Tinworth v Insurance Australia Limited

[2015] HCATrans 87

[2015] HCATrans 087

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B35 of 2014

B e t w e e n -

STEVEN JAMES TINWORTH

Applicant

and

INSURANCE AUSTRALIA LIMITED (ACN 000 016 722)

Respondent

Application for special leave to appeal

KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 17 APRIL 2015, AT 12.25 PM

Copyright in the High Court of Australia

MR M. GRANT‑TAYLOR, QC:   Your Honours, I appear with MR R.J. LYNCH for the applicant.  (instructed by Turner Freeman Solicitors)

MR G.F. CROW, QC:   May it please the Court, I appear for the respondent.  (instructed by DLA Piper Australia)

KEANE J:   Yes, Mr Grant‑Taylor.

MR GRANT‑TAYLOR:   Your Honours, it will be an unusual case in which an individual who is standing off to the side of the road who is struck and injured by a vehicle which departs the carriageway at speed will be correctly adjudged to be without remedy.  In another era, the applicant would have said res ipsa loquitur.  Where, as here, the driving of the vehicle was clearly negligent, the case will be more unusual still.  We say simply that the ‑ ‑ ‑

KEANE J:   Saying these things is certainly to highlight the unusual nature of the case, but is not that really the problem you have, that this is a case where there is not much doubt about the applicable principles, it is just that they fall to be applied in a very unusual factual situation?

MR GRANT‑TAYLOR:   Your Honour, not if Justice Morrison’s analysis of the evidence is correct.  The majority, of course, departed from the view of the learned trial judge, and as much as the majority concluded that there had been a strong argument that negligence was evident - and that emerges, your Honours, at the application book page 15 at paragraph [17], the learned trial judge had found no negligence – application book page 4, paragraph [17].  Justice Morrison agreed with the majority at application book 24 at paragraph [62] where his Honour said the fact that ‑ and here we quote:

the conditions on the day made it unreasonable to drive on that particular section of road at 100 kilometres per hour.

Though it is true that the majority went on to conclude ‑ and this is at application book page 15 at paragraph [17] ‑ that the applicant’s case failed at the hurdle of causation because, as Justice Holmes said at application book page 15, paragraph [16]:

there was no evidence as to the speed at which the water could safely be traversed.

Her Honour then went on to embark upon an analysis of what one could or could not draw from the evidence of the police about the circumstances of their approach to the scene and then her Honour expressly pointed to the absence of expert evidence directed to the issue.  Your Honours, this really is the special leave point that we identify and it is to say that if her Honour is correct it must follow that in every running down case in which excessive speed is said to be a point of negligence ‑ and that would be many, if not most, and that would apply to intersection collisions, rear‑ending collisions, failed to negotiate a bend accidents – there would have to be evidence, and almost by definition it would have to be expert evidence, to demonstrate that whatever is contended to be the reasonable speed the accident would have been obviated.

KEANE J:   But is not the difficulty with that approach that it is proceeding on the basis that a reasonable speed is the speed which avoids the accident, whereas there may be speeds which, in all the circumstances are reasonable, but yet the accident nevertheless occurs?  So that, on the majority’s view, the deficit in your case was the absence of a finding – perhaps even the basis for a finding – that a reasonable speed in all the circumstances would probably have prevented the accident?

MR GRANT‑TAYLOR:   That was certainly the majority’s view.  We, of course, unsurprisingly, point to the alternative approach which Justice Morrison in dissent adopted as being consistent not only with the pleading that was advanced on the applicant’s case but also with common sense and an attitude of reality to the situation.  In other words, his Honour concluded that assuming for the moment that 80 kilometres an hour was a reasonable speed, it took no particular feat of mental gymnastics to conclude that that reasonable speed, that prudent speed, had it been adopted by Mr Haydon, the driver of the utility, would in all probability have obviated his – Mr Haydon’s vehicle colliding with the applicant. 

Your Honour, if that be the case, the causation element of the cause of action was clearly made out.  There is simply no evidence to the contrary.  His Honour addressed that point at application book page 21 at paragraphs [47] to [50].  We will not rehearse them in detail because the point has been distilled in our outline.  His Honour adverts to the fact that the applicant’s pleading had simply put forward an uncontroversial proposition that excessive speed brought about the accident.  There was no dissension to the sort of particularity about the accident would have been avoided because the aquaplaning would have been avoided and that was unnecessary for the applicant to succeed in his case.  That is why, as we say, unsurprisingly, his Honour got it right.

