Tinworth v Haydon

[2013] QDC 296

DISTRICT COURT OF QUEENSLAND

CITATION:

Tinworth v Haydon & Anor [2013] QDC 296

PARTIES:

STEVEN JAMES TINWORTH
(Plaintiff)
v
MICHAEL JOHN HAYDON
(First Defendant)
NRMA INSURANCE LIMITED
(Second Defendant)

FILE NO/S:

D38/2012

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

November 29, 2013

DELIVERED AT:

Ipswich

HEARING DATE:

November 25-26, 2013  Last submissions November 27, 2013

JUDGE:

Koppenol DCJ

ORDER:

Claim dismissed. I will hear the parties as to costs.

CATCHWORDS:

DAMAGES – PERSONAL INJURIES – plaintiff injured in motor vehicle accident –  wet weather – vehicles aquaplaned off road – whether negligence proven – whether contributory negligence – quantum

Civil Liability Regulation 2003

Rickard & Ors v Allianz Australia Insurance Ltd & Ors [2009] NSWSC 1115, considered.

COUNSEL:

R Lynch for the plaintiff
R Morton for the defendants

SOLICITORS:

Turner Freeman for the plaintiff
DLA Piper for the defendants

The claim

1. Steven James Tinworth claims damages for personal injuries. He was injured on January 10, 2011 when struck by an aquaplaning car as he stood by the side of a main road at Willowbank near Ipswich.

1. January 10, 2011 fell within an extended period of heavy rain and flooding across south-east Queensland.

Background

1. On that day, Mr Tinworth was driving his 2001 Ford utility south-bound along the Cunningham Highway. It was about 9.45AM and raining heavily. As he approached Willowbank Raceway (on his right), his car hit a patch of water across the highway. He had not noticed that water before he hit it. He immediately braked but lost control of his car which then aquaplaned off the left of the road and into an adjacent ditch. Mr Tinworth had been driving at about 80-85km/h. The speed limit in the area was 100km/h.

1. After extracting himself uninjured from his car and making a couple of phone calls, Mr Tinworth stood off the side of the road and waited for a tow truck. He noticed that the water across the road was about 1 inch deep. About 10 minutes later, another south-bound car (a black sedan) hit the water across the road and also aquaplaned off into the ditch, not far from Mr Tinworth’s car. The driver of that car knew the area very well but did not notice the water across the road before hitting it at about 85km/h.

1. Mr Tinworth immediately walked over to the black sedan to check on the driver. Just then, yet another car (driven by Michael John Haydon) hit the water across the road and aquaplaned off to the left and into the ditch. As it did so, it struck Mr Tinworth as he stood between the black sedan and the edge of the road. It hit his right leg and threw him up onto its windscreen and into the ditch—injuring his left shoulder, hip and forearm in the process. He did not see or hear that other car before it hit him.

1. Emergency services arrived less than 30 minutes later. It was raining heavily. The Police had been told that there was water across the highway. They slowed their patrol car down to about 60km/h as they approached the scene but could not see that water until they were about 50m from it. One of the attending officers estimated the water’s depth at about 10cm.

1. Mr Haydon told Police that he was travelling at the speed limit—but it is not clear if he meant 80km/h (the limit a few km before the site) or 100km/h. Plaintiff apparently takes no point about that and accepts Mr Haydon’s speed as “80-100km/h” (Amended Statement of Claim, para 3A(e)). It was not raining or was raining only lightly when he first saw the water across the road when he was about 50m from it—at which point it was too late for him to stop. He hit the water and then lost control of his car. He said that it did not look like a flooded road. After getting out of his car, he estimated the water across the road to be about ½ to ¾ inch deep.

Liability

1. Plaintiff’s allegations of negligence are that Mr Haydon drove at an excessive speed in the circumstances and without due care and attention or keeping a proper lookout.

1. Similar allegations were advanced in Rickard & Ors v Allianz Australia Insurance Ltd & Ors [2009] NSWSC 1115 (app dismd [2010] NSWCA 328). In that case, the water across the road was visible from at least 125m away—yet the driver there drove on at at least 90km/h (25m/sec) before hitting the water and aquaplaning onto the wrong side of the road and into an oncoming vehicle. A conclusion of negligence could readily be made because that driver had at least 5 seconds to react by slowing down significantly—to 60km/h or less, it was held.

1. Plaintiff says that Mr Haydon’s speed was excessive because of (a) the rain and wet road, (b) the presence of a traffic sign (ROAD SUBJECT TO FLOODING—INDICATORS SHOW DEPTH) about 495m from the collision site, (c) the presence of the 2 vehicles off the road in the ditch and/or vehicles slowing or stopped on the other side of the road, which indicated that that section of road “was difficult to negotiate”, and (d) warnings from a person in an orange high-visibility vest standing in the centre of the road and alerting oncoming traffic to the dangerous conditions there.

1. Mr Haydon gave evidence that he did not see that road sign. But in my view, nothing turns on that. It was a long way from the collision site and no flooding or depth indicators were encountered over that distance. It did not warn of water over the road—much less water which was difficult to see. And at the collision site, although there was some water across the road, the road was not flooded.

1. Mr Haydon said that as he approached, he did see some cars at the side of the road but did not think that they were in a ditch. But even if he had appreciated that, it is not reasonable, in my opinion, to then conclude that an oncoming driver should immediately lower his speed because those vehicles may have run off the road after hitting some surface water. Similarly, even if there were vehicles slowing or stopped on the other side of the road, that would hardly suggest danger or difficult road conditions.

