages. These were: "(1) The cause of the crash. The [appellant] contended that he lost control of the car on the wet road because the rear wheel tyres were bald. The [respondent] contended that the cause was the speed at which the plaintiff drove the car. (2) If bald tyres were the cause of the crash, whether the [respondent] was negligent in permitting the [appellant] to drive his car when it was not roadworthy. (3) Whether the [appellant] took a risk that was obvious in driving a car, knowing it was not roadworthy. (4) Whether responsibility for risk taking as between the [appellant] and the [respondent] is to be dealt with by the application of the principles of contributory negligence."

Issue 1 18 The primary Judge noted that Mr Halls had given evidence that the rear of the Vehicle had started to move to the left as it came to the middle point of its path around the roundabout and that it was sliding as it left the roundabout. He thought that, by reference to a notional clock face, the slide had commenced at a position equivalent to 10 o'clock. Mrs Harmer's evidence was initially that the Vehicle started to move to the left when it was about three quarters of the way through the roundabout, although she later suggested that the movement may have commenced a little later. 19 The respondent said that he had told the appellant "not to plant it", by which he meant that the appellant should not apply significant pressure to the accelerator (which would deliver enhanced power to the wheels). Both Mr Halls and Mrs Harmer gave evidence that the acceleration occurred as the appellant attempted to power out of the slide. 20 The primary Judge observed that there were problems with the evidence of the respondent, Mr Halls and Mrs Harmer. The first two had been heavily affected by alcohol when the events occurred and Mrs Harmer was plainly unsympathetic to the appellant. Nonetheless, her Honour found that the rear wheels of the Vehicle commenced to slide at a point within the roundabout and that the appellant attempted to correct the slide by applying power to the engine. This caused the Vehicle to spin around and subsequently collide with the telegraph pole. 21 The primary Judge then considered whether the initial sliding of the wheels was caused by the appellant driving through the roundabout at excessive speed. Mr Bailey, a mechanical and biomedical engineer called by the respondent, had estimated, on the basis of tests of older model vehicles, that the speed of the Vehicle at impact was 50 to 60 kph. Having regard to opinions expressed by Mr Bailey and Mr Griffiths (the expert called by the appellant), her Honour concluded (at [37]-[40]) that the critical speed above which a car with bald tyres would slide when negotiating this roundabout on a wet surface, was marginally less than 50 kph. (This estimate was not applicable, however, if the Vehicle encountered standing pools of water which submerged the irregularities in the road surface (known as asperities). Nor was it applicable if the road surface was smooth by reason of the asperities being worn down.) 22 Taking account of the evidence from the lay witnesses as to the appellant's driving as he negotiated the roundabout, her Honour summarised (at [37]) the position as follows: "(1) The [respondent's] estimate of the critical speed in wet conditions at this roundabout was marginally less than 50 kph;

(2) Testing of post 1980 model Vehicles indicated a pre-impact speed of 50 to 60 kph;

(3) The [appellant] had accelerated twice prior to impact with the telegraph pole: (a) at the entrance to the roundabout in order to enter ahead of a car approaching from the right; and (b) after the rear wheels of the car slid to the left." 23 Her Honour considered that the evidence supported a finding that at the time of the initial slide the Vehicle was travelling at a speed less than the estimated impact speed of 50 to 60 kph. This was below the critical speed for a car with smooth tyres negotiating a roundabout with a wet surface. Her Honour was therefore not satisfied that speed was the cause of the crash. 24 The primary Judge next addressed the wet road conditions. Mr Griffiths had expressed the opinion that the bald tyres were likely to have been a contributing factor to the crash. He based this opinion on the proposition that the necessary degree of friction to provide adhesion to the road surface could be reduced significantly when the road surface was wet, especially when bald tyres were used. Mr Bailey had disagreed, expressing the opinion (in her Honour's language at [44]) that: "a bald tyre was no more likely to lose contact on a wet road surface than a new fully treaded tyre unless there was an area of standing water. In that case, … a bald tyre would more readily aquaplane than a tyre with more than minimal tread. [Mr Bailey] defined standing water as water standing to a depth that covered the asperities in the road surface." (Emphasis in original.) 25 Her Honour referred to records showing light rain at Wagga Wagga Airport prior to and at the time of the crash (which her Honour put at 8.15 pm, although the police report said that the crash occurred at 8.35 pm). It followed that the road was wet. The physical condition of the road surface was not known because it had been resurfaced a week later. Her Honour considered that the photographic evidence did not enable her to determine whether the road surface was worn in a manner that would lead to the presence of standing water after rain. 26 The respondent had submitted that the probabilities were that there was no standing water such as would cause a car with smooth tyres to aquaplane (notwithstanding that it was travelling at less than the "critical speed" identified by the witnesses). According to the respondent, a small area of depressed surface in the roadway, shown in a plan of the roundabout, was too small to produce sufficient standing water to cause the Vehicle to aquaplane. Moreover the fall in the road surface towards the kerb should have allowed water to drain away. 27 Her Honour said (at [51]) that she had been influenced by five factors in reaching a conclusion about the condition of the road surface at the time of the crash: "(1) The evidence of all witnesses that the road was wet.

