Grills v Leighton Contractors Pty Ltd

[2015] NSWCA 72

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Grills v Leighton Contractors Pty Limited [2015] NSWCA 72

Hearing dates:

11 February 2015

Decision date:

27 March 2015

Before:

Beazley P at [1];
Barrett JA at [192];
Gleeson JA at [193]

Decision:

(1)  Appeal allowed in part.

(2)  Set aside order 3 made by the trial judge on 23 April 2014.

(3)  The respondents to pay to the appellant 25 per cent of his costs of the appeal, such costs to be borne by the respondents in the proportions of their respective liability to the appellant.

(4)  Leighton Contractors Pty Limited to pay the appellant’s costs as cross-respondent to the first cross-appeal.

(5)  There be no order as to costs as between the State and the appellant in respect of the State’s cross-appeal.

(6)  Leighton Contractors Pty Limited as first cross-appellant to bear its own costs of the first cross-appeal as against the State as a cross-respondent to the first cross-appeal.

(7)  The State as second cross-appellant to bear its own costs of the second cross-appeal as against Leighton Contractors Pty Limited as a cross-respondent to the second cross-appeal.

Catchwords:

TORTS – negligence – workplace injury – police highway patrol – motorcade – urgent duty – single motorcycle accident – where boom gate lowered in error

TORTS – negligence – proceedings brought against operator of motorway – proceedings brought against State as employer

TORTS – negligence – whether motorway operator owed appellant duty of care in situation in which motorway was closed to civilian traffic and operator was acting under police directions – scope of operator’s duty to police officer on urgent duties – breach of duty

TORTS – negligence – employer’s duty of care – breach of duty – where employer did not have control over technical aspects of motorway – where employer provided insufficient instructions to motorway operator
TORTS – negligence – apportionment between multiple tortfeasors – correct test

TORTS – negligence – contributory negligence – standard to be applied – Civil Liability Act 2002, ss 5B, 5C, 5R

COSTS – where appellant substantially not successful – where cross-appellants not successful – exercise of discretion where order that costs follow the event would have similar effect to no order as to costs

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5R
Workers Compensation Act 1987 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420
Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649
Central Darling Shire Council v Greeney [2015] NSWCA 51
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1
Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540
Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; 96 CLR 18 at 25
Hoffman v Boland [2013] NSWCA 158
Hunter & New England Local Health District v McKenna [2014] HCA 44
Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867
O’Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225
Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Sullivan v Moody [2001] HCA 59; 207 CLR 562
Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
Vozza v Tooth & Co Ltd [1964] HCA 29; 112 CLR 316

Category:

Principal judgment

Parties:

Adam Lee Grills (Appellant)
Leighton Contractors Pty Limited (First Respondent)
State of New South Wales (Second Respondent)

Representation:

Counsel:
B J Gross QC; K Earl (Appellant)
M Windsor SC; K Young (First Respondent)
G Parker SC (Second Respondent)

Solicitors:
Baker & Edmunds Solicitors (Appellant)
Thompson Cooper Lawyers (First Respondent)
Turks Legal (Second Respondent)

File Number(s):

CA 2014/127274

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

Grills v Leighton Contractors Limited (No 2) [2013] NSWSC 1951; Grills v Leighton Contractors Limited Pty Ltd (No 3) [2014] NSWSC 349

Date of Decision:

23 April 2014

Before:

Schmidt J

File Number(s):

SC 2008/317603

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was seriously injured in the course of his duties as a senior constable with the Police Highway Patrol while taking part in a security operation relating to the official visit of the Vice President of the United States to Sydney. For the purpose of the security operation, the Eastern Distributor (ED) was to be closed to civilian traffic, both for the Vice President’s arrival and his departure, to allow the Vice President’s motorcade to travel to Sydney Airport. On the day of the Vice President’s departure on 25 February 2007, due to advice of an earlier departure than scheduled, the appellant was directed to conduct a final ‘sweep’ of the ED on his police motorcycle in both directions on what the trial judge, Schmidt J, characterised as “an urgent duty basis”. On the return trip the appellant collided with a boom gate that had been lowered across the ED in error by a motorway controller in the employ of Leighton Contractors Pty Ltd (Leighton), the operator of the ED.

The appellant brought proceedings against Leighton and against the State of NSW (the State) as his employer. The trial judge, Schmidt J, held that both Leighton and the State were negligent, and apportioned liability between them on the basis of 47 per cent and 53 per cent respectively. Her Honour also found that the appellant was 15 per cent contributorily negligent.

The appellant appealed against her Honour’s finding of liability against the State and against the finding of contributory negligence against him. Leighton and the State each cross-appealed against her Honour’s findings of liability against them, the apportionment of liability as between them, and her Honour’s assessment of contributory negligence at 15 per cent.

Leighton also challenged a number of factual findings made by her Honour. These related to instructions and planning regarding the boom gate and the closure of the ED, control of the boom gates, and monitoring of camera footage of the ED.

Per Beazley P, Barrett and Gleeson JJA agreeing

(1)   Her Honour was not in error in making the factual findings impugned by Leighton. [79]-[88]

(2) Her Honour was in error in determining whether Leighton owed a duty of care by reference to s 5B of the Civil Liability Act 2002 (NSW), which is primarily directed to the question of breach. [89]-[95]

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420; Hoffman v Boland [2013] NSWCA 158; Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422; Shirt v Wyong Shire Council [1978] 1 NSWLR 631; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330.

(3)   Leighton owed a duty of care to the appellant, particularly given its sole responsibility for the technical operations of the motorway and the appellant’s vulnerability should Leighton not carry out its role as instructed. However, given Leighton’s circumscribed role during the security operation, this duty extended only to requiring it to take reasonable care in implementing the directions given to it by police. [96]-[114]

Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649; Hoffman v Boland [2013] NSWCA 158; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330; Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512; Sullivan v Moody [2001] HCA 59; 207 CLR 562; Hunter & New England Local Health District v McKenna [2014] HCA 44.

(4)   Her Honour was correct to find that Leighton breached its duty of care to the appellant by lowering the boom gate on the ED. [115]-[119]

(5)   The State owed the appellant a duty of care as his employer, and it breached this duty by failing to give clear directions to Leighton as to what was required in closing the ED for the purposes of the security operation. [120]-[141]

Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839; Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; 96 CLR 18; Vozza v Tooth & Co Ltd [1964] HCA 29; 112 CLR 316; O’Connorv Commissioner for Government Transport [1954] HCA 11; 100 CLR 225; Liftronic Pty Ltd v Unver [2001] HCA 24.

(6)   Her Honour’s assessment of apportionment as between the State and Leighton on the basis of 53 per cent and 47 per cent respectively was not in error. [142]-[156]

Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; Central Darling Shire Council v Greeney [2015] NSWCA 51; Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460.

(7) Section 5R of the Civil Liability Act, which governs the standard to be applied in determining contributory negligence, requires the Court to apply the provisions of ss 5B and 5C, which relate to determining breach. In undertaking this task, regard must be had to the different questions to which the determination of breach and the determination of contributory negligence are directed. [160]-[162]

(8)   Her Honour’s finding that the appellant was contributorily negligent in failing to keep a proper lookout was in error, given the urgency of his duties and the competing demands on his attention. He was also not contributorily negligent in failing to take heed of closure signals on the motorway or in the speed at which he was travelling. [175]-[182]

LiftronicPty Ltd v Unver [2001] HCA 24.

Judgment

1. BEAZLEY P: The appellant was seriously injured on 25 February 2007 in the course of his duties as a senior constable with the Police Highway Patrol when, whilst riding his police motorcycle, he collided with a boom gate that had been lowered across the Eastern Distributor (ED) by a motorway controller in the employ of the first respondent, Leighton Contractors Pty Ltd (Leighton), the operator of the ED.

2. The appellant brought proceedings against Leighton and the State of New South Wales (the State), alleging that the negligence of either or both had caused his injuries.

3. The trial judge, Schmidt J, held that both Leighton and the State were negligent. Her Honour apportioned liability between them on the basis of 47 per cent (Leighton) and 53 per cent (the State) respectively. Having regard to the provisions of the Workers Compensation Act 1987 (NSW), s 151Z, the award of damages against each was in a different sum.

4. Her Honour also found that the appellant was 15 per cent contributorily negligent.

5. The appellant has appealed against her Honour’s finding of liability against the State and against the finding of contributory negligence. Leighton and the State have each cross-appealed against the findings of liability against them, her Honour’s apportionment of liability as between them, and her Honour’s assessment of contributory negligence at 15 per cent. Each contends for a significantly higher percentage finding of contributory negligence.

6. There is no appeal against her Honour’s assessment of damages except to the extent that a consequential amendment may be required should any of the grounds of the appeal or the cross-appeals be upheld.

7. Leighton also challenges certain of the factual findings of her Honour that were central to her finding of negligence against it.

Factual background

Security operation relating to visit of the Vice President of the United States

8. On 22 February 2007, the Vice President of the United States had arrived in Sydney for an official visit. He was to depart on the morning of 25 February 2007, leaving his hotel at 8.30 am. High level security was in place for the visit, involving the New South Wales Police Force, the Federal Police, the Australian Defence Force and US security agencies. The appellant, a police motorcycle officer, was engaged in that part of the security operation under the control of the New South Wales Police Force.

9. The New South Wales Police Force was in charge of traffic management for the purposes of the security operation, codenamed Operation Warwick. Inspector Blair was the Police Traffic Commander for Operation Warwick and commanded and controlled the police deployed for traffic management in respect of that operation.

10. Inspector Blair wrote the Traffic Management Plan for Operation Warwick, which he described as containing the “blueprint” for traffic management during the course of the operation. The Traffic Management Plan specified the traffic diversions, road closures and other information used for the instruction of police and other agencies for the purposes of the operation. However, the Traffic Management Plan did not contain any information in respect of boom gates, barriers or other traffic management devices directly involving the ED.

11. Inspector Blair had had meetings with Leighton prior to the Vice President’s visit. In those meetings, whilst there had been discussion of boom gates, according to Inspector Blair, no specific boom gates were spoken of. Inspector Blair said that he had no direct knowledge of the operation or the management of any boom gates or other road closing devices used in connection with the ED. He said that there was an independent control room for the ED, operated and managed by Leighton staff. He had visited the ED motorway control room in preparation for the Vice President’s visit to observe the control room and the movement of traffic. However, he was located in the Police Operations Control Centre for the purpose of carrying out his duties in relation to Operation Warwick.

