Written by Peter CarterSeptember 21, 2014
Steven Tinworth was heading south in heavy rain along the Cuningham Highway on 10 January 2011 about 50 km to the east of where – just a few hours later – an inland tsunami sweeping down the Lockyer Valley would tear asunder lives and property.
It had been pelting down for days. About 48 hours later the cities of Brisbane and Ipswich would be inundated. He slowed his Ford Utility below the 100 kph limit well before the accident. His misfortune began when he hit an unseen swathe of water covering the bitumen. The impact lifted his tyres from the bitumen and launched the ute along a low trajectory – skimming at 80kph on a one-inch carpet of water – that ended in a ditch to the east of the highway.
While waiting for police and a tow truck to arrive in response to his calls from the stricken vehicle, several others safely negotiated the hazard.
But about 10 minutes after his own mishap, a Mitsubishi replicated his exact manoeuvre and was flung out of control into the same ditch. Tinworth hurried up to the driver’s window to ask if she was okay as yet another vehicle travelling in the same direction, hit the water and in a split second lost traction and become airborne.
The out of control Falcon came straight at the pair with no one able to take evasive action in the second before it struck Tinworth as he stood next to the Mitsubishi. It flew on past its victim’s crumpled body, coming to rest in the same ditch, forward of where both other vehicles lay stuck.
Fast forward to November 2013 when 22-yr-old Tinworth argued for compensation in Brisbane’s District Court against the Falcon’s driver Mike Haydon and his CTP insurer NRMA, for injuries to his left shoulder and lower back, that the two tonne flying steel mass had caused.
After 2 days of evidence, Judge Greg Koppenol accepted Haydon had probably been negligent by driving at 100 kph, an excessive speed for the wet and sodden conditions. Despite that, His Honour, in a 2 page discussion of the liability issues, refused to award damages because of the absence of evidence to prove that by reducing speed to 80 kph, Haydon’s vehicle would not have aquaplaned.
Tinworth’s lawyers recommended an appeal.
Appeal judge Philip Morrison was of the view that the trial judge had addressed the wrong question. Tinworth had not contended Haydon should have driven at a particular speed so as to avoid the risk of aquaplaning. Rather, the pleaded allegation was simply that he drove at a “speed was excessive in the circumstances”.
The real issue to be addressed, in his view, 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”.
“If anyone bore an onus of proof in relation to the speed necessary to avoid aquaplaning,” it was the defendants who had pleaded that, Haydon would have been required to travel at an unrealistically low speed of less than 80 kph.
Furthermore, it was “elementary,” according to His Honour, that the Falcon (also a ute) would have a greater hydroplaning range at 100 kph than at 80 kph. And given that it was far heavier than the Lancer involved in the 2nd of the three incidents, it would have likely pulled up – if driven at the lower speed – in a shorter distance and thus come nowhere near Tinworth to hurt him.
On that basis Justice Morrison ruled CTP insurer NRMA should be held liable. He also concluded the trial judge’s assessment of Tinworth’s loss at just $27k was wrong because the judge had by misconstrued the evidence of leading forensic orthopaedist Greg Gillett.
Of Dr Gillett’s three possible explanations of the plaintiff’s condition, correct analysis of his opinion – in Justice Morrison’s view – put the two most likely scenarios as involving the accident as a causative factor. Either one, Gillett had testified, could account for the four-month delay between the accident and the onset of back pain that was first reported after his return to work on limited duties.
If it were left to Justice Morrison, Tinworth would have won his claim and Judge Koppenol would have been required to re-assess damages including the extent to which his earning capacity was diminished by reason of the overlooked back injury.
Unfortunately for him, Justice Cate Holmes published a differing conclusion that was in full support of the primary judge’s reasoning. Justice Jean Dalton agreed with Justice Holmes.
Tinworth’s only available avenue after his 2-1 appeal loss, is to seek leave from the High Court of Australia for a further appeal.