Hunt v State of NSW; Shipton v State of NSW

[2005] NSWSC 12

CITATION:	Hunt v State of NSW; Shipton v State of NSW [2005] NSWSC 12
HEARING DATE(S):	15 - 19 March 2004, 22 March 2004
JUDGMENT DATE :	2 February 2005
JUDGMENT OF:	Simpson J
DECISION:	In each case a verdict for the plaintiff.

CATCHWORDS:	claims for damages for personal injury - Police Service School of Traffic and Mobile Policing - VIP Driver Protection Programme - foreseeable risk of injury - measures available to prevent injury or minimise risk - whether harness seatbelts should have replaced standard lap-sash seatbelts - whether seats of vehicles provided should have been modified - causes of medical condition of each plaintiff - nature and extent of each plaintiff's medical condition and disability - contributory negligence - novus actus interveniens - calculation of damages
LEGISLATION CITED:	Motor Accidents Act 1988, Part 6, s2A, s2B, s3, s70 Motor Accidents Compensation Act 1999 Motor Vehicles (Third Party Insurance) Act 1942, s10 Third Party Insurance Act 1984, s10
CASES CITED:	Australian Casualty Co Ltd v Federico [1986] HCA 32; 160 CLR 513 Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611 Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768 Shedlezki v Bronte Bakery Pty Ltd (1967) 69 SR (NSW) 202 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
PARTIES:	Paul John Hunt - Plaintiff Brett Leslie Shipton - Plaintiff State of New South Wales - Defendant
FILE NUMBER(S):	SC 20629/00; 20630/00
COUNSEL:	IG Harrison SC with JR Wilson - Plaintiffs GA Laughton SC with M Hutchings - Defendant
SOLICITORS:	Lamond Howard & Associates - Plaintiffs IV Knight - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Wednesday 2 February 2005

20629/00 Paul John Hunt v State of New South Wales
20630/00 Brett Leslie Shipton v State of New South Wales

JUDGMENT ON LIABILITY

1 HER HONOUR: The plaintiffs in these matters, which were, by agreement, heard concurrently, are Paul John Hunt and Brett Leslie Shipton. By statement of claim (number 20629/00), filed on 9 November 2000, Mr Hunt claims damages for personal injury he claims he sustained over a period commencing on 10 November 1997 and ending on 10 May 1999, during which time he was engaged as an officer in the NSW Police Service. A second statement of claim (number 20628/00) filed on his behalf on the same day claiming damages for personal injury alleged to have been sustained by him on 10 May 2000 was not pursued (see t 27), although it is unclear to me whether it has been formally discontinued or otherwise resolved. It is, in any event, not the subject of this judgment. Mr Shipton’s sole statement of claim (20630/00) was also filed on 9 November 2000 and makes claims similar to those made on behalf of Mr Hunt in the proceedings numbered 20628/00, alleging injuries sustained between 10 November 1997 and 21 August 1998, while he, too, was engaged as an officer of the NSW Police Service, and in a specific event during August 1997.

2 In 1997 both plaintiffs were stationed at a section of the Police Service known by the acronym STAMP (School of Traffic and Mobile Policing) at the Police Academy in Goulburn. Mr Hunt had been so stationed since 1992. In 1999 he was appointed head teacher, having previously been a senior instructor. Mr Shipton had been appointed to STAMP in May 1991. Both plaintiffs became involved in instructing in a programme known as the VIP Driver Protection Programme (“the VIP Programme”). This was a course devised and conducted by STAMP, designed to train police officers, specifically for the purpose of the 2000 Sydney Olympic Games, for “VIP driver escort duties” and in “advanced protection driving skills” (exhibit 1). Mr Hunt took the role of officer in charge of the VIP Programme. From November 1997 Mr Shipton was a trainer in the VIP Programme.

3 A good deal of the information concerning the rationale for, and the philosophy and purpose of the VIP Programme is to be found in exhibit 1, a document apparently produced by STAMP in October 1997. The mechanics and actual operation of the course were described by the plaintiffs in their oral evidence. The syllabus is set out in exhibit D.

4 The course involved practical training of police officers using motor vehicles in protecting overseas official visitors and other dignitaries from terrorist attack or other acts of violence. For this purpose a number of dilapidated motor vehicles (such as Holden Rodeos and Commodores, and Falcons) were purchased from motor vehicle wreckers and wholesale motor dealers. The standard of the vehicles when purchased may best be gauged from the prices paid – approximately $200.00 per vehicle. Whether the vehicles carried any registration or were fit for registration was immaterial – except in the respects mentioned below – since it was not generally intended that they be driven on public roads.

5 Each course of the VIP Programme was of eight days’ duration, spread over a two week period. Ten students were enrolled in each course, for whom there were five instructors. The courses were conducted at two principal venues – the Police Academy in Goulburn, and the premises of the Australian Federal Police in the Australian Capital Territory. This gives rise to a complication with which I will deal below.

6 The practical exercises undertaken in the courses were described by Mr Hunt (t 11-17). They included manoeuvres called a J-turn, a Y-turn, vehicle penetration, vehicle ramming, “simmunition”, steering exercises, five lane exercises, kerb mounting and high speed reversing. The J-turn manoeuvre involved the driver of the vehicle (the police officer in training) in reversing the vehicle at high speed, braking heavily, turning the vehicle in the opposite direction and driving off, again at high speed. A Y-turn was a variation of the J-turn, performed when space did not permit a J-turn. Both of these exercises were designed to train drivers to escape hostile situations confronting them. Equally obviously, they involved a high level of violence in the management of the vehicle. Vehicle ramming, is, as its name suggests, the use of a motor vehicle as a weapon, particularly to force another off the road. Vehicle penetrations were reserved to the last day of the course, presumably indicating the level of difficulty in the exercise. This exercise was to train police officers to deal with a terrorist blockade with potential ambush of the principal vehicle. For this purpose, two vehicles, parked boot to boot, were approached by the principal vehicle at a speed of about 40 km per hour. The speed of the principal vehicle was applied to the two parked vehicles in such a way as to force a gap between them and allow the escape of the principal vehicle. “Simmunition” is a composite word derived from “simulated” and “ammunition”, and involved the use of blank ammunition in Glock pistols and MP-5 machine guns. It does not appear to have any further immediate relevance. The steering exercises included driving the vehicle in a straight line at approximately 80 km per hour, followed by sudden turning from side to side, causing a transfer of weight and eventual loss of control. The five lane exercises involved the obstruction of the windscreen in order to simulate lost vision as a result of, for example, gunshots. The driver was required, effectively, to drive blind in accordance with directions given by a passenger/observer. Kerb mounting, as its name indicates, involved avoiding a road obstruction by driving onto a kerb. This was usually done at 15 – 20 km per hour with a thirty degree turn on the wheel in order to avoid tyre blow-out. High speed reversing is also self explanatory. It involved the driver in reversing, at a speed of up to 100 km per hour, a distance of about 800 metres, to a target position, and the application of brakes at that point.

7 The VIP Programme was run on a tight budget. The vehicles were used in the condition in which they had been purchased. They were not reinforced to withstand the heavy pressures to be imposed upon them. They were checked to ensure that the seats were securely bolted, that the standard fitted seatbelts were operable, and that the windscreen and window glass were intact. They were, apparently, invariably fitted with standard lap-sash seatbelts, and with seats standard for the model of the vehicle. Whatever tyres were on the vehicles at the time of purchase remained in place.

