Tinworth v Haydon & Insurance Australia Limited
[2014] QCA 183
•5 August 2014
SUPREME COURT OF QUEENSLAND
CITATION:
Tinworth v Haydon & Insurance Australia Limited [2014] QCA 183
PARTIES:
STEVEN JAMES TINWORTH
(applicant)
v
MICHAEL JOHN HAYDON
(not a party to the appeal)
INSURANCE AUSTRALIA LIMITED
ACN 000 016 722
(respondent)FILE NOS:
Appeal No 46 of 2014
DC No 38 of 2012DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Ipswich
DELIVERED ON:
5 August 2014
DELIVERED AT:
Brisbane
HEARING DATE:
29 May 2014
JUDGE:
Holmes and Morrison JJA and Dalton J
Separate reasons for judgment of each member of the Court, Holmes JA and Dalton J each concurring as to the order made, Morrison JA dissentingORDER:
The application for leave to appeal is refused with costs.
CATCHWORDS:
TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOK-OUT – GENERALLY – where the applicant was the unsuccessful plaintiff in an action for damages for personal injuries suffered when he was hit by a car driven by Mr Haydon – where the respondent is the driver’s insurer – where three vehicles, including the applicant’s and Mr Haydon’s, aquaplaned on a strip of water across a highway and slid into an adjacent ditch, Mr Haydon's vehicle striking the plaintiff – where the applicant argued that the trial judge should have found the driver negligent in not driving at a lower speed once a flood warning sign became visible – where there was no evidence that had the applicant driven at the lower speed he would have seen the water in time to reduce his speed still further – where there was no evidence as to the speed at which the water on the highway could safely be traversed – where the trial judge found that the applicant had failed to establish liability – whether leave to appeal should be granted
TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – ROAD ACCIDENT CASES – where the applicant was the unsuccessful plaintiff in an action for damages for personal injuries suffered when he was hit by a car driven by Mr Haydon – where the respondent is the driver’s insurer – where the trial judge found the applicant had failed on the threshold question of liability – where the trial judge set out observations about contributory negligence in the event his primary conclusion on liability was not accepted – whether the trial judge's observations about contributory negligence were inconsistent with his findings on liability – whether the trial judge’s reasons were adequate
COUNSEL:
M Grant-Taylor with R J Lynch for the applicant
R Morton for the respondentSOLICITORS:
Turner Freeman for the applicant
DLA Piper Australia for the respondent
HOLMES JA: The applicant for leave to appeal, Mr Tinworth, was the unsuccessful plaintiff in an action for damages for personal injuries suffered when he was hit by a car driven by Michael Haydon. The respondent is the driver’s insurer. Although leave was required for the appeal,[1] the respondent accepted that if Mr Tinworth had wrongly been denied judgment, there would exist a substantial injustice of a kind warranting leave.
[1]The judgment was not one within s 118(2) of the District Court of Queensland Act 1967 against which an appeal could be brought as of right.
The evidence as to the accident
The accident happened on the morning of 10 January 2011, during what the trial judge described as “an extended period of heavy rain and flooding across south-east Queensland”. Mr Tinworth had been driving his utility south on the Cunningham Highway at Willowbank when he hit a patch of water across the road. He braked, but lost control of the vehicle, which aquaplaned into a ditch on the left-hand side of the road. Before hitting the water, he had been driving at between 80 and 85 kilometres per hour. The speed limit in the area was 100 kilometres per hour; he had slowed because it was raining heavily.
Mr Tinworth emerged unhurt from his vehicle, called a tow-truck driver and waited on the shoulder of the road for his arrival. While he waited, he saw between five and ten other southbound vehicles which traversed the water without incident. As he informed a police officer who spoke to him later, at this stage he observed about an inch of water “the whole way across” the road; he had not seen it when he approached it. After about ten minutes, another vehicle, a sedan, hit the patch of water and, as Mr Tinworth’s utility had done, slid into the ditch at the left of the road. The driver of that vehicle, a Ms McKeown, said that she had been driving at between 80 and 85 kilometres per hour, because it was “raining quite heavily”.
Mr Tinworth walked to the driver’s window of Ms McKeown’s vehicle to ask whether she was all right. As he stood between Ms McKeown’s sedan and the edge of the road, Mr Haydon’s utility similarly hit the water across the road, aquaplaned to the left and slid into the ditch. In doing so it struck Mr Tinworth, causing him a number of injuries.
Mr Haydon said that as he approached the area where the accident occurred, it was overcast but not raining. He believed his speed to have been somewhere between 80 and 100 kilometres per hour. He might have been 50 metres away from the water across the road when he saw it; he could not “really recall”; he confirmed in cross-examination that the 50 metres was a guess. It was too late to stop. Once his vehicle hit the water, he had no control of it. He had seen Mr Tinworth’s and Ms McKeown’s cars from some distance back, but he thought that they were pulled over on the side of the road and did not appreciate that they were in a ditch. It was admitted on the pleadings that about 490 metres north of the collision site there was a sign which read “Road Subject to Flooding - Indicators Show Depth” on the eastern side of the roadway, which Mr Haydon saw or ought to have seen.
In cross-examination, Mr Haydon was asked about his speed of travel as follows:
“Do you recall speaking to the female police officer at the scene? ---Yes.
Okay. Do you agree that you told her that you were driving along doing the speed limit? --- Yes.
And you agree that the speed limit there is 100 kilometres per hour? --- I don’t know if I knew at the time, I just know I was within the speed limit, yeah.
