Tinworth v Haydon & Insurance Australia Limited [2014] QCA 183
On 10 January 2011, during an extended period of heavy rain and flooding, Mr Tinworth had been driving his utility on the Cunningham Highway when he hit a patch of water across the road. He braked, but lost control of his vehicle, which aquaplaned into a ditch on the left hand side of the road. He emerged unhurt from his vehicle and called a tow truck. While he waited, he observed a number of other vehicles traverse the water without incident. About ten minutes later, another vehicle hit the patch of water and slid into the ditch on the left of the road.
Mr Tinworth walked to the driver’s window of the sedan to enquire as to the driver’s wellbeing. As he stood between the 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 hit Mr Tinworth, causing him a number of injuries.
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.
The primary judge dismissed the claim, noting that 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 80kph his vehicle would not have aquaplaned had not been made out. Mr Tinworth thus failed to establish liability. As required, the primary judge assessed damages at $27,051.00 and made a finding of 50 per cent contributory negligence.
On appeal, Mr Tinworth’s central premise was that the primary 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.
Unfortunately, there was no evidence as to the speed at which the water could safely be traversed. Mr Tinworth and the driver of the sedan spoke of other vehicles that negotiated the water but did not give detail as to the make, weight, speed or how they negotiated the water. Expert evidence was not given.
Cases like these serve as a reminder that expert evidence, such as a forensic engineer, should be considered in matters where liability is denied.
Holmes JA and Dalton J considered there was a strong argument that Mr Haydon’s manner of driving was negligent, with it likely he was travelling at about 100kph in circumstances where the prevailing weather conditions and the amount of water around the highway would have indicated a more cautious approach. However, Mr Tinworth was unable to establish, on the balance of probabilities, that had Mr Haydon been driving at around 80kph he would have seen the water in time to reduce his speed further. The police, travelling at 60kph and on the alert for it, only saw the water from 50 metres away. Nor, assuming Mr Haydon did reduce his speed, was it shown that he could have reduced speed to a point at which the vehicle would not have aquaplaned.
Holmes JA and Dalton J found that there was no evidence that had Mr Haydon driven to the conditions in the manner suggested, he vehicle would not have lost traction and collided with Mr Tinworth.
Morrison JA dissented.
Cases like these serve as a reminder that expert evidence, such as a forensic engineer, should be considered in matters where liability is denied.