8 The exercises themselves were demonstrated by instructors and performed by the police officers in training. The driver was observed by a passenger who was one of the instructors. On occasions a third person sat in the rear seat, posing as a VIP.

9 Mr Hunt was involved in six courses, commencing in November 1997 and ending in May 1999. The first of these courses was a pilot programme. Mr Shipton was involved in that course as a trainee, and in three subsequent courses as an instructor.

10 It is obvious that the nature of the driving in the exercises meant that both drivers and passengers were subjected to a considerable degree of jolting, bumping, and being thrown around within the vehicles, as well as to the physical stresses involved when an actual collision was engineered.

11 Ordinarily, during exercises, the instructor, seated in the passenger seat, wore the seatbelt. However, in the five-lane exercise, because the windscreen was obscured, it was necessary for the instructor to lean outside the car and give directions to the driver. This prevented use of the seat belt.

12 The violence of the manoeuvres had a side-effect on the vehicles themselves. The exercises imposed considerable strain on the tyres; as Mr Hunt described it, the vehicles were driven with such force and to such a point that in some cases the steel of the tyres was exposed. This, naturally, necessitated frequent wheel changes. Mr Hunt estimated this to be between 40 and 50 times in each course. On Mr Shipton’s evidence, during the ACT component of the course, registered vehicles were used. Because these vehicles were used to transport participants on public roads to their ACT accommodation, it was necessary that they were fitted with roadworthy tyres for that purpose; but (presumably for reasons of economy) these were replaced each morning with worn tyres; and these were again replaced with roadworthy tyres each evening. Mr Shipton estimated that he personally changed up to 50 wheels during the first week of the first course. (As to this, he was challenged in cross-examination, but no contrary evidence was called other than that of Mr Paul Dawson, a senior constable stationed at STAMP, who said that the majority of wheel changing was done by trainees under the supervision of instructors.)

13 Some equipment was provided for the purpose of wheel changing. This included a number of pneumatic drills for loosening wheel nuts, a tyre changing machine, and hydraulic and hand jacks.

14 It was after changing wheels that Mr Hunt first noticed that his back had become stiff. On the Friday after the first course, which concluded on 21 November 1997, he felt severe pain in his lower back, radiating to his right leg. He self medicated with Panadeine and hot packs, rested over the weekend, and felt able to resume duties the following Monday. He made no report of this injury at that time. He then noticed that using a lawn mower and doing general maintenance in the grounds of a childcare centre operated by his wife aggravated his back. He ceased those activities.

15 The second course took place in February 1998. Mr Hunt noticed back and leg pain after the ramming and penetration exercises. Again, he did not seek treatment. After the first week of this course he again rested over the weekend. The pain subsided and he was able to return to work on the Monday.

16 During the third course, in June/July 1998, after participating in the J-turn and Y-turn exercises, he felt pain. Thereafter, he extricated himself from the collision parts of the course, limiting himself to demonstrations and instructions from outside the vehicles. He did this because he feared exacerbation of his back condition. He still sought no treatment and his back settled over the following twelve months.

17 In May 2000 Mr Hunt was involved in a motor cycle accident on STAMP premises, during the course of preparation of a slow speed exercise for a ceremonial occasion. After this, he suffered severe lower back pain, pain in both legs, pins and needles and tingling. He attended his general practitioner who prescribed pain relief. He described himself as virtually incapacitated for three weeks. The pain then began to subside, he undertook a rehabilitation programme and returned to work on light duties. He continued to work until June or July of 2001 from which time he was absent from work on full-time sick leave. He was suffering severe lower back pain and had restricted movement. He was medically retired in 2002.

18 The motor cycle accident was the basis of the abandoned proceeding. It has, however, some relevance for the present proceeding.

19 In April 1997 (before he became involved in the VIP Programme, but while he was a driver/trainer at STAMP), Mr Shipton suffered some mild back pain after changing about twelve tyres over a short period. This settled after some physiotherapy and his back returned to normal.

20 Mr Shipton took part, as a student, in the first course, in November 1997. At the end of the first day he experienced “a little bit” of weakness in his back, followed by some stiffness and soreness in his low back. This continued throughout the week, with some sharp pain after some exercises, and after changing wheels. He did not then seek treatment. After the first course concluded, his back recovered, and by the time the second commenced (January 1998) he “felt fine”. He took up his position as instructor. After the first week he was again experiencing symptoms. These settled when the course concluded. The pattern repeated itself when the third course began in June 1998. He suffered sharper pain in the low back. By the time the fourth course began in August 1998 he had only mild stiffness in his back in the mornings. But the symptoms, which again manifested themselves, did so earlier in this course than previously. He noticed that changing tyres on the Tuesday precipitated back strain. The pain was more intense than previously. A specific incident occurred on the Friday of the first week of the August 1998 course. Mr Shipton reached into the back of a Holden Rodeo vehicle to pick up a small video camera. He felt a very sharp pain in the middle of his low back. His back became very stiff and sore. During the following days the pain intensified and spread to the buttocks and upper legs. He reported this incident to Senior Constable Dawson, who at the time held the office of Acting Sergeant. He did not attend work until the following Wednesday. He consulted a general practitioner in Goulburn, and had physiotherapy for two to three weeks. He was then off work until late November, returned for two weeks (part-time) but found it very difficult to cope and was off work again. It was not for about eight or nine weeks, in April or May in 1999, that he returned to full-time work, but this was on restricted duties (essentially classroom teaching). In July 2001 he was discharged from the Police Service medically unfit.

liability

21 Both plaintiffs allege that their injuries were caused by the negligence of the defendant. They have particularised their claims (in substantially identical terms) in conventional and general ways (alleging, for example, failure to provide a safe system or a safe place of work, and failure to implement safety measures to avoid injury). More specifically, each pleads, as particulars of negligence, that the Police Service (the lettering is taken from the statements of claim):

“(d) failed to properly provide harnesses ...

(e) failed to properly provide seats suitable for the safety of the plaintiff;

(f) failed to utilise motor vehicles suitable for the safety of the plaintiff;

(g) allowed the plaintiff to drive motor vehicles in a manner which was dangerous;

(h) failed to implement other training methods to avoid the plaintiff being injured;

(i) failed to fit out the said motor vehicles in a manner suitable for the safety of the plaintiff;

(j) failed to properly or adequately inspect the said motor vehicles to ensure that they were safe for the plaintiff.”

22 No evidence or argument having been addressed to the issues raised by particulars (f), (g), (h), (i) (except as particularly mentioned in particulars (d) and (e), or (j)), these particulars can be put to one side. Essentially Mr Hunt’s case is that the duty of care which the defendant admittedly owed to him required that the motor vehicles be fitted, in place of the standard lap-sash seatbelts, with securely tethered harness seatbelts; and that the standard seats in the vehicles be replaced with seats designed to withstand the unusual strain the exercises would place upon the occupants of the vehicle, and protect them from the effects of the jolting and bumping that was an inevitable consequence of the exercises. On behalf of Mr Shipton four additional particulars of negligence were pleaded. These were that the Police Service:

“(k) failed to provide a proper jack for the purpose of changing the tyres;


(l) failed to implement a safe system of work in changing the tyres;

(m) failed to provide a jack which would lift the tyres adequately off the ground to enable the plaintiff to change such tyres in a safe manner;

(n) failed to implement a system whereby the plaintiff was not required to lift the tyre onto the vehicle.”