Well, you just said earlier that the speed limit changed from 80 kilometres per hour to 100 kilometres per hour? --- Yeah.
So you were regulating your speed according to the indicated speed limits? --- Yes.
If the speed limit changed from 80 kilometres per hour to 100 kilometres per hour three kilometres earlier, that’s when you would’ve changed your speed? --- Yes.
Constable Weibel, the police officer who spoke to Mr Haydon after the accident, gave evidence. The police vehicle in which she was a passenger had approached the scene of the accident from the north, as had Mr Tinworth, Mr Haydon and Ms McKeown. Aware that their vehicles had hit water at the accident site, the police officers were on the look-out for it; they were travelling about 60 kilometres per hour. Constable Weibel saw the strip of water, which she described as about ten centimetres deep, running over the road, from about 50 metres away. The driver pulled their vehicle over to the side of the road without crossing it. The road remained open to traffic, but the police vehicle’s lights were left activated, to warn oncoming vehicles of the hazard.
The pleadings about Mr Haydon’s speed
Mr Tinworth pleaded that the collision was caused by Mr Haydon’s negligence in driving at a speed excessive in the circumstances, driving without due care and attention and failing to keep a proper lookout. Mr Haydon denied those allegations and pleaded, inter alia, that he had been driving “at between 80 kph to [sic] 100 kph”. Presumably in response to that statement of fact, Mr Tinworth in an amended statement of claim included an allegation that notwithstanding various pleaded matters which should have alerted him, Mr Haydon “did not reduce his speed from the 80-100 km/hr he was travelling at”.
In an amended defence, Mr Haydon denied that his speed had caused the accident, giving in support of that denial the fact that Mr Tinworth’s and Ms McKeown’s vehicles had both aquaplaned when travelling at a speed of between 80 and 85 kilometres per hour, and adding,
“in order to avoid aquaplaning it was necessary to travel at a speed of less than 80 kph which was not reasonable in all the circumstances ...”
In his reply, Mr Tinworth responded to that assertion by pleading that other vehicles had safely negotiated that part of the roadway and that “travelling at a speed of less than 80kph [was] reasonable in all the circumstances…”
The trial judge’s findings and reasoning on liability
The trial judge referred to Mr Haydon’s having told police that he was travelling at the speed limit, but observed in his reasons that it was not clear whether that meant 80 kilometres per hour (the limit three kilometres away), or 100 kilometres per hour. His Honour remarked that Mr Tinworth took no issue with that range: he had in the amended statement of claim accepted Mr Haydon’s speed as “80-100 kmh”.
The trial judge found that the existence of the “road subject to flooding” sign was irrelevant, because: it was almost half a kilometre from the collision site and gave no warning of water over the road; there were no indicators of depth between it and the water which the parties here encountered; and that water did not amount to flooding. The fact that there were vehicles on the side of the road did not indicate difficult road conditions and did not dictate that an oncoming driver should reduce his speed. There was no evidence to support a finding that a reasonable driver should have seen the water at a greater distance than 50 metres from it and there was no evidence as to what speed would have been safe in the circumstances. The allegation that if Mr Haydon had been driving at a speed of “less than 80 kmh” his vehicle would not have been aquaplaned had not been made out. Mr Tinworth had thus failed to establish liability.
Appeal ground alleging errors as to fact
Mr Tinworth’s central premise was that the trial judge should have found Mr Haydon negligent in not driving at a lower speed once the flood warning sign became visible, so as to be able to reduce his speed still further once he saw the water across the road. The first step in this argument was the complaint that the trial judge had erred in regarding Mr Haydon’s evidence about his speed as unclear as to whether it was 80 kilometres or 100 kilometres per hour, and had wrongly ascribed to Mr Tinworth an acceptance of that range.
There is force in this contention. Mr Haydon had acknowledged driving according to the speed limit, which at the relevant point was 100 kilometres per hour. The allusion in Mr Tinworth’s pleadings to Mr Haydon’s failure to reduce his speed from 80-100 kilometres per hour, presumably on the strength of what was alleged in the defence, did not constitute an admission of any particular speed, or a concession that it could not be established with any greater precision. Nothing precluded Mr Tinworth from relying on Mr Haydon’s evidence to advance a case that he had been driving at 100 kilometres per hour; which Mr Tinworth’s counsel did, in his written and oral submissions.
Next, it was said, the trial judge had wrongly failed to regard the “road flooded” sign as significant. The fact that there were no indicators between it and the water across the road presented all the more reason for a driver to be cautious, in the knowledge that the hazard still lay ahead. It was evident from photographs tendered at the trial that there was a great deal of water around the area. Those matters, together with the fact that Mr Haydon had seen vehicles on the side of the road from some 340 metres away should have led the trial judge to conclude that Mr Haydon ought to have reduced his speed much earlier. The trial judge should have found that Mr Haydon was probably travelling at 100 kilometres per hour but ought, in the circumstances, to have reduced his speed to between 80 and 85 kilometres per hour. Had he done so, he would have had sufficient time when he saw the water across the road to reduce his speed below 80 kilometres per hour. Had he done that, his vehicle would not have aquaplaned: as much, it was asserted, was admitted on the pleadings.
The reference of an admission on the pleadings was to the paragraph in the defence which said that in order to avoid aquaplaning, “it was necessary to travel at a speed of less than 80 kilometres per hour, which was not reasonable in all the circumstances”. What Mr Tinworth seeks to do is to convert that into an admission that, had the vehicle travelled at less than 80 kilometres per hour, it would not have aquaplaned. But it does not follow from the proposition that any vehicle travelling at 80 kilometres per hour or more will aquaplane that a vehicle travelling at any lesser speed will not aquaplane.
