Grills v Leighton Contractors Pty Ltd (No 2)

[2013] NSWSC 1951

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Grills v Leighton Contractors Pty Ltd (No 2) [2013] NSWSC 1951
Hearing dates:	5 August 2013, 6 August 2013, 7 August 2013, 8 August 2013, 12 August 2013, 13 August 2013, 14 August 2013, 15 August 2013
Decision date:	20 December 2013
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Verdict for Mr Grills against both Leightons and the State.
Catchwords:	TORTS - negligence - police - police highway patrol - motorcade - Eastern Distributor - boomgate - how did the boomgate come to be lowered - were instructions given to lower the boomgate - was the plaintiff's speed excessive - duty of care - breach of duty - causation - contributory negligence - apportionment - Motor Accidents Compensation Act 1999 - damages - plaintiff's injuries - vocational reports - occupational therapists - non-economic loss - past and future economic loss - superannuation - out of pocket expenses - future medical expenses - domestic assistance - past care - future care future therapy, driving aids and equipment - orders TORTS - defences - unpleaded defence
Legislation Cited:	Civil Liability Act 2002 Civil Procedure Act 2005 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Law Reform (Miscellaneous Provisions) Act 1946 Motor Accidents Compensation Act 1999 Workers Compensation Act 1987
Cases Cited:	Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; (2012) 188 LGERA 169 Bresatz v Przibillai (1962) 108 CLR 541 Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 522 Manly Council v Byrne [2004] NSWCA 123 Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 Mead v Kerney [2012] NSWCA 215 Miller v Galderisi [2009] NSWCA 353 Kallouf v Middis [2008] NSWCA 61 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Nominal Defendant v Livaja [2011] NSWCA 121 Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529 Novakovic v Stekovic [2012] NSWCA 54 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 Rabay v Bristow [2005] NSWCA 199 RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117; (2013) 63 MVR 375 Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 State of New South Wales v Perez [2013] NSWCA 149 Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182 TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149; (2012) 60 MVR 535 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; (2001) 52 NSWLR 193
Category:	Principal judgment
Parties:	Adam Lee Grills (Plaintiff) Leighton Contractors Pty Ltd ABN 98 000 893 667 (First Defendant) State of New South Wales (Second Defendant) QBE Insurance (Australia) Limited (Third Defendant)
Representation:	Counsel: Mr BJ Gross QC with Mr KO Earl (Plaintiff) Mr MJ Windsor SC with Mr S E Torrington, counsel (First Defendant) Mr G Parker SC (Second Defendant) Mr R Bartlett SC (Third Defendant) Solicitors: Baker & Edmunds Solicitors (Plaintiff) Thompson Cooper Lawyers (First Defendant) Turks Legal (Second Defendant) Michael Sofoulis(Third Defendant)
File Number(s):	2008/317603
Publication restriction:	None

Judgment

1. On the evening of Thursday, 25 February 2006 the plaintiff, Mr Grills, then a 32 year old senior constable attached to the Police Highway Patrol, was seriously injured while riding his police motorbike on urgent duty, when he collided with a boomgate which had been lowered across the southern entrance to the Eastern Distributor. Mr Grills has not worked since. He was medically retired from the Police Force in July 2010.

1. Mr Grills alleges negligence against both Leighton Contractors Pty Ltd, the operator of the Eastern Distributor and the second defendant, the State of New South Wales, which they each deny. They also each claim contributory negligence on Mr Grills' part, which he denies. Mr Grills also brings a claim against the third defendant, QBE Insurance (Australia) Limited ('QBE'), under the Motor Accidents Compensation Act 1999. Whether he was involved in a motor accident and suffered injury which was compensable under this legislation, is also in issue.

1. The State admits that it owed Mr Grills a duty of care in the circumstances, but denies that it breached that duty. It has brought a first cross-claim alleging negligence against Leightons.

1. Leightons denies that it owed Mr Grills any duty of care, or that it breached that duty. It has brought a second cross-claim alleging negligence against the State and a third cross-claim against QBE, from whom it seeks indemnity and/or contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946.

1. At the time the boomgate was lowered the Distributor had been closed to normal traffic. Mr Grills' assigned task was then firstly, to conduct a final sweep of the southbound lanes of the Distributor, shortly to be entered by a motorcade carrying the then Vice President of the United States from the city to the airport. Before the motorcade departed, he was also required to conduct a sweep of the northbound lanes which the vehicles used in the motorcade were due to travel, after the Vice President was left at the airport.

1. Leightons then had operational control of the boomgate. It was Leightons' senior control room operator, Mr Shane Couch, who lowered the boomgate across the entrance to the Eastern Distributor, thereby closing all access to the northbound lanes of the Distributor. Why the boomgate was lowered and who was responsible for that decision is in issue. Leightons claims that the boomgate was lowered as the result of an instruction given by the Police Force that morning to Mr Couch. That such an instruction was given is disputed.

1. Without prior warning being given to Mr Grills, Mr Couch lowered the boomgate which closed entry to the Distributor tunnel about one minute before Mr Grills arrived there. Whether prior warning had been given to the Police Force was in issue. Mr Grills did not see the lowered boomgate in time either to stop, or to swerve sufficiently to avoid hitting the boomgate. The defendants claim that he was contributorily negligence.

1. He was seriously injured in the collision, but the extent of his injuries and resulting damages are also in issue.

1. Any liability on Leightons' part is governed by the Civil Liability Act 2002. The provisions of the Workers Compensation Act 1987 apply in the case of the State. Whether the collision was one to which the Motor Accidents Compensation Act applies was in issue.

Unpleaded defence

1. The General Practice Direction required that:

"APPENDIX B

57. Within 7 days of a hearing date having been allocated:

(i) The plaintiff's legal representative is to prepare a draft chronology of relevant events and serve a copy of it upon other parties which have an address for service;

(ii) Each party is to prepare a draft schedule of damages, outlining in detail the heads of damages, and identifying the evidence which supports that head of damage.

(iii) Each party is to prepare its final schedule of issues in dispute.

