Harmer v Hare [2011] NSWCA 229 (11 August 2011)

Last Updated: 19 August 2011

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] HCA 35; (1950) 81 CLR 418, at 438 Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 6 - 7 Water Board v Moustakas [1988] HCA 12; (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] HCA 48; (2009) 239 CLR 420 at [13] Imbree v McNeilly [2008] HCA 40; (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] HCA 17; (1948) 77 CLR 39 at 46, 56 - 57 Miller v Miller [2011] HCA 9; 275 ALR 611 at [59], [63] Cook v Cook [2008] HCA 40; (2008) 236 CLR 510 at 526 Wyong Shire Council v Shirt [1980] HCA 12; (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] HCA 15; (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] HCA 19; (2008) 82 ALJR 870 at 897 House v The King [1936] HCA 40; (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

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

1. BEAZLEY JA: I agree with Whealy JA.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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".

10. 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.

11. 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.

12. 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.

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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.
23. 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.

24. 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.

25. 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.

26. 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.

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

Evidence and issues at trial

28. 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.

29. 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).

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. 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).

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. 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").

45. 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.

46. 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.

47. 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.

48. 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".

49. 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.

50. 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.

51. 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.

52. 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.

53. 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.

54. 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.

55. 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.

56. 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 ".

57. 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.

58. 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.

59. 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

60. 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.

61. 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.

62. 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.

63. 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".

64. 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.

65. 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.

66. 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.

67. 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.

68. 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.

69. 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).

70. 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.

71. 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.

72. 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.

73. 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.

74. 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.

75. 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.

76. 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.

77. 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.

78. 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.

79. 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.

80. 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.

81. 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).

82. 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.

83. 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

84. 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.

85. 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".

86. 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

87. 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.

88. 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.

89. In any event, Sackville AJA noted that the question as to whether bald tyres contributed to the crash "cannot be resolved by reference only to the expert evidence" (Red, 80). His Honour pointed, correctly, to the fact that the evidence of lay witnesses and police officers would be important in resolving this issue. At paragraph 64 (Red, 80), Sackville AJA said:-

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 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 the road. He was unable to say whether the burn marks reflected an attempt to arrest a slide, or whether 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.

Ultimately, 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 by the Notice of Contention. It would be necessary for this task to be undertaken by the primary judge, evaluating for that purpose all of the evidence (expert and lay), bearing on whether the bald tyres contributed to the crash and, if so, precisely how. His Honour said (Red, 81):-

This will require findings as to the accuracy or otherwise of the observation 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.

The second hearing in Wagga Wagga

90. As I have said, the second hearing resumed on 1 st September 2009. The primary judge had, prior to this, indicated that she would allow the tender of a further report by Mr Bailey. This was a report dated 25 th May 2009. It dealt with several matters. By far the most important was Mr Bailey's purported analysis of the evidence given by Detective Inspector Barr at the original hearing. Incorporated in the report was a diagram (based on the survey plan, Exhibit R, which had been tendered in the original hearing). This diagram contained a directional arrow indicating the notional path of the vehicle, and "clock face" terminology had been added. This diagram appears as Appendix " C " to these reasons.

91. Mr Bailey began his analysis of driver perception-response time by referring to Detective Barr's evidence as follows (Blue, 107):-

Inspector Barr stated:

He had experience in observing marks left by vehicles on the roadway...

He observed (tyre) burn marks - "they started near the apex of the roundabout and continued through the roundabout...the apex - I would describe the apex as the centre of the roundabout...

This indicates the marks commenced near the 9 o'clock position and "continued through the roundabout" through the area where a vehicle would be turning to its right, so that if the demand for lateral friction exceeded the lateral friction available, for whatever reason, the vehicle would slide to its left.

Inspector Barr characterised the tyre marks as burn marks and these could only come from the rear tyres of the rear wheel drive Ford sedan involved. Burn marks will only occur during the application of sufficient power to exceed the available tyre road friction, and cause the rear tyres to spin.

Mr Halls described the "back end slid towards the gutter... starting at about 10 o'clock position" which is after the position where Inspector Barr observed the commencement of the burn marks.

92. Mr Bailey then applied his expertise as to the likely driver perception-response time and engine response time, arising in such a situation. If the burn marks detected by Inspector Barr near 9 o'clock were a response, then he thought that the stimulus for this response would have had to occur at least 0.8 seconds previously, during which time the vehicle would cover a distance proportional to its speed, in this case, about between 6.7 to 11.1 metres. This would have placed the vehicle, he said, between 7 and 8 o'clock on the diagram (Blue, 108).

93. In this situation, Mr Bailey argued that the decision to apply strong power as a response to a perceived loss of friction when the vehicle was located between 7 and 8 o'clock could not be consistent with the physical geometry of the roundabout, or the presence of any standing water located near the flat spot in the intersection, because this was at the same location where the burn marks had been observed. His conclusions were (Blue, 108):-

Given a response time of at least 0.8 secs (and probably significantly longer during the actual conditions at the time), then the cause of the burn marks and associated loss of grip on the roadway friction at 9 o'clock must have been at least 6.7 to 11.1 metres closer to 6 o'clock. As there were no road/vehicle factors at this location to suggest a reason for the loss of control, a rational explanation was that the vehicle was travelling too fast into the roundabout and then excessive power was applied (for whatever reason) which resulted in the rear wheels spinning near the 9 o'clock position, and this exacerbated the loss of control.

94. Mr Bailey was cross-examined at the resumed hearing, and submissions were made to the primary judge to the effect that these propositions in Mr Bailey's final report ought not be accepted. The position taken by the plaintiff was that there were no "yaw marks" on the roadway prior to the burn marks, wherever it was they actually appeared (see Black, 466 - 473). The plaintiff argued that this suggested that the car had been aquaplaning prior to the heavy acceleration and supported the proposition that the car had slid to the left towards the gutter before the heavy acceleration was applied. It was put to the expert that if the back of the car had swung out, as the witnesses had said, there would be yaw which would be likely to leave yaw marks. The fact that there was no such mark would normally be consistent with contamination of the road surface by water or oil. This was the position maintained by the plaintiff in argument, as was the secondary proposition that the remainder of the evidence (apart from Detective Barr's recollected estimate) did not, in any event, support the proposition that the burn marks commenced at 9 o'clock on the diagram.

95. There was some discussion in the final address between Mr Hull and the primary judge about the possible ambiguity of Detective Inspector Barr's evidence on the location point. I shall set it out (Black, 479 - 480):-

HULL: The way the case was run on the last occasion it was that the power was applied to steer himself out of a slide created by standing water at the apex. Well, that just can't be right, just physically cannot be right and the reason that it's not right is Inspector Barr saw burn marks at the apex which continued down the road to the gutter and then went in a 180 degree turn and went all the way up to the pole where the car came into contact with.

HER HONOUR: Well, what do you call the "apex"?

HULL: Well, he called it "the middle", the centre.

HER HONOUR: What do you call it on the clock?

HULL: Nine o'clock. It's the middle, the centre, is the way he described it; the apex, it's the highest point. And in order for those tyre marks to be left there and to continue the way they did, moving towards the gutter and then around to 180 degrees, our case is that for whatever reason and we say your Honour, you can draw and inference from the evidence that the plaintiff himself gave and the evidence that his previous girlfriend gave, that his is what he liked to do. He liked to take corners and go into a slide and this is what he did on this occasion.

96. And later (at Black 499 - 500), the same topic was revisited:-

HER HONOUR: Was Inspector Barr asked to mark on any diagram where he saw the burn marks commence?

HULL: No your Honour his evidence about that is that he wasn't asked by either of us but in my submission one can't be mistaken about what he was saying...

Q: What if anything did you observe.

A: There were tyre burns marks leading from the roundabout to the accident scene.

Q: What part of the roundabout did you see these tyre burn marks appear?

Sorry, first of all what part of the roundabout did these tyre marks appear.

A: They were consistent with motor vehicles travelling from Cochrane Road and through the roundabout in the direction of travel that the vehicle was travelling just prior to the impact.

Q: 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?

I was trying to use the face clock but he didn't take up the suggestion.

They started from memory they started near the apex of the roundabout.

Your Honour of course apex means the top, and he goes on:

And continued through the roundabout.

and I stress "And continued through the roundabout into Karingal [sic] Road and leading up to where the vehicle finally came to rest.

I said, at the risk of being accused of leading him:

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

A: The apex I would describe as the apex as the centre of the roundabout coming from the Karingal [sic] Road and I'd say that the burn marks connects [sic] 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.

HER HONOUR: So what is he saying? I don't understand what he's saying.

HULL: You Honour he seems in my submission -

HER HONOUR: I had read that to mean that he was saying that the top of the roundabout coming from Karingal [sic] Road was the other end of the roundabout.

HULL: No your Honour. Not the apex with respect.

HER HONOUR: Oh he's talking about the top here. Commenced near the apex - I don't know what he means.

HULL: Well you Honour he says "I would describe the apex as the centre of the roadway and coming from the Karingal [sic] end I'd say that the burn marks commenced near the apex that is the top, the top of the roundabout".

HER HONOUR: They can't start at the top of the roundabout because that is in the middle of the roundabout.

HULL: That's what he says.

HER HONOUR: You don't drive in it do you.

HULL: But your Honour that's what he says, he means by top. The middle. And the middle is, if you take 6 o'clock as the beginning, 12 o'clock as the end, the middle is 9 o'clock.

HER HONOUR: Why would he call that the top?

HULL: Because it's the highest point your Honour.

HER HONOUR: Why is it the highest point?

HULL: You Honour if you look at the survey report it's the highest point. It just is the highest point and it's in the middle.

97. Mr Cranitch's response to the arguments advanced by Mr Hull was that the lay witnesses had suggested that the car slid to the left more towards the exit from the roundabout, and that this was consistent with the presence of aquaplaning due to surface water, at the point determined by the primary judge in her first decision. Moreover, the evidence of Senior Constable Roesler and her drawing (however crude it may have been) demonstrated that the burn marks began in a very different position from that recalled by Detective Inspector Barr, if he had in fact been referring to 9 o'clock on the sketch of the intersection. The plaintiff's case, consistently, had always been that the slide was not caused by the application of power, and that it occurred prior to the heavy acceleration. On his case, the acceleration was an urgent but acceptable manoeuvre designed to overcome the emergency situation of the aquaplaning of the car, caused by the presence of water on a smooth surface. The absence of yaw marks was absolutely consistent with a loss of contact or traction with the roadway.

The primary judge's second decision

98. I turn now to examine her Honour's reasons for judgment in the decision delivered on 14 th April 2010. The primary judge examined a number of issues and made extensive findings supported by carefully expressed reasons. Consistently with the directions of the Court of Appeal, her Honour posed for herself a number of tasks that she was required to address. These were (paragraph 2 of her Honour's judgment):-

1. Express findings concerning the credit of certain witnesses and the extent to which their evidence was accepted or rejected.

2. Further consideration of the expert evidence concerning the cause of the accident with a definite determination as to which of the experts was to be accepted. Determination of this matter required further consideration of the evidence of police and lay witnesses.

3. Further assessment of the evidence on the issue of whether the plaintiff knew that the tyres on the defendant's vehicle were bald.

