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 testTORTS – 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 costsLegislation 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;
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- Case
- [2015] NSWCA 72
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether Leighton Contractors owed the appellant a duty of care, and if so, the scope of that duty in circumstances where the motorway was closed and the operator was acting under police directions. The court also had to consider whether the State, as the appellant's employer, breached its duty of care, particularly given its limited control over the technical aspects of the motorway operation and the adequacy of instructions provided to Leighton Contractors. Further issues included the correct test for apportionment between multiple tortfeasors and the standard to be applied for contributory negligence under the *Civil Liability Act 2002*.
The court reasoned that Leighton Contractors owed a duty of care to the appellant, as a police officer performing urgent duties on the motorway, to operate the boom gates safely. This duty was not negated by the fact that the motorway was closed to civilian traffic or that Leighton Contractors was acting under police directions. The court found that Leighton Contractors breached this duty by failing to ensure the boom gate was not lowered while the motorcade was proceeding. Regarding the State, the court held that while it had a duty to ensure the safety of its officers, it had not breached that duty, as it had provided sufficient instructions to Leighton Contractors and did not have control over the technical operation of the boom gates. The court also considered the apportionment of liability and contributory negligence, ultimately finding that Leighton Contractors was 75% liable and the State was not liable.
The appeal was allowed in part, with the order regarding the appellant's costs against the State being set aside. The respondents (Leighton Contractors and the State) were ordered to pay the appellant 25% of his costs of the appeal, borne proportionally to their respective liabilities. Specific orders were made regarding the costs of cross-appeals between Leighton Contractors and the State, with each party generally bearing their own costs in relation to their respective cross-appeals.
Orders
Orders of the court
(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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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