58. Within 28 days of a hearing date having been allocated a plaintiff is to file and serve a joint chronology, a schedule of damages and a schedule of issues which identify the areas of agreement and the areas in dispute"

1. On the second day of the trial, a document identifying the issues in dispute was provided (MFI 2).

1. In final written submissions Leightons advanced arguments as to the proper construction of the Law Enforcement (Powers and Responsibilities) Act 2002, the effect of which would seemingly have provided a complete answer both to Mr Grills' claim and to the State's cross-claim, if correct. That was further developed in oral submissions. This generated a complaint by the State that Leightons could not so raise an unpleaded defence.

1. This legislation had not been referred to in either the pleadings or the issues document. Had it been, that would unquestionably have had an impact on the evidence called from witnesses such as Inspector Blair.

1. As discussed in Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; (2012) 188 LGERA 169 at [28] - [50] unfairness in seeking to rely on an unpleaded defence might be such that it cannot be permitted. The Rules require that a defence must specifically plead any matter that, if not pleaded specifically, may take the opposite party by surprise (Rule 14.14(2)(a)).

1. Section 56 of the Civil Procedure Act 2005 also imposes relevant obligations on both the Court, the parties and their legal advisers. It is designed to ensure that litigation is conducted efficiently and not by ambush or surprise. It provides:

"56 Overriding purpose

(cf SCR Part 1, rule 3)

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(3A) (Repealed)

(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3):

(a) any solicitor or barrister representing the party in the proceedings,

(b) any person with a relevant interest in the proceedings commenced by the party.

(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.

(6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person:

(a) provides financial assistance or other assistance to any party to the proceedings, and

(b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings."

1. Further, under s 55 of the Evidence Act 1995, it is only evidence which is relevant to a fact in issue which is admissible. In this case Inspector Stephen Blair was cross-examined about his power to give orders in relation to road closure, but not whether he had exercised the powers granted by s 186 of the Law Enforcement (Powers and Responsibilities) Act. As was submitted for the State, had Leightons revealed, as it should have, its reliance on the claimed exercise of this legislative power and its consequences, evidence could have been led as to whether such orders had been given.

1. After discussion an agreement was announced between Leightons and the State, namely that Leightons did not plead s 186 as an immunity to the claim made by Mr Grills. It relied on the section as a 'background salient feature in determining the existence and content of the duty of care'.

1. That concession overcame the immediate difficulty which had arisen, but the submissions which were made underscored that not having referred to the provision in its pleadings, Leightons should have ensured that prior to the commencement of the hearing, it had clearly identified, at a relevant level of particularity, that the real issues which it considered lay between the parties, included the impact of s 186 on the existence of and extent of the duty it owed Mr Grills. That would have ensured that this difficulty was avoided.

1. The State accepted that the section could conceivably inform the duty which Leightons owed Mr Grills when he used the Distributor. It also submitted that it was possible that federal powers had been used in the operation, but that such matters had not been explored in the evidence. In the result the s 186 power was not relevant to the matters which had to be resolved, the evidence not establishing that this power had been used.

1. The case of the other parties was that the evidence established that the Distributor had not been closed. It was civilian traffic which had been precluded from having access to it during the operation and so the section could not avail Leightons.

1. In the circumstances the section could certainly not provide Leightons with a complete defence against the claims pursued against it.

How did the boomgate come to be lowered on 25 February 2006?

1. Access to the Eastern Distributor is controlled by five boomgates, three of which can be closed to prevent access being gained to the Distributor from access roads and two others, which are located on the motorway itself on the north and southbound lanes. They can each be lowered to prevent traffic proceeding onto the Distributor. In the event of any emergency, access to and egress from the Distributor tunnels can be gained from either the northbound or the southbound lanes.

1. The operations on 22 and 25 February involved not only the NSW Police Force but also other Australian entities, such as the RTA and the Australian Federal Police, as well as various American entities. Leightons, the owner of the Eastern Distributor, was also involved.

1. It was Inspector Blair of the NSW Police Force who had charge of traffic management during both the 22 and 25 February operations. Inspector Blair and Inspector Wade met earlier with representatives of Leightons. Inspector Blair observed its control room operation and the movement of traffic on the Distributor, but he could not recall who he spoke to that day from Leightons. Inspector Blair said that closure of boomgates which stopped traffic going into the Distributor was then discussed.

1. Leightons called no evidence from anyone other than Mr Couch, the control room operator on duty on 25 February. It was Mr Couch's evidence that he was present when Inspector Blair attended earlier, although in re-examination he said that the meeting which he had attended was an inspection undertaken in anticipation of the APEC conference. That conference took place some time after the Vice President's visit. Leightons called no other evidence to establish who had attended the meeting with Inspector Blair, or what was then discussed.

1. It was Inspector Blair who had primary responsibility to ensure the safe passage of the motorcade on both 22 and 25 February.

1. The motorcade route included the Eastern Distributor. The route was closed to normal traffic in both directions between the airport and the city on both days. Various other adjacent and access roads were then closed to normal traffic and the route which the motorcade was to travel checked to ensure that it was 'sterile', before the motorcade proceeded. That is, free of all civilian traffic.

1. On 25 February the vehicles used in the motorcade also had to return along the northern lanes of the Distributor, after taking the Vice President to the airport from the city. The operation that day was otherwise the mirror of the operation which had been conducted on the evening of Thursday, 22 February, when the former Vice President arrived in Sydney.

1. 22 February was the first time that the Distributor had been used as part of the route for such a high security motorcade. That day normal civilian traffic was successfully precluded from travelling both the northbound and southbound lanes of the Eastern Distributor, as well as from other parts of the route. That involved both police operations and actions taken by Leightons.

1. It was Inspector Blair who prepared the traffic management plans for the two operations on 22 and 25 February. The traffic management plans did not deal with the Distributor's boomgates.

1. There was no evidence that Leightons was given any written information as to its part in these operations. Nor was there any evidence that Leightons gave Mr Couch any written instructions as to its role in the operations, or as to the duties which he was to perform on 25 February. On his evidence the instructions he received from Leightons were limited.