12. Inspector Blair, in his statement of evidence, explained the manner in which traffic was controlled for the purposes of Operation Warwick. The road network was quarantined to allow the official motorcade to travel between point A and point B in a secure environment. This required traffic to be diverted so that there was no traffic travelling in the same direction as, or travelling towards, the motorcade. This was facilitated by having police stationed at traffic intersections to physically stop motor vehicles travelling onto that section of the road. Police motorcycle officers would then perform a sweep of the road to ensure that no vehicles had entered via a side street or a driveway. Inspector Blair said that this was a regular practice for such security operations.

13. Inspector Blair said that when it was necessary to quarantine and close down a road network in a defined timeframe it was “not unusual and it is common” that the Highway Patrol motorcyclist travels “at a faster speed than they would normally travel” in performance of their duties. He further explained that the reason the police motorcyclists travel quickly is to ensure the network is “quarantined and cleared of traffic so that their report can be relayed back to the official motorcade that the route is secure and the motorcade is safe to proceed”. Inspector Blair said “[f]or security reasons this is done in the least amount of time to lessen any potential security risks”.

14. On the morning of 25 February, a security briefing had been given to the Traffic Control Point Police who were to be positioned at intersections and who would physically give directions to vehicles. Traffic supervisors also attended as well as the Highway Patrol allocated for the Operation. The Traffic Control Police were given copies of the traffic control plans specifying how traffic was to be managed at each point.

The appellant’s allocated duties and instructions on 25 February

15. On the day of the accident, the appellant had been assigned to “traffic duties”. His activities were directly coordinated by Sergeant Jackson. His allocated task was to conduct a final sweep of the southbound route along the ED and out to the end of Southern Cross Drive, to ensure that it was “sterile”, after an x-ray vehicle had travelled through the ED. Initially, another police officer had been allocated to conduct the northbound sweep.

16. Shortly prior to the planned time of departure at 8.30 am, advice was received by police that the Vice President intended to depart 15 minutes earlier. Inspector Blair explained that “[i]n essence the dignitary can’t proceed until we know that the route is secured and everything is right to go”. This caused a change in the plans for the sweep of the ED as the second motorcycle police officer, who was to undertake the sweep of the northbound tunnel, was undertaking other duties. Sergeant Jackson directed the appellant to conduct the final sweep of both the southbound and the northbound routes. The requirement to sweep both the north and south bound routes involved a total distance of 25 km.

17. Sergeant Jackson, by reference to departmental policy and procedures, characterised the requirement to sweep both tunnels as “urgent duty”. He said that as the Vice President’s departure was to be 15 minutes earlier than scheduled, “there was an inherent element of urgency” in the appellant undertaking a sweep of both the south and northbound tunnels on the ED. He explained, “in reality such sweeps needed to be completed at a time prior to the motorcade travelling along that route”.

18. Sergeant Jackson said that he not did make any comment to the appellant as to what speed he was to undertake his duties but observed that the appellant “rode off with a degree of urgency and with his warning lights activated and working properly”.

19. The appellant, in cross-examination by the State, stated that he believed that the task he had been allocated was “very urgent”, because he believed that the Vice Presidential motorcade “was going to leave regardless in 5 minutes. That is why it was so urgent”.

20. The trial judge found that, given the limited time now available to undertake the sweep in both directions, the appellant “proceeded at high speed, on an urgent duty basis”.

The boom gates

21. Leighton relevantly controlled five boom gates located on or proximate to the ED. Three were located on access roads to the ED to prevent traffic moving onto the ED. Two were located on the ED itself just before the entrance to the tunnels for northbound and southbound traffic respectively. The appellant collided with the boom gate at the entrance of the tunnel for northbound traffic. I will refer to this as the boom gate unless it is necessary to identify it more precisely.

22. The boom gate was constructed of a 150 mm x 100 mm white painted aluminium box section. When lowered, the boom gate was 1.25 m above surface level. Two 600 mm Stop signs and three red lights were affixed to the boom gate. Five strips of reflective tape 50 mm wide and 450 mm long were on the approach face of the boom gate. The lowered boom gate extended across the whole of the first lane and about two thirds of the second lane, sufficient for a police officer who went to assist the appellant after the collision to ride around it (although, there was no evidence as to the speed at which the police officer he did so).

23. Leighton’s standard procedure for closing the boom gates on the ED was for twin flashing red lights located 17 m before the boom gate to be activated prior to their being lowered. The boom gates take about six seconds to lower.

The accident

24. The accident occurred at 8.30 am, when the appellant drove into the boom gate which had been lowered by Leighton’s Duty Motorway Controller, Mr Shane Couch, 60 seconds previously.

Knowledge as to the existence of the boom gate

25. In preparation for the Vice Presidential visit, Leighton had provided drawings of the tunnel to the New South Wales Police, although Inspector Blair did not, at any time, see them. In his opinion, he had had no need for them for the preparation of the traffic arrangements for the Vice Presidential visit. As traffic commander, he used “the UBD and other plans”.

25. Inspector Blair accepted that on an occasion when he had visited the ED control room to familiarise himself with its operation, either he, or Inspector Wade, who accompanied him, would have asked for the building plans of the ED. He said that he could not recall the specifics of the plans or whether he had had a cursory glance at them. He reiterated that those plans were required by other agencies for other purposes. In cross-examination as to his knowledge of the existence of boom gates “into entries, or near entries into the [ED] tunnels”, he responded he knew of boom gates, “[a]t some of their locations”.

26. The appellant was also cross-examined as to his knowledge of the existence of the boom gates. However, that cross-examination was confined to his knowledge of the boom gates at the access roads. He was not asked whether he knew that there were boom gates on the ED itself.

Visibility of the boom gate

28. The evidence as to the visibility of the boom gate differed as between the police officers located at Link Road and the experts. The police officers gave evidence that the lowered boom gate was visible, at least from a static position, at about Link Road, that is, 550 m away. Senior Constable Curtain said that he observed the appellant ride past in a northerly direction. He first noticed that the boom gate was lowered when the appellant had reached the point where the roadway splits near the entrance of the ED tunnel northbound. He estimated that at that time the appellant “was only metres away from it”.

29. The appellant’s expert traffic engineer, Roger Stuart-Smith, expressed the opinion that the boom gate:

“… would have been relatively indistinguishable from the top of the tunnel portal and background clutter behind it until [the appellant] was particularly close to the boom.”

30. In Mr Stuart-Smith’s opinion, a “recognition distance in daylight would be unlikely above 80 to 100 m”. Leighton’s expert, Mr Joy, considered that the boom would have been visible from a distance of about 100-150 m. Mr Joy’s opinion was based upon observations of the general visibility as seen in CCTV footage looking southward.

31. Both experts provided tables as to the distance it would have taken the appellant to have brought his motorcycle to a stop. Mr Stuart-Smith’s analysis provided a table of stopping distances at speeds of 120 km/h and 140 km/h. Mr Joy’s table of stopping distances extended between speeds of 80 km/h and 140 km/h, using a reaction time of 1.0 and 1.5 seconds.

32. On Mr Joy’s tables, if the appellant was travelling at 110 km/h, his stopping distance would have been 110 m if his reaction time was 1.0 seconds or 125.2 m if his reaction time was 1.5 seconds. No calculation was done in respect of a speed of 115 km/h but the stopping distance at that speed would have been approximately 115 m and 130 m with a reaction time of 1.0 and 1.5 seconds respectively.

33. It is apparent, therefore, that on Mr Stuart-Smith’s evidence as to visibility of the boom gate, the appellant would not have had time to stop before colliding with the boom gate. On Mr Joy’s evidence as to visibility of the boom gate, the appellant may have had time to stop before hitting the boom gate had he seen it at the time it became visible.

34. Her Honour did not make a finding as to whether she accepted Mr Stuart-Smith or Mr Joy’s evidence as to the distance at which the boom gate would have been visible to the appellant. However, in circumstances where Mr Stuart-Smith’s assessment was made from the ED, whereas Mr Joy’s assessment was made from the ED control room by reference to CCTV footage, Mr Stuart-Smith’s evidence appeared to be the more cogent.

35. The appellant agreed that as he was riding northbound on the return trip he observed, approximately 200 m before the entrance of the tunnel, a sign with red Xs flashing, indicating that the tunnel was closed. He also agreed that “[q]uite possibly”, approximately 20 m before the boom gate, there was a sign which said “[s]top here on red signal”, together with flashing red lights. However, it is apparent from his further evidence that he had little or no recollection of matters that occurred after he had slowed down at Link Road and then accelerated again.

36. Mr Stuart-Smith considered that as the appellant knew that the road was closed to civilian traffic, he would have understood the various warnings and signals as not relating to him as he undertook his specifically directed duties to do a sweep of both tunnels. As Mr Stuart-Smith said, “[the appellant] was expecting the road to be closed but not a boom to be down”.

37. Mr Joy said that traffic management devices such as were implemented on the day of the accident were not “exclusively applicable to civilian traffic any more than a red traffic light at an intersection” of which an emergency service vehicle needs to take heed and “exercise appropriate caution in response to the message that it gives”. In his opinion:

“… the variable message sign and the red X lane usage signals should have placed [the appellant] on notice to exercise caution and to find out whether there was anything else that he need to be concerned about which potentially could have given the opportunity to take evasive action.”

The appellant’s speed

38. The trial judge found, at [197], that the appellant’s “top speed was closer to 110 or perhaps 115 kph, but that he had insufficient opportunity to break or swerve, when he saw the lowered boomgate”. Her Honour rejected as “unlikely” the suggestion that the appellant was travelling at 140 km/h.

39. The appellant was not sure of the speed at which he was travelling when he hit the boom gate, or the speed at which he was travelling prior to that. The appellant said in his evidence that he understood that the suggestion of a speed of 140 km/h was something that he had been told on the basis of what one of the experts said.

40. It is known that the appellant had slowed down at Link Road, which was 550 m south of the boom gate, to check that matters were in hand at that access point. He then sped up as he rode towards the entrance to the tunnel. The appellant accepted in cross-examination that he could have been travelling at up to 120 km/h at the time he hit the boom gate.