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

(3) Mr Halls described slippery road conditions to Senior Constable Roesler [an attending police officer] immediately after the accident.

(5) The evidence that road works were carried out in the roundabout within one week of the accident. This evidence suggested that its surface was in need of repair."

She expressed (at [52]) her finding on the condition of the road surface as follows: "These factors point to a road surface that was wet and slippery, whether 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." 28 The primary Judge made the following findings (at [53]) in relation to Issue 1: "(1) the rear wheels began to slide before the car left the roundabout;

(2) the [appellant] accelerated after the slide commenced in an effort to power out of the slide;

(3) this acceleration caused the wheels to spin and the subsequent loss of control of the car and its collision with the telegraph pole;

(4) the speed at which the car was driven at the time the slide commenced, in ordinary circumstances, was not excessive;

(5) the road surface was sufficiently wet to cause the bald rear tyres of the car to aquaplane and slide;

(6) the wet road surface and the bald tyres lead to a situation where, as stated by Detective Inspector Barr [the duty officer who attended the scene], the car was not driven to the prevailing conditions;

(7) the bald tyres were a substantial contributing factor to the accident."

Issue 2 29 Her Honour identified (at [59]) several sub-issues, as follows: "(1) The extent of the [appellant's] knowledge of the condition of the tyres on the car.

(2) The obligation, if any, of the [respondent] to warn the [appellant] of the condition of the tyres.

(3) The obligation, if any, of the [respondent] to prevent the [appellant] from driving the car." 30 The primary Judge recorded that the appellant had agreed in evidence that he had sold the respondent the wheels that were on the Vehicle at the time of the crash. Her Honour also recorded that the appellant said in evidence that the tyres on the wheels were "not real good". It is common ground on the appeal, however, that her Honour was in error in attributing this evidence to the appellant. In fact the appellant, when asked whether he remembered the state of the tyres when he sold the wheels to the respondent, said "not really but I suppose good". It appears that her Honour made the error because her note of the appellant's evidence was incorrect and she did not take up counsel's suggestion at the trial to obtain a transcript of the proceedings. 31 Mrs Harmer gave evidence that the appellant, the respondent and Mr Halls arrived at her home at about 8 pm on 6 November 1999. The appellant said that he wanted to take the Vehicle. Mrs Harmer then warned the appellant that he was not to take the Vehicle because the tyres were bald and it had been raining. The respondent supported Mrs Harmer's account of the warning given to the appellant. 32 Her Honour said that she placed "little weight" on the respondent's evidence concerning the warning. She was "similarly unimpressed by the evidence of Mrs Harmer", given her obvious animosity towards the appellant. Her Honour therefore "placed little weight on her evidence concerning a warning" (at [71]). 33 Nonetheless her Honour found (at [72]) that there was evidence, independent of the alleged warning, from which she should conclude that the appellant "must have been aware of the conditions of the tyres on the [Vehicle]". 34 The primary Judge referred to two matters in support of this conclusion. First, the appellant knew that the tyres he sold to the respondent were not good. (As I have pointed out, this reason rested on an incorrect understanding of the evidence.) Secondly, Mr Halls gave evidence that a friend named Tim had driven the appellant and Mr Halls himself from the appellant's home to his (Mr Halls') grandfather's place to pick up two tyres. Their plan was to fit the tyres to the Vehicle and to take the Vehicle to a place near Wagga Wagga Airport to do "burn outs". Her Honour found that after collecting the tyres, Tim drove the appellant, the respondent and Mr Halls to Mrs Harmer's home to collect the Vehicle, which was parked there. (On one view of the evidence, Tim first dropped the tyres off at the appellant's house.) According to her Honour (at [74]), the "very purpose" of this trip was to replace the tyres on the Vehicle with tyres obtained earlier in the day from Mr Hall's grandfather that had some tread on them. These two matters were sufficient to dispel the proposition that the appellant was unaware of the condition of the tyres prior to driving the Vehicle on 6 November 1999. 35 Her Honour expressed her conclusions as follows: "77 The claim that a duty of care existed necessarily involves an element of reliance on the [appellant's] part. I appreciate that the practice in dealing with motor vehicle accidents where the parties to a claim are frequently strangers has been to regard it as unnecessary to provide specific evidence of reliance.