23 Ultimately, as I understand the way the case was presented on behalf of the plaintiffs, two discrete matters were specified as evidencing breach of duty on the part of the defendant. These concerned the seatbelts and the seats fitted in the vehicles. It is necessary to deal with each individually.

24 Each plaintiff alleges that the defendant owed him a duty to take reasonable care for his safety (which duty is admitted) and that it failed adequately to discharge that duty (which is denied). The issues as they were fought in the trial require recourse to the well known statement of Mason J (as he then was) in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40. Mason J wrote:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

25 A number of the issues so raised can be disposed of readily. It is, in my opinion, beyond question that the activities in which the Police Service required the plaintiffs to engage contained within them an inherent and eminently foreseeable risk of injury to them. They were asked to put themselves in positions no different to those which daily, on public roads, cause injury to motorists and passengers. No single entity could be better placed than the Police Service to appreciate the likelihood of injury caused by the violent use of motor vehicles, and motor vehicle collisions. The magnitude of the risk was significant and the degree of probability of injury was high (that is not necessarily to say that the degree of probability of injury of the precise kind sustained by the plaintiffs was, on the evidence, high – there was little evidence on that precise point). Experience demonstrates that repeated stresses on the spinal column do carry a probability of accumulated injury, and I am satisfied that the risk of relevant injury should, here, be regarded as high. That, then, demands consideration of what the Police Service ought to have done by way of response, having in mind the expense, difficulty or inconvenience of taking alleviating action, and any other conflicting responsibilities the Police Service may have had. On behalf of the defendant it was submitted that the Police Service had conflicting responsibilities in that it was necessary that it provide realistic training to its officers to ensure the adequate protection of VIPs attending the Olympic Games. So much may be accepted. It was, however, further submitted that:

“The realism of the training assumed a greater importance than the expense, difficulty and inconvenience of taking alleviating action.”

It was acknowledged that there was no evidence that the Police Service made a considered decision not to adopt either of the alleviating measures proposed on behalf of the plaintiffs by reason of a consideration of competing funding claims, difficulty or inconvenience.

26 Nothing was advanced in support of the argument that the realism of the training was more important than the expense, difficulty or inconvenience of taking alleviating action; nor, indeed, that taking alleviating action would (as is implied in the submission) have somehow impinged upon or been inconsistent with “the realism of the training”.

27 The plaintiffs propose, in essence, two things, with a third lying quietly in the wings. They propose that a reasonable response to the risks posed by the nature of the driving of the motor vehicles called for the installation of seatbelts having an enhanced stabilising function; and of passenger seats in the cars also having an enhanced stabilising function. Each of these, it was suggested, would have limited the extent of bodily movement, and therefore spinal stresses, caused to the plaintiffs as instructors/ passengers in the vehicle. The almost silent third partner in the trio concerns, not the manner in which the vehicles were driven, but the requirement that the plaintiffs undertake repeated wheel changing.

28 The issue of conflicting responsibilities or priority in the allocation of resources, mentioned by Mason J in Shirt may be put to one side. The defendant adduced no evidence of “conflicting responsibilities” which may have affected the priority accorded by the Police Service to the allocation of funds, time or resources. It is obvious that budgetary considerations exist in all such organisations, and there were hints in the evidence that the budget for the VIP Programme was far from unlimited. However, there is no evidence on which I could make a finding concerning the allocation of priorities.

29 It is necessary to consider separately the case made by the plaintiffs in respect of seatbelts and seats.

seatbelts

30 Mr Alan Joy, an engineering consultant and principal of the Joy Consulting Group, provided an expert’s report on behalf of the plaintiffs. He expressed the view that, having regard to the circumstances in which instructors would be participating in the violent movement of the vehicles, harness seatbelts should have replaced the standard lap-sash seatbelts. He observed that, in competitive motor sport, six-point harnesses are required to be fitted and worn. He said that such belts had the effect of restricting movement of the occupants of the vehicle and thus providing superior protection in a collision. This is because the belts limit forward movement and therefore limit rebound and its damaging effects.

31 That, in my view, is consistent with the opinions expressed by Ms Sara Bestre, a rehabilitation consultant who reported to STAMP on 8 October 1999. Ms Bestre wrote:

“It is the activity of sitting as a passenger in a car, particularly while it is driven at speed around the track by drivers who may or may not be competent, which is thought to be particularly significant to the development of lumbar spine wear and tear. This is because the instructor is basically unsecure in the vehicle except for the standard lap-sash belt and the handgrip above the passenger side window.
For an instructor to maintain themselves in their seat while being driven considerable work is required by the trunk stabilisers of the body. If an instructor has poor stability (i.e. weak abdominals, weak spinal extensors) he or she would be more compromised in this activity. It is for this reason that the issues of seats and harnesses have been explored to hopefully lessen the risk of back injury to the instructors.”

32 Mr Joy acknowledged that the proposal that harness-type seatbelts should have been fitted was not without complications. One of these concerned the location of anchor points for the harnesses. One option proposed was to anchor the straps to the floor of the vehicle beneath the back of the front seat. However, he was quite firm (for reasons not fully explained, but having to do with the force that would be applied to the wearer’s shoulders in the event of a frontal collision) that this was not a desirable course. Another way was to extend the straps to the rear parcel shelf of the vehicle below the rear windscreen and another to lead the straps to the area below the back grip of the back seat, where the back seat buckles are normally located. It is obvious that each of these would have implications for the use of the rear seat for a second or other passengers (Mr Joy illustrated the second of these in a diagram which was MFI – 1, but which never became an exhibit. Since I had been shown the diagram, and since I am satisfied that its not having been tendered was an oversight rather than the result of a forensic decision, and since the diagram does no more than illustrate what is contained in Mr Joy’s oral evidence, I have taken the expedient course of having regard to that diagram, which will remain with the papers.)

33 A fourth means of anchoring harness seatbelts proposed by Mr Joy was by means of a “taxi bar” extending across the vehicle from behind the top of the front seats and having the straps affixed to that. He accepted that this also might have some implications for rear seat passengers, depending upon the size of the vehicle.

34 In his report, and again in his oral evidence, Mr Joy acknowledged that a harness seatbelt is more restrictive to the wearer than a lap-sash seatbelt, and that this rendered it less comfortable. It was therefore put to him that it would be more difficult to secure compliance with required use of such a seatbelt. Although Mr Joy was inclined to accept that compliance with the compulsory use of seatbelts, when they are of the harness variety, might be an issue, I reject the proposition that, if harness belts had been fitted to the VIP Programme vehicles, it would have been difficult to ensure that they were used by the drivers and passengers in the vehicles. These were, after all, police officers engaged in advanced driver training which itself involved hazardous activities; the discipline of the Police Service itself would, in my opinion, have been sufficient to ensure compliance, as would, I would expect, the officers’ care for their own safety. It must have been obvious to the participants that a harness belt would provide greater protection in the dangerous activities in which they were engaged. I do not accept that possible non-compliance with the required use of the seatbelts is a reason why Mr Joy’s proposal should be rejected. Nor do I accept that possible reduction in comfort is such a reason. This is, essentially, for the same reasons. The benefits of the harness seatbelts far outweighed the disadvantages, and must have been so perceived by the officers.