41. The experts accepted that the appellant’s speed after he had collided with the boom gate was in the range of 100-110 km/h. They also agreed it was not possible to determine an upper limit of his approach speed, and that it could have been the reported speed of 140 km/h.

42. Mr Joy, in his original report, had stated that on the information available to him, he was “unable to exclude” a speed of 140 km/h, a suggested speed which he understood had come from the appellant. The appellant had understood the suggestion to have come from the experts. It can be seen, therefore, that the source of the assessment that the appellant was travelling at a speed of 140 km/h is extremely nebulous.

Closure on night of 22 February

43. Leighton’s traffic control officer on duty on the night of 22 February was not called to give evidence and no statement of evidence was tendered. It appears that although she was still employed by Leighton, she was in London at the date of the hearing. Nor did the person who had briefed Mr Couch prior to 25 February give evidence: see below at [49].

44. The evidence as to what occurred on that night came from Leighton’s traffic control log book. The log recorded that at 9 pm, “Counter-Terrorism Officers (x3) onsite” and that Inspector Blair “advises expected closures Re: motorcade”. At 9.05 pm it was recorded that “[Traffic Management Controller] request full Motorway closure by our staff, not theirs”. At various intervals thereafter, there is a record of the closures of the various access roads onto the ED. There was no reference in the log to the boom gates at the entrance of the northbound or southbound tunnel on the ED being directed to be lowered or in fact having been lowered.

45. Mr Couch agreed that “to the best of his knowledge” the boom gate on the ED northbound had not been lowered on 22 February for the Vice Presidential motorcade. He also said that he did not believe that the boom gate on the ED at the entrance to the southbound tunnel had been lowered, although he qualified that evidence with the comment, “I don’t know”.

46. Her Honour found, at [33], that on 22 February, Leighton closed only the three boom gates at the access roads. She stated, “the two boomgates located on the [ED] itself, were then left open, as had been planned”. Her Honour noted that it was “not in issue”.

Instructions to Leighton in respect of lowering the boom gate on 25 February

47. The particular controversy which is central to Leighton’s liability relates to the instructions given by the police to Mr Couch on the morning of 25 February.

48. Her Honour, at [38], held that:

“The operation on 25 February required Leightons to close the three access boomgates, as it had done on 22 February … [the boom gates on the ED itself] were again not intended to be closed, because there was to be various non-civilian traffic travelling along the [ED], both north and south during the operation.”

49. Her Honour stated, at [48], that she was satisfied that Mr Couch was not instructed to lower the boom gate, but rather he misunderstood what he was instructed to do. Her Honour also concluded, at [41], that in lowering the boom gate he had departed from the planned operation. In this regard, Mr Couch’s evidence was that he had been briefed by his manager as to his role in the operation on that day. It was uncertain on the evidence whether the briefing was on Friday 23 February or the previous Friday. The actual date is irrelevant. The relevant point is that there was a briefing prior to 25 February. Mr Couch said that at the briefing he was told by his manager that “we [that is, Leighton] would play no role in closing the motorway”. Leighton did not contend that there was any error in her Honour’s recording of this evidence.

50. The trial judge also made the following specific findings, each of which Leighton challenged, relating to lowering the boom gate:

1. The two boom gates on the ED were not intended to be closed on 25 February 2006: at [38];

2. Mr Couch was not instructed to lower the boom gate: at [48];

3. Mr Couch misunderstood what he was instructed to do as a result of inadequate instructions by Leighton: at [48];

4. Mr Couch proceeded on the unwarranted assumption that the boom gates Inspector Blair was referring to in their conversation were the three on the access roads closed on 22 February 2006: at [81];

5. The plan called for the ED to be closed only to civilian traffic: at [61];

6. The boom gates on the ED had not been closed on 22 February 2006: at [38];

7. What was asked for was what had been done on 22 February 2006 to be replicated: at [72];

8. The operation of the boom gates and monitoring what the cameras revealed remained entirely within Leighton’s control: at [79];

9. Mr Couch received no instruction to lower the boom gate or close access to the northbound lanes of the ED: at [83].

Liability of Leighton

51. Leighton contended that her Honour erred:

1. in determining the existence and scope of a duty of care owed by Leighton to the appellant;

2. in the making of certain factual findings;

3. in finding that Leighton breached a duty of care owed to the appellant.

52. Although the question of the existence of a duty of care is a question of law, it is one that is informed by the particular factual circumstances of the case. Accordingly, it is necessary in the first instance to consider the factual errors that Leighton alleges were made by her Honour.

Challenge to factual findings

Instructions to close the boom gate

53. Leighton challenged the findings numbered (1), (5) and (6) set out above at [50] on the basis that there was insufficient reliable objective evidence to support them. It is also convenient to deal at the same time with the challenge to the findings numbered (4), (7), (8) and (9). The determination of Leighton’s challenge to these findings requires a consideration of Inspector Blair’s evidence, Sergeant Jackson’s evidence, Mr Couch’s evidence, the Traffic Management Plan and the log entries for 22 and 25 February.

Inspector Blair’s evidence

54. Inspector Blair was in control of the traffic operations in respect of Operation Warwick and had prepared the Traffic Management Plan. That Plan contained no reference to boom gates or other traffic management devices on the ED and the Plan was not provided to Leighton. Inspector Blair also said that “[a]t no time” did he “have any line of control or authority” to direct Leighton’s staff in respect of the ED. This was not contradicted by Leighton.

55. Inspector Blair agreed that he could not recall which boom gates were opened or closed for the arrival of the Vice President on 22 February. He described his role on 25 February 2015 as being to ensure there was “sufficient traffic management principles and policy and procedures in place to facilitate” the movement of Vice President Cheney’s motorcade from the city to the airport.

56. In cross-examination by Leighton, Inspector Blair responded affirmatively to the questions:

“Q. And you know that boom gates were to be closed on the [ED] that morning?

…

Q.   And that boom gates were to be closed for the purposes of ensuring that vehicles did not enter into the [ED] that morning?”

57. Inspector Blair, however, could not remember the conversation he had with Mr Couch. He agreed that he wanted “the route closed” and “no traffic on the route”. Although police officers were arranged at the access roads onto the ED, he did not arrange for police officers to be stationed at the location of the boom gate at the entrance of the northbound tunnel.

Sergeant Jackson’s evidence

58. Sergeant Jackson also gave evidence of attending a number of meetings in the lead up to Operation Warwick, at which representatives of Leighton were in attendance. Sergeant Jackson said that at no time during those meetings was any reference made to lowering the boom gate at the entrance of the northbound tunnel.

59. Sergeant Jackson had participated in the security operation on the evening of 22 February. He said that the ED in both directions was used by police motorcycle riders on that evening as part of the operation. He also said that prior to the collision, there had been no communication “as to any intention or possibility of lowering that boom”. He also said that prior to the accident on 25 February he had no awareness of the possibility of the boom gate being lowered whilst a police officer was travelling in a northerly direction and no knowledge or belief that it might be lowered.

Mr Couch’s evidence

60. Mr Couch made a statement of evidence dated 24 July 2012, to which was attached a document entitled “Summary of events 25 February 2007”, made that day at 3.51 pm. There were also attached a copy of a police notebook containing notes of his interview to police on 12 April 2007 and an internal email dated 24 August 2007, responding to a letter of demand Leighton had received from Allianz.

61. In his statement of evidence, Mr Couch stated that Inspector Blair rang him just before 7 am on 25 February and discussed the closure of the southbound lane and then the closure of the northbound lane. Mr Couch said that during the course of that discussion Inspector Blair said that “an X-ray scanning vehicle would be passing through the tunnel to ensure safety for the motorcade”. Mr Couch said that Inspector Blair then said to him, “[c]an you lower the boom gates, because it was effective on Thursday night”.

62. Mr Couch responded, “[o]kay, yes”. Mr Couch also recalled that Inspector Blair said “[w]ill you also activate the signage when you lower the boom gate” and that he agreed to do so. Inspector Blair gave Mr Couch a telephone number on which Sergeant Appleby could contact him if necessary.

63. Sergeant Appleby was present in the control room with Mr Couch at that time. Another plain clothes officer arrived at the control room at about 7.40 am. Mr Couch continued to carry out his duties in the control room, including observing the video displays of the ED and access roads.

64. The “Summary of events” recorded, at 7.24 am, “entry points to the ED southbound closed, no vehicles on motorway”. At 7.25 am, the following entry was recorded:

“Police x-ray vehicle starts examining motorway. NOTE. Three points they stopped were south pump station lay-by (tanker pump out I think), service door on western side (near EM5), north pump station (speed camera computer area).”

65. At 8.11 am, the document recorded “Drivers Triangle northbound noticed closed by police. Boom gate lowered”. “Drivers Triangle” was a reference to one of the access roads onto the ED near Flinders street.

66. The next entry, at 8.16 am, recorded, “[northbound] traffic plan implemented (TCMS traffic plan 417) to close Dacey Todman tunnel northbound, both lanes”. At 8.25 am, Mr Couch recorded that the last car departed the toll plaza northbound. He next observed, at 8.24 am that:

“Camera 110 monitored for any approaching traffic. Only two motorcyclists (Police) seen stopped in the right lane of Southern Cross Drive.”

(By reference to the CCTV recording, it appears that this time is incorrect by 2 minutes and 28 seconds.)

67. The next two entries were as follows:

“[8.25.16]   Dacey Todman boom gate lowered due to motorcade on route. Again checked for any traffic as boom gate was lowering. None seen.

[8.26.16]   Police cyclist collided with lowered boom gate at entry at entry Dacey Todman tunnel northbound. I witnessed accident on DVR monitoring computer. Camera swung around to check on motorway. Observed rider laying [sic] on ground. Other Police also witnessed this (two cyclists were travelling close behind him). Calls via Police radio to call Ambulance. Police radio did so.”