NETTLE J:   Mr Grant‑Taylor, were there any submissions put to the trial judge along the lines of the reasoning of the minority judge in the Court of Appeal?

MR GRANT‑TAYLOR:   Not with that specificity, no, your Honour.

NETTLE J:   With anything like that, some sort of path of reasoning like that?

MR GRANT‑TAYLOR:   We cannot say that it was.  The case put forward was one of unreasonable speed and that the unreasonable speed brought about the aquaplaning.  That was the case put forward at first instance.  However, we would immediately hasten to say that that does not mean that the applicant was forbidden or shut out of arguing the case that Justice Morrison thinks was a reasonable one.  The inquiry, in short, we would submit, was not one which the majority suggested which began and ended with an inquiry into whether Mr Haydon’s vehicle would have aquaplaned.

Your Honours, the grounds raised in the draft notice of appeal – and your Honours find them at application book pages 33 to 34 – are essentially divided into three sections.  Grounds 1 to 5 address primary liability, ground 6 that of contributory negligence and ground 7 that of quantum.  It is suggested against us that even if special leave is to be granted, that leave ought to be confined to grounds 1 to 5 and refused in respect of grounds 6 and 7.

Turning to that point, Justice Morrison was alone amongst the members of the Court of Appeal who definitively addressed the issue of contributory negligence because their Honours Justices Holmes and Dalton considered it unnecessary to do so.  Justice Morrison determined that the applicant had not been guilty of contributory negligence and made a specific finding to that effect. 

Significantly, we would take your Honours to what Justice Holmes said about the point at application book page 16 at paragraph [21] where her Honour was, at least, deferentially critical of the approach adopted by the learned trial judge in addressing contributory negligence when she said – and your Honours this is at about line 34 on page 16:

I doubt the utility of making findings about contributory negligence . . . in a context where any appellate court will have to reach its own views on liability and causation –

What her Honour has said, with respect, could not be gainsaid.  Against that background, we would submit that it is clear that contributory negligence ought to be included in the mix of any grant of special leave.  Likewise, Justice Morrison was alone in addressing the issue of quantum as Justice Holmes, with whom Justice Dalton agreed, thought it unnecessary to do so.

Again, Justice Morrison’s view was that the learned trial judge had erred in his appreciation or his lack of appreciation of the import of the expert orthopaedic evidence and that the question of damages should be the subject of remitter for reassessment.  Again, we say against that background, it is appropriate that the issue of quantum be included in the mix in respect of which special leave is granted, if only for it to be the subject of remitter and reassessment that his Honour suggests.  Your Honours, those are our submissions.

KEANE J:   Yes, Mr Crow.

MR CROW:   Thank you, your Honours.  Can we take your Honours to page 36 of the application book and to the concise statement of the special leave question to be said to arise?  It is postulated as set out:

Is it necessary for a Plaintiff injured in a road traffic accident to prove the speed the negligent driver ought to be travelling to avoid the collision in order to recover damages?

To the concise statement there is a concise answer.  It depends upon the facts of each case.  The second submission is with respect to that concise statement, in using the term “negligent driver” perhaps the author of the statement is meaning a driver has breached his duty of care because before a defendant is, of course, to be found guilty of negligence you must not only prove the breach but you must also prove that the breach caused the loss.

We would respectfully submit that the question that ought to be postulated is:  does a plaintiff who was able to prove a defendant is in breach of his duty of care by driving, in this case, at a speed said to be too quick, does that driver also have to prove causation?  If it is postulated in that sense, quite obviously, your Honours, no special leave point can arise.

Your Honour, with respect to the speed of the plaintiff’s vehicle, there is no definitive finding as to its speed.  If I can take you to the next page of the application book, 37 - at page 37, at about line 20, part of the first defendant Haydon’s evidence, but not all of it, is provided with respect to speed.  It is, in the cross‑examination of Haydon, that he told the police officer he was doing the speed limit and then, as it reads, the first defendant said he did not know, at the time he said that, what the speed limit was, only he knew he was – and the key word is “within”, “within the speed limit”, therefore less than the speed limit.  Your Honours, there is no specific finding as to the actual speed of the first defendant’s vehicle.