The difficulty for Mr Tinworth is that there was no evidence as to the speed at which the water could safely be traversed. Although Mr Tinworth spoke of other vehicles having travelled through the water in the period before Ms McKeown’s sedan arrived on the scene, he did not give any detail of their make or weight, or at what speed or how they negotiated the water. Ms McKeown referred to a four-wheel drive vehicle’s having crossed the strip of water, but again, without reference to the manner in which it had done so. Expert evidence on the point might have assisted, but none was given.
In my view, there is a strong argument that Mr Haydon’s manner of driving was negligent. It is, as Mr Tinworth submitted, likely that he was travelling at about 100 kilometres per hour in circumstances where the prevailing weather conditions and the amount of water around the highway would have indicated a more cautious approach; probably that which Mr Tinworth and Ms McKeown adopted, of travelling between 80 and 85 kilometres per hour. The problem is essentially one of causation. Mr Tinworth was not able to establish on the balance of probabilities that had Mr Haydon driven at that speed, he would have seen the water in time to reduce his speed still further. The police, travelling at 60 kilometres per hour and on the alert for it, saw if from only 50 metres away. Nor, assuming Mr Haydon did have time to reduce his speed, was it shown that he could have reduced it to a point at which his vehicle would not have aquaplaned.
In essence, there was no evidence that had Mr Haydon driven to the conditions in the manner suggested, his vehicle would not have lost traction and collided with Mr Tinworth. The hazard was an unexpected one; Mr Tinworth and Ms McKeown had already fallen prey to it; it was not shown that Mr Haydon by acting reasonably as to speed and lookout in the prevailing conditions could have avoided it.
Adequacy of the trial judge’s reasons
Mr Tinworth advanced an additional ground of appeal: that the trial judge’s reasons were inadequate to support the judgment, so that there should be a re-trial. That ground turned on an argument that the trial judge had made findings of contributory negligence inconsistent with his conclusion that Mr Tinworth had failed to establish liability.
After the trial judge concluded that Mr Tinworth had “fail[ed] on the threshold question of liability”, he continued his judgment with the following passage:
“Contributory Negligence & Quantum
Because Mr Tinworth’s claim fails, it is not necessary to give detailed consideration to Defendant’s allegations of contributory negligence or to quantum. However, some observations are appropriate.”
His Honour went on to note a concession by Mr Tinworth’s counsel that his driving was below the standard of a reasonably prudent driver and remarked that his driving “commenced the process by which he was injured”. He had failed to take reasonable care for his own safety in standing between Ms McKeown’s sedan and the side of the road without keeping a lookout for other vehicles, despite his and Ms McKeown’s experiences having demonstrated the dangers of the road at that point. His Honour said that he regarded an “appropriate apportionment” as 50 per cent. He then turned to consider various aspects of Mr Tinworth’s claim for damages and to arrive at a figure for quantum.
It is evident, in my view, that in the part of the judgment dealing with contributory negligence his Honour intended to assist this court should his finding on liability be set aside. I doubt the utility of making findings about contributory negligence (as opposed to findings of fact necessary to an assessment of quantum) in a context where any appellate court will have to reach its own views on liability and causation; but that is beside the point. It is clear that his Honour was making the findings as to contributory negligence in the event that his primary conclusion was not accepted; he was not labouring under any misapprehension that it could stand together with those findings.
Mr Tinworth had raised arguments about the trial judge’s approach to evidence going to quantum, but it is unnecessary to canvass them, given my conclusion that the trial judge did not err in finding against Mr Tinworth on liability.
Order
I would refuse the application for leave to appeal with costs.
MORRISON JA: On 29 November 2013, in the District Court, the learned primary judge dismissed the applicant’s claim for damages suffered as a result of the alleged negligent driving of Mr Haydon.[2] As required, the learned primary judge assessed damages at $27,051.00 and made a finding of 50 per cent contributory negligence. The matter before this Court is an application for leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). The merits of the appeal were heard along with the application for leave to appeal. In my opinion, this is an appropriate case in which to grant leave.
[2]The second defendant in the proceedings below.
Background
I gratefully adopt Justice Holmes recitation of the evidence as to the accident at paragraphs [2] to [7] of Her Honour’s judgment. To those facts, I would add a brief account of the injuries sustained by the applicant.
The applicant suffered multiple lacerations to his left forearm, shoulder and hip with residual cosmetic deformity and stiffness of the left shoulder, as well as swelling and haematoma to the right thigh and calf. At the time of the collision, the applicant was 23 years of age. The applicant had commenced work as a labourer at the Duce Joinery on 10 April 2008. In the almost three years prior to the collision, he undertook heavy lifting and manual handling without injury.
In late April 2011, the applicant’s plastic surgeon and general practitioner recommended the applicant return to work on light duties, which the applicant did in early May 2011. The applicant immediately experienced pain in his lower back, which radiated into his left leg. On 10 May 2011 the applicant reported back pain, that had been “ongoing for one week”, to his general practitioner. Unable to return to work as a labourer, the applicant resigned his job on 6 October 2011.
Dr Gillett (orthopaedic surgeon) diagnosed a discal injury to the L5/S1 level of the applicant’s spine and assessed seven per cent whole person impairment, of which two per cent reflected some pre-existing degenerative process. He also assessed the applicant as not being suitable for heavy work.