4. Reassessment of the defendant's responsibility, if any, for the crash.

5. Reassessment of the plaintiff's responsibility, if any, for the crash.

99. The primary judge's decision followed a tightly structured course. The reasoning was densely expressed and covered, as I have said earlier, some 37 pages. In view of the width of the attack on her Honour's factual findings and, indeed, on legal issues underlying those findings, it is necessary to examine the reasoning with some care.

100. Her decision began with some general observations on the credit of both the defendant and his wife, Ms Harmer (Red, 88). In this section, the primary judge was critical of both witnesses in relation to their failure to provide information sought to be given in evidence at trial, when the substance of that evidence had not been raised despite earlier opportunities having been available to them. Moreover, inconsistencies in their evidence persuaded her Honour that she should not accept aspects of it unless it were independently supported. Her Honour stated that she would examine the evidence of each in more detail when analysing the evidence relating to the issues that were required to be either redetermined or reassessed.

101. The primary judge then repeated in some considerable detail the evidence that had been given by each of the experts. At paragraph 7 of her Honour's judgment, she referred to the central question raised by the expert evidence in this way (Red, 89):-

The dispute between the experts related to the question of whether the road conditions at the time of the crash were such that the smooth tyres on the vehicle were a substantial cause of the accident. This dispute concerned the condition of the road surface, the extent to which it might have been covered by water and the behaviour of tyres on a wet road.

102. Having stating the question in this way, her Honour then first examined, in considerable detail, the evidence given by Mr Bailey. This required her to examine, as well, the police report he had been given, the diagram in Senior Constable Roesler's notebook, and the statement made by Ms Harmer, immediately after the collision. It also required the primary judge to refer to the later statement by Ms Harmer when, for the first time, she mentioned that the plaintiff had accelerated "very hard" into the roundabout. (These had been the documents referred to by Mr Bailey in his first report). She summarised a number of his original propositions (Red, 91 - 92). First, that in the absence of mechanical failure, loss of steering control occurred when the friction between tyres and the road surface was insufficient to resist the loads placed upon it by the vehicle. Secondly, that frictional force between the road and the tyre, Mr Bailey had said, developed from two primary interactions between the road surface and the treaded portion of the tyre. The first of these was hysteresis resulting from deformation and compression of the tyre. This was not greatly affected by a wet road surface, because deformation of the tread continued without change. The second frictional force, however, was that of adhesion between the rubber tyre tread and the bitumen road surface. Mr Bailey had said that the friction developed by adhesion "was substantially reduced even with minimal contamination by water or other material".

103. In relation to hysteresis, Mr Bailey noted that, as the tread of a tyre became thinner, the friction developed by hysteresis was reduced. This loss of friction was significant and noticeable when tread depth fell from that of a new tyre (6 to 7 millimetres) to 1.5 millimetres, the point at which tyres were no longer legally roadworthy. The difference between 1.5 millimetre tread depth and completely smooth tyres, he said, was minimal.

104. Thirdly, Mr Bailey had accepted that the main reason why tyres must be replaced when minimum tread depths are reached was because a smooth tyre was likely to initiate aquaplaning when travelling through standing water (Red, 92 - 93). The tendency to aquaplane increased rapidly with increasing speed. However, if standing water was not present on a roadway, and the road surface microtexture was in adequate condition to maintain normal contact, then only slight loss of friction would occur with the wetting of the road surface.

105. Fourthly, Mr Bailey had estimated the point at which the plaintiff lost control of the vehicle to be near to the exit of the roundabout when the rear of the vehicle swung towards the kerb (Red, 93). In this area, he had said there was a substantial cross fall that precluded the possibility of standing water in that part of the roundabout during the assumed rainfall conditions at the time. Thus it was, Mr Bailey had expressed his view that, in the absence of standing water, there was no significant possibility that the vehicle had aquaplaned.

106. Her Honour then examined the views of Mr Griffiths (Red, 93 - 96). I have set these out earlier. They had led Mr Griffiths to conclude, on the basis of the assumptions he made, that it was highly likely that the bald tyres were a significant contributing factor to the cause of the crash.

107. Her Honour then took up the criticisms made by Mr Bailey of the views which had been expressed by Mr Griffiths (Red, 96 - 98). These were, firstly, that the report relied on by Mr Griffiths quoted from tests that demonstrated that the sudden decrease in grip at speeds of 50 kilometres per hour, with tread depths below 1 millimetre, occurred on smooth concrete wet roadway. Mr Bailey argued that the road surface seen in the police photographs showed that the surface was asphaltic concrete. So it was he expressed the opinion that there was likely to have been "minimal reduction" in grip for the vehicle, notwithstanding the smooth condition of the tyres.

108. Secondly, Mr Bailey's proposition was that wet road conditions reduced grip only to a minor extent, on the basis that there was no possibility that standing water had been encountered by the subject vehicle, and the speed at which the vehicle had been travelling was less than 50 kilometres per hour. Her Honour referred to the material Mr Bailey produced to support these arguments and to the fact that he, as a consequence, maintained his original opinion that the road conditions were not such so as to cause a very high loss of grip, as Mr Griffiths had thought. She noted that his opinion had not altered throughout the proceedings. In his view, the most significant factor in causing the crash was "continued strong acceleration by the plaintiff in a highly powered vehicle" (Red, 98).

109. Her Honour then turned to the response that had been made by Mr Griffiths. This report, it will be recalled, had listed the areas in which he and Mr Bailey were in agreement. It had then pointed out, in the areas where they were not in agreement, that the assumptions upon which each were acting had been different. Mr Griffiths stated that the ultimate determination as to whether the assumptions upon which he had based his opinion were made out really depended upon the evidence presented to the court, and to the court's determination of those matters. The three "assumptions" referred to by Mr Griffiths were as follows (paragraph 35 of her Honour's judgment):-

The road surface was wet (wet enough to behave as a wet road surface).

The driver entered the roundabout at a normal speed for wet road conditions with tyres with good tread depth.

The driver had no prior knowledge and no reason to believe that the tyres on the vehicle were bald.

110. An important part of her Honour's subsequent analysis was the recognition that the contest between the experts could really only be determined by reference to the evidence of actual conditions at the time of the crash. Thus it was that her Honour set about examining the evidence to establish, first, whether the road surface was wet and, if so, to what extent. Secondly, she examined the important issue as to the probable condition of the road surface. As to the first, after examining the evidence from the Bureau of Meteorology, she concluded that, although this material showed that rain had fallen in Wagga Wagga that day, the records were "indicative only" of the likely conditions at the roundabout, which was some distance from the weather station.

111. More significantly, her Honour placed reliance on the evidence of Mr Halls, Ms Harmer, Senior Constable Roesler and Detective Inspector Barr. Each of these had said that the road was wet, although it had not been raining precisely at the time of the accident. Although the police officers did not see standing water in the area of the road they had inspected, they did not examine the road within the roundabout at the point where it was claimed that the rear of the vehicle slid to the left. Her Honour concluded that the road was wet from rain that had fallen shortly before the crash. In this context, the primary judge referred to the evidence of Mr Halls and Ms Harmer (Red, 100). Mr Halls had said that the roundabout was slippery to drive on when wet, and he had described its appearance on other occasions as glazed, glassy and shiny when wet. Ms Harmer had said in her July 2002 statement that the road was both wet and shiny at the time of the crash.

112. Her Honour correctly identified the question arising from all this evidence, namely, whether Mr Griffiths' first assumption had been correct. She asked: was there sufficient water covering the road in the roundabout at the time of the crash, so as to cause the smooth tyres on the vehicle to lose traction?

113. As part of the same issue, her Honour also examined the evidence in some detail as to the condition and topography of the road surface. A significant difference between them was that, while Mr Bailey had identified cross falls in the area near the exit to the roundabout and on Kooringal Road (where it was unlikely that standing water would remain), Mr Griffiths had pointed to a survey drawing that indicated that there was a band forming a 10 millimetre depression that was likely to retain water in the road surface in the roundabout at a particular point. Mr Griffiths acknowledged that this survey was not a recent one. He also accepted that there were cross falls in the areas indicated by Mr Bailey. Nevertheless, her Honour thought that, despite these rather conjectural differences of opinion, neither witness was in a position to comment accurately on the precise nature of the road surface at the time of the accident. Mr Bailey, in particular, had relied on photographs taken 2 days after the crash. These suggested to him that the road surface was in reasonable condition. On the other hand, Mr Griffiths thought that the police photographs were simply not clear enough to enable an accurate assessment of the quality of the road surface. Although asperities could be detected in the photographs, he said, there was no accurate way of ascertaining the degree to which they were worn. Mr Griffiths, however, thought that the description of the road surface as "shiny" when wet rather supported the proposition that very little water would be necessary to act as a contaminant so as to make the road surface behave as a wet road surface.

114. The primary judge noted that, against the position taken by Mr Bailey, the plaintiff's case was that the rear wheels of the vehicle lost traction at a point still within the roundabout, and that the tyre marks noted by the police appeared "at a later point in the vehicle's path of travel, after he had accelerated in an attempt to power out of the slide" (Red, 101). This suggested to her Honour, if the evidence supported the assertion, that the area of the road surface to be considered was clearly within the roundabout itself.

115. As to this, there was, as I have said, no direct evidence of the condition of the surface of the road within the roundabout itself. Her Honour thought, however, that the evidence enabled her to conclude that "it was almost certainly worn" (Red, 101).

116. In this context, her Honour contrasted the evidence of Mr Bailey when he had described the road surface on the northern entry to the roundabout (that is, proceeding in the opposite direction to which the plaintiff had been travelling) and the lay witnesses' description of the road surface for the roundabout travelling south to north. Mr Bailey had said that the photographs showing the northern entry to the roundabout depicted areas as "shiny, wheel track areas" that indicated to him that the road surface in that area was worn, in a manner likely to have been caused by vehicles braking when approaching the roundabout. He accepted that this type of glazed surface was likely to be an area where water might stand. Mr Bailey's point was that the photographs showing the area of the roundabout where the plaintiff had been travelling did not appear to exhibit the same shiny or glazed look. As to this, however, her Honour said (at paragraph 49):-

The road within the roundabout was resurfaced within one week of the crash. The undertaking of such major roadworks within such a short period suggested that they were not carried out as a reaction to the crash. Rather, it suggested that the road surface was sufficiently poor to warrant resurfacing. It lends consistency to the descriptions of Mr Halls and Ms Harmer of the road surface within the roundabout as shiny and glassy.

117. In addition to these observations, her Honour noted the evidence of local witnesses that, on balance, suggested to her that the roundabout was "smooth and easy to slide out on" when wet (Red, 103).

118. Her Honour then set herself the task of making an overall evaluation of the differences between the two experts. This, in turn, required her to revisit certain evidence of the defendant and Ms Harmer, evidence which she had already indicated she would reject. It also required her to re-examine the evidence of Detective Inspector Barr and Senior Constable Roesler. Before doing this, however, the primary judge returned to the expert evidence. Part of her Honour's reasoning focussed upon areas in which Mr Bailey had appeared to change his original position, or at least in which he had not been consistent, or in which had failed to examine possibilities which would have been relevant to the reliability of the opinions he expressed. For example, he did not consider the possibility that the road surface might be worn down, but not reduced to the point where it had the characteristics of smooth concrete. Secondly, he had given an initial definition of standing water as "water... to the level of the aggregate/stones on the road surface", but subsequently stated that the water should "stand above the level of the asperities". These were not major inconsistencies but they had the capacity to undermine the reliability of the expert's opinions.