78 In this case, the [appellant] was not only aware of the condition of the tyres, he exerted his will, prevented the [respondent] from driving and took responsibility as the driver for the car and its occupants.

79 I agree with Detective Inspector Barr [the duty officer who attended the scene] that the [appellant] did not drive to the road conditions prevailing at the time of the accident. Those conditions involved the very dangerous combination of a wet road and bald tyres.

80 I find that responsibility for the accident rests with the [appellant]."

Issue 3 36 The primary Judge observed (at [82]) that her finding that the appellant was aware of the condition of the tyres on the Vehicle at the time of the crash necessarily involved a finding that he took a risk that was obvious. This was a further reason why his claim had to fail.

Issue 4 37 In the light of her Honour's finding, it was not necessary to address Issue 4 in relation to contributory negligence. If it was necessary to do so and if the respondent (contrary to her Honour's findings) retained some responsibility to prevent the appellant driving the Vehicle, the primary Judge would have assessed the appellant's contributory negligence at 85% (at [85]).

Principles 38 Section 127 of the District Court Act 1973 (NSW) ("District Court Act") provides that a party dissatisfied with a judgment or order of a Judge may appeal to the Supreme Court. (The provenance of that section and the legislative history resulting in the omission of any reference in the District Court Act to the power to order a new trial are addressed by Basten JA in Keramianakis v Regional Publishers Pty Ltd [2007] NSWCA 375; 70 NSWLR 395, at 402-404 [84]-[88], 405 [91]-[92].) An appeal from the District Court under s 127 of the District Court Act is assigned to the Court of Appeal: Supreme Court Act 1970 (NSW), ("Supreme Court Act") s 48. 39 Section 75A(5) of the Supreme Court Act provides that an appeal in a case such as this is by way of rehearing. The Court determining the appeal has the powers and duties of the court from which the appeal is brought, including (relevantly) powers and duties concerning the drawing of inferences and the makings of findings of fact: s 75A(6)(b). In addition, s 75A(10) of the Supreme Court Act provides that: "The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires." 40 Part 51.53(1) of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), directs the Court not to order a new trial on certain specific grounds and "on any other ground" unless it appears to the Court that "some substantial wrong or miscarriage has thereby been occasioned". However, the Court has power to order a new trial on any question without interfering with the decision on any other question: r 51.53(2). Part 51.53(5) provides as follows: "If the Court orders a new trial, the Court may: (a) impose conditions on any party for the purposes of the new trial, and

(b) direct admissions to be made by any party for the purpose of the new trial, and