35 In a further report tendered on behalf of Mr Shipton, Mark Dohrmann, who identified himself as “engineer ergonomist”, expressed this view:

“d. A full harness should have been used in the vehicle penetration exercises, or in any other activities where there were sudden and severe impacts and changes of speed. ... ”

Mr Dorhmann did not give oral evidence.

36 The position adopted by the defendant in relation to the seatbelt issue was, essentially, that the fitting of harness seatbelts would have been impractical. This was, in part, because two of the acceptable (from a safety point of view) means of fitting the belts would have interfered with the use of the rear seats, and that this use was necessary in the course of the exercises. However, it seems to me on the evidence, use of the rear seats was generally required only for a person acting in the role of VIP. The essential passenger was the instructor who occupied the front passenger seat. No reason was advanced why driver training would have been significantly enhanced by the existence in the rear seat of a person posing as a VIP. I accept that such a person may have added a degree of authenticity to the exercise, but I am unable to see any other, or any practical, benefit of that. Certainly, I do not see the desirability of the presence of a person acting as VIP as displacing the need for reasonably available safety measures to be taken.

37 The defendant’s evidence on this issue was that of Mr Grant Johnston, a civil engineer, whose report was given under the letterhead of Unisearch. As to the proposal that harness seatbelts should have been fitted, Mr Johnston, in his report, said only this:

“51. Harnesses were not required for any of the activities undertaken during this course.”

In his report he provided no rationale for this view.

38 In examination-in-chief Mr Johnston appeared to base his opposition to the use of harness seatbelts on the greater danger which may have been caused to rear seat passengers if the straps traversed the rear seat space.

39 However, in cross-examination he appeared to accept that harness seatbelts would have afforded more protection to the wearers in circumstances where (as here) there was likely to be continual jolting and tossing, and an accumulation over time of the effects of the activities.

40 There are two principal difficulties with Mr Johnston’s evidence. Firstly, he began his report by noting that what he had focussed upon was the possibility of injury caused by “the single trauma event of each of the activities conducted during the VIP Driver Protection Course”. He added that it was:

“beyond the scope of the report and the information provided to ascertain whether long-term policing activities, most notably driving, have contributed to a long-term degenerative back condition.”

Mr Johnston restated this qualification on more than one occasion in his evidence.

41 The essence of the plaintiffs’ claims is that it was the accumulation of traumas to their bodies that created their current problems. No “single trauma event” is the subject of a specific claim of negligence. This must have the consequence that Mr Johnston’s report and evidence must be treated as of limited materiality.

42 Further, as it emerged in his cross-examination, his principal objection to the use of harnesses (notwithstanding his concession that, for the relevant circumstances, they would have provided greater protection) was based upon the interference with the rear passenger seat. I have already stated my conclusion in this respect.

43 One difficulty in the plaintiffs’ way is that, while there was evidence that harness seatbelts could have been purchased at a cost of about $85.00 each, there was no evidence of the cost of installation, nor of the practicality of installation.

44 I have not found this question easy to determine. However, the defendant cannot escape the fact that it required the plaintiffs to participate in what was an inherently dangerous and risky task. The plaintiffs were obliged to submit themselves, repeatedly, to the well known dangers caused by motor vehicle collisions, and motor vehicles being driven in dangerous ways. That this was done for good reason in no way negates the obligation of the defendant to ensure that appropriate measures were taken to obviate the risks inherent in the task.

45 There were hints in the evidence that budgetary considerations were a live issue, but I am not satisfied that the cost of fitting harness seatbelts to the vehicles was such as to outweigh the desirability of doing so. In this respect I assume that the belts could have been reused by attaching them to replacement vehicles when the abused vehicles were finally discarded.

46 I have concluded that the plaintiffs have made out their case in respect of the seatbelt issue.

seats

47 The second basis on which it was contended on behalf of the plaintiffs that the defendant failed to discharge its duty of care concerned the nature of the seats in the vehicles. No modifications were made to the seats of the vehicles that were purchased; they were, accordingly, standard seats fitted to vehicles of their type. The contention made on behalf of the plaintiffs is that, in the circumstances, this was inadequate and that specialist seats, designed to fit snugly around the body of the occupant, and thereby to prevent lateral movement during the various manoeuvres, should have been fitted.

48 The evidence as to this was more limited than that in relation to seatbelts and came essentially from the same sources. Mr Joy wrote in his report:

“After the seatbelt, the seat is the most important part of the driver restraint system ...
Seats of standard passenger vehicles are primarily designed for ride comfort and ease of access and egress. ...
Seats used in competitive motor sport vehicles are deep, tub-shaped moulded structures which closely engage the driver’s hips and shoulders and so prevent lateral movement.
In between is a range of proprietary ‘after-market’ seats which provide added lateral support. Both Holden and Ford also make seats with improved lateral support available in their ‘sporty’ model ranges. Both are operated by NSW Police in highway patrol use.
Where manoeuvres are performed which generate high lateral loads that tend to displace an occupant, particularly if they are not tightly restrained, the occupants will naturally tend to brace themselves, for example by pressing themselves back into the seat and by pushing against the steering wheel. ... Vehicles with upgraded seating should have been used in the remainder of the extreme manoeuvres to reduce the need for drivers to brace against the vehicle.”

49 Mr Dorhmann’s report was to similar effect. In the same paragraph as that previously extracted, Mr Dorhmann went on to write:

“Special seats could have been fitted to vehicles to provide lateral restraint, and to reduce the effects of acceleration on the head, neck and torso.”

50 The challenge made to Mr Joy in this respect focussed upon the individual nature of the specialist seats to which Mr Joy referred. It was suggested to him that such seats were ordinarily used by drivers of motor vehicles in circumstances where, as a general rule, the one person would be the only, or the most regular, user. It was suggested that, because the seats are designed to encase the occupant (normally the driver), the seat would be specially chosen to “fit” that person, and that the seats were not suitable for the range of occupants, particularly the range of sizes of occupants, that would use the seats of the vehicles used in the VIP Programme. Initially, Mr Joy appeared to accept that this was a qualification upon the suitability of fitting any of the specialist seats to the vehicles used in the VIP Programme. He said:

“ ... now, the level of padding, the level of contouring, the size of the seat, the height of the backrest, all of these things vary from model to model within these product ranges, so it is a matter of finding a seat, and obviously the variation is within anthropometric limits, in other words, it has got to fit a human being. But human beings come in a variety of sizes as we know, and also so do cars ...”

51 Later, in answer to this question:

“You could not sit there and tell this Court that there was a particular seat and a particular brand of seat which was going to accommodate the range of physical sizes of the instructors at STAMP in 1997, could you?”

he replied:

“... the correct selection and installation of a seat, whether it be a Recaro seat, a Shield seat or a Saas seat or whatever, the correct selection and installation of one would provide no less range in my opinion, if it was done correctly, would provide no less range of comfort and accommodation than the original seats in the car, if it is done correctly.”