119. It is fair to say that her Honour did not altogether base her ultimate preference for Mr Griffiths' evidence on these changes of position or inconsistencies. Rather, she appeared to regard them as matters that were not particularly helpful to the final decision she had to make. There is no need for me to set out each of the areas where her Honour noted areas of inconsistency in Mr Bailey's approach. It is clear, however, that her Honour thought that Mr Griffiths' opinions were the more helpful, precisely because they were based upon assumptions that were borne out by the evidence from local witnesses who either saw the roundabout that evening, or were familiar with it. On the points of difference between the experts, the primary judge noted that there was common ground between them that tyre traction was affected by the degree of wetness, by water covering the road, and the nature of the surface itself. Her Honour then said (at paragraph 58):-

Mr Griffiths did not agree that it was essential to have standing water to cause a loss of traction. Nor did he agree that the presence of asperities and the absence of standing water would result in minimal behavioural differences between smooth and minimally treaded tyres. He said that the situation was not that straightforward, and much depended upon the condition of the road surface and the extent to which it was worn.

120. Her Honour thought that this approach had much to commend it "from a practical common sense point of view" (Red, 106). She said that, "taking into account the changes in position and inflexibility demonstrated by Mr Bailey, she preferred the approach taken by Mr Griffiths". In this regard, she concluded (at paragraph 60):-

1. The capacity of a tyre to maintain its grip both through adhesion and hysteresis on a road surface was significantly and noticeably reduced when the tyre was smooth and further reduced when the road surface was wet and worn.

2. The road was wet at the time of the accident.

3. Its glazed or shiny appearance indicated that water covered the asperities in the road surface.

4. The descriptions of witnesses of slippery conditions within the roundabout when wet and evidence indicating that the road surface was substandard established the probability that sufficient water was present within the roundabout to reduce the frictional capacity of the tyres on a motor vehicle.

121. Her Honour concluded, therefore, that Mr Griffiths was correct to assume that the road surface was wet enough to behave as a wet road surface.

122. Her Honour then examined Mr Griffiths' second assumption, namely that the plaintiff had entered the roundabout at a normal speed for wet road conditions with tyres with good tread depth. Her Honour repeated that the experts had agreed that the plaintiffs travelled "at less than the critical speed within the roundabout". This indicated, as she had said in her first decision, that speed had not been the cause of the crash, and that accordingly there was evidence to establish the second of the assumptions relied upon by Mr Griffiths.

123. Having made this finding, her Honour then identified the situation as follows (paragraph 64):-

It left open two possibilities as to the cause of the crash:

(1) As contended by the plaintiff, the combination of smooth tyres and a wet and worn road surface and water leading to a loss of traction; or

(2) As contended by the defendant, heavy acceleration applied to the vehicle on entry to the roundabout causing the wheels of the vehicle to spin to the point where traction was lost.

124. It examining these two possibilities, the primary judge, as I have said, revisited the evidence of Ms Harmer. It will be recalled that this witness had said the plaintiff "accelerated into the roundabout" ahead of a vehicle approaching from a road to his right, and continued to accelerate heavily whilst in the roundabout. Her Honour noted that Senior Constable Roesler's evidence (based on evidence from a nearby resident) that the vehicle's engine was heard to rev shortly, followed by the sound of the impact, was equally consistent with the assertion made on the plaintiff's behalf, that he had accelerated in an effort to power out of the initiating slide, and not as claimed by Ms Harmer.

125. Her Honour examined the contents of the various statements made by Ms Harmer in some detail. This examination, together with the earlier findings of "significant animosity towards the plaintiff", persuaded her Honour that she should not accept Ms Harmer's statement of excessive acceleration by the plaintiff as he entered the roundabout "in the absence of evidence that supported it" (Red, 109). Similarly, the evidence of the defendant, in which he had said the car started to slide from the left "as it entered the roundabout", was not accepted by her Honour. The defendant had said nothing to this effect when providing his 2002 statement. Without support, her Honour said that this aspect of the defendant's evidence simply could not be accepted (Red, 110). In addition, Mr Bailey's report had dealt with the improbability that the vehicle slid to the left as it entered the roundabout. The topography and likely lateral forces did not support that probability.

126. The examination of the evidence to this point brought her Honour once again to the evidence of Detective Inspector Barr. Mr Bailey, it will be recalled, had relied on his interpretation of Detective Inspector Barr's evidence to support the proposition that there were burn marks on the road at the half way point (or 9 o'clock position) within the roundabout. This led Mr Bailey to conclude that the stimulus for the response represented by the heavy acceleration must have occurred much earlier in the roundabout. This was the basis for Mr Bailey's opinion that the slide could not have been the stimulus that initiated the burn marks. Rather, it was acceleration at an earlier point in the roundabout that led to the loss of control then represented by the spinning wheels which in turn caused the burn marks. It is necessary to quote at some length from her Honour's decision to fully understand her response to the argument based on this interpretation of Detective Inspector Barr's evidence. The particular passages occur between paragraphs 72 to 82 of the decision:-

72. I was not persuaded by this further material to depart from my initial conclusion that the sliding of the rear of the vehicle preceded the spinning of the wheels under the heavy acceleration.

73. Mr Halls and Mrs Harmer both spoke of a slide of the rear of the vehicle to the left towards the exit point of the roundabout. Both said that the plaintiff accelerated in response to the slide. The defendant agreed that his warning to the plaintiff not to plant it was given after the rear of the car began to slide and after the wheels started to spin.

74. Significantly, I did not understand Detective Inspector Barr to state that he observed burn marks commencing at the 9 o'clock position. Mr Bailey did not set out in his report the entirety of Detective Inspector Barr's response to the question of what he meant by the term apex . He said (Black 229.15):

The apex - I would describe the apex as the centre of the roundabout, and coming from the Kooringal Road end I'd say that the burn marks commenced near the apex of the roundabout, which is the top of the roundabout.

75. I did not consider that this statement could be interpreted as meaning that the top of the roundabout was at the 9 o'clock position.

76. Senior Constable Roesler said she saw markings on the roadway that indicated... as it's come out of the roundabout from markings on the roadway the vehicle's travelled near to the gutter and then it's kicked back 180 degrees into the pole. (Black 275.6). Further, accepting that the diagram prepared by Senior Constable Roesler was crude , it provided no indication of the tyre marks extending half way into the roundabout to the 9 o'clock point.

77. Mr Bailey's analysis did not explain the absence of yaw marks in the area of the slide described by Mr Halls and Mrs Harmer if that slide occurred after the burn marks were initiated. Detective Inspector Barr described a yaw mark as (Black 230.30):

A. A yaw mark is if - during a collision if the wheel - front wheels in particular have been turned the wheels would actually slide across the road and put a yaw mark on the road. The same as if the rear of the vehicle had slid out there is a different type of mark on the road with a vehicle rotating. And the width of the mark increases by the degree of slide of the vehicle. I saw no evidence of that. The marks on the road I saw that evening lead me to believe that they were caused by the rear wheels spinning on the road, not braking on the road.

Q. No braking and not yawing?

A. No.

78. Mr Bailey, in evidence to the court on 1 September 2009, stated that the sliding of the rear of a vehicle, so that there was forwards and sideways movement, was very likely to result in a yaw mark. He said no yaw mark would be created if the cause of the sliding of the vehicle was contamination by a substance such as oil or by water resulting in aquaplaning.

79. As a result I rejected the contention that heavy acceleration by the plaintiff from the time the vehicle entered the roundabout was the cause of the crash. There was evidence that supported the contention that the stimulus that resulted in the application of heavy and continued acceleration was the sliding of the rear of the vehicle to the left. On Mr Bailey's analysis cross falls and lateral forces were such that the vehicle would not slide in that direction at the entry point to the roundabout.

80. The absence of a yaw mark resulting from this slide indicated that there was no contact between the tyres on wheels that were moving forwards and sideways. There was no evidence that this lack of contact was the result of contamination by a substance such as oil. There was evidence that the road surface was substandard and that it was wet, shiny in appearance and slippery.

81. There was evidence that the adhesive frictional capcity of any tyre was substantially lost with minimal contamination by water and of significant and noticeable loss of friction through hysteresis when the tread depth of a tyre was reduced to 1.5mm, greater when the tyres were completely smooth.

127. Her Honour concluded (paragraph 82) that, on the balance of probabilities, the stimulus to the application of the acceleration that led to the crash was "the sliding or aquaplaning of the tyres on the wet, substandard surface of the road within the roundabout and that bald tyres on the vehicle were a substantial contributing factor in the loss of contact between the tyres and the road in those conditions". This finding resulted in the rejection of the case the defendant had sought to make based on the various approaches argued by Mr Bailey. It was an acceptance of the case that had been consistently urged on the plaintiff's behalf.

128. Her Honour then turned to address the next important question required by the Court of Appeal's decision. This was whether the plaintiff did or did not know that the tyres on the defendant's vehicle were bald. It will be recalled that her Honour's original error had been that she had misunderstood a remark made by the plaintiff when he had given his evidence at the first hearing. This error had been identified by Sackville AJA at paragraph 57 of the Court of Appeal's first decision in these terms:-

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.

129. The primary judge examined this important issue at paragraphs 83 to 96 of her second decision. Her Honour began this analysis by acknowledging that, contrary to her initial findings, there was no reliable evidence from the plaintiff himself about his knowledge of the condition of the tyres on the vehicle. While there was evidence that the plaintiff was familiar with the vehicle, and had driven it, there was evidence that it had been off the road for a month prior to the crash and that, during this period, it had been kept at Ms Harmer's home. The defendant had worked on the vehicle to prepare it for registration. But the plaintiff did not work on the vehicle during this period, and in any event, it was registered until 11 th November 1999. There was evidence that the defendant had purchased new tyres for the vehicle some 8 months prior to the crash. Her Honour noted that, in ordinary circumstances, it would not be expected that they would be worn to the point where they were completely smooth within those 8 months, notwithstanding that the defendant travelled long distances in the course of his work as a roofer (Red, 115).

130. Her Honour next examined the inferences that might arise from the fact that Mr Halls had given evidence that the tyres collected from his grandfather's home had some tread on them, and that the plaintiff and his companions intended to "burn off this tread" in the course of their proposed expedition to the area near the airport. This was the "other plank" referred to by Sackville AJA. The primary judge said that this evidence, if accepted, did not lead her to draw an inference adverse to the plaintiff that the tyres were to be exchanged because those on the defendant's vehicle had no tread that could be burned off. Her Honour correctly noted that the evidence was equally consistent with an inference that the purpose of the tyre exchange was to preserve the tread on the defendant's tyres.

131. In relation to the defendant's evidence that he had told the plaintiff that the tyres on his vehicle were "no good", her Honour positively rejected this evidence as an invention (Red, 117). That was her view at the first hearing, and it remained her position at the second hearing.