68. The Vice Presidential motorcade is recorded as entering the ED from Shakespeare Place at 8.32 am.

69. The document concluded with the following note:

“At the time of the collision all entry LUS’s were a red cross, VMS 1N displayed ‘TUNNEL CLOSED, DETOUR TO SOUTH DOWLING ST’ this is TCMS Standard Message 6. VMS 2N displayed ‘TUNNEL CLOSED’ (TCMS Standard Message 7). The boom gate lights were activated as well as the ‘stop here on red signal’ flashing lights. There were two stop signs on the boom gate. Police confirm that the flashing boom gate lights were operational after the event. The western stop sign was hit by the motorcyclist. Police have this sign in their possession.”

70. In his statement to the police recorded in the police notebook, Mr Couch provided the following information to the questions asked of him:

“Q) The boom gate access to ED for northbound traffic lanes [were] lowered at Zetland?

A) Yes

Q) Who gave the direction to lower the gates

A) I did

Q) Were you given that direction by someone else

A) I was requested to put up the signs and lower the boom gate. Our standard procedure when the road is closed to lower the boom gate

Q) Who gave that direction

A) Insp Blair

Q) How many boom gates are there

A) 5 in total

…

Q) Did you get a copy of the [Traffic Management Plan]

A) No

Q) Were you involved in the road planning for this event.

A) No, just some meetings”

71. In the email of 24 August 2007, Mr Couch made the following statement:

“At 8:24 am, with no traffic on the motorway and no other activity, I scanned the entry for further activity and only spotted two Police motorcyclists stopped on Southern Cross Drive. At 8:25:16 the northbound boom gate was lowered as the motorcade would soon be entering the motorway. At 8:25:16 a Police motorcyclist [the appellant] collided with the boom gate. Soon after, I raised the boom gate to allow access to other vehicles and Ambulance responding to the incident.

Some factors for consideration are as follows:

•  When the boom gate was lowered, I was not advised that this should not be done by any Police representative in the Motorway Control Room (at the time, there were two)

•   I was requested by Insp Blair to lower boom gates and change electronic signage to close the motorway.

•   There was adequate signage on the motorway to advise the road was closed ahead.

•   There was warning on the boom gate by way of flashing lights that the boom was lowered.”

72. In deciding to lower the boom gate on the ED at the entrance to the northbound tunnel, Mr Couch implemented Leighton’s documented “Procedure for closure and re-opening of section(s) of the motorway” (the Procedure). Pursuant to the Procedure, the decision to close and reopen any part of the motorway was usually made by the Motorway Controller. This in turn required the Motorway Controller to implement the relevant Traffic Plan. That plan comprised a consideration of traffic controls to provide advance warning to motorists of a change in traffic conditions ahead. The Traffic Plan could either be pre-programmed or ad hoc.

73. The Procedure also required the Motorway Controller to determine the degree of urgency with which to control sections of the motorway so as to make a judgement about the timing for implementing the next stage of the Traffic Plan. On the morning of 25 February, Mr Couch implemented the pre-programmed Traffic Plan.

74. Mr Couch said that the instruction that Inspector Blair gave him on the morning of 25 February was in words to the effect: “[c]an you lower the boom gate because it was effective on Thursday night”. He said that there was no specific mention of what boom gates were to be closed. However, he said that he understood the instruction to relate to the boom gate with which the appellant collided.

75. Mr Couch also said that at the time that he was given the instruction he did not know if that boom gate had been closed on the Thursday night, 22 February. However, he agreed that the effect of the instruction given to him was “to replicate the successful run that occurred on 22 February”. In his evidence in cross-examination, Mr Couch agreed that there was no entry in the log for 22 February that recorded that the boom gates on the ED had been lowered and that it could thereby be concluded that those boom gates had not been lowered on 22 February. He also agreed that what he did was different in that he closed the boom gate on the northbound entrance to the ED. It should be noted that Mr Couch did not close the boom gate at the entrance to the southbound tunnel on the morning of 25 February.

76. Mr Couch said he was aware that at about the time he was going to close the boom gate he knew that there was an x-ray vehicle in the southbound tunnel. He agreed that he had been told that the motorway would need to be quarantined from civilian vehicles and persons and that police officers would be manning the points of access. He said, however, that his understanding that the operation to “sterilise” the tunnel related only to using the x-ray vehicle. He denied that he knew that police were going to be doing patrols and sweeps throughout the whole of the expressway, including the tunnels, before the motorcade departed.

77. Mr Couch could see on the television monitors in the control room that police officers were stationed at the boom gates located on the access roads to the ED, but did not see any police officer at the boom gates on the ED near the entrance to the north and south bound tunnels. Mr Couch also explained what process he undertook in lowering the boom gate:

“A. I have to bring up an overview of that section of the road, click on the boom gate diagram and a window pops up. I give the command to turn on the lights. Then I have to confirm that action. That then gives me the opportunity to close the boom gate, clicking on the button. I then have to confirm that as well.

Q. And what precautions did you take for the safety of police motorcycle riders on the [ED] before you did that?

A. I zoomed down further south on the road to ensure there was no one approaching the boom gate.

Q. Did you do anything beyond that?

A. No.

…

Q. Would it be correct to say that because of the various views that you had using your cameras, you could not only see northbound vehicles, but you could also see southbound vehicles, in effect, proceeding from the city heading down towards the direction of Mascot?

A. That’s correct.

Q. Now, you don’t in the documents that we’ve seen, record the movements of those vehicles?

A. No.

Q. But it is the fact, isn’t it, that before the time of the subject accident, police motorcycles were heading southbound within the visibility of the cameras that were available, is that right?

A. I did not see any.

…

Q. … before the subject accident, a number of police motorcycles headed off southbound down the [ED], coming through the tunnel, so to speak, and they were travelling at high speed?

A. (No verbal reply).

Q. First of all, if that occurred, that would have been visible on the cameras that were in the control room, correct?

A. If we were watching that camera, yes.

Q. Okay. And your understanding was that the safety of the Vice President was a matter, obviously, of some importance to the people in charge of his security?

A. Yes.

Q. And did you therefore anticipate that the police, in order to preserve his safety and take appropriate safety precautions, would have to use their police motorcycles as part of making sure the route was safe?

A. I was not aware of that.

Q. Did you think they weren’t going to use police motorcycles?

A. I don’t know.

Q. Or was it that you just didn’t turn your mind to the question of what the police motorcycles would be doing?

A. I hadn’t thought of it.”

78. Mr Couch agreed that he was in charge of the control room and that when he closed the boom gate at the entrance to the northbound tunnel, he had done so “based on [his own] assessment of the situation”. He also agreed that he did not seek the approval of Sergeant Appleby who was in the control room at the time, because he was in charge of operating the controls.

Challenge to factual findings (1), (4), (5), (6), (7), (8) and (9)

79. Having regard to the evidence above, Leighton’s challenges to her Honour’s finding of fact, (1), (4), (5), (6), (7), (8) and (9), set out at [50], should be rejected.

80. The Traffic Management Plan prepared by Inspector Blair was the blueprint for traffic management for Operation Warwick. There was no reference to the boom gates on the ED in that plan, which would have been necessary if the boom gates on the ED were to be activated for the passage of the Vice Presidential motorcade. There was no mention of the boom gate to the entrance to the north bound tunnel during the course of the briefings at the planning meetings held prior to the Vice Presidential visit. Those factors provided a sufficient basis for her Honour’s finding that the two boom gates on the ED were not intended to be closed on 25 February.

81. Mr Couch also accepted that he was in charge in the control room and that it was he who was in control of the operation of the boom gates. His evidence as to his monitoring of the cameras demonstrates that this task was within Leighton’s sole control.

82. Mr Couch agreed that in briefings about the road closures he was told that the tunnel was to be quarantined from civilian vehicles and persons. This instruction, that the tunnel was to be quarantined from civilian vehicles, must be interpreted to mean exactly and only that. Inspector Blair explained what was required in a security operation such as this, namely that the road to be secured was cleared and quarantined from civilian traffic. This required police officers to travel along the motorway to ensure access had been cut off so that the motorway and ED was quarantined. Sergeant Jackson rode along the motorway, as did the appellant. An x-ray vehicle, to Mr Couch’s observation, scanned both the southbound and northbound tunnels.

83. It is apparent from entries in the log for 22 February that the boom gates on the ED were not lowered on that occasion. Mr Couch expressly agreed that the effect of the direction given to him by Inspector Blair on the morning of 25 February was to replicate what had been done on 22 February. Importantly, Mr Couch agreed that it could be concluded from the log that the boom gates on the ED were not closed on 22 February.

Challenge to factual findings (2) and (3)

84. Leighton’s challenges to the findings (2) and (3), that Mr Couch was not instructed to lower the boom gate and misunderstood what he was instructed to do as a result of inadequate instructions by Leighton, should also be rejected.

85. Again, the evidence is clear that there was no direction to close the boom gates on the ED or, more specifically, the boom gate at the entrance to the northbound tunnel. Mr Couch’s acceptance that he understood that Inspector Blair’s instruction was to replicate what had been done on 22 February implicitly involves the proposition that, on 25 February, there was no express instruction to lower the boom gates on the ED. Relevantly, it is clear from Mr Couch’s evidence that he was not instructed to close the boom gate at the entrance to the northbound tunnel.

86. Her Honour was correct, therefore, to find that Mr Couch misunderstood his instructions. Her Honour found, at [48], that this was because Leighton did not give him adequate instructions as to what he was required to do that morning. As already indicated, there was scant evidence as to what instructions Leighton gave Mr Couch, other than his evidence that he was told that Leighton would play no role in the closure of the motorway. I agree with her Honour that instructions in those terms were inadequate given the importance of the operation and the need for clear instructions in circumstances where the ED was to be closed to civilian traffic but was to remain open for those engaged in the security operation.

87. I would only add that whether because of the inadequacy of Leighton’s instruction to him or because of Mr Couch’s own misunderstanding of Inspector Blair’s direction, Mr Couch’s conduct in lowering the boom gate was conduct for which Leighton was responsible.

88. It follows that all challenges to the trial judge’s findings have failed.

Did Leighton owe the appellant a duty of care?

89. At trial, Leighton contended that it did not owe the appellant a duty of care because the ED had been closed to civilian traffic on the instructions of the police and it did not know that any police motorcyclist would be travelling on the ED.

90. The trial judge, at [116], [118] and, [122], by reference to the Civil Liability Act2002 (NSW), ss 5B and 5C, rejected the contention that Leighton did not owe the appellant a duty of care. Her Honour also held, at [134], that the circumstance that Leighton was acting under the directions of the police did not remove or alter the duty of care Leighton owed to those whom it knew required access to the tunnel.