1. There was no issue, however, that Leightons' involvement in the two operations required it to close the three boomgates which are located on the access roads, where police officers were stationed, thereby helping to preclude entry of civilian traffic onto the Distributor. During the operations its control room operator otherwise continued to conduct its usual monitoring of the Distributor from the control room, using the cameras located in the Distributor.

1. The operator on duty in Leightons' control room on 22 February was not called to give evidence, but the computerised record which it maintained was tendered. There was no issue that Leightons closed only the three boomgates at the access roads that day. The two boomgates located on the Distributor itself, were then left open, as had been planned.

1. On 25 February Inspector Blair was present in the Police Force control room, conducting the operations which were being implemented on the ground by various supervisors who reported to him. Those supervisors were supervising the various police officers involved, including Mr Grills, who had various duties to undertake on the ground. Those police officers were each issued with written instructions as to the particular duties which they were each to perform that day. Inspector Blair did not prepare these specific instructions.

1. Inspector Blair did not concern himself with the detail of the implementation of the operation, including in relation to the closure of the boomgates at access roads. They were all matters for his supervising officers to attend to.

1. Inspector Blair could have been provided with access to Leightons' cameras during the operations, had the need arisen, but that did not occur. That would have required the assistance of a third RTA control room. Constable Appleby was present in the Leightons' control room during the operation on 25 February, to act as a liaison with the Police Force, either by phone or radio. She had no role in directing or controlling what Mr Couch was doing. Inspector Blair's evidence was that the Police Force had no direct authority over the employees of a private company such as Leightons. A police officer was stationed in the control room during the operations, in the event that there was a need for communication between him and the control room operator. That did not arise.

1. Mr Couch's evidence was that he spoke to Inspector Blair on the morning of 25 February, prior to the operation. Inspector Blair did not remember speaking to him. On the evidence Mr Couch certainly spoke either to Inspector Blair or one of those officers present with him in the Police control room that morning. What was discussed was in issue.

1. The operation on 25 February required Leightons to close the three access boomgates, as it had done on 22 February. There were police officers stationed at each of those gates, to ensure that members of the public did not gain access to the Distributor and other police officers stationed elsewhere, at Link Road for example, some 500 metres away from the boomgate which Mr Grills struck, to ensure that the public did not access the Distributor. There were no police officers stationed near the two boomgates located on the Distributor itself. They were again not intended to be closed, because there was to be various non-civilian traffic travelling along the Distributor, both north and south during the operation.

1. On 25 February there were three departures from the planned operation. The first occurred when the time that the motorcade was due to depart the city was moved forward. That resulted in the second departure from the plan. It was Mr Grills' allocated role that day to ride his motorcycle south from the city to the airport, conducting a final sweep of the southbound route along the Distributor, in a final check to ensure that the route was 'sterile', after an x-ray machine had gone through the Distributor. At the same time another police officer was to conduct a final sweep of the northbound route, travelling north from the airport to the city.

1. As it transpired, the second police officer was then still engaged in other duties which had to be completed before the motorcade could leave and so Mr Grills was instructed to conduct the final sweeps of both the north and southbound routes. He had limited time to undertake both tasks and so proceeded at high speed, on an urgent duty basis.

1. The third departure from the planned operation occurred when Mr Couch, lowered the boomgate which prevented vehicle access to the northbound lanes of the Distributor. This happened about one minute before Mr Grills arrived at the boomgate, during his sweep of the northbound route. Before he lowered the boomgate Mr Couch saw the two police officers stationed near Link Road, about 500 metres away from the boomgate by camera. He did not see Mr Grills, either during his southbound sweep of the Distributor, or as he approached the northbound lanes of the Distributor, until shortly before, or as he collided with, the boomgate.

1. Some time before he lowered the boomgate, Mr Couch had activated a sign which indicated that the Distributor was closed and that traffic should divert to South Dowling Street, as well as changing lane markers from green arrows to red crosses. Mr Grills saw those signs, but did not understand them to apply to non-civilian vehicles and so he rode on.

1. It seems that it was Leightons' 'TCMS traffic plan 417' which was then implemented. Mr Couch explained this was a reference to a traffic plan in Leightons' computerised traffic control system, which changed certain signage on the approach to the Distributor tunnel, when implemented, to indicate that "Tunnel closed detour to South Dowling Street' and changed usage signs above the lanes in the Distributor from a green arrow to a red cross.

1. There was no evidence that changing this signage involved a fourth departure from the steps Leightons took during the operation on 22 February. It was Mr Grills' evidence that he did not understand these signs, which he saw, to be warning him that the northbound tunnel had been entirely closed, but rather to be indicating that it had been closed to normal traffic, which by the time of his sweep had been cleared from the route.

1. I have no reason to disbelieve that evidence. Mr Grills' understanding accords with steps earlier having been taken by police officers stationed at various access points, to stop normal traffic entering the route. Not allowing traffic then already on the motorway to enter the Distributor, by activating signs which indicated that the Distributor was closed to traffic and diverting such traffic to the South Dowling Street exit, accords with the evidence as to the implementation of the operation undertaken on 22 September. That step would have cleared the Distributor of traffic, permitting the x-ray machine and the police officers conducting the final sweeps to follow, to perform the final steps envisaged by the operation, prior to the motorcade entering the route.

1. On Mr Couch's evidence, not only did he not see Mr Grills undertaking his sweep of the Distributor, he did not see various other officers and vehicles which travelled the Distributor before he lowered the boomgate, but he did see the officers stationed at Link Road.

1. Mr Grills has no memory of the accident, but it was observed by the two police officers stationed at Link Road and also by Mr Couch, on a camera that he was observing in the control room. CCTV footage of the accident was tendered. This evidence establishes that Mr Grills did not see the lowered boomgate in sufficient time to stop, or avoid hitting the lowered boomgate.

Was Mr Couch instructed to lower the boomgate which Mr Grills struck?