132. Similarly, her Honour once again rejected the evidence as to the alleged conversion at Ms Harmer's home. She reaffirmed her rejection of this evidence and gave detailed reasons why this was so. These related to the inconsistencies of evidence given by Ms Harmer, the fact that she made no mention of these conversations in her statements, and that, in any event, there were inconsistencies in the evidence provided by Ms Harmer and the defendant in this regard. So far as the defendant's evidence on this point was concerned, she rejected it for similar reasons. One important matter of inconsistency was the fact that Ms Harmer said that, after she had addressed the plaintiff in no uncertain terms about the condition of the tyres on the car, he had then taken the keys and started the car. The defendant, to like effect, had said that his argument with Ms Harmer continued after the plaintiff took the keys and went outside to reverse the car onto the road. However, the clear evidence was that Ms Harmer actually moved her car to allow the plaintiff to drive the defendant's vehicle out on to the roadway. This fact was entirely inconsistent with the evidence of both the defendant and his wife.

133. In the final section of her analysis on the issue of the plaintiff's knowledge, the primary judge said (paragraph 95):-

I took into account the evidence that the car was off the road for one month prior to the crash and that the plaintiff did not work on it during that period. The purpose for having it off the road was to prepare it for registration within five days of the crash. There was no evidence, apart from that of the conversation of Ms Harmer that was rejected, that the plaintiff was warned that the tyres were not roadworthy. There was no evidence that the plaintiff was told that the tyres on the vehicle, even had he been aware of their condition before it was taken off the road, had not been replaced.

In the light of these factors, I find that the plaintiff did not know at the time of the crash that the tyres were bald.

134. In the final two sections of her decision, the primary judge examined the responsibility of both plaintiff and defendant for the crash. It will be necessary to consider in detail these sections of her Honour's decision when I come to examine the grounds of appeal. As to the defendant's situation, her Honour noted that he did not seek to deny that he was aware that at least the rear tyres on the vehicle were bald. His response to the risk that the condition the tyres presented had to be judged, her Honour thought, by reference to section 5B of the Civil Liability Act 2002 . In this regard, her Honour said that the defendant's conduct "must be measured against what might reasonably be expected of a reasonable person in the position of the defendant" (Red, 121). Reasons were given as to why the defendant could not 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. Her Honour said (paragraph 101):-

I find the defendant was in breach of his duty of care to the plaintiff in failing to prevent him from driving his vehicle when it was not roadworthy and in failing to warn him of the risk of harm involved driving the vehicle with bald tyres on a wet road.

135. As to the plaintiff's responsibility, her Honour acknowledged that the plaintiff submitted that there should not be a finding of contributory negligence on the basis that he was not aware that the tyres were bald. Her Honour said (paragraph 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 registration. I consider 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... Having regard to his failure to do so, I assessed his contributory negligence at 25 percent.

Damages and leave to re-open

136. I turn then to the next chapter in this lengthy litigation. Her Honour, it will be recalled, had adjourned the proceedings for final clarification of the figures on damages. The defendant, displaying perhaps the resolute quality that appears to have permeated its approach to the case, sought leave to reopen so that it might lead further evidence from Detective Inspector Barr on the "apex" issue. The motion included a letter and diagram from the police witness. The letter to the defendant's solicitor (omitting formal parts) was as follows (Red, 147):-

George, have sent the required docs by fax a short time ago... I hope the docs assist. As I said last night, the apex of the roundabout is directly related to direction of travel through the roundabout, as the 360 degree traffic control using the direction of travel, in my opinion, is really the only way to identify the correct apex.

137. The copy document annexed to the letter showed the diagram of the roundabout containing a directional arrow and "clock face" (see Appendix " D "). The note written on it (presumably by the witness) stated (Red, 150):-

I identify the apex of the roundabout as number 9. I base this opinion on the direction of travel as Mr Hare's vehicle went through the roundabout... In my opinion the apex of the roundabout (being a 360 degree circle) is directly related to direction of travel.

138. Her Honour's judgment (in refusing leave to reopen) repeated the history of the proceedings. In particular, there was reference to the fact that the defendant had been allowed to lead further evidence from Mr Bailey after the matter had come back from the Court of Appeal. Her Honour noted that the further evidence of Mr Bailey had been based on evidence given in the initial hearing by Detective Inspector Barr. It concerned the point at which the latter claimed to have observed tyre marks on the road when he inspected it after the crash. Her Honour acknowledged that, in her April 2010 decision, she did not accept that Detective Inspector Barr's reference to the apex of the roundabout was intended, as assumed by Mr Bailey, to refer to the position nominated as the 9 o'clock position on the circle comprising the roundabout. (This observation was consistent with the discussion during argument with counsel that I have earlier mentioned).

139. Her Honour then accurately identified the fact that the leave application was designed to allow Detective Inspector Barr "to state that he had been referring to the 9 o'clock position when he spoke of the apex at the roundabout" (Red, 154). Her Honour identified the principles of law that were relevant to the outcome of the application.

140. Applying those principles to the application, her Honour firstly noted the late stage at which the application had been made. She noted "there had been two hearings and one appeal to date in the proceedings". Moreover, she said that the application was made to deal with evidence that had been "ambiguous" (Red, 156). Her Honour said that the defendant "had chosen the interpretation that favoured his position, without considering whether, given that Mr Bailey's opinion depended on it, leave to lead the evidence now proposed should have been applied for at the time that application was made in respect of the further evidence of Mr Bailey" (Red, 156). Her Honour noted that the plaintiff had been seriously disabled by the injuries he sustained in the crash, and that litigation concerning his claim had already extended over a number of years. She was conscious of the fact that further delay and expense would be incurred if Detective Inspector Barr were allowed to be called to give the proposed evidence, and to be cross-examined.

141. Her Honour said that, most significant for her decision to refuse leave to reopen, were the reasons she had given on 14 th April 2010 for rejecting the further opinion evidence of Mr Bailey, that the point at which the vehicle initially commenced the slide preceded the 9 o'clock position within the roundabout. In this regard, her Honour said that Mr Bailey's opinion (and Detective Inspector Barr's evidence to support it) was inconsistent with the evidence of Mr Halls and Ms Harmer that the slide to the left commenced towards the exit point of the roundabout. In addition, Ms Harmer had said that the plaintiff accelerated after the slide had occurred. In addition, the defendant himself had said that he had warned the plaintiff not to accelerate "after the slide occurred" (Red, 157).

142. Moreover, her Honour placed reliance on the diagram of Senior Constable Roesler. Although it had been acknowledged to be "crude", it nevertheless indicated that the tyre marks on the road were "some distance from the 9 o'clock position in the roundabout" (Red, 157). Finally, her Honour made reference to the fact that there were no yaw marks at the point where, on the Bailey hypothesis, the slide commenced. For that hypothesis to have value, her Honour noted that yaw marks would have been expected to be present in that position and they were not.

143. A combination of these matters led her Honour to make this final statement (paragraph 15):-

In the 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 issues in the proceedings.

144. The application for leave was, as I have mentioned earlier, dismissed.

Two preliminary matters

145. Before addressing the specific grounds of appeal, it is necessary to mention two other matters that arose during the hearing of the appeal. The first was an application made by the appellant seeking leave on the hearing of the appeal to amend his Notice of Appeal by adding a further ground. The second related to a motion filed in the appeal on 1 st September 2010, asking for permission to call evidence pursuant to the provisions of section 75A(7) and (8) of the Supreme Court Act 1970 . The court heard submissions on both these applications during the hearing of the appeal, and declined to grant either of them. I shall state my reasons for joining in the orders made by the court.

Application to add a further ground of appeal

146. The appeal was listed for hearing on 4 th and 5 th April 2011. On 31 st March 2011, an addendum to the appellant's submission was prepared, which attached a proposed Amended Notice of Appeal. The new ground of appeal was ground 4A, set out in the document as follows:-

4A. The learned trial judge erred in finding the appellant negligent:

(a) When her Honour failed to find that the appellant's breach (if the findings in relation to the breach stand), caused the respondent's personal injury;

(b) In circumstances where there was no evidence that the appellant's breach (if the findings in relation to the breach stand), caused the respondent's personal injury; and

(c) By failing to ask whether the provisions of s.5D Civil Liability Act 2002 were satisfied in the circumstances.

147. Although the further submissions in support of the proposed amended ground are stated to relate to "causation", it is clear that they are directed (as is the ground) to a number of specific aspects of the issue of causation. The central proposition is that, if the defendant in fact owed the plaintiff a duty of care, and if the need for reasonable care had required a warning that the tyres were bald, then a determination of negligence based on the failure to warn would require a finding that the omission caused the particular harm. The complaint is that there is no finding to that effect in the primary judge's decision. It is submitted that this absence is crucial: Neal v Ambulance Service of New South Wales [2008] NSWCA 346 at [33] - [40] per Basten JA (Tobias JA and Handley AJA agreeing). Moreover, the written submissions continue by asserting that there was no evidence before the primary judge to demonstrate that the absence of a warning was causative. Further, it is submitted that the plaintiff did not establish, on the balance of probabilities, that the absence of a warning from the defendant was a necessary condition of the occurrence of the harm (ie factual causation - section 5D(1)(a)). Finally, there is an argument based upon the scope of the defendant's liability. In this regard, the defendant submitted that there was no evidence that any warning would have caused the plaintiff not to drive the car, nor to drive it in any different manner. In these circumstances, it was alleged that "the harm suffered is beyond the appropriate scope of liability".

148. The first matter I would refer to is the extreme lateness of the application to amend the grounds of appeal. Mr Campbell SC (with Mr Hull) argued the case on appeal. He endeavoured to persuade the court that the causation issue raised in the March 2011 application to amend was, in fact, traversed in the submissions during the first trial, in 2009. A reading of the transcript, however, does not bear out the proposition that the precise matters sought to be raised by way of amendment were, in fact, argued. It is true that a causation issue related to contributory negligence was raised, but this was in the context of the defendant's submission that the plaintiff's method of driving the motor vehicle was the sole cause of the ultimate collision with the power pole. It involved the related submission that the plaintiff knew that the tyres were bald when he embarked on the journey. Essentially, what was argued was that there was no causal relationship of the kind asserted in the pleadings, because the accident had been caused solely by the careless driving of the plaintiff, unrelated to the bald tyres. This was a very different argument from that sought to be advanced in the proposed amendment. As the submissions I have summarised demonstrate, the new argument is that, assuming there was a breach of duty on the part of the defendant as alleged, causation has not been established, because the plaintiff would not have acted in any different way than he did. The defendant had never accepted at trial a possibility that the plaintiff would succeed on the issue of breach as he alleged it to be. Consequently, the argument was never framed in this way.

149. I am not satisfied that, at either the first or the second trial, this precise issue was raised either directly or indirectly. I am not satisfied that it was ever enunciated in such a way as to require the primary judge to make a finding about it. The fact that there is no such finding in either of her Honour's judgments is, in the present matter, simply an indication of the fact that the issue was not raised before her. Moreover, the issue was not raised in this court when the defendant was first allowed to ventilate his Notice of Contention back in April 2009. A fair overall assessment is that none of the matters sought to be relied on in the amended grounds of appeal were raised and put in issue at either of the two trials. Nor were they raised in the first appeal in this court.

150. The question which arose was whether they should be permitted to be raised in this appeal. The general proposition is that a party is bound by the conduct of his or her case at trial ( University of Wollongong v Metwally (No. 2) (1985) 60 ALR 68, at 71). I acknowledge, however, that a point may be raised for the first time on appeal. This may occur where the point could not possibly have been met by evidence led at the trial below ( Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, at 438; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, at 6 - 7), or where it is in the interests of justice and would not cause prejudice to the respondent ( Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491, at 498). The present application is in a very different category than this, in my opinion. This issue was raised for the first time only a matter of days before the second appeal, when, if it had been raised at the first appeal, it may have been determinative of the appeal, if correct. Moreover, it was not a matter that had been raised in either of the two hearings, extending back over a period of many years. It did not directly arise on the pleadings. Had it been raised at trial, there may well have been evidence called to address it.