Decision of Primary Judge
The learned primary judge’s reasons were not long, canvassing the facts of the case, and considering liability, contributory negligence and quantum, within four pages. I would adopt Justice Holmes’ summary of the learned primary judge’s reasons with respect to liability, and add to it a consideration of the learned primary judge’s reasons with respect to contributory negligence and quantum.
Contributory Negligence
His Honour regarded the appropriate apportionment of negligence to the applicant as 50 per cent, because his Honour considered the applicant to have failed to take reasonable care for his own safety in three respects. First, the applicant’s “driving at the time fell below the standard of a reasonably prudent driver”, putting him in a position to be injured. Secondly, the applicant was standing in a “patently dangerous place”, namely between the Ms Keown’s car and the side of the road. His Honour said “I can “understand why he went to check on the driver”, but found this of no assistance to the applicant. Thirdly, by “not keep[ing] any lookout for any other vehicles” whilst standing there. His Honour did not find any negatory worth in the applicant having allegedly observed other vehicles travel through the water without incident, because there was no evidence as to the type or speed of those vehicles.
Quantum
The learned primary judge noted that the applicant was 22 years of age, and worked as a wood machinist, at the time of the collision. His Honour noted that after two attempts to return to work, on light duties, the applicant resigned in late 2011, because the work was too heavy and he was experiencing significant back pain.
His Honour did not accept that the back pain, and thus the reason for the applicant resigning his job, was due to the collision. His Honour pointed to the applicant having made no complaint to any health care professional of back pain until May 2011, which was four months after the collision. His Honour then noted the opinion of Dr Gillett (an orthopaedic surgeon) that, if there was a four month gap between the collision date and the development of back pain, it was “unlikely” that the latter was caused by the former.
On the basis of this finding, his Honour did not include the applicant’s back injury, and loss suffered as a result of that injury, such as having to resign from work in May 2011, in the assessment of damages. Damages were assessed, up until the back injury supervene in May 2011, as follows:
(a) general damages at $5,900 for soft tissue injury to left shoulder and residual scarring, as well as one per cent loss of whole person function because of shoulder stiffness;
(b) past economic loss at $12,960, being 20 weeks at his pre-accident wage, for being prevented from returning to work until May 2011;
(c) past superannuation loss at $1,166.40, being nine per cent; and
(d) other expenses, all up until May 2011, at $1,000 for past out of pocket expenses, $2,888 for medical expense, $2,174 for Fox v Wood damages, and $1,000 for future expenditure;
(e) minus a Medicare refund of $37.40.
Were the applicant to have succeeded in the threshold issue of liability before the learned primary judge, his Honour would have awarded the applicant $13,525.50, being 50 per cent of the $27,051 gross total.
Grounds of Appeal
The applicant’s grounds of appeal are as follows:
1. The reasons of the learned trial judge were inadequate to explain the conclusion at which he arrived in dismissing the plaintiff’s claim.
2. The learned primary judge failed to have any or any proper regard to:
(a) evidence that it was not raining or raining very lightly when Mr Haydon lost control of his vehicle; that he failed to see the road sign about flooding; that he saw the cars off to the side of the road; and that he was driving 100 km/h in the prevailing conditions; and
(b) evidence that other vehicles were able to slow down and pass through the water without incident.
3. The learned primary judge misdirected himself as to the applicant’s obligation to prove at what speed Mr Haydon needed to be travelling to avoid aquaplaning, as this was admitted on the pleadings.
4. Further, or in the alternative to ground 3, it was sufficient for the applicant to prove that Mr Haydon was travelling too fast for the conditions, and this finding was open and his Honour should have made it.
5. The learned primary judge’s finding of 50 per cent contributory negligence was inconsistent with his Honour’s dismissal of the applicant’s claim.
6. The learned primary judge erred in finding the collision did not cause the applicant’s back injury.
7. The learned primary judge misapprehended Dr Gillett’s evidence as to the relationship between the applicant’s back injury and the collision.
8. Accordingly, in excluding the applicant’s back injury, the learned primary judge failed to properly assess the applicant’s damages.
Relevant evidence of the circumstances
The applicant gave evidence that when he encountered the water on the road, which led to his vehicle aquaplaning into the ditch on the left hand side, it had been raining heavily.[3] There was then a lapse of some 10 minutes between when his vehicle went off the road and when the black Mitsubishi Lancer (the Mitsubishi) went off the road.[4] By the time the Mitsubishi went off the road it was only raining “very lightly” and the weather had eased;[5] “[I]t was raining really quite lightly.”[6]
[3]AB 22-23.
[4]AB 26.
[5]AB 27.
[6]AB 49.
As for his speed, the applicant gave evidence that was about 85 kilometres per hour,[7] but agreed that he had told the police 80 kilometres per hour.[8]
[7]AB 23.
[8]AB 46.
When the Mitsubishi went off the road the applicant had time to walk from his vehicle back to it and then pause at the driver’s window where he attempted to speak to the driver. There was only a short pause between when he arrived at the window and when Mr Haydon’s vehicle hit him: “I wasn’t standing for very long at all”.[9] It was a very short period of time between when the Mitsubishi came off the road and when Mr Haydon’s utility came off the road.[10]
[9]AB 27.
[10]AB 47.
The applicant’s estimate of the depth of water on the road was about one inch the whole way across.[11] This was assessed at the time when the applicant had got out of his vehicle and was walking around.
[11]AB 47.