1. I am satisfied that the evidence establishes that Mr Couch was not instructed to lower the boomgate which Mr Grills collided with. While Mr Couch's evidence was that he recollected having been given that instruction by Inspector Blair on the morning of 25 February, other evidence establishes that Mr Couch misunderstood what he was instructed to do. That misunderstanding was the result of Mr Couch having been given inadequate instructions by Leightons as to what he was required to do that morning.

1. Leightons did not call evidence from anyone other than Mr Couch. Had the control room operator on duty on 22 February, or anyone else at Leightons had evidence to give which might have assisted its case, no doubt they would have been called. The inference is that their evidence would not have assisted Leightons (see Manly Council v Byrne [2004] NSWCA 123 at [51]).

1. Mr Couch said that the briefing he had received from his manager on the Friday before, as to his role in the operation on 25 February, was 'that we would play no role in the closing of the motorway'. Despite this instruction, it appears that Mr Couch implemented Leightons' standard procedure for closing the Distributor when he lowered the boomgate which Mr Grills struck. That was contrary to Leightons' record of what had been done on 22 February. Both Mr Couch and Leightons had access to that record. There is no evidence that it was referred to that day by Mr Couch.

1. Inspector Blair said in his statement that he had met Mr Couch and managers of the Eastern Distributor beforehand. Clearly Leightons and Inspector Blair discussed its role in the operation. When asked as to whether he was privy to the planning of this operation, Mr Couch said however that 'the only planning we were involved in was providing drawings of the tunnel'. That evidence is plainly wrong.

1. There was no suggestion that Inspector Blair had given any instruction that the boomgate on the northbound lanes of the Distributor was to be lowered, when he met with Leightons' staff prior to the operations on 22 and 25 February. That would have been inconsistent with what was planned, which required both the north and southbound lanes to remain open to non-civilian traffic. That was what occurred on 22 February.

1. Mr Couch was not on duty on 22 February, but the computerised record which Leightons maintains of the Distributor's operations established how the operation was conducted that day. The three boomgates on the access roads were closed and the two on the Distributor itself were left open.

1. The record of the 25 February operation established that this was not replicated on 25 February. It was Mr Couch who lowered the boomgate on the Distributor which Mr Grills struck that day. On his evidence he took that step, because of his understanding of his discussion that morning with Inspector Blair, who had asked him to implement what had been done on 22 February.

1. In cross-examination when asked why he lowered the boomgate at 8:25 am, later recording that 'Dacey Todman boom gate lowered due to motorcade on route', Mr Couch said that it was because the police officers present in the control room had their radios on and he had overheard a conversation that they were about to depart the hotel. That was not mentioned in Leightons' record.

1. Mr Couch made a statement to police on 25 February, after the accident. The officer's notes record that he then said by reference to the five boomgates which he identified that:

"Q) Who gave the direction to lower the gates

A) I did

Q) Where [sic] you given that direction by someone else

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

Q) Who gave that direction

A) Insp Blair

Q) How many boom gates are there

A) 5 in total

Q) Where are they located

A) [1)] St Dowling and E/D

2) St Dowling nth Cleveland

3) Anzac Pde a triangle 4) E/D and Cathedral St

5) Bourke St on ramp"

1. It was Mr Couch, as control room operator, who created Leightons computerised record for 25 February. It was not a contemporaneous record of what occurred. Mr Couch's evidence was that he created what is recorded on Leightons' system that day, some time after Mr Grills' accident and that it was later amended. It is not a complete record of what Mr Couch did that day. For example, there was no issue that Mr Couch closed the three boomgates on the access roads that day, but the record which he made records only that he closed two of them.

1. Leightons' computer record of the conversation which Mr Couch had with Inspector Blair was:

"Insp. Steve Blair called to advise of todays closures and confirmed we can close the boom gates and adjust signage. Plan is SB closed at 0710 for xray. NB 20 minutes prior to motorcade (about 8am) [sic]"

1. Leightons' records show that the signage was adjusted at 8am, but that the boomgate which Mr Grills struck was not lowered until 8.25am, as Mr Couch explained, after he overheard a conversation on the radio.

1. Mr Couch also created a note of what he did that day, which was annexed to his statement. It is also incomplete, referring only to two of the three access road boomgates which he closed that day. It records this conversation:

"Insp Steve Blair called to advise of the days events. He advised southbound will be closed at about 0710 for a scan by x-ray vehicle. Northbound will be closed about 20 minutes prior to departure of motorcade which was scheduled for 0800. Insp Steve Blair confirmed I will close boom gates and change VMS to advise road closed. If no police cars present SGT Appleby to contact Insp Steve Blair by mobile phone. Number provided." [sic]

1. These notes establish a misunderstanding on Mr Couch's part as to what this planned operation involved and what Inspector Blair had asked him to do. The plan called for the Distributor to be closed only to civilian traffic. The three boomgates at the access roads were thus to be closed. That was what had been implemented on 22 February. Inspector Blair did not ask Mr Couch to depart from what had been done that day, but that was what Mr Couch did. While at 8 am he activated the VMS signage which indicated that the Distributor was closed to traffic, thereby diverting civilian traffic off the Distributor as planned, he not only lowered the three boomgates on the access roads, as planned, at 8.25am, as Mr Grills was conducting the final sweep, he lowered the boomgate on the northbound lanes, thereby closing that part of the Distributor completely.

1. On Mr Couch's evidence, what he then did was to implement Leightons' standard protocol for when the Distributor is closed, which he explained involved lowering the boomgates on the Distributor tunnels. That was never contemplated and not what Inspector Blair had asked Mr Couch to do, even on his own accounts.

1. In an email which Mr Couch later wrote on 24 August 2007, he said:

"I received a telephone call from Inspector Steve Blair. He ran through the days events. This includes:

• southbound closure from 7:10am
• a scan of the motorway tunnel southbound by a x-ray vehicle once closed
• Northbound would be closed 20 minutes prior to departure of motorcade

Insp. Blair confirmed I would be closing boom gates and change the variable message signs (VMS) to advise the road was closed. To that I confirmed that would be the case, this is a standard Eastern Distributor procedure. [sic]"

1. In answers given to interrogatories Leightons later advised that the boomgate which Mr Grills struck was lowered 'to ensure that when the road was closed no-one entered the tunnel'; that it was Inspector Blair who gave that instruction; and that the only person from Leightons involved in that decision was Mr Couch.

