NRMA have successfully defended to the High Court a claim for personal injuries as a result of a single vehicle aquaplaning accident. A roadside pedestrian alleged the driver had been negligent in travelling at the speed limit of 100 km/h when there had been a sustained period of heavy rain and the possibility of localised flooding in the area. When the driver hit surface water an inch deep running across the highway he lost control and left the road striking the pedestrian.
The claim was dismissed at first instance because the claimant led no evidence of at what speed the car would have needed to slow to, to avoid the aquaplane. The judge was not satisfied that even if the driver had slowed to a more reasonable speed of 80 km/h this would have made any difference. The claim failed on the basis the injury was an unfortunate accident without clear negligence.
In the Queensland Court of Appeal this was upheld 2 to 1 with the dissenting judge suggesting it was common sense that if the car had slowed this would have altered the dynamics of the collision such that the pedestrian would have been avoided. This however missed the point that it was not relevant whether arbitrary changes to driving behaviour would have led to a different outcome. It was far from common sense what a change in speed would have caused given the very complex and multi-factorial engineering issues involved in aquaplaning. The critical question remained “would slowing to 80 km/h have avoided the loss of control of the vehicle?”. The majority of the Court of Appeal found no evidence that it would have.
The High Court rejected the appeal at a special leave hearing. Although no detailed reasons were published, Justices Keane and Nettle fairly quickly came to the view that causation had not been established and on the specific facts of this case there was no leeway for a judge to infer what difference a reduction in speed would have made. On that basis there were insufficient grounds to grant special leave and the appeal was dismissed with costs.
The case is an important reminder as to the merits of expert engineering evidence in highly technical accident scenarios such as aquaplaning and the perils for claimants and their counsel who rely too heavily on a sympathetic judge to fill in the gaps in their evidentiary case.