1. Mr Tinworth accepted in cross-examination that even though he had previously said that there was a man in an orange vest directing traffic before he was hit, there was not—or he could not recall. No one else saw that man at that time. Although there was evidence that a man in an orange vest was present after Mr Tinworth was hit, I do not accept that he was present before then.

1. Thus in my opinion, the question of liability really comes down to whether Plaintiff can establish that Mr Haydon should have seen the water over the road—and then should have reduced his speed significantly—much earlier than he did. In that regard, hindsight is irrelevant. There must have been something in the prevailing circumstances which required a reasonable driver to travel at “less than 80km/h”—the speed at which Plaintiff alleges would have been “reasonable” (Reply, paras 12(a)(i)(C), (b)).

1. There are 2 serious problems, in my opinion, with Plaintiff’s argument. First, there was no evidence which would support a finding that a reasonable driver should have seen the water when more than 50m away and would have had time to slow down to an unspecified non-aquaplaning speed prior to hitting the water. Secondly, the so-called “reasonable” speed was not specified and remarkably, no expert (or other) evidence was led about that. Was 75km/h reasonable? Should it have been only 60km/h? In Rickard, the court thought that 60km/h or less may have been safe in all of the circumstances of that case and having regard to the expert evidence. But every case is different, doubtless depending upon roadway geometrics, texture and condition; driver behaviour; vehicle speed, type and weight; tyre condition (tread depth, inflation, pressure, width); water depth; other traffic; warning signs; etc. Indeed in Rickard, the court found (at [95]) that a reduction in speed to 80km/h would not have been an adequate response to the conditions.

1. In essence, Plaintiff alleged that if Mr Haydon had been driving at an unspecified speed “less than 80km/h”, the collision which injured him would not have occurred because Mr Haydon’s vehicle would not have aquaplaned. That allegation has not been made out.

1. Plaintiff has failed to prove that Mr Haydon was negligent in the various respects alleged. Thus Plaintiff fails on the threshold question of liability.

Contributory Negligence & Quantum

1. Because Mr Tinworth’s claim fails, it is not necessary to give detailed consideration to Defendants’ allegations of contributory negligence or to quantum. However, some observations are appropriate.

1. Contributory Negligence: Mr Tinworth’s counsel conceded that his client’s driving at the time fell below the standard of a reasonably prudent driver. That commenced the process by which he was injured. He then stood and remained between the black sedan in the ditch and the side of the road but did not keep any lookout for any other vehicles. Shortly afterwards, another car aquaplaned off the road near that spot and hit him. It was a patently dangerous place to be. Mr Tinworth said that 10 minutes had passed between his aquaplaning off the road and Mr Haydon’s car doing the same—and that in the interim, other vehicles had negotiated that section of roadway without mishap. Even if that were the case, no evidence about the type of those vehicles was given. They may have been 4WDs or other vehicles which have no difficulty negotiating through water. Or they may have been vehicles travelling very slowly. The mere passage of other vehicles establishes nothing, in my opinion. Reference was also made to the man in the orange vest. But as I have previously concluded (at [13]), I do not accept that he was there before Mr Tinworth was hit.

1. I think that Mr Tinworth failed to take reasonable care for his own safety.  I can understand why he went to check on the driver of the black sedan. But doing that exposed him to the danger of being injured if another car aquaplaned off the road. I regard an appropriate apportionment as 50%.

1. Quantum: Plaintiff was 22 years of age at the time of the collision. He worked as a wood machinist but after 2 attempts to return to work—albeit on light duties, he resigned in late-2011. He said that he could not continue because the work was too heavy and he was experiencing significant back pain. However, Plaintiff made no complaint to any health care professional of back pain until May 2011—some 4 months after the accident. He was first prescribed pain relief medication by his general practitioner on May 10. Dr Greg Gillett (orthopaedic surgeon) gave evidence that if there were a 4-month gap between the accident date and the development of back pain, it would be unlikely that the motor vehicle accident was causative in the development of that pain. I accept Dr Gillett’s opinion. A major part of Plaintiff’s claim for damages is based upon his continuing back pain being accident-caused. As I do not accept that premise, the assessments to be made will necessarily be significantly less than would otherwise be the case.

1. General damages: The accident-related injuries consist of a soft tissue injury to the left shoulder and residual scarring. Dr Gillett said that Plaintiff also suffered a 1% loss of whole person function because of the shoulder stiffness. I think that an award of $5,900 (Civil Liability Regulation 2003, Item 98, ISV 5) is appropriate.

1. Past economic loss: In my opinion, the accident prevented Plaintiff from returning to work until May 2011 only. An award of $12,960 (about 20 weeks at his pre-accident wage of $648/wk) is therefore appropriate. After May 2011, any loss of earnings was not accident-related. Thus, no awards can be made for future economic or superannuation loss.

1. Past superannuation loss: At 9%, $1,166.40 would be awarded.

1. Other categories: The following would be appropriate, in my opinion: past out of pocket expenses (say $1,000), medical expenses ($2,888), Fox v Wood ($2,174)—all up to May 10, 2011; future expenditure (say $1,000).  The Medicare refund is $37.40.

1. Net total: This results in the sum of $27,051. But after reducing that figure by 50% for contributory negligence, an award of $13,525.50 would have been made if Plaintiff had succeeded on the threshold issue of liability.

Disposition

1. Mr Tinworth’s claim fails. I will hear the parties as to costs.