52 Another response made on behalf of the defendant to this proposition was that, even in the specialist seats, not all lateral movement would be prevented, and the passengers/observers in the vehicle would be subjected to some violent movement. Mr Joy accepted that this would be the case, but nevertheless contended that the seats would have the effect of reducing the movement and therefore the impact on the passengers.

53 Mr Johnston, in his reports provided for the defendant, was almost as terse in relation to the question of seats as he was in relation to the question of seatbelts. He wrote:

“As a short-term solution to loading increased by each of the activities undertaken during the course modified seats were not required. I cannot comment on whether modified seats should have been fitted to long-term training vehicles by STAMP as a counter-measure to long-term degenerative back problems.”

54 Mr Johnston’s opinion in this respect is of limited value, for the same reason as his opinion in relation to seatbelts is of limited value; his concern and his expertise is with single trauma events, and not the cumulative effects of violent movement. Indeed the second sentence of the passage extracted deprives the first of any real significance for present purposes.

55 A bundle of documents was tendered on behalf of the plaintiffs as exhibit H. These were documents produced by STAMP. They included a “Risk Management Action Plan”, dated June 1998, to which I will return. They also included a document signed by CR Bult, identified as “Chief Inspector, Head of School STAMP” and dated 29 October 1999. The document suggests that it came into existence by reason of concerns expressed about injuries sustained by instructors and students at STAMP. Under the heading “COMMENT”, Chief Inspector Bult wrote:

“The general consensus of opinion by the committee was that the Holden and Falcon V8 vehicles’ seating as used by the highway patrol, offered far more lateral support to the back when subjected to centrifugal force than the six cylinder version of the same vehicle. These seats were clearly superior, and designed to give both drivers and front seat passengers greater comfort and support during hard cornering. ...
... This is a serious Occupational Health and Safety issue and should be addressed if, as appears to be the case, the incidence of back injuries can be reduced by fitting superior seats to the cars used at STAMP. Dr Norris observed that standard equipment may suffice for police vehicles doing normal work. But it is not sufficient for cars than (sic) spend much of their time on a circuit being driven at high speeds, and enduring high cornering courses.”

Chief Inspector Bult was not called to give evidence, although it was conceded that he could have been made available for that purpose.

56 As with the seatbelt issue, there was no evidence as to the cost of substituting the specialist seats for those installed in the vehicles at the time of purchase. Mr Joy conceded that the actual fitting would be more time consuming and complex than would be the installation of harness seatbelts. There was also some doubt as to whether seats, once installed, could be re-used after the destruction of the vehicles in which they were initially fitted. As I understood his evidence, it was that, in the ordinary situation, after they had been in a collision, they should not be reused. (The same applied to seatbelts.) However, he considered that the circumstances applicable in the ordinary case, and which ordinarily would have precluded reuse of seats once they had been in a collision, differed from the circumstances here under consideration and that, subject to inspection for actual damage to the seats, they could be removed from the damaged vehicles and reused.

57 The evidence as to the foreseeability of damage, and the very nature of the exercises in which the plaintiffs were participating, leads me to the view that reasonable care for the safety of the plaintiffs did require the installation of seats modified so as to reduce, so far as practicable, the effect of the violent movement of the motor vehicles. I have concluded that the plaintiffs have made out this aspect of their case also.

medical issues

58 Two medical issues fall to be considered. The first concerns the cause of the condition of each plaintiff; the second concerns the nature and extent of each plaintiff’s condition and disability (there being no real dispute that each is significantly disabled). Only the first is relevant to the question of liability. It is, however, convenient to outline the largely uncontroversial evidence covering the nature and extent of the medical condition and disability of each plaintiff.

Mr Hunt

59 The principal medical evidence concerning Mr Hunt is to be found in two reports of Associate Professor Les Barnsley, a consultant rheumatologist who first saw Mr Hunt, for medico-legal purposes, on 17 July 2001. After recording the history he had taken, Professor Barnsley diagnosed “a significant annular tear at the L5/S1 disc”. He assessed a permanent impairment of the lumbar spine of 15% and permanent impairment of both legs (by reason of pain radiation) of 5%. Professor Barnsley considered that Mr Hunt is likely to have ongoing pain symptoms and that it is unlikely that he will return to his normal duties. (This is plainly consistent with the view adopted by the medical practitioners advising the NSW Police Service, which has medically retired Mr Hunt.)

60 Professor Barnsley restated essentially the same opinion in a report dated 5 February 2004. He considered Mr Hunt to be unfit to perform his pre-injury duties and that he had limited capacity to take on other employment.

61 Mr Hunt has also been seen on a number of occasions by Dr K Nadana Chandran, a neurosurgeon. Dr Chandran’s opinion, expressed in a number of reports, is consistent with that of Professor Barnsley.

62 Dr Blake, an orthopaedic consultant, examined Mr Hunt on behalf of the defendant on at least two occasions. Dr Blake agreed that the prognosis was for continuing or intermittent pain and disability in the lower back and right leg; and that a degree of improvement is more likely than deterioration, although that possibility remained. Dr Blake, however, also expressed the view, in a report dated 18 March 2002, that Mr Hunt had exaggerated his level of impairment and even hinted at some level of fabrication. I reject this (which was not seriously put in his address by senior counsel for the defendant). Dr Blake was not called to give evidence. I observed Mr Hunt in the witness box and saw no sign of exaggeration or disingenuousness. Professor Barnsley, who was called to give oral evidence, found Mr Hunt’s complaints and description of his condition to be credible. I prefer this assessment.

63 Mr Hunt was also examined on behalf of the defendant by Dr Peter Henke, a consultant in rehabilitation medicine. Dr Henke agreed that the prognosis was poor and that Mr Hunt could anticipate continuing symptoms, although he thought that these might dissipate slightly, or become intermittent, with periods of relative freedom from pain followed by some periods of exacerbation. Dr Henke found Mr Hunt unfit for his occupation as a police officer and to have very limited capacity for work in the immediate term, but to be likely to become fit for clerical work within three years. (This report was written on 18 December 2003.)

64 With that short synopsis of the medical evidence concerning the nature and extent of Mr Hunt’s condition, I turn to the issue of causation.

causation

65 Dr Barnsley considered that the cause of Mr Hunt’s disc damage was twisting and lifting resulting from his participation in the VIP Programme. He considered that the incident on the motor cycle may have precipitated a worsening tear and possibly some mild prolapse of the disc with some irritation of the right L5 nerve route.

66 In his second report he expressed the view that Mr Hunt had significant back pain from November 1997 and that this was exacerbated by the tyre (wheel) changing and aggressive manoeuvres as part of the VIP Programme. He wrote:

“ ... I think that on the balance of probabilities his L5/S1 disc injury is due to the activities involved in the driving courses between July 1997 and 1999 as well as an extra contribution from the motorbike accident on 10 May 2000.”

67 Later, he wrote:

“The issue is (sic) to the relative contribution of the driving courses and the motorbike accident to his current problem is a difficult question. I would arbitrarily have attributed at least 60% of his current disabilities to causes preceding the motorbike accident. On going over the history it is quite clear that he had significant pain prior to the motorbike accident but that this exacerbated his symptoms significantly. He himself described it as ‘the icing on the cake’.”