The driver of the Mitsubishi gave evidence that she was driving at between 80 and 85 kilometres per hour and it was raining heavily at the time she hit the water on the road, leading to her vehicle aquaplaning off into the ditch.[12] However, she agreed that the rain had eased at the point when Mr Haydon’s utility came along.[13]
[12]AB 96-97.
[13]AB 100-101.
Mr Haydon’s evidence was that the rain had stopped at the time he arrived at the water on the road.[14] He described the water as “a sheet of water that was just running across the road”.[15] He said he was about 50 metres away from it when he first saw it, and it was then too late to pull up.[16]
[14]AB 102.
[15]AB 103.
[16]AB 103.
In cross-examination Mr Haydon accepted that he would have been travelling at about 100 kilometres per hour.[17] He said that his 50 metre estimate (between when he saw the water and when he hit it) was a guess and that “[b]y the time I saw it, I was in it”.[18] His estimate of the depth of the water was tentative, in that he did not really look at it after he got out of his vehicle and “at a best guess I’d say it might’ve been 20 millimetres”, or “[h]alf to three-quarters of an inch”.[19]
[17]AB 104-105.
[18]AB 105.
[19]AB 103.
In terms of his keeping a lookout whilst driving, there were three relevant aspects to his evidence:
(a) he did not see, but conceded he should have seen, the “ROAD SUBJECT TO FLOODING” sign[20] 495 metres back from the site of the incident; however, his pleaded Defence admitted that he saw or ought to have seen the sign;[21]
[20]AB 105.
[21]Further Amended Defence, para 3A(a); AB 743.
(b) he could recall seeing the two vehicles on the left hand side of the road “A fair way back … but …, I just thought they were on the side of the road, I didn’t realise they were actually in a ditch”;[22]
[22]AB 103.
(c) he did not see the water until it was too late to avoid it;[23] and
(d) he did not see the applicant until his vehicle was aquaplaning.[24]
[23]AB 103.
[24]AB 106.
Evidence from the exhibits
By chance a person in the grounds of the raceway happened to be taking some photographs and two of them, exhibits 2 and 3, show the position prior to Mr Haydon’s vehicle arriving looking east from the Willowbank Raceway. Relevant features are as follows:
(a) exhibit 2 shows the applicant’s vehicle in the ditch and the applicant walking south past the front of his vehicle along the edge of the road; there are no other vehicles in sight;
(b) exhibit 3 shows the applicant’s vehicle on the right hand side, and at the extreme edge of the photograph, the applicant himself, now further to the front of his vehicle than in exhibit 2; another vehicle appears on the left of the shot, travelling south; not much can be discerned about that particular vehicle because of the spray on either side of it; all that can be said is that when exhibit 3 was taken the Mitsubishi had not ended up in the ditch; whether the vehicle that is shown to the left is the black vehicle or a different vehicle, is difficult to say;
(c) exhibit 4 shows the position after both the black vehicle and Mr Haydon’s utility had ended up in the ditch; the utility ended up about a car length in front of the Mitsubishi and about two car lengths behind the applicant’s vehicle; that spacing is confirmed by exhibits 5, 8 and 9;
(d) a reasonable estimate of the distances between the vehicles is: between the rear of the applicant’s vehicle and the Mitsubishi is about 20 metres; about five metres separated the front of the Mitsubishi and the rear of Mr Haydon’s vehicle; and
(e) exhibits 4, 5, 8 and 9 also show that the applicant’s vehicle (a Falcon sedan) and Mr Haydon’s vehicle (a Falcon utility) were both larger vehicles than the Mitsubishi.
The case at trial
As pleaded the applicant’s case was that at the time Mr Haydon arrived at the scene it was either not raining or raining very lightly, and his vehicle “lost traction and aquaplaned”.[25] It was pleaded that Mr Haydon saw or ought to have seen the “ROAD SUBJECT TO FLOODING” sign, the two vehicles off to the left hand side of the roadway, the water crossing the roadway, and in those circumstances did not reduce his speed.[26] The alleged negligence was driving at a speed excessive in the circumstances, namely the prior heavy rain and wet road conditions, the presence of the traffic sign, and the vehicles to the left of the road; driving without due care and attention, and failing to keep a proper lookout.[27]
[25]Amended Statement of Claim, paragraphs 3(a) and (b); AB 715.
[26]Paragraph 3A; AB 715.
[27]Amended Statement of Claim, paragraph 4; AB 715-716.
The Further Amended Defence admitted that Mr Haydon saw or ought to have seen the “ROAD SUBJECT TO FLOODING” sign about 490 metres north of the collision site.[28] Curiously, given his evidence, the Further Amended Defence denied that Mr Haydon saw, or ought to have seen, the two vehicles off to the left hand side of the roadway, because “these vehicles were not visible on approach from the north” given their position, the presence of vegetation and the dark colour of the Mitsubishi.[29] Mr Haydon said nothing of the kind. He admitted seeing the vehicles, and said nothing about vegetation or colour of the Mitsubishi.
[28]Further Amended Defence, paragraph 3A(a); AB 723.
[29]Further Amended Defence, paragraph 3A(b); AB 723.
Mr Haydon’s pleaded case was that it was raining lightly (or not at all), there was water across the road which he did not observe, and that he lost control when the vehicle hit the water and aquaplaned.[30] By way of further response to the negligence alleged against him by the applicant, the Further Amended Defence denied that Mr Haydon’s speed was excessive in the circumstances, referring to the prior heavy rain and wet conditions, and in that respect added this:
“State that the first defendant’s speed did not cause the accident, as pleaded in paragraph 3.9 herein, because the vehicles in the earlier incidents when travelling at 80kph and 85kph also aquaplaned in the water and in order to avoid aquaplaning it was necessary to travel at a speed of less than 80kph which was not reasonable in all the circumstances pleaded herein.”[31]
[30]Further Amended Defence, paragraph 4; AB 724.