1. In the statement which he made for these proceedings, Mr Couch gave a fuller account of the conversation he remembered. He said:

"[19] I recall Inspector Blair rang me, and he initially discussed the closure of the southbound lane, then the closure of the northbound lane, and then he also said during the course of that discussion that an X-ray scanning vehicle would be passing through the tunnel to ensure safety for the motorcade.

[20] I recall he then said to me words to the effect, to the best of my recollection: "Can you lower the boom gates, because it was effective on Thursday night."

I replied, to the best of my recollection: "okay, yes.'

[21] I also recall that Inspector Blair said words to the effect, to the best of my recollection: "Will you activate the signage when you lower the boom gate."

I replied to the best of my recollection: "Okay, yes." "

1. Mr Couch agreed in cross-examination that in his discussion that morning there was no specific mention of what boomgates he was to close and that when Inspector Blair referred to what had been effective on Thursday night, he did not know if the boomgate Mr Grills struck had been closed then or not. Nor did he know whether it was intended to duplicate what had been done on the Thursday, but that was not the conclusion which he drew. He agreed that the instruction he recorded was 'to replicate the successful run that occurred on 22 February', which had not included the closure of this boomgate and that by closing the boomgate, what he did on Sunday, was different to what had been done on Thursday. He also agreed that he did not ask the Inspector what boomgates he was referring to, nor did he tell Inspector Blair or anyone else in the Police Force, that he was intending to close access to the northbound tunnel.

1. Despite these concessions and Mr Couch's acceptance that he had implemented Leightons' standard procedure, he denied that he had not been instructed to close this boomgate. That evidence cannot be accepted. While that was what Mr Couch understood, it was not what he was asked to do.

1. Mr Couch also said that he had not known about the planned return of the vehicles along the northbound lanes of the Distributor, after the Vice President was delivered to the airport and that he did not know whether it was necessary to keep the northbound lanes open, in the case of emergency. He said that he did not believe that anyone at Leightons would know the answer to that question. He also said that he did not know of the X-ray vehicle in the northbound tunnel, or that police were patrolling that tunnel, or that they were conducting a sweep there, even though he said he had attended briefings and had been told that the tunnels would need to be quarantined from civilian persons and vehicles, with police officers manning access points. He also said that while he had seen the police officers stationed at Link Road, he had not seen Mr Grills or other police officers drive through the southbound tunnel, nor the X-ray vehicle in the northbound tunnel.

1. When he lowered the boomgate, Mr Couch said out loud 'There's no traffic northbound, so I'm going to lower the boomgate now'. Apart from checking the camera to make sure there was no approaching traffic, he did not advise that thereby he had closed the northbound lanes of the Distributor, or request that the police control centre be advised of the closure. Mr Couch agreed that he appreciated that if police were travelling up and down the Distributor, including the northbound tunnel, closure of the boomgate represented a potential danger to them.

1. He accepted that the lowered boomgate presented a real danger to a police motorcyclist travelling at high speed. He also said that normally the boomgate was not lowered if there were vehicles travelling at ordinary speed on the Distributor.

1. For his part Inspector Blair had no recollection of having had any conversation with Mr Couch on 25 February, but accepted that it was possible that he, or some other police officer who reported to him, spoke to him that day about the operation, before Mr Grills' accident. Inspector Blair considered that this was probable, given that those in the police operations centre with him had spoken to the control rooms. But he did not accept that Mr Couch was given an instruction that the boomgate on the motorway which had been left open on 22 February, should be closed during the operation on 25 February.

1. That evidence must be accepted. It accords with Mr Couch's various accounts of the conversation he remembered having with Inspector Blair. There is simply no mention made of the closure of the boomgate on the Distributor, in that conversation. What was asked was for what had been done on 22 February to be replicated. That day neither boomgate on the Distributor was lowered.

1. The credibility and reliability of Mr Couch's evidence was put in issue. There can be no question that the records which he prepared and the statements which he gave police, must have been prepared at a difficult time. That explains his failure to refer to the closure of one of the access road boomgates which he closed. There is also no question that he lowered the boomgate on the northbound lanes of the Distributor, believing that was what he should have done. On the statement which he gave police and what he wrote in 2007, that accorded with Leightons' standard procedure, when the Distributor was to be closed.

1. That, however, was not what was comprehended in this operation, or what he had been told was to happen on the preceding Friday, nor what had been implemented on 22 February, nor what he had been asked to do on 25 February.

1. Given that the closure of the Distributor to the public was so that the safety of the former Vice President and those who were with him, as well as those involved in the operations on 22 and 25 February could be ensured, it is readily apparent that in the event of any emergency, both the northbound and southbound lanes of the Distributor, might have had to be utilised. Mr Couch refused, however, to accept that he knew that in the event of an emergency, it might be necessary to use the northbound lanes to access the southbound route which the motorcade was to travel. I found Mr Couch's evidence in cross-examination as to this and several other matters to have been self-serving and not given in an entirely candid fashion.

1. Given his explanation of how access to the Distributor is gained in times of ordinary emergency and absent any suggestion that he had received any instruction that there was to be some departure from the normal emergency procedures, that Mr Couch was being completely candid in his evidence cannot be accepted.

1. The Distributor was not to be closed to all traffic on 25 February, only to the public. It was open to all those involved in the operation. They included not only those travelling in the motorcade itself, but also the members of the police force and others involved in ensuring the former Vice President's safety and also those who had to travel the route north, after he had been left at the airport. There were also to be various steps taken beforehand, to check that the route was sterile, before the motorcade departed.

1. Mr Couch's evidence that he was not aware that the Distributor had to be open for such movements, was difficult to credit. If his evidence were accepted, it would only underscore the inadequacy of the instructions Leightons had given him, particularly given what it had already done on 22 February.