68 In his first report (18 March 2002), Dr Blake appears to have attributed the bulk of Mr Hunt’s symptoms to the motorcycle accident of May 2000 which he thought caused a tear in the L5/S1 disc, exacerbating pre-existing degenerative changes. In part, however, this view was based upon his assumption that, following temporary back problems after each course, Mr Hunt made full recovery and that there was no history or indication of any ongoing impairment or problem between August 1997 and May 1999. This is, at best, only partially correct. It is true that, following the conclusion of each course Mr Hunt’s symptoms subsided, but it is to be observed that, from the middle of 1998, he limited his participation in the activities that caused jolting to his body.

69 In his second report (8 January 2004) Dr Blake appears to have revised his opinion. Indeed, it is difficult to reconcile some parts of the Dr Blake’s reports. In the second report, in the space of a few paragraphs on p 3, Dr Blake wrote:

“(a) Diagnosis remains as given initially. The continuing symptoms and disability in Mr Hunt’s lower back, continue to relate clinically to the degenerative changes with focal tear and minor disc bulge, at the L5-S1 level. ”
“(f) While it is possible there was pre-existing early degeneration at the L5-S1 disc level, no evidence of this is available. It is therefore not possible to say whether or not a pre-existing condition has be aggravated.”

70 Given Dr Blake’s misunderstanding about Mr Hunt’s pre May 2000 condition, and this later anomaly, I find that little, if any, weight can be attached to his report. To my mind, the more analytical, and accurate, opinion is that of Dr Barnsley. I am satisfied that the significant cause of Mr Hunt’s ongoing problems is the accumulated damage done over a period, as a result of the repeated jolting, tossing and twisting caused by the use of vehicles inadequately prepared for the unusual purposes to which they were to be put. No doubt the stresses imposed by repeated wheel-changing contributed to the end result, although quite obviously it is impossible to reach any conclusion about the relative culpability of each activity. The damage caused by the single trauma of the motorcycle accident emphasised, and perhaps accelerated, a process already under way.

71 Subject to one remaining matter, it follows that Mr Hunt is entitled to a verdict against the defendant in respect of his injury.

Mr Shipton

72 On his first assessment (21 July 2001) Dr Barnsley found that Mr Shipton suffered a 10% permanent impairment of his lumbar spine. He maintained this assessment in a subsequent report, dated 5 February 2004, when he also stated the view that Mr Shipton was not fit for his pre-injury duties, although he was clearly capable of performing other duties involving less stress upon the back, and that gave him the opportunity to stand and move as required for symptom relief. He thought that Mr Shipton would need physiotherapy and ongoing medication. Dr Trevor Law, whom Mr Shipton consulted for treatment in February and March of 2001, reached a similar diagnosis, with disc degeneration. He recommended provision of custom-made foot orthotics.

73 Dr Noel Dan, a neuro-surgeon, who was consulted by Mr Shipton a number of times between September 1998 and August 1999, reported on 23 February 2000. He agreed that Mr Shipton was unfit for operational duties and that it was likely that he would continue to be unfit. His assessment of Mr Shipton’s permanent disability was of 15% impairment of his back, and 5% loss of efficient use of each leg.

74 The diagnoses made by medical practitioners retained by the defendant were not significantly different, although Dr James Bodel assessed the permanent impairment of the back at only 8%. He found no clinical evidence of permanent loss of efficient use of either leg. He considered that, while Mr Shipton should be able to continue with light duty teaching work, it would unwise for him to engage in the type of driving activities in which he had previously participated.

75 At the request of the defendant, Mr Shipton was also assessed by two psychiatrists, Dr Kenneth Dyball on 1 August 2001, and by Dr Yolande Lucire, who reported on 4 February 2002. Nothing remarkable emerged from either of the psychiatric reports. Dr Lucire recounted a history which included significant domestic disruption in Mr Shipton’s life and recorded that he had then suffered from depression. These were confirmed in Mr Shipton’s oral evidence.

76 Dr Lucire reported again on 16 December 2003 and again recorded a period of:

“adjustment disorder with depressed mood, perhaps even major depression”.

In each report she concluded that Mr Shipton had recovered from the condition. He did not require ongoing psychiatric or psychological treatment.

77 She found that the psychiatric problems coincided in time with Mr Shipton’s back pain.

causation

78 Dr Barnsley also examined Mr Shipton.

79 There was an issue between Mr Shipton’s medical advisors and those of the defendant as to the correct characterisation of the cause of his undoubted back injury. In his final report Dr Barnsley wrote:

“ ... [Mr Shipton] has developed some symptoms of chronic low back pain that appear to have been coincident with work practice involved in changing multiple tyres. ... there would appear to be a tight temporal relationship between his work in the VIP driver training and the development of an exacerbation of his back pain.”

80 He diagnosed:

“a focal posterior disc herniation at the L5-S1 level with slight indentation of the central anterior aspect of the thecal sac without impingement on either nerve route.”

81 Although he did not say so expressly, I infer from this that Dr Barnsley intended to assert a causal link between Mr Shipton’s back pain and his work at STAMP. Part of the work to which Dr Barnsley referred was tyre (wheel) changing, but earlier, in the history he recorded, he had made extensive reference to the nature of the driving exercises in which Mr Shipton participated. In his later report Dr Barnsley considered that the specific incident of 21 August 1998, when Mr Shipton suffered pain after lifting a video recorder from the back of a vehicle, was:

“very much like ‘the final straw’ rather than a specifically injurious event ...”

82 Dr Bodel attributed Mr Shipton’s current condition wholly to the video recorder event. He wrote, on 19 July 2001:

“This patient clinically is left with an 8% overall impairment of function in the back and clinically this has arisen as a result of injury that occurred on 21.8.1998. I see no evidence of any other factor contributing to this level of impairment.”

83 Like Dr Blake in Mr Hunt’s case, Dr Bodel’s opinion is based on assumption not borne out by the evidence. He wrote:

“This patient has suffered a disc rupture at L5/S1 level in the incident that occurred at work on 21.8.1998. He has had some minor mechanical symptoms in the back prior to that. These minor mechanical symptoms have been associated with work in general but they do not appear to have caused any major structural damage.”

The account I have given ([19] – [20] above) of Mr Shipton’s symptoms prior to August 1998 shows that Dr Bodel has based his opinion on a false premise. Mr Shipton had experienced rather more than “minor mechanical symptoms” prior to the video camera incident. Like Mr Hunt, he had, I am satisfied, suffered damage to his spine as a result of the dangerous exercises he was required to undertake. No doubt, in his case also, the repeated wheel changing was a contributing cause. The incident with the video camera may have exacerbated the underlying damage, and brought the damage into sharply symptomatic focus, but was not the original cause of the damage.

84 Mr Shipton is entitled to an award of damages in respect of his injury.

85 I mentioned that one matter relevant to liability remained outstanding in respect of Mr Hunt. It was this. Senior counsel for the defendant argued that, having regard to Mr Hunt’s position as the officer in charge of the VIP Programme, and his role in devising and instituting the programme, he was, in fact, the sole author of his own injury. Reliance was placed upon the decision of the High Court in Nicol v Allyacht Spars Pty Ltd (1987) 163 CLR 611. It will be necessary to return to this decision in order to consider its application to the present case. Before doing that, however, it is necessary to refer to some additional evidence. Much of the evidence emerged in the cross-examination of Mr Hunt.