(c) order that the testimony of any witness examined at the former trial may be read from the transcript, instead of the witness being again examined." 41 When applying Pt 51 r 53, the Court must have regard to s 56 of the Civil Procedure Act 2005 (NSW) which provides that the overriding purpose of the Act and of the UCPR is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings": Tory v Megna [2007] NSWCA 13, at [28], [30], per Spigelman CJ (with whom Beazley and Bryson JJA agreed). Tory v Megna was an appeal which arose from a jury trial, but the principle applies to appeals from non-jury trials. 42 Doubt has been expressed as to whether the constraint imposed by UCPR Pt 51.53(1) is consistent with the breadth of the power conferred by s 75A(10) of the Supreme Court Act: Mastronardi v State of New South Wales [2007] NSWCA 54, at [74], per Basten JA (with whom Ipp and Campbell JJA agreed). However, as Basten JA pointed out (at [75]), the possible inconsistency is unlikely to have practical consequences. This is so because the: "requirement that, for an appeal to succeed, actual injustice must be demonstrated is not inconsistent with the broad power conferred on the Court by s 75A. The general principle can apply, just as the 'costs follow the event' principle applies in relation to the unfettered discretion to award costs, so long as it does not become a rigid rule to be applied in the absence of some special circumstances indicating otherwise" (at [80]). 43 Basten JA observed in Mastronardi (at [81]) that, at first blush, Pt 51 r 53 creates a dilemma. On one view, the Court cannot be affirmatively satisfied that some substantial wrong or miscarriage has been occasioned by an error if the Court cannot say whether a correct approach would have led to a different result. Yet, as his Honour also pointed out (at [81]), this is precisely the kind of case where a new trial is a relevant option. Basten JA considered (at [82]-[83]) that the dilemma: "can be avoided by identifying the relevant miscarriage as a failure to provide a trial in which, in a significant respect, the assessment of the evidence was not flawed … In a trial with a judge alone, the assessment process is not opaque, but is (or should be) exposed in reasons for judgment. If a relevant and material error is revealed, as with an unreasonable criminal verdict, there will be little room for the operation of the constraint relating to a substantial miscarriage of justice." (Emphasis added.) 44 A related question is whether an appellate court, having discerned a significant error in the trial Judge's assessment of the facts, should order a new trial or whether the Court should itself attempt to make findings of fact on disputed matters, in exercise of the powers conferred by s 75A(6) and (10) of the Supreme Court Act. 45 This issue arose in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816. There, the trial Judge found that the plaintiff, who had been rendered a quadriplegic in an incident occurring on or near a jetty, had deliberately dived into the water and had not been pushed into the water (as he had claimed). The Court of Appeal held that the trial judge had not given adequate reasons for rejecting a large body of evidence suggesting that the plaintiff had entered the water involuntarily. The Court of Appeal found that it was "glaringly improbable" that the plaintiff had entered the water voluntarily. Their Honours ordered a new trial, but directed that it should be conducted on the basis that it had been established, in the plaintiff's favour, that he had lost his balance by being jostled or pushed and, in consequence, had fallen from the jetty. 46 Gleeson CJ (with whom McHugh, Gummow and Hayne JJ agreed) did not dispute that the Court of Appeal had power to make the order it did. His Honour observed (at [15]), however, that the question was not the width of the power but the appropriateness of the manner of its exercise. On any view, there were issues that remained unresolved. The order made by the Court of Appeal related to a particular fact which could not be isolated from all other facts in controversy, including some that depended upon the reliability of the evidence of a number of witnesses. It was in the interests of justice that the judge hearing the retrial should: "make a fresh appreciation of the whole of the relevant evidence, unconstrained by an artificially isolated assumption that reflects the [plaintiff's] success in the Court of Appeal" (at [20]). 47 Waterways Authority v Fitzgibbon does not necessarily prevent an appellate court, where the trial judge has been shown to have erred on a factual question, from substituting its own findings of fact for those made by the trial judge. It may be that, once the trial judge's error is corrected, the probative evidence on a particular issue points to only one conclusion. Alternatively, if the remaining evidence, although conflicting, presents no issue of the reliability or credit of particular witnesses, the appellate court may be in as good a position as the trial judge to resolve the conflict: cf Warren v Coombes [1979] HCA 9; 142 CLR 531, at 551-552, per Gibbs ACJ, Jacobs and Murphy JJ. Moreover, it is necessary to bear in mind the "overriding purpose" stated in s 56(1) of the Civil Procedure Act. Nevertheless, Waterways Authority v Fitzgibbon suggests that in a case where there is conflicting oral evidence, or where there is an unresolved dispute as to the reliability of evidence, an appellate court should exercise caution before deciding to substitute its own findings for those made by the trial judge.