1. Mr Couch also said at one point that he did not know what role the constable present in the control room of which he was in charge of had on 25 February. That being so, it seems rather curious that he did not make any enquiry, given that he was in charge of the control room that day. Later, however, he said that Constable Appleby had every right to disagree with what he was doing, if she had seen, for example, traffic approaching the lowered boomgate. It was, however, common ground that it was not her role to monitor the consequences of his decisions and Mr Couch himself did not understand that to be her task. The operation of the boomgates and monitoring what the cameras revealed, remained entirely within Leightons' control.

1. If Mr Couch had had any doubts as to what boomgates he was to lower, he could have sought clarification. On his account he was operating the control room normally. He implemented Leightons' standard procedure for closure of the Distributor in relation to the northbound lanes, a procedure not ordinarily implemented if there was traffic using the Distributor. Plainly that was what he understood he should do, but that can only have been the result of a misunderstanding on his part. That was not what he had been asked to do by Inspector Blair, or instructed by Leightons to do. In implementing his decision he made no reference to Inspector Blair through the constable present, or to anyone from Leightons, or by reference to the records which it kept, as he could have done, to check that his decision accorded with what had been done on 22 February.

1. Mr Couch clearly proceeded on the basis of an unwarranted assumption, not understanding that the boomgates the Inspector was referring to in their conversation were the three on the access roads closed on 22 February. Leightons had not told him, nor had he made any enquiry himself, as to what boomgates had been closed that day. His decision to close the motorway by implementing Leightons' standard closure procedure, was contrary to the instruction he had been given on the preceding Friday and was not one which he revealed to anyone else.

1. Given the obvious possibility that in the event of an emergency there might need to be urgent access gained to the Distributor by vehicles travelling at speed, the problem with the implementation of his decision is stark.

1. In the result it must be concluded that Mr Couch received no instruction to lower the boomgate or close access to the northbound lanes of the Distributor, as he did on 25 February. He plainly acted on a misunderstanding, having been inadequately instructed by Leightons as to its role in the operation on 25 February and his duties that morning. He was not aware what boomgates had been closed on 22 February and made no enquiries to clarify what had occurred, before implementing Leightons' standard procedure for closing the Distributor, contrary to the usual practice that it would not be so lowered while there was traffic using the Distributor.

Was Mr Grills' speed excessive?

1. The State's case was that while Mr Grills was an experienced and knowledgeable police officer who had been charged with a task designated as urgent duty, that still required him to undertake that duty at a safe speed. That was a speed which allowed him to take notice of an obstruction on the road ahead, including the lowered boomgate. The circumstances of the collision established the inappropriateness of the speed at which he was travelling on 25 February.

1. Mr Grills was a highly trained Highway Patrol Officer, who had worked as a motorcycle highway patrolman for some 7 years. He was considered to have been a very competent rider, classified to undertake urgent duty work and trained to ride his bike at high speed, considerably higher than the speed he was then travelling.

1. Urgent duty is defined in the applicable police protocol to be a duty which 'has become pressing or demanding prompt action'. Such duty permitted high-speed urgent duty driving, above the applicable speed limit, as a last resort, when the gravity and seriousness of the circumstances required such action. Mr Grills understood that they did. Sergeant Brett Jackson did not have a different view. He saw Mr Grills drive off that day with a degree of urgency, using emergency warning devices which the applicable guidelines required. He clearly did not consider that to be inappropriate.

1. Road Rule 305 applied. It provides:

"305 Exemption for drivers of police vehicles

(1) A provision of these Rules does not apply to the driver of a police vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care, and

(ii) it is reasonable that the provision should not apply, and

(b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm."

1. It follows that contrary to what was put to Mr Grills in cross-examination, it is not always the case that a police officer must obey all road rules, including the speed limit which ordinarily applied to the Distributor.

1. Mr Grills was trained to drive safely at much higher speeds than 80kph, the applicable speed limit, and to judge a proper and safe speed at which to perform this urgent duty, on what was to be an otherwise empty motorway. On his evidence he looked at his speedo from time to time, but could no longer remember the speed he was then travelling. That there was no justification for him driving above the normal speed limit was not established. What was planned was for two riders to sweep the Distributor which had earlier been closed to normal traffic going in both directions, following after the vehicle which had x-rayed the Distributor. Only one driver was available when the motorcade departure was moved forward and so Mr Grills was required to sweep in both directions, against time pressure. The evidence does not establish that he misjudged what a safe speed for that duty was in the circumstances of this police operation as he understood it.

1. Sergeant Jackson's evidence was that he had made no comment to Mr Grills as to the speed he was to use, but indicated that the Vice President's 'departure was to be fifteen minutes earlier than had been scheduled there was an inherent element of urgency in reference to Adam Grills completing those two final sweeps as in reality such sweeps needed to be completed at a time prior to the motorcade travelling along that route.' In his oral evidence he said that the circumstances were pressing and that travelling above the 80km speed limit, then accorded with Mr Grills' assigned duties. He considered that the boomgate which had been lowered had not served any apparent purpose, given the operation and to have posed a significant risk, in the circumstances. That evidence must be accepted. Even after Mr Grills' sweep, other police motorcyclists such as Sergeant Jackson, were to drive along the route and it was to be further used after the Vice President had been taken to the airport.

1. Mr Grills evidence was that Sergeant Jackson said to him:

"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."

1. In cross-examination, Mr Grills said that he understood that the motorcade was leaving in five minutes regardless and that was why the duty was so urgent.

1. The State's case was that Mr Grills was mistaken in his recollection. The motorcade was not to depart until the final sweep was complete.

1. I can see no reason why Mr Grills' evidence should not be accepted. It was certainly not established that he simply took an opportunity to go as fast as he could, as was suggested to him in cross-examination.

1. At the time both Sergeant Jackson and Mr Grills understood that the urgent duty Mr Grills was required to perform, conducting a final sweep of both the south and northbound routes from the city to the airport and back, before the motorcade could depart, had to be completed within a short time frame.