151. Mr Campbell SC stated from the bar table that it had always been the defendant's intention to raise this causation issue, but that, for reasons that could not be satisfactorily explained, this part of the argument simply "dropped" out of the appeal document. Senior counsel accepted, I think, that this was scarcely an adequate explanation. This is particularly so in light of the full court's remarks in University of Wollongong v Metwally (No. 2) (at 71):-

Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

152. For all these reasons, I did not consider it in the interests of justice that the proposed amendment be allowed. The need for finality of these extensive and costly proceedings overshadows any suggested litigious disadvantage sustained by the defendant by reason of the court's refusal of the amendment.

Application to hear evidence of the witness

153. The defendant sought to adduce evidence before this court pursuant to the provisions of section 75A of the Supreme Court Act 1970 . The section is in the following terms:-

75A Appeal

...

(7) The Court may receive further evidence.

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.

154. In considering whether 'special grounds' exist, the court generally starts with the test formulated by Clarke JA (with whom Sheller JA agreed) in Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, where his Honour said:-

Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.

155. It is, however, now accepted that failure to satisfy one of these grounds is not fatal ( Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 per Heydon JA at [14] (with whom Mason P and Young CJ in Eq agreed); Hampson v Hampson [2010] NSWCA 359 per Campbell JA (with whom Giles JA and Handley AJA agreed)). Spigelman CJ in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [10] summarised the position thus:-

Clarke JA's reference to "in general" expresses an understanding that, even if one or other of the "conditions" is not met in a particular case, nevertheless "special grounds" may be capable of being shown, by reason of the fact that other considerations overwhelm the failure of one or other of the "conditions" in the particular circumstances.

156. And later, the Chief Justice said (at [27]):

... It is the duty of the Court to apply the statutory formulation whilst acknowledging that the case law has identified the facts and matters that are often required to be taken into account in formulating the judgment for which the statute expressly provides.

157. The further evidence sought to be adduced was that of Detective Inspector Barr. The purpose of the evidence was to make it clear where, according to his recollection, the tyre burn marks he observed on the roadway on the night of the accident commenced. In his affidavit, he said, "they started near the point numbered 9 o'clock on the diagram" annexed to his affidavit. This evidence was designed to throw light upon what the witness meant when he described that point as "the apex of the roundabout" in his evidence at the trial. He had described the apex, it will be recalled, as located "at the top of the roundabout". The defendant submitted that this evidence was important because of the trial judge's finding that the apex of the roundabout is "at the head of the roundabout on its northern side". This finding is challenged elsewhere in the appeal. It is, for example, one of the factual findings challenged under grounds 1 and 2. The defendant pointed out that in its written submissions, if the challenge were made good, it would be unnecessary for the court to consider whether the further evidence should be received.

158. There was some discussion before this court as to whether the determination of the application to adduce further evidence should be heard before or after the court's determination as to whether the appeal ground relating to the challenge to the "apex" finding has been made good. There were actually two grounds of challenge, the first being a challenge to the factual finding by her Honour as to the point at which the apex was understood to relate. The second, and probably the more important one, was that her Honour erred in not allowing Detective Barr to be called, following the delivery of her second decision. As will be seen later, I do not accept that her Honour erred in respect of the second matter, even if she were mistaken on the ambiguity point. In my opinion, this is itself a significant reason warranting the refusal of this application, because it highlights the correctness of her Honour's finding that Detective Inspector Barr's evidence was not as significant as the defendant had argued.

159. There are, however, further reasons why the discretion should not be exercised in favour of the defendant. First, it is clear that Detective Barr could have been called as a witness in this second hearing. It was the defendant's choice to provide this evidence indirectly through the expert witness it called. That, it seems to me, was a tactical decision to which the defendant should be held. Secondly, I agree, for the reasons given by the primary judge, that the evidence to be given by Detective Inspector Barr would be unlikely to result in a different verdict. Detective Inspector Barr's recollection of the point at which the marks started was not based on anything other than his unaided memory. Many years had passed since his observation of the accident scene, and he had not made any note or diagram at the time. Secondly, his evidence at trial was clearly ambiguous. The "top of the roundabout" meant, on its ordinary meaning, a point on or close to the exit on the northern side, at least for a car travelling in a northerly direction along Kooringal Road. Thirdly, his proposed evidence, were he called in this court, remained ambiguous. Although, in his later statement, he claimed the burn marks started near point "9" on the diagram, he added:-

I base this on the direction of travel... in my opinion, the apex of the roundabout (being a 360 degree circle) is directly related to direction of travel.

This is a puzzling statement. On one reading of it, it suggested that, for a car travelling along Kooringal Road in a northerly direction, the apex would be at point "12" on the diagram, rather than at point "9". Fourthly, there was other evidence that was not, in my opinion, consistent with his recall of the particular matter.

160. Given these matters, the overall public interest in finality of litigation favoured the rejection of the evidence. In my opinion, the rejection of the evidence did not result in any miscarriage of justice. The dictates of justice pointed powerfully in the opposite direction.

Grounds 1 and 2: challenged findings

161. The defendant argues that some 23 of the primary judge's findings were unsupported by the evidence, and should be reversed to enable findings to be made supportive of its case. These challenged findings relate, first, to the condition of the road at the time of the accident, its degree of wetness and the degree to which the asperities in the roadway were or may have been covered. Secondly, they relate to a number of aspects of the dispute between the experts, including the overall rejection of Mr Bailey's hypothesis, having regard to the evidence of lay observers. Thirdly, they relate to the manner and method of the plaintiff's entry into the roundabout. Fourthly, they relate to the critical evidence as to where the slide of the vehicle first manifested itself. Fifthly, they address the evidence of Detective Inspector Barr (and other witnesses) as to the point of heavy acceleration in the roundabout. Finally, there are the findings relating to the central question as to whether the plaintiff knew or did not know whether the tyres were bald.

162. It will be apparent that the failure of many of these multiple challenges is likely to have a significant bearing on the outcome of this appeal. The remaining grounds of appeal will need to be considered, of course, but the ambit of the dispute on appeal may well be necessarily narrowed. Equally, as Mr Campbell SC argued, a number of the challenges, if successful, may lead to the appeal being upheld. This is particularly so in relation to challenges 13 and 15, relating essentially to the evidence of Detective Inspector Barr.

163. These proceedings involved essentially the resolution of a number of straightforward factual questions. In many respects, the case was a simple one. It was complicated, however, by two features. The first was the plaintiff's extensive brain damage, which rendered him unable to recall anything about the accident or the events which preceded it. This clearly made the case a difficult one for the plaintiff, but it also meant that the task confronting the trial judge was a difficult one. The plaintiff carried the onus of proving matters which were simply beyond his recall. The second factor that made the case more complex was the defendant's continued reliance on expert evidence to support its position. Each party relied on expert evidence, of course, but it can be safely said that the defendant's case was dominated by the continued attention of Mr Bailey to aspects of the plaintiff's case. I do not wish to be overly critical of Mr Bailey, but her Honour was justified, in my opinion, in regarding some of his attitudes and his position in the trial as inflexible. Moreover, although her Honour did not make this finding, there was some substance in the plaintiff's senior counsel's submissions during address, that Mr Bailey appeared to have entered the field, in some respects, as an advocate.

164. In these somewhat complicated circumstances, the primary judge was confronted nonetheless with relatively simple factual questions to determine. Did the plaintiff know that the tyres were bald? How intoxicated were the various participants in the journey? How accurate were the observations of bystanders, witnesses and police officers, who inspected the scene of the accident, or who were nearby when the accident occurred? What actually caused the vehicle's loss of control? These were, the circumstances, troubling questions, and it was necessary, no doubt, for the primary judge to carefully consider the competing inferences very carefully, having regard to the disparities in the evidence. Apart from the initial mistake in the first trial, it must be said that the two decisions to which I have made extended reference demonstrate a careful application of judicial technique to the resolution of the factual complexities in order to arrive at available findings, based on the probabilities.

165. I am not persuaded that any of the challenges to the factual findings have been made good. This court has the obligation to reverse primary findings of facts where those findings are not supported by the evidence, or where the inferences drawn by the primary judge are not available (see Devries v Australian National Railways Commission (1993) 177 CLR 472, at 479 per Brennan, Gaudron and McHugh JJ) . It is not, however, the task of the court to reverse findings of fact where those findings were open on the evidence, or where equally available inferences are available as to the probabilities of the occurrences found. In particular, where findings have been made regarding the credibility or reliability of witnesses based on their demeanour (and this extends to experts as well as lay witnesses), the court will be reluctant to intervene unless the findings are glaringly improbable.

166. The first complaint related to the finding that none of the witnesses examined the road within the roundabout at the point where the plaintiff alleged the rear of the vehicle slid to the left. An examination of the evidence of the witnesses shows that literally this was a correct observation. Her Honour, in my view, was simply making the point that the argument concerning the presence of standing water, even though everybody agreed the road was wet, could not be precisely determined by reliance upon specific observations of any of the witnesses who were present at the scene after the crash. Senior Constable Roesler's evidence, for example, did not contain the necessary level of precision in that regard. Detective Inspector Barr's evidence was that he did not make any "great observations as to the depth and quantity and volume of water on the roadway". But there was a general body of evidence from which inferences could be drawn. The defendant's complaint is that no witness specifically said there was any "standing water" in the roundabout, albeit it had been raining and the road was wet. This complaint highlights the fact that the defendant still does not accept the trial judge's finding, based on the inferences to be drawn from local witnesses' evidence, and her acceptance of Mr Griffith's evidence, that the need for large amounts of "standing water" did not have to be established. The road had to be sufficiently wet to act as a wet road surface, and whether this was so or not turned on, not merely the presence of rain water, but also the extent to which the road surface may have been worn and the asperities covered. These were questions which were carefully addressed by the primary judge.

167. As to the challenge to the findings regarding the condition of the road surface itself, I am satisfied that it was open to the primary judge to make the finding she did. This issue was very much a matter of inference. Her Honour had the evidence of witnesses as to the appearance of the road surface, and the degree of wetness on the night in question. She had evidence of other witnesses who had driven on the roundabout in circumstances where it was affected by rainwater. In those situations, it was described as "slippery". Importantly, her Honour had evidence of the resurfacing of the roundabout within days of the accident. Moreover, Mr Bailey's rather inflexible opinion about the road surface was based on nothing more certain than the photographs he examined. He had not visited the scene prior to the resurfacing. As all parties agreed at trial, the photographs could not provide anything beyond a general indication. They could hardly be regarded as reliable or determinative. Mr Griffiths was quite clear during his re-examination, that the description given to the road surface of the roundabout by witnesses supported the proposition urged by the plaintiff, and ultimately accepted by the primary judge, that there was sufficient water on the road, and that the surface was sufficiently worn to act as a wet road surface.