Can I then take your Honours to application book page 15 and, in particular, to the judgment of Justice of Appeal Holmes in paragraph [16].  As Justice of Appeal Holmes says:

The difficulty for Mr Tinworth –

the plaintiff –

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 –

If I can pause at that point - the other vehicles were five to 10 other vehicles that made it through the water.  The difficulty is, as Justice of Appeal Holmes points out, the plaintiff did not, and nor did any other witness, give any detail of their make, their weight or what speed they were travelling to negotiate the water.  There is simply no evidence.  Then, as Justice of Appeal Holmes says in the last sentence in paragraph [16], about line 39, there was no “Expert evidence on the point” as to what speed could a vehicle have safely traversed the water.

Your Honours, further on in the judgment, on the same page in paragraphs [17] and [18], the paragraphs that my learned friend has extracted in his outline as the subject of his critique in terms of the approach, at about line 45, as Justice Appeal Holmes says:

The problem is essentially one of causation ‑

which we respectfully submit is right, and then it is pointed out by her Honour that ‑

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 –

that is sufficient time –

reduce his speed –

and secondly there was no evidence that had he been able to do so, he would have avoided aquaplaning and thus a loss of control.  If I can take your Honours to understand the facts very closely to the trial judge’s findings, commencing at the application book page 2.  In the application book page 2 and at paragraph [3] are the findings about the plaintiff driver, the first driver, Tinworth, in his Ford vehicle.  Firstly, I wish to point out about line 20, it was “raining heavily” when Tinworth was driving.  In about line 24, Tinworth:

had not noticed that water before he hit it ‑

at all ‑

He immediately braked but lost control of his car which then aquaplaned –

Importantly ‑

Mr Tinworth had been driving at about 80‑85km/h ‑

So, your Honours, the evidence is, perhaps because of the heavy rain, the plaintiff, Tinworth, has reduced his speed.  Despite reducing his speed, he could not see the water at all.  Your Honours, can I also point out in paragraph [4] at about line 29 that Tinworth’s evidence was at the time that he was able to get out of his vehicle he noticed that the water was about an inch deep, and there is a theme in this case, your Honours, with the changing of conditions. 

The conditions changed materially between the first accident, we would submit, the second accident, we would submit, the third accident, and we would submit, most certainly when the police arrived at the scene less than 30 minutes later.  The evidence from driver 2 was also found in paragraph [4].  Driver 2 is the driver, Ms McKeown, the driver of the black vehicle.  At around about line 35, the evidence is the driver, Ms McKeown, “knew the area very well” as a local woman.  Again, she ‑

did not notice the water across the road before hitting it at about 85km/h.

She simply could not see it.  Then if I can skip the police for one moment, to keep it chronological, in paragraph [7] on that same page too, your Honours will see with respect to the first defendant Haydon’s evidence that he was travelling, and with reference to the earlier evidence, within the speed limit and as his Honour said:

it is not clear if he meant 80km/h . . . or 100km/h.

His Honour then points out that the plaintiff’s pleading was that Mr Haydon’s speed was between the “80‑100km/h”.  Importantly, your Honours, about line 55:

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 –

So our submission is the conditions have materially changed.  There is less rain.  There is a degree of visibility which the other two drivers did not have but it is still very limited to 50 metres.  Importantly, at line 59 and 60, when the first defendant Haydon arrives at the scene:

he estimated the water across the road to be about ½ to ¾ inch deep.

That has changed as well.  If I can then refer your Honours to paragraph [6] with respect to the evidence – line 45:

Emergency services arrived less than 30 minutes later.  It was raining heavily.

The police evidence, which his Honour records, is that the police patrol car slowed:

down to about 60km/h as they approached the scene but could not see that water until they were about 50m from it.

We would respectfully submit that is quite significant because by the time the police arrived there is an ambulance arrived with flashing lights, there are three vehicles on the side of the road, there are other vehicles parked at the scene, there is a person in a reflective vest directing traffic, and yet, the police officers – there was a passenger in the vehicle - cannot see the water until they are 50 metres away. 

Your Honours will then note in the very next line, the last sentence of paragraph [6], when the police officers arrive the estimate of the water’s depth was at about 10 centimetres and that is very materially different to the half to three quarters of an inch that the first defendant sees, some five to eight times the amount of water.  The submission is that essentially what has occurred in this case is a dynamic factual situation which must be addressed by the trial judge on the evidence which is provided by the trial judge. 

Your Honours, the problem with this case is the lack of evidence to support a positive verdict in the plaintiff’s favour.  The District Court could not do it, the Court of Appeal could not do it and our respectful submission is nor would this Court entertain it.  Courts can do certain things.  Courts can do mathematics.  The courts will know that 80 kilometres per hour mathematically is 22.2 metres per second, 85 is 23.6 metres per second and 90 is 25 metres per second.  What the courts cannot do – the next step in the logical process – is determine the reaction time.  It is a matter of expert evidence which is absent. 