[31]Further Amended Defence, paragraph 6.1.1(c); AB 725. Emphasis added.
Further, the pleading made it clear that the respondents’ case was that a speed of less than 80 kilometres per hour was necessary to avoid aquaplaning. In response to the allegation that the presence of a traffic sign was a circumstance warranting a slower speed, this was alleged:
“… the presence of the sign 490 m north of the collision site was not such that in all the circumstances it would have alerted a driver to reduce speed to less than 80kph, being the speed necessary to avoid aquaplaning.”[32]
[32]Further Amended Defence, para 6.1.2; AB 745.
The Amended Statement of Claim did not allege that 80 kilometres per hour, or a speed less than that, was the speed necessary to avoid aquaplaning. Rather it simply alleged excessive speed in the circumstances. Therefore, it was the respondents’ affirmative case that a speed less than 80 kilometres per hour was necessary to avoid aquaplaning.
Thus, as a matter of pleading, if anyone bore an onus of proof in relation to the speed necessary to avoid aquaplaning, it was the respondents.
At trial the oral addresses occurred on the last day, followed by written submissions the following day. The respondents’ side addressed first. At one point counsel for Mr Haydon and the learned primary judge discussed “that New South Wales’ case”, an apparent reference to Rickard v Allianz Australia Insurance Limited[33] which was later referred to in the written submissions. At that point counsel for Mr Haydon submitted:
“There is no evidence here about where this vehicle would have aquaplaned at what speed. There was evidence in that case about when those vehicles would have aquaplaned in those conditions, but it certainly doesn’t translate into this case as evidence. There is no evidence about when this utility would not have aquaplaned. So – and as I’ll tell your – as I say in the written submissions, this distinguishes the case from Rickard’s case.”[34]
[33][2009] NSWSC 1115.
[34]AB 127.
That was followed up by a statement shortly afterwards:
“Now, as I say, there’s another problem to the plaintiff’s case and that’s that there is no evidence about the speed at which this vehicle would have avoided aquaplaning and I draw attention to section 11 of the Civil Liability Act which restores the but for test to causation. It is not enough to show that it might have lessened the risk. You’ve got to say that but for driving at whatever the speed was, the injury was caused. That really required expert evidence as was the case in Rickard’s case but which was not forthcoming here.”[35]
[35]AB 129.
That submission prompted a response from the applicant’s counsel in these terms:
“So, your Honour, although there’s no evidence of what speed the utility ought to have been travelling at to not aquaplane, the point is, he was travelling too quickly, prior to entering that section, to be able to conform his driving to cope with the conditions. And all he had to do, was to be travelling at a speed, whereby he was able to bring his vehicle to a safe speed to travel through. Or to stop and survey the situation, as the police vehicle was able to. In any event it’s clear that the water wasn’t of sufficient depth to carry a vehicle off. It was simply a matter whereby a vehicle had to travel more slowly through it.”[36]
[36]AB 133.
The written submissions filed on behalf of Mr Haydon the following day repeated a number of matters as to the question of aquaplaning. Thus, it was said that the applicant’s case was dependent upon showing “Mr Haydon’s vehicle would not have aquaplaned”[37] and that was repeated:
“Further, the Plaintiff’s case suffers from another problem. There is no evidence about what speed the First Defendant would have had to have slowed to in order to avoid aquaplaning.”[38]
[37]Defendant’s submissions, paragraph 1(d) of the; AB 667.
[38]Defendant’s submissions, paragraph 65; AB 675.
The submission was then expanded by the contention that s 11 of the Civil Liability Act 2003 had this effect:
“The Plaintiff must prove that at whatever lower speed was reasonable the vehicle would not have aquaplaned. This required expert evidence and there is none.”[39]
[39]Defendant’s submissions, paragraph 70; AB 676.
It is evident from the learned primary judge’s reasons that the respondents’ submission influenced his reasoning. Thus, at [15] and [16] of the reasons the following appears:[40]
“[15]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.
[16]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.”
[40]AB 761.
Did the trial judge address the right question?
It is apparent from the submissions at trial that the primary judge wrongly ascribed to the applicant an allegation that the collision would not have occurred at a particular speed because Mr Haydon’s vehicle would not have aquaplaned. That was not part of the applicant’s case, which depended on a more general allegation that the speed was excessive in the circumstances.
Further, in my view the primary judge was addressing the wrong question in [15] of the reasons, no doubt as a result of the wrong question being posed by the respondent’s submissions. The reasons for that conclusion are set out below.
The determination of liability at trial did not depend upon a finding that at some particular speed Mr Haydon’s vehicle would not have aquaplaned. Mr Haydon’s vehicle could have aquaplaned without colliding with the applicant. If that had occurred, the fact that the vehicle aquaplaned would not have been causative of anything. The correct question which should have been posed and examined, was whether a reduction in speed would have, more probably than not, led to the vehicle not colliding with the applicant, notwithstanding that it may have aquaplaned. This question is reflected in the applicant’s fourth ground.
To pose the question as the respondents did, and to address it as the primary judge did, was to assume that any aquaplaning, at whatever speed, would have inevitably led to the vehicle colliding with the applicant. There is no reason to adopt that conclusion.
