This is a Queensland Court of Appeal decision involving a plaintiff who was injured when he was struck by a vehicle which had slid off the road in very wet conditions on the Cunningham Highway.

The Facts

On 10 January 2011, the applicant was travelling approximately 80 to 85 kilometres per hour south on the Cunningham Highway at Willowbank. There had been an extended period of heavy rain and flooding in the area at the time of the incident. The applicant’s vehicle hit a patch of water over the road and lost control into the ditch on the left side of the road. Approximately 10 minutes later another vehicle slid into the left ditch after hitting the same patch of water.

The applicant attended upon the driver of the second vehicle and stood between the vehicle and the edge of the road. The first defendant’s vehicle then also hit the patch of water and struck the applicant as it slid into the left hand side ditch.

The Decision

At first instance, the court held that a “road subject to flooding” sign approximately 490 metres before the water gave no warning to drivers of the existence of water on the road.  There had been no evidence provided as to what speed was safe in the circumstances nor was there any evidence put forward to support a finding that a reasonable driver would have seen the water further than 50 metres from it. Ultimately the court found that the plaintiff had failed to establish liability.

In the decision at first instance, the trial judge held that should his decision on liability not be accepted, a finding of 50% contributory negligence ought to be made on the basis that the applicant’s driving was also “below the standard of a reasonably prudent driver”. The trial judge also found that the applicant was standing in a patently dangerous place and did not keep a proper lookout for other vehicles.

The issues on appeal

The applicant appealed the decision alleging, amongst other things, a failure to properly consider evidence regarding the speed of the first defendant’s vehicle and the inclement weather. Any contingent findings of contributory negligence and the damages awarded were also appealed.

The first defendant was not a party to the appeal.

The Decision on appeal

By a majority of 2:1 the trial judge’s decision was upheld. Holmes JA and Dalton J held that it was likely the first defendant was travelling at 100 kilometres per hour when he should have been travelling at 80 to 85 kilometres per hour at the time of the incident. Accordingly, there was a strong argument that the first defendant’s manner of driving was negligent.

It had not been established however on the balance of probabilities that even if he was travelling at the slower speed, the first defendant would have seen the water in time to reduce his speed further. Moreover, it was not resolved that the reduction in speed would have prevented the first defendant from losing control of his vehicle after hitting the patch of water.

It was affirmed that the assessment of contributory negligence was not made to stand in concert with the finding of liability, but was made in the event the primary liability decision was set aside.

In his dissenting decision, Morrison JA found that the first defendant should have been travelling at a slower speed prior to seeing the water. If this had been the case, elementary physics suggested that if it did aquaplane, the vehicle would have stopped prior to colliding with the applicant.  Accordingly, he considered judgment should be entered for the plaintiff with no finding for contributory negligence.