For the purposes of perhaps making the further points clear, your Honours, if one was to assume, which one cannot do as a judge, a proper reaction time was some two seconds, then what that means if the first defendant is driving at 22.2 metres per second he has moved 44.44 metres before he can do anything and he has got 5.56 metres to change. 

What the courts cannot do is determine what a driver can do to slow his speed and to what speed in that 5.56 metres.  If you do the same mathematics at 85 kilometres per hour he has got 2.8 metres, and of course 90 kilometres per hour is 25 metres per second, the entire 50 metres is gone.  That is, he has not got a chance to do anything before he is in the water. 

So the respectful submission is that in a case such as the present one requires, at the very least, lay evidence to support an issue of, firstly, a breach of duty, and secondly, causation.  Secondly, in a case such as the present, expert evidence would have been perhaps able to prove the point in the absence of lay evidence.

Your Honours, this was pointed out very clearly in the decision of the New South Wales Supreme Court affirmed on appeal of Rickard v Allianz.  If your Honours have the time to peruse that decision, your Honours would have noted that in that case there was ample lay evidence concerning sight distances.  There were three traffic engineers called because of the number of parties who were able to give expert evidence on all the pertinent points. 

With respect to Rickard’s Case, when your Honours are considering it, I wish to specifically point out paragraph [40] of the trial judge’s reasons, that is, the lay evidence from one witness, Mr Gee, was that the water in that case was visible for some 300 to 400 metres away.  So it is quite a different case.  The experts in that case, Jamieson and Stuart‑Smith, gave evidence that the water would easily have been able to be viewed between 150 to 200 metres away.  Critically, your Honours, there was a factual finding that the water could have been seen at a minimum distance ‑ that is in paragraph [81] – of some 150 metres away.

The second critical feature in Rickard’s Case is in paragraph [82] of the trial judge’s decision, that is, with a sight distance of 125 metres, then a vehicle – even travelling at 100 kilometres per hour – had ample time to slow down under 60 kilometres per hour.  Perhaps, because of that evidence, as the learned trial judge reflected in Rickard’s Case, causation was not even an issue.

The submission from the respondent, your Honour, is that the trial judge has approached the issue properly.  The trial judge in his reasons – and this is at application book page 3, paragraph 14 – has correctly recorded at about line 55 that:

hindsight is irrelevant –

irrelevant in determining these issues -

There must have been something in the prevailing circumstances which required a reasonable driver to travel at “less than 80km/h” –

The respectful submission is that there was nothing to allow the court to arrive at that position.  One of the reasons we say that, your Honours, is this, that the plaintiff, Tinworth, and the second driver, Ms McKeown, in heavy rain thought the reasonable response was to reduce their speed to 80 to 85 kilometres per hour.  With respect to the first defendant’s position, the rhetorical question is, in no or light rain, why is it thus said to be unreasonable to be travelling at a higher speed that is less than the speed limit?  Most importantly, your Honour, there was simply no evidence on the causal issue, that is, what slower speed could have been achieved and, if so, would it have had prevented the aquaplane? 

Your Honour, the respondent’s submissions are that the applicant seeks to make a claim for negligence that has failed in the District Court and in the Court of Appeal on its peculiar and particular facts.  There is no reason to doubt the correctness of the decision of the Court of Appeal.  There are insufficient prospects of success to warrant the granting of special leave and there is no question of law or public importance involved in this case.  Thank you.

KEANE J:   Thank you, Mr Crow.  Anything in reply, Mr Grant‑Taylor?

MR GRANT‑TAYLOR:   Briefly, your Honours.  To answer the rhetorical question that our learned friend poses, there were good and valid reasons why it was still beholden upon Mr Haydon to adopt a speed no greater than that at which the applicant and Ms McKeown had driven.  That, of course, centred upon the significance of that sign – of which your Honours may have read – positioned about 490 metres to the north of where the vehicles came to grief.  That was the sign that said “Road subject to flooding”; that, in combination with the fact that as was found heavy rain had been falling in south‑east Queensland at and around the date on which this accident occurred - it was, of course, as your Honours might recall, the time of the 2011 floods.  Those factors in combination clearly necessitated the lower speed which we urge.

KEANE J:   This case turned on the application of settled principle to the very unusual facts of the case.  No question of principle arises for determination by this Court. Special leave should be refused with costs.

AT 12.53 PM THE MATTER WAS CONCLUDED