1. Ms Valerie Sugden, another of Mr Grills' supervisors explained the operation of the Police Force's safe driver panel, which had later reviewed this incident and made no adverse findings against Mr Grills. She was located that day in the Operations Centre with Inspector Blair. She had a similar view as Sergeant Jackson and Mr Grills, not considering a speed above 80kph to have been excessive in the circumstances.

1. Mr Grills undertook the southbound sweep of the route, stopping at Mill Pond Road to deal with a problem. Riding north he stopped at the Gardeners Road overpass and spoke to Sergeant Jackson, who was on his way south and asked him to check that this problem had been sorted out. He agreed and told Mr Grills to 'get going'. Mr Grills drove on, over a crest down to Link Road, slowing to check on the police officers there dealing with two cyclists and he drove on, checking his rear vision mirrors to ensure that they had been dealt with. He then accelerated on. That was the last thing he could remember.

1. The weather that day was inclement and the rain was light, but the experts Mr Alan Joy, a road safety and traffic engineering consultant and Mr Roger Stuart-Smith, a consulting traffic engineer, agreed that weather was only a minor impediment to visibility. They did not agree as to the distance from which it was possible to have observed the lowered boomgate, which had stop signs and flashing lights mounted on it. There were differences of opinion between them as to the effectiveness of this signage, particularly for a moving rider, given its size and Mr Grills' angle of approach. Ms Sugden, who inspected the boomgate after the accident and asked for it to be moved up and down, certainly considered that the lighting on the boomgate was inadequate and that it was very dangerous when lowered.

1. The experts also did not agree as to Mr Grills' perception response time and whether he should have been able to avoid colliding with the boomgate, given the circumstances. In part this was as the result of their differing views as to whether Mr Grills would have been alerted to the road closure by the other signs Mr Couch had activated. It was agreed that if I concluded that the lane closure signage did not cue him to the lowered boomgate, as I have, for reasons which I will explain, his response time would have fallen in the 1.8 to 2.4 seconds range.

1. Mr Grills had almost no conscious memory of seeing the boomgate, only flashes, which he was not even sure were memories, but he was confident that he was driving at a safe speed for the duties he was undertaking, before he hit the boomgate. His evidence that the signs advising that the tunnel was closed did not alert him, as Mr Joy considered that they ought to have done, notwithstanding the operation then underway, must in my view be accepted. In this respect I agree with the views of Mr Stuart-Smith, that the signs were consistent with Mr Grills' expectation that the road had earlier been closed to ordinary traffic as planned, and were not intended to apply to him, with the result that they did not alert him to the need to exercise greater caution, when proceeding along the route into the Distributor.

1. Mr Joy thought the lowered boomgate was observable from 100 to 150 metres and Mr Stuart-Smith from 80 to 100 metres, given its size, its alignment with the top of the tunnel portal and its distinguishability from the background clutter. Mr Joy estimated that at a speed of 110 kph, for instance, Mr Grills would have required some 140 metres to be able to stop before the boomgate and he ought to have been able to do so, having seen this signage. While agreeing with the calculations, Mr Stuart-Smith did not agree that stopping was possible in the circumstances

1. In the result Mr Stuart-Smith considered that the lowering of the boomgate effectively gave rise to an inevitable crash, given that Mr Grills was not looking for a lowered boomgate, which was difficult to pick out as he was moving. He also had a lot of other calls on his mental processing, given the duty he was engaged on. Mr Joy did not agree, observing that there was also a question of trade off between risk and speed of travel to be considered, given Mr Grills' allocated task.

1. The experts did agree that Mr Grills' actions in slowing and attempting to swerve around the boomgate were reasonable. Plainly, had he earlier observed the lowered boomgate, he would not have hit it. It did have some flashing lights and stop signs attached to it, which would have alerted Mr Grills to it having been lowered, had he looked ahead in sufficient time to see and react to it. This has to be considered in light of Mr Couch's evidence, that ordinarily it did not lower the boomgate while there was traffic on the Distributor.

1. All of this evidence does not, in my view, establish that it was the speed with which Mr Grills was riding as he approached the boomgate, which was unsafe and caused him to hit the boomgate. The experts could not establish Mr Grills' speed before impact with certainty. The CCTV footage shows him colliding with the boom about 60 seconds after it was lowered. What occurred during the 50 seconds before the collision was not recorded. The experts agreed that immediately after impact, however, the bike's speed was between 100 to 110kph.

1. Mr Grills' speed was thus plainly greater than the speed limit of 80kph, before he took evasive action, but it was unlikely to have been as high as 140kph, which the experts identified to have been his 'reported speed'. Where that report came from, is not clear. It seems to have been a speed suggested by an unidentified person to Mr Grills at some time. Such a speed is not consistent with the evidence of what Mr Grills did, just before the collision and his speed afterwards.

1. Mr Grills slowed down just near Link Road about 500m away and then sped up as he rode on. He was initially looking back to the two police officers at Link Road, observing them and the cyclists they were attending to and then scanning what might be to the sides of the route. While he plainly finally saw the lowered boomgate when he looked ahead, because he veered to the left in an attempt to veer around the boomgate, no doubt then also slowing down, his evasive action failed.

1. It is apparent from all of this evidence that Mr Grills was not riding at an excessive speed after he rode on from Link Road given the urgent duty he had been given and the place and conditions under which it was being performed. Had the boomgate not been lowered, Mr Grills' speed would have given rise to no difficulty.

1. 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.

Duty of Care

1. The State accepted that as his employer it owed Mr Grills a duty to take reasonable care in the circumstances in which he came to be injured.

1. Leightons denied owing him any such duty. Whether such a duty existed in its case must be determined in light of s 5B and s 5C the Civil Liability Act which provides:

"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."

1. "Negligence", for the purpose of Pt 1A of the Civil Liability Act, means the failure to exercise reasonable care and skill. The relevant "risk of harm" was of someone colliding with the boomgate, if lowered while traffic was using the Distributor.