Discussion of liability
Liability here involves a consideration of whether Mr Haydon should have been travelling slower in the conditions, and whether this would have made a difference. The uncontradicted evidence at the trial established a number of matters which are relevant to this issue. They are:
(a) the applicant was travelling at about 85 kilometres per hour when he skidded off the road;
(b) at that time it was raining heavily;
(c) some 10 minutes elapsed before the Mitsubishi aquaplaned off the road; at that time it was still raining heavily;
(d) some 20 metres separated the applicant’s vehicle and the Mitsubishi;
(e) only a short time elapsed between when the Mitsubishi ended up in the ditch and when Mr Haydon’s utility hit the water on the road;
(f) Mr Haydon was travelling at about 100 kilometres per hour and, because he did not see the water, he had not slowed down;
(g) at the time he hit the water on the road, it was raining very lightly, or not raining at all;
(h) because of the short time period between when the Mitsubishi went off the road and Mr Haydon arrived at the same point, the water conditions on the road were much the same as for the driver of the Mitsubishi;
(i) Mr Haydon’s vehicle ended up about one car length ahead of the Mitsubishi;
(j) Exhibits 4, 5, 6, 8 and 9 show that Mr Haydon’s vehicle, a Ford Falcon utility, was larger and (probably) heavier than the Mitsubishi.
Was Mr Haydon travelling too fast?
In my view the conditions on the day made it unreasonable to drive on that particular section of road at 100 kilometres per hour. It was a period of sustained heavy rain and a roadway which Mr Haydon would have appreciated, if he had seen (as he admitted he should have) the sign, was one subject to flooding. In my view the conditions dictated that he should have reduced his speed to that reflected by other drivers on the day, namely at about 80 kilometres per hour. Had he done so, then notwithstanding that he hit the water, and might have aquaplaned, for the reasons explained below it is likely that he would not have hit the applicant.
The primary judge’s rejection of a finding of negligence was based on a misapprehension of the applicant’s case. That is apparent in [14] and [15] of the reasons where the following appears:
“[14]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. …”[41]
[41]AB 760. Emphasis added.
Paragraph [15] of the reasons is set out above.
The plaintiff’s case was that Mr Haydon should have been driving at a reduced speed before he saw the water, because of the prevailing conditions. A lower speed would, of course, have been of greater utility if he had seen the water, in terms of then having a chance to further reduce speed. However, the question of liability did not depend upon what is referred to [14] of the reasons.
Would it have made any difference if Mr Haydon was travelling slower?
One can consider Mr Haydon’s vehicle in isolation but at two different speeds: his actual speed of 100 km/h and a speed of 80 km/h. If that vehicle hit the same water in the same conditions, and aquaplaned, it is elementary that it would aquaplane a greater distance if it was travelling at 100 km/h, than if it was travelling at 80 km/h. The Mitsubishi and Mr Haydon’s vehicle experienced the same water and conditions, yet Mr Haydon’s vehicle, at 20 km/h faster, ended up only just ahead of the Mitsubishi. Accordingly, it can, in my view, be concluded that if Mr Haydon had been travelling at slower speed, he may still have aquaplaned, but stopped short of colliding with the applicant.
That conclusion draws additional support from the fact that Mr Haydon’s utility was heavier than the Mitsubishi. As aquaplaning involves the loss of traction between the tyre and the roadway, elementary physics would suggest that a heavier vehicle would regain traction sooner than a lighter vehicle, and therefore not travel (all other things being equal) as far. However, that could be negated by greater speed on the part of the heavier vehicle. This is the case here. All other things equal, if Mr Haydon’s heavier vehicle were travelling the same speed as Ms McKeown’s lighter vehicle, it would be expected to not aquaplane as far as Ms McKeown’s vehicle. Yet, it travelled slightly further.
In my view the applicant was entitled to a finding of liability in his favour.
Contributory negligence
The learned primary judge’s conclusions on contributory negligence were strictly not necessary given his conclusion on the liability issue, but were appropriate in the event that this Court concluded his finding on liability was incorrect.
His Honour’s conclusions were expressed in the following passages of his reasons:[42]
“[19]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.
[20]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%.”
[42]Reasons [19]-[20]; AB 761, 762.
I cannot accept the apparent conclusion that the applicant’s manner of driving when he skidded off the road was relevant to the question of contributory negligence. His Honour expressed the view that it was negligent driving and “that commenced the process by which he was injured”. The uncontradicted evidence was that the applicant got out of his vehicle and some 10 minutes elapsed before the Mitsubishi skidded off the road. In that time exhibits 2 and 3 show that the applicant walked in a southward direction away from his vehicle. He only returned to the point where he was hit in order to enquire whether the driver of the Mitsubishi needed assistance. At that time exhibit 5 shows that he was standing over a metre off the bitumen surface, and therefore approximately two metres left of the fog line on the road. He was standing relatively close to the driver’s window on the Mitsubishi. At that position, as indeed was the case between there and his own vehicle, to have gone further off the road would have meant stepping into deeper water. Exhibits 5, 8 and 9 all show the vehicles in deeper water, even some time after the accident had occurred. The water was deep enough that the driver of the Mitsubishi had to exit through her passenger window and around on the bonnet.[43] Further, there was evidence that the water level shown in exhibit 9 around the vehicle was lower, albeit slightly, than it was when the applicant’s vehicle first went off the road.[44]
[43]AB 100.
[44]AB 29.