The Awareness Finding 48 Mr Cranitch SC, who appeared with Mr Inglis for the appellant, attacked the finding that the appellant was aware of the condition of the tyres on the respondent's Vehicle before he drove it on 6 November 1999. Mr Cranitch submitted that her Honour's misunderstanding of the appellant's evidence as to the state of the tyres on the wheels sold to the respondent, vitiated the entirety of the judgment. 49 When asked what orders this Court should make, Mr Cranitch submitted that the Court should substitute its own finding that the appellant was unaware of the condition of the tyres. He accepted that ordering a new trial was "within the possibilities", but contended that the better course was to make the finding he sought in lieu of the primary Judge's erroneous finding. 50 Mr Hull, who appeared for the respondent, accepted that her Honour had misunderstood the appellant's evidence, but submitted that this Court should nonetheless uphold her Honour's finding in relation to the appellant's knowledge. He contended that the other evidence on which her Honour relied was sufficient to support the finding. 51 Her Honour's misunderstanding of the appellant's evidence was crucial to her finding that the appellant knew of the state of the tyres on the Vehicle before he commenced to drive it on 6 November 1999. It is one thing, however, to accept that the factual error vitiated her Honour's finding and that the error requires a new trial to be held. It is quite another to conclude that this Court should make its own finding that the appellant was not aware that the tyres on the Vehicle were bald. 52 It would clearly be open to the Court to take the course urged by Mr Cranitch if the only evidence suggesting that the appellant was aware of the state of the tyres was the evidence misunderstood by the primary Judge. Although at one point Mr Cranitch suggested that this evidence was indeed the only material bearing on the appellant's awareness of the state of the tyres, it is clear that other evidence is relevant to this issue. 53 The relevant evidence includes Mrs Harmer's claim that she gave the appellant a warning about the tyres before he set out in the Vehicle. It is true that, as Mr Cranitch pointed out, the primary Judge expressed serious reservations about Mrs Harmer's evidence and of the respondent's corroboration of it. But her Honour did not find that the conversation had not taken place. She said only that she placed "little weight" on Mrs Harmer's evidence relating to the conversation and, in effect, put that issue to one side. Any conclusion as to the appellant's knowledge of the state of the tyres requires a clear finding to be made as to whether or not the alleged conversation took place. An appellate court cannot safely make that finding, since it depends on an assessment of the credit of Mrs Harmer and the respondent. 54 The other evidence that has to be considered in relation to the appellant's knowledge of the state of the tyres includes the following: · The appellant said that he recognised one of the rear wheels from photographs taken of the Vehicle after the crash. He specifically said that the wheel was one of those sold to the respondent and that he recognised the tyre that he had sold. No doubt, as Mr Cranitch submitted, it would be necessary to take into account the appellant's cognitive impairment in evaluating this evidence, but this is not a task an appellate court can adequately undertake without having seen the appellant in the witness box. · Mr Halls gave evidence that he arrived at the appellant's home at about 4 pm on 6 November 1999. The two of them, in company with the person known only as "Tim" then travelled to Mr Halls' grandfather's house to pick up two tyres. These tyres had some tread on them. Mr Halls' understanding was that the tyres were to be placed on the Vehicle so that they could do "burn-outs" near the Airport. According to Mr Halls, Tim drove them to the appellant's house, with the tyres in the boot of Tim's car. The findings made by her Honour as to the purpose of collecting the tyres (at [34] above) are expressed in passive language and do not include a clear statement as to the appellant's understanding of the significance of collecting the two tyres, in particular whether they were required because all the tyres on the Vehicle were smooth. · The respondent said that when he arrived at the appellant's house in the evening of 6 November 1999 (before they drove to Mrs Harmer's house), he saw some tyres in a shed. (Although it is not clear, these may have been the tyres collected by Mr Halls.) He claimed that he asked the appellant whether he could have them because "mine were no good". According to the respondent, the appellant replied "no dramas". Her Honour referred to this evidence but made no finding as to whether the conversation took place. If it did, the conversation would have a bearing on the appellant's knowledge of the condition of the tyres on the Vehicle. 55 A finding as to the appellant's awareness as to the state of the tyres requires this evidence to be evaluated. The appellant's evidence that he recognised one of the tyres on the Vehicle may require his cognitive impairment to be taken into account in determining whether it is reliable. Whether the conversation said to have occurred at the appellant's house between the respondent and the appellant took place may depend on resolving a possible conflict between Mr Halls' evidence (to the effect that his grandfather's tyres remained in Tim's vehicle) and that of the respondent. Whether the appellant understood that the tyres collected from Mr Halls' grandfather were needed because the tyres on the Vehicle were bald is likely to depend on findings as to what was said on this topic in the appellant's presence. 56 The appellant has demonstrated that a substantial wrong or miscarriage was occasioned at the trial by reason of the primary Judge's misapprehension of a crucial piece of evidence. The appropriate remedy for her Honour's error is a new trial at which the necessary findings of fact can be made in the light of all of the relevant evidence. It is not appropriate for this Court to attempt to make its own finding as to the appellant's awareness of the state of the tyres. The resolution of this factual question requires an assessment of the reliability or creditworthiness of evidence that only a judge who has heard and seen the witnesses can undertake. 57 Mr Hull's submission that, notwithstanding her Honour's error, this Court should uphold her Honour's finding must also be rejected. The error removed one of the two planks relied on by her Honour for the finding that the appellant was aware of the state of the tyres. The other plank is not determinative of the factual issue because her Honour made no finding as to the appellant's understanding of the purpose of collecting the two additional tyres and, in particular, whether he knew that the purpose was to obtain tyres with some tread to replace tyres on the Vehicle that had no tread. 58 Mr Hull submitted that there was other evidence supporting her Honour's finding. While there is evidence which, if accepted, may be capable of supporting the finding, this Court cannot determine whether the evidence or any part of it should be accepted.