1. Leightons' case was that the question of the existence of any duty did not depend merely on the provisions of s 5B, but also on the common law. Considerations of power, control and vulnerability were relevant, as was the test of reasonable foreseeability, which was not, however, of itself sufficient (relying on Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 at [35]). It was argued that a defendant's knowledge about the circumstances giving rise to the damage may be pertinent to the question of the existence of the duty, but that it is not a matter of intuition.

1. On its case the particular risk of harm should here be identified to be the risk of personal injury flowing from the requirement that Mr Grills ride on the Distributor, on urgent duty and at speed. I would not so articulate the risk in question. On Mr Couch's evidence, Leightons' usual practices reflected that there was always a recognised risk of someone colliding with this boomgate if it was lowered while there was traffic on the Distributor. That risk also existed on 25 February when a police officer had to ride at speed along the Distributor, conducting a final sweep of the route, at a time when it was to be closed only to civilian vehicles.

1. That risk was known to Leightons and addressed in its normal practices, which reflected that, as it accepted, ordinarily, it owed a duty of care to road users. Its normal practice was thus not to lower the boomgate, while there was traffic on the Distributor.

1. In argument it was accepted that knowing that the motorcade was to travel down the southbound lanes of the Distributor on 25 February, when it was closed to the public, Leightons owed those road users a duty of care, notwithstanding the exercise of the s 186 powers, which it relied on to argue that it owed Mr Grills no duty of care.

1. Leightons thus submitted that in the circumstances prevailing on 25 February, because its motorway had been closed to civilian traffic as the result of the direction of the Police Force, it did not owe Mr Grills any duty of care, because it did not know that any motorcyclist would be travelling northbound. In my view that submission must be rejected.

1. As discussed by McColl J in Novakovic v Stekovic [2012] NSWCA 54 recently observed at [39] - [42] (Whealy JA and Tobias AJA agreeing):

[39] ...The duty to take reasonable care required the respondents to protect the appellant, or the class of person of which she was a member, from a "not insignificant" risk which could reasonably be foreseen and avoided. The measure of the discharge of the duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 663) per Deane J. The measure is now prescribed by s 5B of the Civil Liability Act.

40 The inquiry about whether the respondents ought to have taken the precautions for which the appellant contends turns on (amongst other relevant matters) the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J), but must be answered prospectively, before the incident occurred: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [31]).

41 The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for the respondents to take those measures?: Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 (at [93]) per Hayne J. In other words, the knowledge of how the appellant actually came to sustain her injury has to be excluded when considering whether the respondents were obliged to take any precautions in the circumstances of having a dog in the house to which guests had been invited: Neindorf v Junkovic (at [96] - [97]) per Hayne J.

"15 Damages for gratuitous attendant care services: general

(1) In this section:

attendant care services means any of the following:

(a) services of a domestic nature,

(b) services relating to nursing,

(c) services that aim to alleviate the consequences of an injury.

gratuitous attendant care services means attendant care services:

(a) that have been or are to be provided by another person to a claimant, and

(b) for which the claimant has not paid or is not liable to pay.

(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a) there is (or was) a reasonable need for the services to be provided, and

(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c) the services would not be (or would not have been) provided to the claimant but for the injury.

(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months."

1. In the result it was submitted that 1.5 hours per week would be allowed into the future for heavier tasks, plus an allowance for lawn mowing, which would then reduce, it being accepted that while some tasks would cause discomfort, that would be therapeutic and could help deal with Mr Grills' emotional problems. Thus a buffer of some $29,976.62, would be awarded, that being calculated by reference to Ms Hammond's assessed annual cost of $5,835 for 5 years.

1. Leightons also relied on State of New South Wales v Perez [2013] NSWCA 149 where the construction of s 15B of the Civil Liability Act arose to be considered. There a claim for domestic services provided by the respondent to his wife and grandchildren was in issue. It was concluded that the respondent was entitled to an award in respect of the loss of his capacity to provide such domestic services to his wife and to his grandchildren, on an hourly basis for the time he was no longer able to spend providing such services. As to the evidence, it was observed at [32] that 'the fact that one service provider has been replaced with another may well provide cogent evidence of the "need" for the particular services'.

1. Mr Grills did not press such a claim and thus this needs no further consideration.

1. Leightons also relied on Miller v Galderisi [2009] NSWCA 353 where it was observed at [18] that '[t]here is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases.'

1. The evidence of Mr Grills and his wife, if accepted, would meet the s 15 threshold, as the State accepted. I can see no basis upon which their evidence would not be accepted, notwithstanding the views expressed by Ms Hammond. Further, Leightons' acceptance of the gardening calculation of $31,000 finally pressed for Mr Grills, demonstrated that the buffer figure calculated by reference to Ms Hammond's assessment could not be accepted.

1. Given the difficulties in assessing what the future might hold for Mr Grills and when his needs might reduce over time, I accept that an order based on a buffer is appropriate and that the buffer figure which Mr Grills and the State agreed, should be accepted.

Future therapy, driving aids and equipment

1. This claim relied on Ms Ravagnani's assessment as to the need for treatment such as physiotherapy, therapeutic massage and/or acupuncture, dieticians and gym membership fees, which had been assessed in Mr King's report, as well as her assessment as to driving aids and equipment.

1. While I do not consider that Ms Ravagnani's views as to driving aids and equipment can be accepted, notwithstanding Ms Hammond's views, I do accept that a basis for the treatment Ms Ravagnani proposed was established, given Mr Grills' ongoing pain, the physical impact which it has had on his feet and gait for example, and the evidence as to the relief which such treatment can provide.

1. In the result that claim must succeed.

Order

1. For the reasons given there will be a verdict for Mr Grills against both Leightons and the State.

1. It will be necessary for the parties to confer as to the calculations which reflect the above findings and conclusions and to provide short minutes which reflect those calculations and the matters which were agreed. They also need to confer as to costs.

1. In the event that the parties need to be heard further on such matters, they should approach. Otherwise short minutes of the agreed orders should be filed.

**********

Amendments

24 March 2014 - slip rule and by consent - 40% and 45% changed to 47% and 53%.

Amended paragraphs: [221]

Decision last updated: 24 March 2014