91. Her Honour held, at [128], that the scope of duty owed to users of the ED on 25 February, being those involved in the security operation, included not exposing those users to unnecessary risk, by lowering the boom gate in circumstances where the ED was to remain open to them, at least without giving adequate prior warning that the ED was to be closed to such traffic.

92. Leighton submitted that her Honour erred in determining whether it owed a duty of care by reference to s 5B. This submission must be accepted although her Honour’s error appears to have been induced by Leighton’s submission at trial that:

“Section 5B is not simply concerned with breach of duty, but it is concerned with the mere existence of the duty itself …

So we then have the statutory framework, namely section 5B. We then have the framework which is available … through the Common Law.”

93. The High Court in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420 at [13], held that ss 5B and 5C are directed to questions of breach. It is an error to determine the existence and content of a duty of care by serial reference to the provisions of those sections.

94. It should be noted that in Hoffman v Boland [2013] NSWCA 158 Basten JA expressed the view that the statement that ss 5B and 5C were concerned only with breach was:

“… only partly true for the reason that factors relevant to duty and breach, at least in their practical application, do not fit easily within watertight compartments.”

95. Sackville AJA, with whom Barrett JA agreed, did not comment upon that approach and I would not encourage it, as reference to s 5B in the context of duty risks confusion. The factual circumstances in which injury occurs are relevant to the determination of the existence and scope of the duty of care: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [118]. They are also relevant in respect of breach. However, the enquiry into the existence of the duty is different from the enquiry into breach. The existence of a duty of care is a question of law to be determined at a higher level of abstraction than the factual question of breach: Shirt v Wyong Shire Council [1978] 1 NSWLR 631; Vairy v Wyong Shire Council at [71]. In Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330, Gummow J observed, at [18], that a duty of care imposed an obligation to exercise reasonable care. Breach requires the correct identification of the relevant risk of harm. This has not been altered by the Civil Liability Act which does not define or prescribe duty for the purposes of the law of negligence.

96. There are many recognised duties of care in respect of which, for that reason, detailed inquiry into the factual circumstances to determine the existence of a duty of care is essentially superfluous. This is so in respect of the duty of care owed by drivers on public roads to other users of the road, the duty of care of a road authority and the duty of care owed by an employer to an employee. Thus, the State conceded in this case that as an employer, it owed the appellant a duty of care. It is different where the court is required to determine whether a duty of care is owed in novel or unusual circumstances.

97. Leighton contended that it was incumbent upon her Honour to undertake a “close analysis” of the facts bearing upon the relationship between the appellant and Leighton to determine whether it owed the appellant a duty of care, in the unique and particular circumstances of the case. Leighton submitted that “power, control and the vulnerability” were critical considerations that required careful examination by the trial judge. It was inherent in this submission that this was a novel case.

98. In Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 the Court was concerned with whether a duty of care arose in what it characterised as “novel circumstances”. The plaintiff, the wife of a man exposed to asbestos in the course of his employment, contracted mesothelioma as a result of coming into contact with dust and fibres on her husband’s work clothes and in the family home and car. Allsop P (as his Honour then was), Simpson J agreeing, stated, at [100]:

“It can be accepted … that the President did not enunciate the required multi-factorial approach in assessing whether a duty of care arose in a novel circumstance or category. This approach recognises what has been said to be the use of foreseeability at a higher level of generality and the involvement of normative considerations of judgment and policy. This approach requires not only an assessment of foreseeability, but also attention to such considerations as control, vulnerability, assumption of responsibility and nearness or proximity.”

99. His Honour noted, at [101], that the High Court has rejected proximity as a general determinant of the existence of duty. Rather, a multifactorial approach was required in assessing whether a duty of care arose in a novel circumstance or category. His Honour continued, at [102]:

“This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the ‘salient features’ or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.”

100. Allsop P then identified salient features that were relevant to the determination of the existence of a duty of care in a novel circumstance. These included: the foreseeability of harm; the nature of the harm alleged; the degree and nature of control able to be exercised by the defendant to avoid harm; the degree of vulnerability of the plaintiff to harm from the defendant’s conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect himself or herself; the assumption of responsibility by the defendant; the nature of the activity undertaken by the defendant; and the nature or the degree of the hazard or danger liable to be caused by the defendant’s conduct. This approach to the determination of the existence of a duty of care in a novel situation was followed by Sackville AJA in Hoffman v Boland.

101. Leighton submitted that the existence of these factors as relevant to the existence of a duty of care at common law was not new: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [84]; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at 34-35; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; 217 CLR 469 at [85], [92]. Again, this may be accepted.

102. Leighton then analysed what it contended were the salient features of this case by reference to the approach in Stavar to demonstrate that it owed no duty of care to the appellant at all, or alternatively, no duty having the content found by her Honour. On Leighton’s submission, control and responsibility for the closure of the ED lay with the police, who had ordered the closure as part of a State-controlled security operation. It contended that it did not, in these unique and particular circumstances, close the ED of its own volition, but rather, was “[a]cting under dictation”. According to Leighton, this factor impacted significantly on the “usual duty” owed by a road operator to the user of the road. The scope of that “usual duty” included requiring a road authority “to exercise reasonable care to make the road safe for users exercising reasonable care for their own safety”: Roads andTraffic Authority of NSW v Dederer at [43]-[48]; Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 at [163].

103. In support of this contention, Leighton submitted that the conduct of its employee, Mr Couch, was at all times overseen by a police officer stationed in the control room. I reject this submission. There was no evidence that the police stationed in the control room had an oversight role. The evidence was that the officer was present as a line of communication between the control room and the Police Operations Control Room. On Mr Couch’s own evidence, he was in charge of the control room.

104. Leighton further contended that the trial judge erred in failing to consider the appellant’s low vulnerability to harm, given his capacity to take steps to protect himself and the reasonable expectation that he would do so. According to Leighton, the appellant was not vulnerable because he was performing official duties and had available to him all the resources of the police and other government agencies engaged in the security operation. Leighton also contended that the appellant was not relevantly vulnerable, because his task was to undertake a visual sweep and be on the lookout for items, persons or occurrences that should not have been present on the ED. Thus, Leighton argued, it could be expected that the appellant would be sufficiently vigilant to see hazards, such as the lowered boom gate, in advance.

100. Leighton also contended that its own state of its knowledge on the occasion was relevant. In particular, it relied upon the absence of any knowledge on its part of the urgent directions given to the appellant to perform a sweep of the ED in both directions in circumstances where the Vice Presidential motorcade had advised of an earlier than scheduled departure.

101. Leighton next contended that the law denies the existence of a duty of care in circumstances where its imposition would subject the defendant to conflicting, incompatible duties: Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [55]-[60]; Hunter & New England Local Health District v McKenna [2014] HCA 44 at [17]-[23]. Leighton submitted that in this case the imposition of a duty of care to an individual police officer conflicted with its incompatible duty to close the northbound tunnel. It submitted that this overarching duty was imposed by direction from the police as part of the special security event.

102. Finally, Leighton contended that the scope of the duty of care found by her Honour was too wide to be imposed on a road authority. It submitted that if it was subject to a duty of care in the circumstances, it was a duty only to take reasonable care that the ED was safe for non-civilian traffic users exercising reasonable care for their own safety: see Roads and Traffic Authority of NSW v Dederer and Brodie v Singleton Shire Council. It contended that her Honour’s finding on duty, at [128], which is framed in more specific terms, went beyond this.

103. In summary, Leighton contended that power and control was in the hands of the State, there was no lack of vulnerability of the appellant, Leighton’s lack of knowledge of arrangements of the security operation and its incompatible duty to follow the directions of the police as part of a special security event, precluded the finding that it owed the appellant the duty of care described by her Honour.

Consideration of the duty question

109. Leighton’s contention that it owed no duty of care, or no duty of the scope found by her Honour, was critically dependent upon establishing that Mr Couch’s actions were overseen by the police officer in the control room and that, Mr Couch, having been directed by Inspector Blair to do so, it had an obligation to close the northbound tunnel at its southern entrance. Having regard to the failure to successfully challenge her Honour’s factual findings, neither of those matters has been established.

110. Accordingly, the circumstances as to whether Leighton owed of a duty of care is to be determined having regard to the following matters. Leighton was the operator of the ED. Its usual duty of care as a road operator, as it accepted, was “to exercise reasonable care so that the road is safe for users exercising reasonable care for their own safety”: see Roads and Traffic Authority of NSW v Dederer at [45] per Gleeson CJ. The circumstances in which Leighton operated the motorway on 22 February and 25 February were different from the circumstances in which it usually operated the motorway in that there was a security operation that required the closure of the motorway to civilian traffic to ensure the safe passage of the Vice Presidential motorcade. The motorway was to be closed as and when directed by the police.

111. There had been planning meetings between the police and other agencies and Leighton prior to the Vice Presidential visit at which the security operations had been discussed. The evidence was silent as to what arrangements were put into place in relation to Leighton’s precise role and responsibilities in relation to the security operation as it affected the operation of the motorway and the ED. However, the evidence is clear that Leighton was the only entity responsible for the technical operations relating to the closure, such as activating road signs and closing boom gates as and when directed by the police.

112. The appellant’s vulnerability should Leighton not carry out the instructions given by the police is obvious. The appellant was dependent upon Leighton’s employees to follow the instructions given by the police in respect of the operation. Given the stressful demands of the operation, he was particularly dependent upon Leighton’s employees not to do anything unexpected in circumstances where Leighton was the only entity with physical control over the signals and barriers that could be activated.

113. Leighton’s role during the security operation was circumscribed by the limited task that it was required to undertake and the aspects of the control of the motorway that were in the hands of the police. Nonetheless, as the entity that controlled the technical aspects of the closure, Leighton owed a duty of care to those using the ED in the course of the security operation. That duty required it to take reasonable care in implementing the directions given by police. Persons using the ED in the course of the security operation were required to use reasonable care for their own safety to be assessed having regard to the nature of the tasks they had been assigned.

114. Accordingly, in the result, her Honour was correct to find a duty of care existed, although we have differed in the formulation of the scope and content of that duty.