The Notice of Contention 59 As I have noted, the respondent's notice of contention relies on the proposition that the bald tyres on the Vehicle did not cause or contribute to the crash. The notice of contention encapsulates the respondent's argument as follows: "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 a 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 that the asperities were worn down so that the road surface in the roundabout was smooth, thereby causing the bald tyres to loose traction.

5. There was no evidence of any standing water on the road surface in the roundabout, which was sufficient to cause the bald tyres to loose traction." 60 Mr Hull relied on evidence given by Mr Bailey to the effect that, unless the road surface was smooth or there were standing pools of water on the surface, bald tyres would have no influence on the propensity of the Vehicle to slide, given that the Vehicle was travelling at only about 50 kph in the roundabout. Mr Hull invited this Court to accept the opinion expressed by Mr Bailey. If Mr Bailey's opinion were accepted, so he argued, the only available finding was that the bald tyres had nothing to do with the crash. On this basis, the evidence required a finding was that the crash was caused by the appellant accelerating suddenly in the course of negotiating the roundabout, resulting in the Vehicle commencing its spin out of control. 61 As Mr Hull accepted, for the respondent to succeed on the notice of contention, he must persuade this Court to overturn her Honour's finding that the road surface was wet and slippery at the relevant time because it had been worn down to smoothness or because there was an area of standing water in a small depression in the road identified by Mr Griffiths (some time after the crash). It is necessary for the respondent to overturn this finding because Mr Bailey's evidence as to the critical speed at which a car might slide assumed asperities and the absence of any standing water on the road surface. 62 Even if the respondent is able to overcome this obstacle, an appellate court is not in a position to make the findings for which Mr Hull contended. Although the primary Judge recorded the opinions expressed by the experts, her Honour did not determine which of the opinions should be accepted. In particular she did not make a finding as to whether she accepted Mr Bailey's opinion that a vehicle with smooth tyres travelling at about 50 kph is only marginally more likely to slide on a wet surface than a vehicle with roadworthy tyres, provided that the road surface is not smooth or there is no standing water on the surface. While there is research material that supports Mr Bailey's opinion, his views were challenged in cross-examination and Mr Griffiths did not agree with all of them. 63 In any event, the question of whether bald tyres contributed to the crash cannot be resolved by reference only to the expert evidence. It is necessary also to take into account the evidence of lay witnesses and the observations of the police officers who attended the scene. Mr Halls, for example, said that after the Vehicle entered the roundabout he felt the back end slide towards the gutter and then noticed the appellant attempting to correct the slide. Mrs Harmer's evidence as to what she observed from her position behind the Vehicle was not entirely clear. On one view, however, it is consistent with Mr Halls' recollection that the Vehicle began to slide before the appellant accelerated. If the slide did precede the acceleration, it would support the appellant's contention that the bald tyres contributed to the crash. 