I do not accept his Honour’s finding that in the circumstances the applicant did not keep a lookout for other vehicles. That was no part of the pleading of contributory negligence,[45] it was not suggested to him that he should have. In any event, at the relevant moment he was addressing the driver of the black Mitsubishi Lancer.
[45]Further Amended Defence, paragraph 7; AB 746.
Given the limited choices for the applicant in terms of where he might have positioned himself once he got out of his vehicle, it is difficult to accept his Honour’s conclusion that “it was a patently dangerous place to be”. The exhibits reveal that if he went further off the road on the side where the vehicles were, he would have been in deep water. His choices, therefore, were to stand roughly where he was, to stand on the road or the cross road and stand on the other side. I do not see why the latter was required of him. He would have been just as exposed to passing traffic on that side, as he was on the side where he stood. I do not consider that it shows any want of care for his own safety, to have stood two metres off the road and next to the Mitsubishi.
Paragraph [20] of the reasons seems to suggest that his Honour came to the view that it was a want of care for his own safety to have walked up the road to check on the driver of the Mitsubishi. I do not consider that shows an unreasonable lack of care for his own safety. He was not on the road, and was as far off the road as was reasonable in the circumstances.
In my view there should be no finding of contributory negligence.
Quantum
The sole ground of appeal concerning the assessment of damages by the primary judge related to his finding that Dr Gillett, an orthopaedic surgeon, expressed the view that it was unlikely that the motor vehicle accident was causative of back pain which the applicant experienced. The relevant finding was in these terms:
“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 have been the case.”[46]
[46]Reasons, paragraph [21]; AB 762. Emphasis in original.
Dr Gillett touched on this issue in two places. The first was in cross-examination where he had expressed the view that the back pain was attributable to the accident because “the accident, based on the mechanism of the forces, has been the dominant issue in causing a degenerate disc to be damaged further and to become symptomatic”.[47] He was then asked for his opinion on the basis that “the first indication of back pain was approximately four months after the motor vehicle accident”. As to that Dr Gillett said: “If there’s no symptoms in the back of any sort before that, I think, it would be low – unlikely.”[48]
[47]AB 113.
[48]AB 113.
In re-examination Dr Gillett was asked to assume that whilst the applicant had no previous complaints of lower back pain, he had worked in a heavy manual occupation beforehand, after the accident he was recuperating and not exerting himself at all, he had one short occasion when he returned to work and did some paperwork lasting for an hour or so, then about four months after the accident he returned to lighter duties but “immediately experienced lower back pain and left leg pain, consistent with a sciatic condition”. Dr Gillett responded:
“Now, can you assume on the basis of that history, that the significance or otherwise, in terms of a causation aspect of the motor vehicle accident? --- I think – I would suggest there are three possibilities. The first possibility is that the motor vehicle accident has nothing to do with it and that all that has happened is that he has gone back to the workplace and lifted something and it’s an innocuous event with a degenerative disk. Now, against that possibility is the fact that he was asymptomatic prior to all this period of time. The second possibility is that he has a degenerate disk and he’s able to work pre-accident, because he is relatively fit despite his 150 kgs, but fit muscles, fit core and he’s a tall man, I think six foot six and what happens in that period of time after the accident is that he loses all that protective muscle strength and then when he tries to load his back he has problems. The third possibility is that he’s got some pre-existing pathology in his back, it’s asymptomatic, the accident causes further discal derangement and that’s related to the forces applies. He’s then got pain in other areas of his body, so the back pain from that disk problem is not apparent to him and then he doesn’t do anything physical, as in, he loses his muscle strength and so forth. I would think that on the balance, he has got pre-existing pathology and really, those three scenarios could be equally – or those three scenarios would be my assessment of why he would get back pain on that day. I think, in relation to my weight of causation, I think the forces applied to his spine are pretty significant. I think that the issue of him losing his muscle strength is also a reasonable hypothesis in relation to the process. Can I favour one over the other? I really can’t.”[49]
[49]AB 117-118.
It is plain from that passage that the second and third possibilities were ones which Dr Gillett would designate as having been caused by the motor vehicle accident. Any doubt as to whether, in the last paragraph of the passage cited above, he was favouring any particular scenario, was dispelled by his answer a short time later when, in response to the primary judge’s question about whether he could not favour any one of the three scenarios, or rather any one of the latter two, he said:
“Well, I think in my evidence it was I actually – when I was – I’ve actually dismissed the first one, if the stenographer can read back, because I think I said that I thought it more unlikely was because he was able to do all those heavy things beforehand.”[50]
[50]AB 119.
It is plain, in my view, that Dr Gillett was of the opinion that if the applicant experienced back pain when he returned to work, as he did, it was most likely causally related to the motor vehicle accident. The finding expressed by the primary judge at [21] of the reasons was evidently based on only the first part of what Dr Gillett said, and could not have been made if consideration was given to the later passage of evidence.
That component of damages which should have been allowed for continuing back pain was wrongly excluded. The question of the correct award of damages should be remitted for re-assessment. The consequence is that the assessment of damages has not been carried out on the correct basis.
Conclusion
I would order:
1. That the applicant be granted leave to appeal.
2. That the appeal be allowed.
3. The orders of the primary judge made on 29 November 2013 be set aside.
4. Judgment be entered for the plaintiff against the defendants, for damages to be assessed.
5. The question of damages be remitted to the trial judge for assessment on the basis of this Court’s findings.
6. The respondents pay the applicant’s costs of and incidental to the application, the appeal and the proceedings below.
DALTON J: I agree with the order proposed by Holmes JA and her reasons.
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