All posts tagged: causation

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Plaintiff needed expert evidence to prove speed caused collision

Case note: Tinworth v Insurance Australia Limited [2015] HCA Trans 87 (17 April 2015)

Background

Mr Steven Tinworth (Tinworth) was injured at Ipswich, Queensland at the time of the January 2011 floods. He was struck by an aquaplaning vehicle as he stood by the side of the road.

Tinworth lost control of his utility in a patch of water on the highway.  Sometime after his accident, a second vehicle aquaplaned off the road in a similar way.  Tinworth went to check on the driver of that vehicle, when yet another vehicle, driven by Mr Michael Haydon (Haydon) hit the water and aquaplaned off the road, striking Tinworth.

There was a sign on the highway about 500m before the accident location which said, ‘Road subject to flooding’.  The speed limit was a 100 km/hr.  Haydon estimated his speed between 80-100 km/hr.

There was about 2cm of water on the road.  Haydon saw the water when he was 50m away from it.  It was not raining (or it was raining lightly) when the collision occurred.

The trial judge dismissed Tinworth’s claim.  Tinworth appealed to the Queensland Court of Appeal (QCA). That appeal was dismissed, with Justice Morrison in dissent.  Tinworth made application for special leave to the High Court of Australia (HCA).

HCA Proceedings

The application for special leave was heard on 17 April 2015.

Tinworth made submissions as follows:

  1. Only in an unusual case could an individual, who is struck by a vehicle leaving the roadway at speed, be unsuccessful.
  2. Haydon should have travelled at a slower speed, given the signage and conditions.
  3. The majority of the QCA departed from the trial judge’s view and concluded that there had been, ‘a strong argument that negligence was evident’.
  4. Adopting a common sense approach, it was open to the Court to find that if Haydon had been travelling at a speed of say 80 km/hr, the collision would have been avoided.

The submissions of Insurance Australia Limited, who defended the case against Haydon, made these points:

  1. There was no useful evidence at trial about the speed at which the water could be safely traversed.
  2. Tinworth failed to prove causation.  He didn’t establish that if Haydon had been travelling slower, he would have seen the water in time to reduce his speed further. He also failed to prove that if Haydon had reduced his speed, he would not have lost control of the vehicle.
  3. The conditions had changed between when Tinworth lost control and when Haydon lost control.  So it would be unreasonable to use Tinworth’s speed (of 80-85 km/hr) as a guide to determine a safe speed of travel for Haydon.
  4. Courts can draw conclusions about distance travelled at a particular speed, however, they cannot determine reaction time.  Reaction time is a matter of expert evidence.
  5. In line with the approach in Rickard v Allianz, a case like this requires expert evidence to establish causation.
  6. Why would it be unreasonable to travel under the speed limit, when there was no rain (or light rain)?

Justice Keane refused the application for special leave with costs, saying the case turned on the application of settled principle to very unusual facts.

This case (and Rickard v Allianz) may be of interest to those managing claims involving an agony of the moment defence and speed.

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Kate DenningPlaintiff needed expert evidence to prove speed caused collision
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NSWSC finds for employer in step case

Case note: Vincent v Woolworths Ltd and Vincent v Counterpoint Marketing & Sales Pty Ltd [2015] NSWSC 435

Public Liability Case Law – Public Liability NSW – Public Liability Case Examples – Public Liability Case Studies – Public Liability Cases – Host Employer Responsibilities – Host Employer Duty of Care

Facts

The Plaintiff, Ms Vincent (Vincent), was a store merchandiser employed by Counterpoint.

As a merchandiser, her job involved product presentation, including the creation of promotional displays. Merchandisers display products according to a planogram (a plan/diagram prepared to make a product more appealing to customers).

Vincent was arranging products in a Woolworths store according to a planogram, with the use of a safety step.  A male customer was pushing his trolley down the centre of the aisle in which she was working.  He was not looking at Vincent, who was working to his right.  Vincent was on the step and concentrating on her task.  As she stepped down from the safety step, she collided with his shopping trolley.

CCTV footage showed that she looked to either side before stepping down but did not turn her head fully, in either direction, to check for customers.

Issue for determination

Vincent brought separate proceedings against Counterpoint and Woolworths.  Vincent argued that Woolworths and Counterpoint failed to take appropriate precautions against the risk of her suffering injury in the course of her work.

Woolworths accepted that it owed Vincent a duty of care but argued that it was the ‘bare’ duty of an occupier of premises.

Vincent said that Woolworths should have warned of the risk that she could collide with a customer, provided manual assistance or provided a ladder for her to use.

Findings

The Supreme Court of New South Wales made these findings:

  1. Woolworths owed visiting merchandisers, ‘a duty to exercise reasonable care to avoid unnecessary risks of injury arising out of the ongoing conduct of Woolworths’ operations’.
  2. If Vincent had fully turned her head, she would not have stepped down and collided with the trolley.
  3. The safety step was adequate in the circumstances and allowed her to access lower shelves without restriction.
  4. Placing a barricade around Vincent would have created difficulty and inconvenience to her work.
  5. The fact that the risk assessment didn’t identify the potential for collision with customers, did not amount to a breach of duty of care by Woolworths.
  6. It was reasonable for the employer to leave the simple task of stepping onto and off a safety step to the ‘good sense and ordinary care of a mature aged worker’.

The Court dismissed Vincent’s case and found that neither Defendant was negligent.  The case may be of assistance to employers seeking to defend similar cases.  It also clarifies the scope of the duty of care owed to contractors who work within retail stores.

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Kate DenningNSWSC finds for employer in step case
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