64 Detective Inspector Barr said that he observed tyre burn marks leading from the roundabout to the point of the collision with the light pole. The burn marks started at the apex of the roundabout (at approximately the 9 o'clock position). This led Detective Inspector Barr to conclude that the Vehicle had been under harsh acceleration, causing the tyres to spin, thereby creating the burn marks on the surface. However, he did not observe any "yaw marks" - that is, marks left by wheels sliding across a road. He was unable to say whether the burn marks reflected an attempt to arrest a slide or whether the marks were the result of the appellant simply attempting "extreme acceleration". Mr Cranitch submitted that Detective Inspector Barr's observations, taken in combination with the lay evidence, suggested that the Vehicle had "aquaplaned" across the road surface before the appellant accelerated. According to Mr Cranitch, the "aquaplaning" would explain the absence of yaw marks, and the burn marks would identify the point at which the appellant commenced his unsuccessful attempt to arrest the slide. 65 It is not appropriate for this Court to resolve the factual issues raised by the notice of contention. 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 Mrs 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.

Road Surface Conditions 66 As I have noted, the primary Judge did not find it necessary to resolve any disagreement between the experts because she found that the road surface was wet and slippery, either because the asperities had been worn down or because there was an area of standing water in the depression identified by Mr Griffiths. There are, however, difficulties with this finding. 67 Her Honour gave no cogent reasons for concluding that the road surface was smooth, in the sense that the asperities had been worn down. The five matters identified by her (at [27] above) do not establish that the asperities in the road surface had been worn down sufficiently so as to make Mr Bailey's analysis inapplicable (assuming that his evidence should be accepted). 68 It is also far from clear that the evidence supports a finding that there was sufficient surface water present to explain a slide by the Vehicle. The respondent, for example, said that when he got out of the Vehicle he did not see any pools of water. Senior Constable Roesler, who attended the scene at 8.40 pm on 6 November 1999, very shortly after the crash, noted that the roadway was wet but said that there was no "laying water on the roadway anywhere" and no water in the gutters. 69 At the new trial, the primary Judge should make necessary findings as to the condition of the road surface in the light of all the evidence.

CONCLUSION 70 As a substantial wrong or miscarriage occurred in the proceedings at first instance, 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 (see particularly at [57], [63] - [65], [69]). 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. 71 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. 72 The orders that should be made are as follows: 1. Appeal allowed.

Set aside Orders 1 and 2 made by the primary Judge on 14 March 2008.

Direct that a new trial be held, limited to the question of whether or not the respondent is liable in damages to the appellant in respect of the injuries sustained by the appellant on 6 November 1999 at Kooringal (including, if necessary, determining whether any award of damages should be reduced by reason of the appellant's contributory negligence and, if so, by what proportion).

Subject to Order 5, direct that the new trial proceed on evidence already admitted by the primary Judge.

Direct that the primary Judge may admit further evidence upon application by either party, should her Honour consider it appropriate to do so in the interests of justice.

The respondent to pay the appellant's costs of the appeal.

The respondent to have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise entitled.

Costs of the trial and of the new trial to be determined by the primary Judge.

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