168. This brings me to the dispute between the experts. As I have said above, the submissions now made on this point appear to be a repetition of the arguments put before the trial judge. Her Honour was faced with the task, as this Court had specifically required of her, of resolving the dispute between the experts. In one sense, her Honour thought that the expert evidence, although of assistance, could not carry the day. She was clearly right on that point. By this I mean, as Mr Griffiths accepted, that, while he was able to advance reasons that might support the plaintiff's case on causation, the ultimate decision depended on the primary judge's acceptance or otherwise of the witnesses who were there at the time. It depended on the inferences that might reliably be drawn from that body of evidence. This was also the view taken by the primary judge.

169. Mr Bailey's opinions, as they were originally formulated, relied heavily on the evidence of the later statement by Ms Harmer. In the end, her evidence was discounted, or regarded as of relatively little value by the primary judge, unless it were supported by other testimony. Moreover, her later statements introduced material not mentioned at an earlier point of time. Mr Bailey, however, never acknowledged this fact, or altered his initial opinion. Indeed, he sought other ways of challenging Mr Griffiths' opinions, attacking his methodology and the material upon which he had placed reliance. Later, Mr Bailey seized on the evidence of Detective Inspector Barr as supporting his position. Once again, the primary judge thought that Detective Inspector Barr's evidence was not consistent with the evidence of other witnesses, even if it were not regarded as ambiguous. Mr Bailey never acknowledged this possibility.

170. In my opinion, moreover, the primary judge was entitled to find that Mr Bailey had altered his position in a number of respects. She was entitled to find that he had been inflexible. In the end, however, Mr Bailey's rather intransigent position had to yield to the fact that he simply did not know the condition of the roundabout, the condition of its surface and the degree of wetness or slipperiness, on the evening in question. The challenge he made to Mr Griffiths, that the latter's opinion had not been based on proper scientific materials, had to yield in the face of the evidence of the local witnesses. That was the view taken by the primary judge and it was on the basis of the facts stated by those witnesses that Mr Griffiths had expressed his opinions. The challenge to the primary judge's preference for the evidence of Mr Griffiths must be rejected.

171. The defendant next argued that Mr Griffiths had in his evidence made no assumption that "the plaintiff had entered the roundabout at a normal speed for wet road conditions, with tyres with good tread". In my opinion, this conclusion was open, because Mr Griffiths' understanding was that the vehicle following the plaintiff had been travelling at a similar speed and that it had no difficulty in negotiating the roundabout. This was the very assumption made by Mr Griffiths in his first report. It was made, he said, "as a consequence of information supplied to him by his instructing solicitors". Similarly, in relation to the finding that speed was not the cause of the crash, this was a finding open to the primary judge on the basis of the evidence of both experts. While it is true that Mr Bailey always maintained that the plaintiff accelerated and drove too quickly in the roundabout, the plaintiff's case was that the acceleration came on only after the plaintiff had lost control of the vehicle because of the bald tyres losing traction on the wet road. Mr Bailey painted himself into something of a corner on this point. This was because, to support his theory, he had to maintain that the vehicle was not travelling at a speed fast enough to make the bald tyres lose traction on a dry road. He could not have it both ways, and the consequence was that he also agreed that the plaintiff travelled "at less than the critical speed" within the roundabout. Secondly, Mr Bailey's argument that the heavy acceleration within the roundabout caused the loss of control, was based, initially, as I have said, on his assessment of Ms Harmer's evidence that the plaintiff had sped into the roundabout to avoid another motor vehicle. As I have said, the primary judge categorically rejected her later statement in this regard. Mr Bailey made no mention of this in his final report.

172. There are lengthy submissions by the defendant, suggesting that the primary judge was not entitled to find, as she did, that Ms Harmer and Mr Halls' evidence supported the proposition that, contrary to Mr Bailey's opinion, the slide commenced towards the exit point of the roundabout. This was a finding that was plainly open to her Honour. Equally, it was open to her Honour to reject the arguments advanced by the defendant at trial as to the construction she should place on this evidence, as she clearly did.

173. This brings me to points 13, 14 and 15 in the challenges to the factual findings. The main point here was summarised by the defendant in its written submissions (Orange, 41):-

The defendant wishes to supplement the references provided for item 13 (the initiation of the loss of traction and therefore control) and item 15 (would Detective Inspector Barr's further evidence have had a significant impact?) by adding the material set out in paragraph 4 of the affidavit of George John Mallos of 31 st August 2010... if the defendant makes good the finding of fact for which he contends, the case... decides itself because findings to the following effect necessarily follow:-

...

(e) ... in the event the condition of the tyres played no part in causing the accident. Nor could they have, for at the point at which the loss of control occurred... the road surface asperities were not eliminated by standing water and the speed of the falcon did not exceed 50km per hour;

(f) The accident happened because the plaintiff applied hard acceleration upon entering the roundabout;

(g) This caused the wheels to spin at the 9 o'clock location on the roundabout as evinced by the burn marks laid down at that location;

(h) The wheel spin initiated the loss of traction causing the car to slide to the left;

(i) In the attempt to regain control the plaintiff continued to accelerate and tried to steer out of the slide;

(j) The plaintiff's attempts were unsuccessful and the car continued out of control until it collided with the power pole;

(k) These latter findings concerning the physical cause of the collision are applicable whether or not the plaintiff was aware of the condition of the tyres.

174. Her Honour did not accept this argument because Detective Inspector Barr's evidence of burn marks commencing at the 9 o'clock position was inconsistent with the evidence of Mr Halls and Mrs Harmer. It was also inconsistent with the defendant's evidence to the extent that his warning to the plaintiff "not to plant it" was given after the rear of the car began to slide, and after the wheels started to spin. If, as her Honour thought (and correctly so), Detective Inspector Barr's evidence had an element of ambiguity, it could be, for that reason, set to one side as supporting Mr Bailey's hypothesis. On the other hand, as her Honour acknowledged in her final decision (relating to the refusal to allow Detective Inspector Barr to be called), Senior Constable Roesler's evidence and the diagram she prepared (crude though it was) provided no indication of the tyre marks extending half way into the roundabout to the 9 o'clock point. It is clear from an examination of Senior Constable Roesler's evidence that, in preparing the diagram, although it was by no means exact, she had set out to demonstrate the path the car took "by reference to the marks that were on the road". She had said that she could "see tyres marks on the roadway near the gutter" and then she "could actually see the path the vehicle's taken". The witness acknowledged that the diagram was "a very rough diagram, just to show the path which the car had taken". She acknowledged that it did not indicate the actual skid marks, rather "it just shows the path that the vehicle took".

175. By contrast, Detective Inspector Barr made no diagram or note of his observations at all. He had simply formed an impression on the evening and some eight years later drew on his recollection to recall where it was the burn marks had been. He had made no record of the location of the burn marks. He said, "from memory they started near the apex of the roundabout and continued through the roundabout onto Kooringal road". He agreed that Senior Constable Roesler's diagram was "an indication". He agreed with the plaintiff's counsel that:-

If one applied power suddenly to the wheels causing them to spin and lose traction that's where you're going to find the beginning of the skid marks.

He was unable to say whether the burn marks on the road were attributable to an attempt to arrest the skid of the vehicle, or whether they represented simply "extreme acceleration" followed by a loss of control. He confirmed that there were "no skid marks, only the burn marks".

176. The primary judge thought the absence of yaw marks was significant. As Mr Bailey had said, no yaw mark would be created if the cause of the sliding of the vehicle was contamination by water, resulting in aquaplaning. It was a combination of this, together with the other evidence to which I have referred, that led her Honour to conclude that the stimulus that resulted in the application of heavy acceleration was the sliding of the rear of the vehicle to the left, while it was in the roundabout. The absence of any yaw marks was persuasive that the bald tyres had lost traction on a wet substandard road surface and that, on the balance of probabilities, it was the sliding or aquaplaning of the bald tyres on the road which caused the accident. By contrast, the acceleration was an emergency response which, unfortunately, did not stop the car from continuing to spin out of control. It was not the cause of the loss of control. In my opinion, these findings were clearly open to the primary judge.

177. The defendant maintained in this court that Detective Inspector Barr's evidence as to the meaning of the term "apex" was crucial to the defendant's case. That may be so from the defendant's perspective, but her Honour thought it was not a matter of significance, in view of the other evidence that suggested that Detective Inspector Barr's recollection was not correct. Accordingly, I would find that each of the findings made by her Honour which are challenged in 13 - 15 were open and should not be rejected.

178. I turn now to the final section of the challenges to the factual findings. This is the topic as to whether the plaintiff knew or did not know the tyres were bald. Her Honour's unequivocal finding was that the plaintiff did not know at the time of the crash that the tyres were bald. This was the principal matter that had been referred back to her Honour by this court in 2009. It was a matter she attended to with some care. I have earlier, when analysing her Honour's decision, outlined the sequence of reasoning that led her to the conclusion that the plaintiff did not know the tyres were bald. There is nothing in any of the submissions that persuades me that this finding was not open to her Honour. Nor am I persuaded this court should intervene to overturn the finding. Her Honour rejected the defendant's evidence that may have suggested to the contrary. She rejected the evidence of Ms Harmer (and the defendant) which may have suggested to the contrary, arising out of alleged conversations at the house prior to the car being collected.

179. In the written submissions, the defendant makes much of the evidence that may have been available to have been given by the man, 'Tim'. It will be recalled that he drove the plaintiff to Mr Halls' grandfather's place at 9 Wilson Street. They went there to pick up two tyres. The written submissions speculated about what it was Tim had done after he had dropped the other men at the defendant's home. For example, did he go back to the house? Did he have the tyres in his car and did he return them to the plaintiff's house? Interesting though these suppositions may be, the fact is that the defendant did not call the man, Tim, to give evidence of any of these matters of supposition. Alternatively, if Tim were unavailable, an explanation could have been given by the defendant as to why he could not be called.

180. The unusual feature of this case, as I have said, was the fact that the plaintiff had no memory of the day in question. He was not able to give direct evidence of his own knowledge as to the condition of the tyres. The manner in which the trial unfolded was that other witnesses were called to give evidence, which, on one view of it, might have suggested, if accepted, that the plaintiff had actual knowledge of the bald tyres. The content of that evidence had been put to him in cross-examination but his loss of memory meant he could say nothing of value on the issue. All of this adverse material was rejected. There was evidence that demonstrated the animosity of Ms Harmer towards the plaintiff. Equally, there was the relationship between herself and the defendant, which allowed for the primary judge's finding that portions of Mr Harmer's evidence were an invention. These findings were not prohibited because of alleged deficiencies in the cross-examination by the plaintiff's counsel. It was clearly put to the defendant and his wife that they were wrong about those matters.

181. It was the defendant's case that the plaintiff knew, or ought to have known, that the tyres on the vehicle were bald. They could not make out actual knowledge, according to the findings made by her Honour. As to whether the plaintiff ought to have known, the factual matrix included the undisputed fact that the vehicle had been parked down the side of the house. It was parked behind another car, and it was a dark and rainy night. The defendant did not call any evidence to suggest otherwise, or to suggest that, in those circumstances, the condition of the tyres would have been readily available for observation by the plaintiff had he been minded to inspect them.