86 In June 1997 he and Senior Constable Dawson had been sent to the United Kingdom to observe and learn from a similar course conducted by the British Police Service.

87 As head teacher at STAMP Mr Hunt reported directly to the Head of School, Inspector Bult. He had a role in developing curricula for the various courses at STAMP; in staff development, and in the training of new instructors. Part of his function included ensuring the currency of the course, providing leadership, and advising on course content. Specifically in relation to the VIP Programme, Mr Hunt participated, in consultation with others, including Mr Shipton, in the initial writing of the programme which was presented to a Standing Advisory Committee. The Standing Advisory Committee in turn provided the proposal to the Academic Board. Although it is not entirely clear from the evidence, it seems that at least two such documents came into existence, the final one in October 1997. This became exhibit 1. That document is entitled “VIP Protection Driving Programme”. It contains an outline of the background to the VIP Programme, a brief history of the course, an explanation of its rationale, and some other preliminary and explanatory matters. The nub of the document is an outline of the VIP Programme and its manner of assessment. One paragraph is concerned with the occupational health and safety component. The authors of the document recognised that the VIP Programme required considerable assessment and management of risk:

“due to the nature of the training which involves extraordinary manoeuvres and simulations.”

In this paragraph it was asserted that “the risk management section” (presumably either of STAMP or of the NSW Police Service) had been informed of the content of the programme and was satisfied with the level of training safety equipment supplied.

88 Mr Hunt himself agreed that those involved in preparation of the VIP Programme had had discussions with respect to safety matters, and had recommended the provision of helmets, neck braces, and fireproof clothing and gloves. He agreed that there had been discussion about seatbelts and seating but he was not pressed either on what was suggested in this context or what was the outcome.

89 Arrangements were made for the presence on site, at times, of paramedics and /or ambulances.

90 This evidence gives some idea of the level of attention that was paid to safety, and of express recognition that the VIP Programme involved risks of injury. It gives some idea of the measures taken to avoid the obvious risks eventuating as actual injury. But the present issue concerns the identification of the person, or persons or group or section, within the Police Service with whom ultimate responsibility for safety lay. More particularly, it concerns the role of Mr Hunt in those matters. More particularly still, the question is whether, by reason of Mr Hunt’s role and position, he himself had the responsibility of determining whether or not harness-type seatbelts, or safety seating, would be installed in the VIP Programme vehicles.

91 In support of its contention that Mr Hunt should be seen as the author of his own harm, the defendant relied upon a lengthy passage in the judgment of Brennan J (as he then was) in Nicol. Inter alia, Brennan J wrote:

“There have been cases in which an injured employee has failed to recover for breach of an employer’s statutory duty where the employee himself is responsible for performing the duties ...”

92 Brennan J quoted with approval the speech of Lord Reid in Ross v Associated Portland Cement Manufacturers Ltd [1964] 1 WLR 768, who posed as a test the question:

“Whose conduct caused the accident?”

That approach, Brennan J wrote, avoided the difficulty of:

“... explaining why an employer, put in breach of a statute by the disobedience of his servant, can escape liability to that servant for injuries caused by the breach ... He can say to the disobedient servant his [the employer’s] conduct in no way caused or contributed to that servant’s injuries.” (extracting this passage from Ross.)

There is, however, more than that in the decision in the judgment of Brennan J.

93 The cases in which injured employees have failed to recover for breach of an employer’s statutory duty where the employee was himself responsible for performing the duty are cases where the employee:

“... was solely responsible for the failure to perform the duty and was therefore ‘the sole author of his own wrong’ ... ” (emphasis added)

94 Brennan J added:

“But if the employer has failed in some respect to do everything which the employer could reasonably be expected to do to prevent the breach which caused the plaintiff’s injury, the employer does not escape liability ... In order that the person under the statutory duty might escape liability:
“... [i]t must be established that the breach by the plaintiff is the sole cause and not merely a cause of the accident.” (Quoting from Herron CJ in Shedlezki v Bronte Bakery Pty Ltd (1967) 69 SR (NSW) 202.)” (emphasis added)

95 In my opinion, the reliance on behalf of the defendant on Nicol is misplaced. Mr Hunt, the evidence demonstrates, was a participant in the preparation of the materials preceding the establishment of the VIP Programme. He had no more than an advisory participatory role, had no decision-making power, and was subject to the ultimate determination of the Academic Board, acting on the advice of the Standing Advisory Committee.

96 Mr Hunt is not to be denied damages to which he is otherwise entitled because of his participation in the planning of the VIP Programme. There is no other reason why he should be denied damages. Accordingly, in his case also there will be a verdict for the plaintiff against the defendant.

contributory negligence

97 A defence of contributory negligence was raised in respect of each plaintiff. However, little was advanced to support the argument. A good deal was made of the absence of any reporting by either plaintiff of the earlier incidences of back pain, each of which subsided after cessation of the exercises, but this was put in the context of credibility. It was conceded that neither plaintiff had been cross-examined with a view to exposing any fabrication or exaggeration of his symptoms. Nothing else was put forward as supporting the claim for a finding that either plaintiff contributed to his own injury. In each case I reject the defence.

novus actus interveniens

98 In each case the defendant also sought to rely upon the doctrine of novus actus interveniens. In Mr Hunt’s case, the defendant placed reliance upon the motorcycle accident of May 2000; in Mr Shipton’s case, on the video camera incident of August 1998. In each case the argument was that the incident relied upon was of such significance as to halt the operation of any pre-existing fault on the part of the Police Service and become responsible for the subsequent disabilities. I reject each proposition. In my view, on the evidence, it is far more likely that, in each case, the later incident had the significance it apparently had by reason of the pre-existing damage that had been done to the spine of the plaintiff: in Mr Shipton’s case in particular, the incident itself was so minor that one would expect, without pre-existing damage, it would not have had any, or any significant, adverse consequence at all. In Mr Hunt’s case, the report of Dr Blake, to which I have already referred, in which he assumed pre-existing degenerative changes, lends support to a conclusion that it was pre-existing, not degenerative, but traumatic, changes that permitted a relatively minor fall to do additional damage.

calculation of damages

99 A number of questions concerning the legal regime pursuant to which damages are to be calculated were floated in the course of argument. Ultimately, as I understood the arguments presented, it was accepted by both parties that, in respect of any injury caused by the VIP Programme exercises (up to 5 October 1999) any damages awarded are to be quantified by reference to the Motor Accidents Act 1988; any injury ...

“caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle ... caused during:
(i) the driving of the vehicle; or
(ii) a collision, or action taken to avoid a collision, with the vehicle; or
(iii) the vehicle’s running out of control; or
(iv) such use or operation by a defective vehicle; ...”

after that date is to be compensated by reference to the Motor Accidents Compensation Act 1999 . The significance of this lies in the motorcycle accident suffered by Mr Hunt; should it be found that this was in any way the cause of his injury (and that Mr Hunt was entitled to proceed against the Police Service in respect of that injury) then, by reason of the date of that incident (May 2000), the latter Act applies.

100 Further, it was accepted on behalf of the defendant in written submission (para 205) that:

“If the Court concludes that Mr Hunt’s injuries arose out of the wheel changing, then he is entitled to damages at common law.”

The same must apply to Mr Shipton.