Breach of duty

115. The determination of breach of a found duty of care is governed by the Civil Liability Act, ss 5B and 5C, which provide as follows:

“5B   General principles

(1)   A person is not negligent in failing to take precautions against a risk of harm unless:

(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)   the risk was not insignificant, and

(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)   In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a)   the probability that the harm would occur if care were not taken,

(b)   the likely seriousness of the harm,

(c)   the burden of taking precautions to avoid the risk of harm,

(d)   the social utility of the activity that creates the risk of harm.

5C   Other principles

In proceedings relating to liability for negligence:

(a)   the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b)   the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c)   the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

116. As to s 5B, the risk of a person engaged in the security operation or otherwise involved in the movement of the Vice Presidential cavalcade being injured, if the instructions given by the police were not followed, was foreseeable and not insignificant. It was foreseeable by Leighton because it was aware that the security operation involved the motorway and ED being closed to civilian traffic only. It knew this at least from what had occurred on the previous Thursday. It can be inferred that it was also aware that the ED was to be left open as, on the evidence, the closure of the ED by lowering the boom gates was never discussed in the planning meetings. It was also aware that other vehicles involved in the security operation, for example, the x-ray vehicle, were required to pass through the tunnels. The risk of harm caused by the unexpected closure of the tunnel by lowering the boom gate was not insignificant. The precaution required in the circumstances was not to depart from the instructions and not to implement action that had not been part of the planned action.

117. The factors to which s 5B(2) direct attention have to be considered in the context that this was a high level security operation. The essence of such an operation and the planning behind it is to ensure the least risk possible to those engaged in the operation. An unexpected and unheralded departure from the planned operation by one participant would have the potential to harm the other participants. In this case, the lowering of the boom gate to prevent access into the tunnel when access was expected was likely to cause harm: para (a). The possible harm following a collision with the boom gate was likely to be very serious: para (b). The burden of taking precautions to avoid the risk of harm, that is, not acting other than in accordance with the directions given, was not only not onerous, it was an essential aspect of the task in which Leighton was engaged: para (c). There was no social utility in acting outside the instructions given: para (d).

118. None of the parties directed attention to s 5C. To the extent that s 5C(a) is relevant, it has effectively been addressed in the observations above as to s 5B(2)(c). Section 5C(b) and (c) have no particular relevance to this case.

119. Her Honour was therefore correct to find that Leighton breached its duty of care to the appellant.

The State: breach of duty

120. The State did not deny that it owed the appellant a duty of care as an employer. However, it contended that her Honour erred in finding it had breached its duty of care.

121. The trial judge held, at [154] ff, that the traffic plan for the departure of the Vice Presidential motorcade required both lanes of the ED to remain open to those who required access to it, including the appellant. It was, therefore, necessary that the planned operation be adequately communicated to Leighton and its implementation adequately monitored. Her Honour found that the State was negligent in failing to take available, reasonable precautions to ensure that there was no unplanned departure from the operation. In particular, the police ought to have taken reasonable available precautions to ensure that Leighton understood that the lanes of the ED had to remain open, and that if Leighton decided to close them, it would give adequate prior warning of its decision.

122. Her Honour, at [161]-[163], considered that, as Leighton maintained control of the technical aspects of the road closure and the police had no authority to direct or supervise how the road closure was to be effected, they were thus reliant upon Leighton to ensure that both lanes of the ED remained open. Her Honour observed, at [164], that notwithstanding the reliance by the police on Leighton to carry out the closure of the ED, it had not documented what had to be done. Her Honour considered that had that been done, Mr Couch’s misunderstanding would not have occurred.

123. Her Honour further stated, at [166], that the police officer stationed in Leighton’s control room could have been given the duty of observing Mr Couch, so as to identify any unplanned departure from what was required of the road closure, even though those police could not direct Leighton’s traffic controller as to what to do.

124. Her Honour considered, at [167], that leaving the understanding and implementation of what was required for the closure of the ED to verbal communications, created obvious risks which simple precautions could have avoided. Her Honour found, at [168], that it was “relatively simple” to provide instructions in the Traffic Management Plan as to what was required for the arrival and departure of the motorcade or to give written instructions to Leighton as had been given to police officers. Her Honour held, at [169], that had such simple and available precautions being taken, the risk to which the appellant was exposed could have been avoided.

125. The State challenged her Honour’s finding in these paragraphs on a number of bases. First, it contended that her Honour’s findings were not part of the case pleaded against it. Secondly, it contended that, having found at [140] that Inspector Blair had not directed Mr Couch to close the entrance to the northbound tunnel of the ED, and that, at [125], a reasonable defendant in the position of Leighton would not have lowered the boom gate, her Honour ought to have found that the State had no culpability, that is, it had not breached its duty of care to the appellant. Thirdly, it contended that that there was no evidence that had the instructions to Leighton in respect of the closure of the ED been documented there would have been any different outcome.

126. Whilst it is correct that her Honour stated, at [150], that the appellant’s pleaded breach against the State was a failure to instruct, supervise and warn the appellant, his pleaded case of breach was not contained within that capsule. The appellant’s particularised breaches including “permitting or causing” the boom gate to be lowered. An allegation that implicated the State in the closure of the boom gate permitted a case to be based upon the State’s role in that occurrence.

127. It also appears that the State understood that it faced an allegation of negligence that was broader than instructing, supervising and warning the appellant. This is apparent from para (24) of the State’s written submissions at first instance, where it submitted that the appellant’s injuries were not caused by any of the particularised allegations of negligence, “or any breach of the duty owed by it as an employer of [the appellant]”.

128. In the court below the State argued that the accident was caused by the appellant’s speed, his failure to keep a proper look out and the lowering of the boom gate by Mr Couch. The State separately addressed each of these matters in respect of the allegation it had breached its duty of care, both in its oral and written submissions.

129. In its written submissions in the court below, under the heading “Breach of duty: lowering the boom gate”, the State specifically addressed why it was not negligent. In essence, its argument was that the police, and Inspector Blair in particular, had not given a direction to close the northbound tunnel of the ED. In the course of advancing that case, the State specifically addressed the terms of the instruction that Inspector Blair gave to Mr Couch. In its oral submission, in addressing the failure to warn, the State contended it could not have warned the appellant because it was not aware that the boom gate was to be closed.

130. I am of the opinion that there is validity in the State’s complaint that there was no evidence in the court below as to why documentation of the instructions relating to the closure of the ED was a reasonably practicable alternative. It may be that had that allegation been expressly made, evidence could have been directed to the reasonableness or the practicality of that step.

131. Notwithstanding that, I am of the opinion that the State breached its duty of care. The State was in an employer/employee relationship with the appellant at the time of the accident and owed him a non-delegable duty of care as his employer “to take reasonable care to avoid exposing [him] to unnecessary risks of injury”: Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at [12].

132. In Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42; 96 CLR 18 at 25, Dixon CJ and Kitto J said:

“The duty … is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury.”

133. In Vozza v Tooth & Co Ltd [1964] HCA 29; 112 CLR 316 at 319, Windeyer J said:

“For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment.”

134. As the Court explained in Czatyrko v Edith Cowan University, at [12]:

“If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.” (footnotes omitted)

135. The standard of care owed by an employer to an employee has been expressed variously. In O’Connor v Commissioner for Government Transport [1954] HCA 11; 100 CLR 225, at 230, the Court held that the standard of care for an employee’s safety “is not a low one”. The Court also observed that the question to be determined was “whether any suggested course that was omitted could really be regarded as reasonable”.

136. In Liftronic Pty Ltd v Unver [2001] HCA 24; 75 ALJR 867 Gummow and Callinan JJ stated, at [85], that that an employer:

“… bore a heavy responsibility to devise, institute and enforce a safe place of work, and safe system of work, so as to avoid exposing workers, such as the respondent, to unnecessary or unreasonable risks. This was a duty personal to the employer. The ultimate legal responsibility for its fulfilment could not be delegated. In this sense, explaining the standard of care expected of an employer in terms of the conduct of ‘the reasonable person’ may have understated the very heavy duties that the law in Australia casts on an employer. Such duties include affirmative attention to the issue of accident prevention.”

137. The operation being undertaken on 25 February required that the ED be closed to civilian traffic. It also required that the ED otherwise remained open. Security operations had to be undertaken to ensure there were no vehicles, devices or other items that would cause a security risk to the passage of the Vice Presidential motorcade to the airport.

138. On the morning of the accident, the appellant was directed by Sergeant Jackson to undertake not only a sweep of the southbound tunnel, as had been his original designated task, but also a sweep of the northbound tunnel, due to the changed time of the Vice President’s departure from the airport and the unavailability, at that earlier time, of the officer assigned to do the sweep of the northbound tunnel. That was clearly an urgent duty and was so characterised by Sergeant Jackson.

139. It was essential to enable the sweep of the tunnel to be undertaken that the ED be open to the police officer or officers undertaking that task. It was also inherent in the task that it would be undertaken under high speed and with a focus on the security aspects that it was intended to serve. It was incumbent on the police therefore to give clear directions to Leighton, as operator of the ED, as to what was required in closing the ED for the purposes of the operation.

140. Inspector Blair’s instruction to Mr Couch to replicate what had been done on 22 February failed to provide to the Motorway Controller on duty an unambiguous clear instruction as to what was required to be done. The instruction was inadequate at a number of levels. First, it assumed that the Motorway Controller on duty knew what had been done on 22 February. Secondly, it assumed that the Motorway Controller had access to information, such as the log book, to check what had been done on 22 February. Thirdly, and either additionally or alternatively to the previous point, it assumed Leighton had adequately briefed Mr Couch. Finally, those assumptions aside, the instruction did not have the clarity or detail required to convey precisely what was to be done or not to be done.

141. In my opinion, that is sufficient to establish that the State breached its duty of care to the appellant.

Apportionment

142. The State challenged her Honour’s apportionment of liability to it of 53 per cent as erroneous, contending that it imposed too high a duty of care upon the State. Leighton, for its part, challenged the apportionment to it of 47 per cent liability.

142. The State’s submission involved three essential propositions.

143. First, it submitted that the precautions found by her Honour to be reasonably available to the Police were not required because Mr Couch knew what he had to do. The State resisted any suggestion that the instruction to replicate what had occurred on 22 February was insufficient or was in any way ambiguous. I have concluded otherwise.