182. It is true that the vehicle had been off the road for about a month, but the evidence positively established that the plaintiff had been told no more than that it was "being fixed up for rego". He was not told the nature of the work. Nor was he told that the nature of the work included a replacement of the tyres. He had no involvement with any of the work being done on the car during this time. And, of course, the car remained registered at the time the accident occurred. Although the defendant was intoxicated on the night in question, it is clear that he himself was perfectly prepared to drive the vehicle to the plaintiff's house. This would have suggested to the plaintiff that there was no reason why the vehicle could not be driven safely. The defendant argued that, pursuant to section 5G of the Civil Liability Act 2002 , there arose, in the present matter, a presumption against the plaintiff, namely, that he was aware of the risk of harm, unless he could prove on the balance of probabilities that he was not so aware. This presumption arose, it was argued, because the risk was an obvious one. I shall return to consider the issue of obvious risk in the context of the other grounds of appeal sought to be relied on by the defendant. Leaving that matter to one side, however, I am satisfied that it was open to the primary judge to find that the plaintiff did not know the tyres were bald. As to whether he ought to have known, I shall further consider this in the context of breach, scope of duty and contributory negligence when considering the remaining grounds of appeal.

183. In my opinion, grounds 1 and 2 should be rejected.

Ground 3: duty and breach

184. The claim here is, first, that the primary judge failed to determine the existence and scope of the relevant duty of care before considering questions of breach. Secondly, in determining whether the defendant had been negligent, the primary judge should have recognised that the risk in question was an obvious one, and that it was necessary for the plaintiff in that regard to displace the presumption that he was aware of the risk, a task in which he had failed. Thirdly, insofar as the plaintiff's case relied on a failure to warn concerning the state of the tyres, there was no duty to do so, because the relevant risk was an obvious one. Fourthly, the primary judge had determined the scope of the duty and hence liability, by reference to an obligation to prevent harm occurring, rather than by an obligation to exercise reasonable care.

185. It will be necessary to deal with these four aspects of ground 3 separately, although they were, during argument, synthesised to some degree.

186. The first matter, existence and scope of duty of care, was refined by Mr Campbell SC during debate. Senior counsel submitted that there was no duty to warn the plaintiff about the defective tyres, and no duty not to allow the plaintiff to drive a vehicle with defective tyres, because:-

(a) A duty of care did not arise in a situation where the owner was in such an obvious state of intoxication that no reliance could be placed on anything he might say about the state of the vehicle;

(b) A duty of care did not arise in a situation where the owner of the vehicle and the person he permits to drive the defective vehicle are engaged in a joint enterprise of "burning off" rubber in that vehicle; and

(c) A duty of care did not arise because the driver/plaintiff knew about the condition of the tyres.

187. Mr Campbell SC argued that a fact-intensive inquiry was necessary before a finding could be made that a duty of care existed.

188. The second argument, concerning the scope of any duty of care, was reflected in each of the other aspects of ground 3. Mr Campbell SC submitted that there was no duty to warn, because the risk was an obvious one. There was no duty to prevent the plaintiff from driving the car (or to prevent injury or harm to him) but the duty, if it existed at all, was confined to one of exercising reasonable care.

189. In relation to the issue of obvious risk, there were three propositions advanced. These were, first, that the condition of the tyres was obvious, even by virtue of a cursory inspection. Secondly, given the proposal to go out to the airport to "burn rubber", the plaintiff ought to have checked the tyres before leaving Ms Harmer's home. If the plaintiff, contrary to the primary judge's finding, did know (or ought to have known) about the tyres, the risk of harm by driving on them would have been plainly obvious to the plaintiff, thus negating any duty to warn. In that regard, Mr Campbell SC said that the primary judge's finding on contributory negligence (that the plaintiff should have inquired, or made an inspection for himself) went some way to establishing, in terms of the objective test in section 5F(1) of the Civil Liability Act 2002 , that the risk had been an obvious one.

190. In relation to the issue of obvious risk, affecting both liability and contributory negligence, Mr Campbell SC argued that, as the plaintiff knew the vehicle had been off the road for some weeks for registration purposes, he ought to have known that there was a real possibility that the vehicle was not safe to drive, or, at the least, it was not roadworthy. In that situation, and given the defendant's state of inebriation, a reasonable person in the position of the plaintiff would have inspected the vehicle for himself or made further inquiries of the defendant. In that sense, there was a high degree of obviousness. As the primary judge found, Mr Campbell SC observed, the plaintiff had done neither of these things.

191. Now it must be recognised at the outset that the arguments relied upon by the defendant at trial (to suggest that no duty of care arose between the plaintiff and the defendant), were primarily based on the contention that the accident was not caused by the bald tyres, but by the plaintiff's heavy acceleration within the roundabout. It did, however, as an alternative (by virtue of the pleading) include an assertion that the duty did not extend to "an accident caused or contributed to by the bald tyres on a wet road and/or the plaintiff's alcohol consumption". The aspect of the amount of alcohol the plaintiff had consumed, however, rather fell by the wayside during the trial, and was effectively sidelined as a causative factor of any great weight.

192. The pleading further asserted that the duty the defendant owed to the plaintiff as owner of the vehicle "was not breached in the plaintiff's driving the vehicle at a speed which was too fast in the circumstances when the plaintiff knew, or ought to have known as a reasonable man, that the tyres were bald and the road was wet, and knew that he, the plaintiff, had consumed alcohol". Once again, the primary argument on breach was that the real cause of the accident was the speed at which the plaintiff had accelerated within the roundabout, rather than that the tyres were bald and the road was wet. The pleading was confusing, as can be seen, but there is no doubt that that is the way in which the principal issue was argued. Unfortunately, for the defendant's case, the primary judge did not agree that the accident had been caused by the plaintiff's driving the vehicle at a speed which was too fast in the circumstances. Rather, she found that the accident was caused by the bald tyres losing their grip on the roadway, resulting in the vehicle swerving towards the gutter and then spinning out of control as the plaintiff accelerated in an endeavour to reagin control. The second problem for the defendant was the primary judge's finding, after the second trial, that the plaintiff did not know that the tyres were bald.

193. These findings (each of which I have found was open to the primary judge) necessarily posed considerable problems for the defendant in relation to the arguments advanced on appeal, relating to the existence of a duty of care, and the scope of such a duty.

194. The proceedings were governed by the Civil Liability Act 2002 . Section 5B of the Act has been described as "misleading", in that it is headed "Duty of Care" (see Adeel's Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at [13]). Clearly the section deals with breach, rather than duty. The Ipp Report 1did not recommend any alteration to the common law concepts governing questions as to when and in what circumstances a duty of care arose. The Report simply stated:-

7.4 So far as concerns the duty of care in the tort of negligence, the basic principle is that a person owes a duty of care to another if the person can reasonably be expected to have foreseen that if they did not take care, the other would suffer personal injury or death. Foreseeability is also relevant to standard of care (that is, to the question of whether a duty of care has been breached) and to remoteness of damage.

195. It is a commonly accepted proposition that, in general terms, the driver of a motor vehicle owes a duty to other road users to take reasonable care. In Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510, the plurality at [49] said:-

There have been various statements in this court to the effect that in many well-settled areas of the law of negligence the existence of a duty of care and its content present no difficulty and that one such example concerns the responsibilities of a motorist on the highway to avoid causing injury to the person or property of another.

There is no reason why, in general terms, this proposition should not also extend to a situation where the owner of a motor vehicle provides his car for the use of another on the highway, knowing that it is defective. For example, it has been held that an employer who provides a car to his employee has a duty to take reasonable steps to ensure that it is provided and maintained with serviceable tyres ( Wingrove & Co Pty Ltd v Sheehy (1961) 35 ALJR 313). However, the existence, and more importantly, the scope of any such duty may depend upon the circumstances of the relationship in question. As Gummow J said in RTA v Dederer (2007) 234 CLR 330 at 345 [45]:-

Although the existence of a duty of care owed by the RTA to Mr Dederer was not in dispute, two points must be made about the nature and extent of that obligation. First, duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all

duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.

196. In determining the existence of a duty of care (even in a novel situation), the key consideration remains reasonable foreseeability. It is now accepted that the requirement of reasonable foreseeability is a condition essential to, though not necessarily sufficient for, the establishment of a duty of care 2. In Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51, the court said at [45] (references omitted):-

Reasonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another. The concept is relevant at each of the three, related, stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty, and remoteness of damage. At the first stage, the inquiry has been said to involve the assessment of foreseeability conducted at "a higher level of abstraction" than at the subsequent stages. However, to speak of a higher level of abstraction in dealing with that first stage does not support a formulation of duty in terms devoid of meaningful content. It remains, as Gleeson CJ observed in Tame v New South Wales , that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.

197. The arguments advanced by Mr Campbell SC in relation to the existence and scope of any duty of care in the present matter found their essential provenance in the decision of Gummow, Hayne and Kiefel JJ in Imbree v McNeilly at [82]:-

The conclusion that a defendant owed the plaintiff no duty of care is open in a case like Joyce if, as Latham CJ said ((1948) [1948] HCA 17; 77 CLR 39 at 46), "[i]n the case of the drunken driver, all standards of care are ignored [because the] drunken driver cannot even be expected to act sensibly" (emphasis added). And as indicated earlier in these reasons, it is that same idea which would underpin a conclusion that the plaintiff voluntarily assumed the risk of being driven by a drunken driver.

198. In Imbree , the majority (Heydon J expressing no opinion), held that the standard of care which the inexperienced driver in that case owed the supervising passenger was the same as that owed by any other person driving a motor vehicle, that is to take reasonable care to avoid injury to others. It was not to be qualified by the driver's inexperience or unlicensed status. It was in the context of this issue that the judgment examined Insurance Commissioner v Joyce . In the latter case, the plaintiff had agreed to travel as a passenger in a car driven by a person who, two hours after a collision in which the plaintiff passenger was seriously injured, was found very drunk and asleep under a bush near the scene of the accident. The court, in Joyce , had divided in holding that the passenger must fail in his action. Of particular relevance, however, was the analysis by Dixon J of the three different bases upon which the claim of a gratuitous passenger who accepted carriage in a vehicle driven by a person known to be drunk, would then have been held to fail. The three bases were: first, no breach of duty; secondly, voluntary assumption of risk; thirdly, contributory negligence (then a complete defence). Of the first of these bases, no breach of duty, Dixon J said (at 56 - 57):-

[The position of the voluntary passenger] has been regarded as depending upon a relation which by accepting a place in the conveyance he sets up between himself and the person responsible for its management. For those who believe that negligence is not a general tort but depends on a duty arising from relations, juxtapositions, situations or conduct or activities, the duty of care thus arises... the principle applied to the case of the drunken driver's passenger is that the care he may expect corresponds with the relation he establishes. If he knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty.

199. Reference is also made to the observation of Latham CJ in that case (at 46):-

In the case of the drunken driver, all standards of care are ignored. The drunken driver cannot even be expected to act sensibly. The other person simply "chances it."

200. More recently, in Miller v Miller [2011] HCA 9; 275 ALR 611, the High Court examined these authorities in a somewhat different context. In that case, the plaintiff had been involved in a joint criminal enterprise involving the stealing of a car. The vehicle was driven by the defendant who was intoxicated and driving negligently. The plaintiff, who was a passenger, had been badly injured in an accident in the course of the enterprise, although she was ultimately saved from defeat in the litigation by virtue of the fact that she had on two occasions "begged" the defendant to let her out of the vehicle.