101 For reasons I have given, Mr Hunt’s motorcycle accident was not the cause of his injury, although it did cause some temporary exacerbation of his pre-existing accumulated condition. In any case, Mr Hunt did not, and in the circumstances of that accident, could not realistically have pursued any claim against the Police Service in that respect.

102 Also raised, on behalf of the defendant, but not pursued with any vigour, was the extent, if any, to which the injuries of either plaintiff were sustained outside the State of NSW, while he was engaged in exercises in the ACT. Given the paucity of argument and evidence on this issue I do not feel it necessary to do other than note it and reject it as of any relevance.

DAMAGES

103 I do not feel able, at this stage, to proceed to an assessment of damages. That is because, it seems to me, the parties have not fully addressed their minds to some of the complexities raised, but not explored in detail, by the circumstances of the case. What follows represents only some preliminary thoughts on which I would welcome the assistance of counsel.

1. The parties appeared to be agreed that:


(i) to the extent to which the injuries of either plaintiff were caused by the VIP Programme exercises, and were caused before the commencement of the Motor Accidents Compensation Act 1999, quantification of damages is governed by Part 6 of the Motor Accidents Act 1988; but

(ii) to the extent to which the injuries were caused by the wheel changing exercises, quantification of damages is governed by the common law: see defendant’s written submissions para 205; T 291/25; T 316/5-35.


2. The distinction between the two causes of injury is, on analysis, questionable. Reference was made to the definition of “accident” (although there is no such definition in the Motor Accident Act ). Reference was also made to the definition of “motor accident”.

It would be helpful if the parties would address the following analysis (unless otherwise specified, the statutory inferences are to provisions of the Motor Accidents Act) :

(a) s3 defines “motor accident” as:

“an accident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person”;

(b) for present purposes the critical word in the definition is “accident”. “Accident” is not defined in the Act. It is defined in various dictionaries as, relevantly:
Macquarie Dictionary (Revised 3rd Edition) 2003 (identical in Revised 1st Edition 1985):
1. an undesirable or unfortunate happening; casualty; mishap.
2. anything that happens unexpectedly, without design, or by chance.
3. the operation of chance ...;
The Oxford English Dictionary 1989:
1. anything that happens.
1a. an occurrence, incident, event. Obs
b. anything that happens without foresight or expectation; an unusual event, which proceeds from some unknown cause, or is an unusual effect of a known cause; a casualty, a contingency ... unforeseen course of events.
c. esp. an unfortunate event, a disaster, a mishap ...;
The New Shorter Oxford English Dictionary 1993:
1. a thing that happens.
a. an event. ( obs) in gen sense
b. an event that is without apparent cause or unexpected; an unfortunate event, esp. one causing injury or damage;

(c) “injury” is defined in s3 as follows:

“‘injury’:
(a) ... personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:
(i) the driving of the vehicle, or
(ii) a collision, or action taken to avoid a collision, with the vehicle, or
(iii) the vehicle’s running out of control, or
(iv) such use or operation by a defect in the vehicle, and
(b) includes:
(i) pre-natal injury, and
(ii) psychological or psychiatric injury, and
(iii) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”;

(d) limitations on the awarding of damages are contained in Part 6. The limitations are themselves limited by s70 to damages to be awarded in respect of a “motor accident”;

(e) it would be open to find, within the meaning of the definition of “motor accident” that each plaintiff’s injuries were caused by the fault of the owner (but, arguably, not the drivers) in the use and operation of the motor vehicles;

(f) equally, it would be open, on the evidence, to find that there was nothing “accidental” about the events that gave rise to the injuries: See Australian Casualty Co Ltd v Federico [1986] HCA 32; 160 CLR 513; Sutton: Insurance Law in Australia, 3rd Edition , 1999, paras 10.56 - 10.99. It would be open to find that those events came about as a result of the deliberate compliance by the trainee drivers of the vehicles with the considered requirements of the owner of the vehicles, the Police Service;
(g) it would be open to find that the collisions were deliberately effected;
(h) it would be open to find that the injuries to each plaintiff were caused, not by a single traumatic event (or accident), but by the cumulation of incidents involved in the use of the motor vehicles;

(i) if findings substantially in accordance with those mentioned in (e), (f), (g) and (h) are made, what application, if any, does Part 6 have? What application, if any, does the Motor Accidents Act have? Would it be more appropriate to regard the plaintiffs’ claims as workplace safety claims than motor accidents claims?;

(j) the legislation which succeeded the Motor Accidents Act ( Motor Accidents Compensation Act 1999 ) contains a definition of “motor accident” in the following terms:

“ ... an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person.” (emphasis added)


What significance, if any, for the interpretation of “motor accident” in the Motor Accidents Act does the addition of the words “or incident” have?;

(k) what is the significance, if any, of the use of the phrase “an accident” as distinct from “accident” in the definition of “Motor accident”?

(l) by s2B, a purposive interpretation is to be given to the Act. Would it be correct to conclude that the Motor Accidents Act was directed to injury or death caused accidentally, but not deliberately, by the fault of the owner or driver in the use and operation of a motor vehicle? Would such a conclusion have wider implications concerning the deliberate use of a motor vehicle to inflict death or injury such as to require (having regard to s2B) an interpretation of “accident” different from its natural and ordinary meaning? Would such a conclusion have implications in respect of the legislation concerning third party insurance such as to require a different interpretation of “accident” different from its natural and ordinary meaning? (A tentative view is that the latter, in any event, would not require a departure from the natural and ordinary interpretation – s10 of the Third Party Insurance Act 1984 requires that a third party policy under that Act insures the owner of the motor vehicle and others against “all liability incurred” in respect of death or injury (that is, it is not limited to death or injury caused accidentally). S10 of the Motor Vehicles (Third Party Insurance) Act 1942 appears to be in the same or similar terms;

(m) was the Motor Accidents Act intended to cover the situation (and limit an award of damages) in the circumstance that an employer (or person in the position of employer, as the Police Service is here), pursuant to a considered decision in relation to circumstances of employment, requires use of motor vehicles in such a way as will expose the employee to risk of injury? Or was the Motor Accidents Act intended to apply to death or injury caused accidentally and not otherwise? (See the objects of the Act set out in s2A.)

3. The defendant has submitted that, to the extent that the injuries of either plaintiff were sustained in the ACT, damages may not be awarded under the Motor Accidents Act , which applies to motor vehicles registered and operating in NSW (t 294).

(a) “Motor vehicle” is defined in s3 of the Act as:

“... a motor vehicle or trailer within the meaning of the Road Transport (General) Act 1999 ”

which, in turn defines “motor vehicle” as:

“ ... a vehicle that is built to be propelled by a motor that forms part of the vehicle.”

There is nothing in this definition which limits the operation of the Motor Accidents Act to death or injury caused by motor vehicles registered and operating within NSW. Is there any other provision of the Motor Accidents Act which so restricts its operation?

(b) Is there any territorial limitation on the operation of the Motor Accidents Act ? If so, where is it to be found?

104 I will give the parties an opportunity to address submissions which should in the first instance, be in writing, to these considerations. I will stand the matters over for further agreement on a date to be fixed by arrangement with my Associate.

105 In each case the only order I make at this stage is that there be a verdict for the plaintiff.

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