144. Secondly, the State also contended that Mr Couch ought to have known that the tunnel had to remain open on 25 February because the instruction to replicate what had occurred on 22 February was given to Leighton and it was its responsibility to instruct its employees as to what was to be done. An alternative aspect of this submission was that Mr Couch would have been personally aware that the lanes on the ED had not been closed on the Thursday night had he inspected the log. The State emphasised that Inspector Blair could not have been expected to be know how Leighton dealt with its internal instructions and directions to staff.

145. Thirdly, the State submitted that her Honour held it to too high a standard of care in finding, at [161], that it was required to:

“… take adequate steps to ensure that it met the duty which it owed to the police officers involved in the operation. In the case of those assigned duties like those given to [the appellant], the Police Force ought to taken reasonably available precautions to ensure that Leightons understood that the lanes had to remain open and that if Leightons decided to close them, that it would give the Police Force adequate prior warning of its decision.”

147. The State complained that her Honour simply assumed, without evidence, that documentation of what was required in respect of the closure of the ED constituted what would have been good practice. I have upheld this submission, but have found the State negligent because its instructions to Mr Couch were not sufficiently clear so as to convey precisely what was involved in the road closure. Having regard to that finding, I would not interfere with her Honour’s apportionment. The dangers involved in a high level security operation are obvious. The need for instructions in respect of each integral aspect of the operation to be clear is also obvious. Inspector Blair’s instruction to Mr Couch was not a model of clarity when absolute clarity was essential.

148. Further, the State’s reliance on Leighton to undertake the technical aspects of the road closure was such that it was negligent for Inspector Blair to make any assumption as to the knowledge of the individual to whom he was giving the instructions. This was particularly so when he knew that individual was a different person from the person to whom he had given the instruction on the previous occasion.

149. I should add that the State’s complaint that her Honour held it to too high a standard by using the language of obligation “to ensure” certain matters might have had force, if that language was taken by itself. As Gummow J explained in Roads and Traffic Authority of NSW v Dederer at [18], “a duty of care involves an obligation to exercise reasonable care”. There is no obligation to ensure harm does not occur. Thus, Gummow J explained, at [46], in respect of a road authority, that it “is not obliged to exercise reasonable care in the abstract; still less is it obliged to ensure that a road be safe in all the circumstances”.

150. However, it is apparent from her Honour’s reasons as a whole that she did not, by the use of the language of assurance, set a standard of care that was too high. The sections of the judgment of which complaint is made, viz [154], [155] and [161] were part of her Honour’s consideration of the State’s breach of its duty of care. Earlier, at [135], in dealing with the question whether Leighton had breached its duty of care, her Honour accepted Leighton’s submission that it ordinarily had a duty to take reasonable care “but its duty was not to prevent harm occurring to others”. Her Honour cited Roads andTraffic Authority of NSW v Dederer. Her Honour held that Leighton had breached its duty of care. Next, when dealing with the question of breach of duty by the State, her Honour stated, at [149], that the “same conclusion must be reached in relation to the State”. Her Honour then concluded, at [173], that a “reasonable person in the Police Force’s position would have taken these simple and easily available precautions.”

151. Even if her Honour did err in the way alleged, I have concluded, for different reasons from those given by her Honour, that the State failed to take reasonable care to avoid a foreseeable risk of harm.

152. I would also reject Leighton’s contentions as to error in her Honour’s assessment of apportionment. Her Honour, at [214], set out the relevant test by reference to the well-known statement of the High Court that apportionment:

“… involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination”

Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 at [10] per Gibbs CJ, Mason, Wilson, Brennan and Deane JJ. This statement was made in the context of contributory negligence, but applies equally to apportionment as between tortfeasors: Central Darling Shire Council v Greeney [2015] NSWCA 51 at [63]; Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 at [113].

153. At trial, Leighton submitted, and her Honour accepted at [215], that this determination:

“… requires a comparison between the culpability of the parties, that is, the degree to which they each departed from the standard of what is reasonable and an assessment of the relative importance of the various negligent acts and omissions established by the evidence.”

154. In its argument on the appeal, Leighton contended that her Honour, in stating at [221] that the apportionment of liability that she had found as between Leighton and the State “properly [reflected] their respective contributions to the materialisation of the risk to which [the appellant] was exposed” had applied a wrong test. I do not accept that contention. Her Honour’s statement at [221] must be viewed in the context of her reasons as a whole. Her Honour had set out the correct test at [214] and [215]. Her Honour, at [222], specified the factors that she considered were relevant to the culpability of Leighton and the State and the relative importance of each of the acts in causing the damage. Her Honour’s remarks, at [221], therefore, must be viewed in the light of the test she had set out at [214]-[215] and her correct application of that test in [222]. This challenge reflected the advocate’s error of taking an isolated statement in a judgment out of context. That approach to arguments on appeals should be discouraged.

155. I also do not accept Leighton’s contention that her Honour should have found that, as between it and the State, it was the State that ought to bear the overwhelming share of responsibility. Leighton’s task was to take those steps that it was instructed to take in relation to the ED. Regardless whether the accident was caused by a failure by Leighton to properly instruct Mr Couch as to what he was required to do, or, alternatively, by a casual act of negligence by Mr Couch in not informing himself as to what had been done on 22 February so as to replicate that operation and in making an assumption as to what was to be done, Leighton’s conduct carried with it a high degree of negligence.

156. There was thus no error in her Honour’s assessment of apportionment as between Leighton and the State.

Contributory negligence

157. The trial judge observed, at [103], that the appellant’s actions in slowing and attempting to swerve around the boom gate were reasonable. Her Honour added that had the appellant observed the lowered boom gate earlier, he would not have hit it. Her Honour considered it relevant that the flashing lights and stop signs would have alerted him to it having been lowered had he looked ahead in sufficient time to see it and react to it. Her Honour held that this did not establish that the speed at which the appellant was travelling was excessive. Rather, her Honour, at [108], held:

“What caused him to collide with the boomgate was not excessive speed, but rather his expectation that he was sweeping an open freeway, empty of other traffic, about to enter into the open, empty Distributor; the attention which he had to pay to what was happening behind him as he rode on and of what lay to the sides of the roadway; the boomgate being lowered across the road without prior warning being given to him; and his failure to pay sufficient attention to what lay ahead of him. The result was that when he turned his attention to the road ahead, he did not have sufficient time to stop, or for the evasive action which he then took to manoeuvre around the boomgate, to succeed.”

158. Her Honour concluded, at [211], that it was only the appellant’s failure to observe the hazard posed by the lowered boom gate in sufficient time to stop or swerve, which gave rise to any risk from the way in which he was undertaking his duty. Her Honour considered that that was a failure that was properly reflected in a finding of contributory negligence.

159. A claim that a plaintiff, injured in a motor vehicle accident, was contributorily negligent, is governed by the Motor Accidents Compensation Act 1999 (NSW), s 138, which provides, relevantly, that the common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by the section: s 138(1). The exceptions referred in subs (1) relate to the requirement to make a finding of contributory negligence where, stated in general terms, alcohol was a factor in the accident or the injured person was not wearing a seat belt. Those matters are not relevant here.

160. The enacted law includes the provisions of the Civil Liability Act, s 5R, which by operation of s 3B(2) applies to motor vehicle accidents. Section 5R provides:

“5R   Standard of contributory negligence

(1)   The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2)   For that purpose:

(a)   the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b)   the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

161. The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case.

162. As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person’s own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 138(3) requires the court to reduce the damages recoverable “by such percentage as the court thinks just and equitable in the circumstances of the case”.

163. I have already indicated that there was no effective challenge to her Honour’s finding that the appellant was travelling at between 110-115 km/h, although the appellant’s senior counsel contended he must have been travelling at 140 km/h. Having regard to the evidence to which I have referred at [42], this contention must be rejected. The State submitted, however, that a safe speed was between 90-100 km/h. In support of this submission, the State relied, inter alia, upon the Safe Driving Policy contained in the New South Wales Police Force handbook. That policy required a police officer to drive “in compliance with the Australian Road Rules, Road Transport Legislation and Service guidelines”.

164. The State accepted that the appellant was on urgent duty at the time of the accident, but submitted that the duty was not so urgent that it required him to travel at the speed he did. In this regard, the State drew attention to the provision in the Safe Driving Policy relating to urgent duty that:

“Consideration must be given to high-speed urgent duty driving as a last resort. It will only be engaged when the gravity and seriousness of the circumstances require such action and there are no other immediate means of responding.”

165. The State contended that her Honour erred first, in accepting the appellant’s evidence that the motorcade was leaving in five minutes “regardless” and that was why the duty was “so urgent” and justified the speed at which he was travelling and secondly, in designating the task as “urgent duty”. The State’s submissions fail to have adequate regard to the whole of the evidence, as explained below.

166. Leighton adopted the State’s submissions on contributory negligence. It also advanced 32 additional factors that it contended established a high degree of contributory negligence on the appellant’s part. Those factors can be categorised as follows: (a) knowledge that the ED had to be secured in both directions and was closed to civilian traffic; (b) knowledge that the speed limit in the ED tunnel was 80 km/h; (c) knowledge that signage had been activated to signify the ED was closed; and (d) knowledge that he was to ride at a speed that was safe and to conduct himself in a safe manner.

Evidentiary matters relevant to contributory negligence

167. The State contended that the proposition that the appellant had to perform “the sweep [in both directions] and return in 5 minutes” was incorrect and undermined her Honour’s conclusion as to contributory negligence. However, that submission does not accurately reflect her Honour’s finding or the evidence.

168. Her Honour accepted that the appellant’s understanding as to his instructions was as follows:

“[Sergeant Jackson said] ‘Can you commence your northbound sweep?’ The motorcyclist at the Airport replied ‘I am not in a position to do that. I have come across another issue down here at the Airport which I am sorting out with the traffic. I can't do it’ so Acting Sergeant Jackson turned to me and said ‘Can you run down to the Airport and get back here?’ I said, "What, in 5 minutes?" as this was the time they said the Vice President was going to leave in. Acting Sergeant Jackson said ‘Yep. Just go and just get it done. Just get as far as you can.’ So off I went.”