201. The majority (French, CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) examined, in the course of their analysis, the demise of the concept of proximity, and confirmed that it was no longer a useful informing principle in the area of the establishment of duty of care (at [59]). Secondly, the majority referred to the fact that in Imbree v McNeilly , the court had overruled the decision in Cook v Cook [2008] HCA 40; (2008) 236 CLR 510 at 526. Thirdly, the majority noted that the immediate question in Imbree concerned the content of the duty of care, not whether any duty was owed. The majority decision approved the notion that "in determining the content of a duty of care, primacy must be given to identifying the relationship between the parties" (at [63]), and described it as "a principle of long standing in the law of Australia, stemming as it did from the dissenting reasons of Dixon J in Insurance Commissioner v Joyce ". The majority said at [64]:-

... as is implicit in what was said in all three cases ( Joyce , Smith and Imbree ) the question whether A owes B a duty to take reasonable care is not to be answered by reference only to whether A was the driver of and B a passenger in a motor vehicle. A duty of care arises from the "relations, juxtapositions, situations or conduct or activities" ( Joyce at 57 ) in question. All aspects of the relations between the parties must be considered.

202. Mr Campbell SC's reliance on these cases was, as I understood his argument, threefold: first, he argued it was not possible to spell out the existence of a relevant duty of care simply from the fact that, in the present matter, the defendant was the owner of a car and the passenger in that car, while it was being driven by the plaintiff. In other words, Mr Campbell SC said that all of the facts and circumstances had to be examined, not merely the proximity of the parties, one to the other. That, I think may be readily accepted. Secondly, Mr Campbell SC submitted that one aspect of their relationship that was relevant to the existence and scope of duty of care was that the young men were intending to travel to an area near the airport that evening in the vehicle (after fitting it with two near-bald tyres) to do "burn outs". Mr Campbell SC hinted that this activity would be likely to be dangerous and perhaps illegal. Thirdly, senior counsel argued that the plaintiff's knowledge that the defendant was substantially intoxicated meant that, so far as any reliance for anything at all upon the defendant, the plaintiff was simply "chancing it". This meant that, knowing the drunken owner could not be expected "to act sensibly", no duty arose.

203. As I have said, I agree with Mr Campbell SC's first proposition. I am unable, with respect, to accept the second and third propositions he enunciated. I shall briefly explain why.

204. It is true that the evidence allows for the proposition that both the plaintiff and the defendant (and Mr Halls) had in contemplation later that evening that they would travel together to the airport to do "burn outs". It is also true that they had in mind to put two well-worn tyres on the car, and then, using the defendant's vehicle, burn the rubber off those tyres. Just how far that proposal or matter in contemplation would have gone is impossible to say. But, to my mind, all this is beside the point: the fact is that the plaintiff, the defendant and Mr Halls were on a separate and distinct journey to travel from Ms Harmer's residence to the plaintiff's home. That is the journey they were undertaking when the accident happened. There was nothing dangerous in that enterprise. There was nothing illegal about that journey or its content. Indeed, it might be thought that one of the reasons the plaintiff had insisted that the defendant should not drive was to avoid the illegality likely to be involved in the resulting situation, had he been permitted to drive in his state of intoxication. I do not see any parallel between cases involving an injury caused to a participant in a joint criminal enterprise, and the situation that was involved here.

205. In relation to the third proposition, it appears to me to be a very different situation from Joyce's case and other authorities where a passenger has voluntarily agreed to be driven by an intoxicated person, knowing that the driver was intoxicated. As Dixon J noted in Joyce's case, there was no breach because the improper driving was caused by the driver's condition, and the plaintiff knew that when he determined to travel in the car as a passenger. If it be correct to analyse the existence and content of a duty of care by having regard to the "relations juxtapositions, situations or conduct or activities" in question, the position in the present matter is very different. The plaintiff had been drinking himself. His blood alcohol reading was 0.1, so it was not insignificant. However, the evidence indicated that the plaintiff was relatively sober, and showed no signs of intoxication. On the other hand, the defendant was, to use Mr Hull's colourful phrase at trial, "falling down drunk". At Ms Harmer's house, it was clear that the defendant was initially determined to drive his own car, with the others in it, to the plaintiff's house. No matter that he was intoxicated, it is clear that he was capable of making decisions. While his motor skills may have been badly affected, there is no suggestion in the evidence that he was unable to function cognitively.

206. The point is that the defendant well knew that the tyres were bald. Despite his consumption of alcohol, he would have been well aware of the fact that it had been raining and that the roads were wet. The plaintiff did not know the tyres were bald. He was offering to drive the car in what must have been obvious to the defendant to have been a dangerous and risky situation. In my view, the circumstances I have described clearly permitted a finding of a duty of care arising as between the plaintiff and the defendant, the scope of which was to take reasonable steps to avoid the risk occurring. At the very least, the exercise of reasonable care required the defendant to warn the plaintiff that the car had bald tyres, and remind him that, in that situation, there would likely to be a real risk of an accident by driving the car in wet conditions and on a slippery road. In the circumstances that had arisen, however, the exercise of reasonable care to avoid the risk materialising required the defendant to go further and to refuse permission to the plaintiff to drive the car. The defendant was in a position to refuse that permission, as he himself acknowledged when he was cross-examined. The vehicle took some minutes to "warm-up" after the plaintiff started it, as the evidence disclosed. There was ample time for the defendant to assess the serious risk involved and to take action to avert it.

207. For these reasons, I would reject the arguments based on an asserted absence of duty of care, and the arguments based on scope of duty.

208. I turn now to examine the arguments on breach and "obvious risk". Breach is covered by section 5B of the Civil Liability Act 2002 :-

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

209. This provision embodies Mason J's formulation in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 - 48:-

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.

210. While there are differences in wording, it has been said that section 5B(2) is a reiteration of Mason J's analysis ( Waverley Council v Ferreira [2005] NSWCA 418; Aust Torts Reports 81-818 at [45], Ipp JA (with whom Spigelman CJ and Tobias JA agreed); and see subsequent cases such as Roads and Traffic Authority (NSW) v Refrigerated Roadways [2009] NSWCA 263; 53 MVR 502; at [178]-[179], per Campbell JA).

211. There are of course limits to this foreseeability, as Callinan J said in Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44 at [54] - [55]:-

Three Justices of this Court in Wyong Shire Council v Shirt held that any risk, however remote or even extremely unlikely its realisation may be, that is not far-fetched or fanciful, is foreseeable. I suppose that it is true that there is nothing new under the sun. With enough imagination and pessimism it is possible to foresee that practically any misadventure, from mishap to catastrophe is just around the corner. After all, Malthus in 1798 famously predicted that the population of the world would inevitably outstrip the capacity of the Earth to sustain it. The line between a risk that is remote or extremely unlikely to be realised, and one that is far-fetched or fanciful is a very difficult one to draw. The propounding of the rule relating to foreseeability in the terms that their Honours did in Wyong requires everyone to be a Jeremiah, and has produced the result that undue emphasis has come to be placed upon the next element for the establishment of tortious liability, the sorts of measures that a reasonable person should be expected or required to take to guard against the risk. Wyong has however been constantly applied throughout this country and in this Court since it was decided, and neither party sought to challenge it here. I am therefore bound to apply it.

Even on the application of it however, the appellant must fail at the threshold, that is on the issue of foreseeability. In my opinion, it was far-fetched and not foreseeable that the appellant, a competent, seemingly well woman would suffer within six months of taking up a part-time position, a disabling psychiatric injury, or indeed, any psychiatric injury by reason of the work that the position entailed.

212. In terms of the scope of section 5B, in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited Campbell JA (McColl JA and Sackville AJA agreeing), stated, at [173]:-

Section 5B is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subsection 1 sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising. As to whether such cases cover the entire field of negligence cases, see Drinkwater v Howarth [2006] NSWCA 222 at [11] - [13], [24]. Subsection 2 provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists. Section 5B presupposes the existence of the law of negligence, and operates against its background.

213. Similarly, in Waverley Council v Ferreira at [47], Ipp JA (Spigelman CJ and Tobias JA agreeing) said:-

The explanation for the enactment of s 5B(2) appears from paras 7.5 to 7.18 of the Negligence Review. The Negligence Review expressed the opinion that the factors now set out in s 5B(2) should be given statutory force so that courts would focus more directly on the issue "whether it would be reasonable to require precautions to be taken against a particular risk" and to avoid conflation of the concept of foreseeability of risk with the conclusion that a reasonable person would have taken precautions against it.

214. The question in the present matter is, did the defendant, who plainly owed a duty of care to the plaintiff (and other road users) to keep his car in roadworthy condition and not to allow it to be driven while it was unsafe, breach this duty in failing to warn the plaintiff about the dangers of driving the car with its bald tyres, or in not taking reasonable steps so as to not allow the plaintiff to drive the car in that situation.

215. For my part, I would have thought that the plaintiff had clearly met the onus of proving each of the matters required to be considered under section 5B of the Civil Liability Act 2002 . For the defendant to allow this car to be driven with its bald tyres on a wet night in slippery road conditions clearly raised a risk which, as he knew or ought to have known, was likely to arise. Moreover, the risk was a very significant one, given the weather and road conditions. A reasonable person (and that person is deemed to be a sober person) would have taken precautions against the risk of harm likely to be encountered, not only by the driver of the car, but by passengers in it, and perhaps other people using the highway. The exercise of reasonable care required the defendant simply to say to the plaintiff, "I will not let you drive this vehicle" with tyres in such poor condition.

216. Although the duty was couched equally in a duty to warn, the real burden of the responsibility to exercise reasonable care, in my view, required the defendant to refuse categorically to let the car be driven in that condition. It was his right to do that, as he acknowledged. It would have been apparent to a reasonable person in the position of the defendant that there was a high risk that the harm would occur if the car were driven in its unroadworthy state in the conditions that prevailed and that risk could materialise even if a warning had been given. The harm that might occur if the car crashed or hit another vehicle or ran off the road was of a serious nature. There was no other relevant matter that needed to be considered before liability could be found.

Obvious risk

217. Mr Campbell's argument on this point is based on the provisions of Division 4 of Part 1A of the Civil Liability Act 2002 , in particular, the provisions of sections 5F, 5G and 5H. These sections are well known, but I will set them out:-

5F Meaning of "obvious risk"

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks

(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

5H No proactive duty to warn of obvious risk

(1) A person ( the defendant ) does not owe a duty of care to another person ( the plaintiff ) to warn of an obvious risk to the plaintiff.

(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.

218. 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".

219. 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.

220. 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.

221. 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.

222. 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.

223. 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".

224. 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.

225. 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.

226. 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.

227. 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.

228. 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.

229. 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.

230. 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.

231. 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.

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

Ground 4: reversal of onus of proof and associated matters

233. 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] HCA 19; (2008) 82 ALJR 870 at 897).

234. 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.

235. 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.

236. 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.

237. 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.

238. 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.

239. I would reject ground 4.

Ground 5: contributory negligence

240. 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.

241. 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.

242. 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%.

243. 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.

244. 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] HCA 62; (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.

245. 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] HCA 34; (2003) 214 CLR 552 at 558 [16].

246. 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.

247. 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.

248. 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].

249. 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.

250. 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.

251. 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.

252. 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.

253. 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

254. 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.

255. 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] HCA 40; (1936) 55 CLR 499 at 504, 505).

256. 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.

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

258. 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.

259. SACKVILLE AJA: I agree with Whealy JA.

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APPENDIX A



APPENDIX B

APPENDIX C

APPENDIX D