169. Under cross-examination by the State, he said:

“Q. If that were the case, the road may not have been secure, correct?

A. Possibly.”

170. When further questioned to the effect that there was nothing in the circumstances that required him to exceed the speed limit, the appellant stated that the “situation was urgent”. In response to questioning that there was no need to exceed even 100 km/h, he responded that was travelling in motorway conditions and the road was otherwise closed.

171. All of the evidence pointed to the conclusion that the task allocated to the appellant was urgent. His evidence to which I have referred supported that finding. Sergeant Jackson stated that the appellant was undertaking urgent duties in accordance with the departmental policy and procedures. Inspector Blair gave evidence that undertaking the task of quarantining and closing the road is, for security reasons, done “in the least amount of time to lessen any potential security risk”. Sergeant Sugden stated that:

“… the job called for urgent duty … the Vice President was leaving early. We had [to] ensure the route was safe ... The job required to be done quickly.”

172. Accordingly, there was no evidentiary basis for the State’s submission that the task was not ‘so urgent’ so that a speed of between 80 km/h and 100 km/h only was justified in the circumstances. Nor does the evidence support the contention that the appellant was contributorily negligent because he was travelling at such a speed that he failed to detect the boom gate in sufficient time to stop, or otherwise avoid a collision with it.

173. Although the court is required to have regard, amongst other things, to the factors in s 5B(2), s 5R does not specify that each of those factors needs to be satisfied seriatim by way of a check list. The relevance of and weight to be given to each depends on the circumstances. In the present case, although the appellant was required to ride safely and to take reasonable care for his own safety, an examination of the factors in s 5B(2)(a), (b) and (c) do not assist in determining whether the appellant was contributorily negligent. The relevance of para (d) is also marginal. This was a situation where the appellant had no forewarning of the harm. He was engaged on an urgent task as part of an official security operation. He was entitled to proceed along the ED making the assumption that it was open because the very task he was undertaking required him to travel, at speed, urgently, on the ED.

174. The evidence is clear and, indeed, it was part of the State’s case in the Court below on failure to warn, that the police did not have any expectation that the boom gate with which the appellant collided was to be lowered. Their expectation was the opposite. There was no reference in the Traffic Management Plan to boom gates on the ED, as opposed to boom gates controlling the access roads. There was no reference to those boom gates in preparatory meetings held by the police with Leighton prior to the visit. Inspector Blair did not intend that the boom be lowered on the morning of 25 February. Sergeant Jackson “had no communication as to any intention possibility” of that boom gate being lowered.

Consideration of contributory negligence

175. The question of contributory negligence has to be determined in accordance with the provisions of s 5R in the context of the evidence I have just outlined. This was not a case of an employee’s inadvertence in the sense in which that has been explained in the cases: see Liftronic v Unver at [87] per Kirby J. Rather, it is a case where the appellant was required to undertake an urgent task in circumstances where there was an expectation on the part of his employer, conveyed to the appellant as to the conditions under which the task of sweeping both tunnels was to be undertaken, namely that the ED was closed to civilian traffic only. It was to be open for those directed to undertake tasks as part of the security operations that required travel on the ED. In addition, as her Honour found, whilst undertaking the sweep the appellant was required to have regard to what was behind him and what lay to the sides of the roadway. The photographic evidence revealed that the roadway leading up to the boom gate included a varied array of buildings, foliage and other visual clutter.

175. Thus, whilst the appellant saw the various closure signals, he would not have been expected to understand that those signals applied to him. Indeed, his expectation, as was the case with his immediate supervising officer, Sergeant Jackson, was that there was no intention or possibility of lowering the boom gate. I am also of the opinion, contrary to her Honour’s finding, at [211], that in the circumstances, the appellant was not contributorily negligent in failing to keep a proper lookout. This was not a simple case of a driver of a motor vehicle keeping a proper lookout in respect of the roadway and matters that may incidentally be encountered when driving. As her Honour found, at [202], and as the evidence revealed, the appellant was required to keep a lookout in respect of the road in front and behind him and along the sides. The appellant was required to be on the lookout for matters that posed a security risk.

176. Having regard to the urgency with which the task was to be undertaken, the fact that the lowering of the boom was, on the State’s own evidence, completely unexpected and the circumstance that the appellant was travelling on a motorway on which there was no traffic, I have also come to the conclusion that the speed at which the appellant was undertaking his duties was not excessive. The State accepted that a speed of 100 km/h was not excessive and would have been an appropriate speed. It is difficult to see, therefore, that a speed of about 110-115 km/h was excessive in the circumstances.

177. Accordingly, having regard to the standard of care required of the appellant, being the standard of care of a reasonable person, with the state of his actual knowledge, Leighton and the State have not established that the appellant failed to take precautions against the risk of harm occasioned by the lowering of the boom gate.

178. It follows that what can only be described as the extravagant submission of the State that there should be a finding of 75 per cent contributory negligence against the appellant must be rejected out of hand. Indeed, it must be questioned whether the State, as a model litigant, ought to have advanced such a case in circumstances where it was contrary to the evidence of its own witnesses, namely the senior police officers involved in Operation Warwick that the task was urgent and required the police officer charged with such duty to travel at speed.

179. Leighton did not submit that a finding of contributory negligence ought to be made in its case different from or regardless whether a finding of contributory negligence was made in favour of the State. But, in any event, for the reasons discussed above, the submissions advanced by Leighton in support of its defence of contributory negligence should be rejected. It follows that Leighton’s adoption of the State’s claim that the appellant was 75 per cent contributorily negligent was on the whole of the evidence also extravagant.

180. I would additionally observe that Leighton’s argument, that the appellant was required to obey traffic signals and directions, as is the case with emergency vehicles generally, engaged an inapt analogy. In the usual course, an emergency vehicle is required to navigate its way through civilian road and pedestrian traffic. The precautions required in those circumstances are of an entirely different nature and degree to what was required on this occasion. As stated above, at [166], the ED was closed to civilian traffic and there was no expectation that the boom gate would be lowered.

181. This conclusion means it is unnecessary to determine whether the appellant was traveling at 140 km/h, but as I have already indicated, that submission was assertion only.

Conclusion

183. On its face, the appeal in this matter is curious. A plaintiff who had succeeded against each defendant, came to the Court of Appeal seeking to establish that one of those defendants was not negligent at all. The answer to the curiosity is to be found in the somewhat tortuous provisions of the Workers Compensation Act, s 151Z. For the purposes of the assessment of damages, the appellant was better off to have no verdict against the State and for liability to reside only in Leighton, or alternatively for the apportionment of liability to the State to be as low as possible.

184. For the reasons given, the appellant has not achieved his purpose. To the extent that his appeal sought a result whereby the State was not liable at all, or in a percentage apportionment less than what the trial judge found, his appeal has failed. However, to the extent that he sought to have the finding of contributory negligence against him set aside, he has succeeded on his appeal.

185. Leighton and the State have each failed in their cross-appeal in all respects. That is, the respective challenge of each to the finding of duty of care owed to the plaintiff, breach of that duty, apportionment of liability assessed at 47 per cent and 53 per cent respectively, and the finding of 15 per cent contributory negligence, have all failed. Each of those challenges, save for the challenge to the assessment of contributory negligence, which was against the appellant only, were brought both against the appellant and against the other.

Costs

186. The substantial failure of the appellant and the total failure of each of the respondents raises a somewhat complex question as to costs. If costs were “to follow the event” in accordance with UCPR, r 42.1, the result would be as follows:

1. As to the appeal:

1. the appellant would have an order for a small portion of its costs of the appeal.

2. As to Leighton’s cross-appeal:

1. There would be an order for costs against Leighton in favour of the appellant;

2. There would be an order for costs against Leighton in favour of the State.

3. As to the State’s cross-appeal:

1. There would be an order for costs against the State in favour of the appellant:

2. There would be an order for costs against the State in favour of Leighton.

187. It can be seen from the above that, as against each other, the effect of an order that costs follow the event for and against Leighton and the State would, in effect, neutralise each other. Accordingly, in the exercise of the Court’s discretion to make such order as it sees fit, there should be no order as to costs insofar as their respective cross-appeals are brought against each other.

188. I am of the opinion that the appellant should have an order that the respondents pay 25 per cent of the costs of the appeal. Although the argument on contributory negligence was relatively confined, the assessment of contributory negligence is dependent upon the factual circumstances as found by the trial judge so that the argument on contributory negligence necessarily involved a significant forensic argument with the facts. Considerable time was required in this case for the presentation of the relevant factual material for the Court’s understanding. For that reason, I consider that the proportion of costs that ought to be ordered is greater than the time strictly spent on contributory negligence.

189. That leaves the question whether the respondents, as cross-appellants, should be ordered to pay the appellant’s costs of the cross-appeal. Both the appellant and the State stood in the same corner in respect of the State’s liability. Accordingly, I consider that the State and the appellant should bear their own costs of the State’s cross-appeal.

190. Leighton lodged a substantial cross-appeal against the appellant on liability, both as to the existence of a duty of care and as to breach. As the appellant was required to respond to that, I consider that Leighton should pay the appellant’s costs as cross-respondent to its cross-appeal.

191. Accordingly, I propose the following orders.

(1)   Appeal allowed in part.

(2)   Set aside order 3 made by the trial judge on 23 April 2014.

(3)   The respondents to pay to the appellant 25 per cent of his costs of the appeal, such costs to be borne by the respondents in the proportions of their respective liability to the appellant.

(4)   Leighton Contractors Pty Limited to pay the appellant’s costs as cross-respondent to the first cross-appeal.

(5)   There be no order as to costs as between the State and the appellant in respect of the State’s cross-appeal.

(6)   Leighton Contractors Pty Limited as first cross-appellant to bear its own costs of the first cross-appeal as against the State as a cross-respondent to the first cross-appeal.

(7)   The State as second cross-appellant to bear its own costs of the second cross-appeal as against Leighton Contractors Pty Limited as a cross-respondent to the second cross-appeal.

192. BARRETT JA: I agree with Beazley P.

193. GLEESON JA: I agree with Beazley P.

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Amendments

09 May 2016 - Typographical error corrected at [162]

19 February 2016 - Typographical errors corrected at [165] and [171]

Decision last updated: 09 May 2016