Oliver v State of New South Wales

[2025] NSWDC 340

District Court

New South Wales

Medium Neutral Citation:

Oliver v State of New South Wales [2025] NSWDC 340

Hearing dates:

23, 24, 25, 26, 27 June 2025; 8 July 2025; 1 August 2025

Date of orders:

29 August 2025

Decision date:

29 August 2025

Jurisdiction:

Civil

Before:

Acting Judge Levy SC

Decision:

1. Discharge the interim non-publication order made on 25 June 2025;

2. Verdict for the plaintiff in the assessed sum of $2,850,591.61;

3. Judgment for the plaintiff in the net sum of $2,301,575.21 after deducting payments for workers’ compensation paid to the plaintiff in the amount of $549,016.40 pursuant to s 87B of the Workers’ Compensation Act 1987 (NSW);

4. Defendant is to pay the plaintiff’s costs;

5. Exhibits may be returned;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

Catchwords:

TORTS – negligence – work injury damages claim by former police officer injured in the course of a cannabis eradication operation in a State forest – claim of defective system of work – claim of inadequate consideration and instruction by employer on safety issues – provision of unsuitable police vehicle for assigned task of transporting large quantity of culled cannabis plants – single vehicle accident – vehicle fishtailed out of control under excessive load whilst negotiating a downhill bend on a gravelled mountain dirt road – vehicle slid off the road and rolled multiple times 175m down the ravine of a steep embankment – finding of negligence – rejection of claim of contributory negligence

DAMAGES – plaintiff sustained multiple physical injuries to head, neck, right shoulder and fracture of right wrist – plaintiff also incurred psychological injuries – development of intractable complex regional pain syndrome ultimately leading to surgical amputation of dominant right arm below the elbow – permanent unfitness for work – causation of damages established – assessment of economic damages

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, and 58

Crown Proceedings Act 1988 (NSW), s 5

Evidence Act 1995 (NSW), ss 60, 135, 140, 170 and 171; Dictionary, Part 2, cl 4(2)

Motor Accidents Compensation Act 1999 (NSW), s 7A

Occupational Health and Safety Act 2000 (NSW), ss 8, 10, 11

Occupational Health and Safety Regulations 2001 (NSW), regs 5, 6, 7, 9 – 16

Police Act 1990 (NSW), s 201

Police Regulations 2008 (NSW), regs 6 – 9

Road Transport (Mass, Loading and Access) Regulation 2005 (NSW), regs 44 and 47

Social Security Act 1991 (Cth)

State Records Act 1998 (NSW), ss 12 and 13

Uniform Civil Procedure Rules 2005 (NSW), rr 31.19, 31.27 and 31.30; Sch 7

Work Injury Management and Workers’ Compensation Act 1998 (NSW), s 318

Workers' Compensation Act 1987 (NSW), ss 36, 37, 87B, 151A, 151D, 151G, 151H, and 151L

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538; [1940] HCA 45

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13

Angel v Hawkesbury Council [2008] NSWCA 130,

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Barcock v Brighton Corporation [1949] 1 All ER 251

Blacktown City Council v Hocking [2008] NSWCA 144

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25

Burnicle v Cutelli [1982] 2 NSWLR 26

Commissioner of Police v Rea [2008] NSWCA 199

Czatyrko v Edith Cowan University (2005) 214 ALR 349; (2005) 79 ALJR 838; (2005) Aust Torts Reports 81–787; [2005] HCA 14

Dare v Pulham [1982] HCA 70; 148 CLR 658

Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25

DC v State of New South Wales [2016] NSWCA 198

Elhawat v Workers’ Compensation Nominal Insurer [2025] NSWCA 88

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Fox v Wood (1981) 148 CLR 438; (1981) 55 ALJR 562; [1981] HCA 41

Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm)

Goode v Angland [2017] NSWCA 311

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; [1956] HCA 42

Helton v Allen (1940) 63 CLR 691; [1940] HCA 20

Holloway v McFeeters (1956) 94 CLR 470, pp 480 - 481; [1956] HCA 25

Jones v Dunkel (1959) 101 CLR 298, at p 321; [1959] HCA 8

Jones v The Queen (1997) 191 CLR 439

Kubovic v HMS Management Pty Ltd [2015] NSWCA 315

Kuhl v Zurick Financial Services Australia Ltd [2011] HCA 11

Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; [2009] HCA 35,

Luxton v Vines (1952) 85 CLR 352; [1952] HCA 19

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

Mason v Demasi [2009] NSWCA 227

McDonald, Wilson & Shepperd v State of New South Wales [2001] NSWCA 303

Medlin v State Government Insurance Commission (1995) 182 CLR 1; (1995) 69 ALJR 118; (1995) 127 ALR 180; (1995) Aust Torts Reports 81–322; [1995] HCA 5

Najdovski v Crnojlovic [2008] NSWCA 175

Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362; [1963] HCA 4

New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Newell; Muriniti v De Costi [2018] NSWCA 49

Nominal Defendant v Cordin [2017] NSWCA 6,

Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116

Paric v John Holland Constructions Pty Ltd [1985] HCA 58

Perisher Blue Pty Limited v Harris [2013] NSWCA 38,

Plomp v The Queen (1963) 110 CLR 234

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Qualcast (Wolverhampton) Ltd v Haynes (1959) AC 743

Ren v Jiang (No 3) [2014] NSWCA 204

Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42

S v State of New South Wales [2009] NSWCA 164

Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262

Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34

Speed v Thomas Swift & Co [1943] 1 KB 557

State of New South Wales v Fahy [2007] HCA 20

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306

Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5

The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13

The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1

Thorn v Monteleone; Thorn v Kelly [2021] NSWCA 319

Twynam Agricultural Group Pty Ltd v Williams [2012] NSWCA 326

Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422

Vozza v Tooth & Co Ltd (1964) 112 CLR 316; [1964] HCA 29

Warren v Gittoes [2009] NSWCA 24

Watson v Foxman [1995] 49 NSWLR 315

Watts v Rake (1960) 108 CLR 158; (1960) 34 ALJR 186; [1960] HCA 58

White v Overland (2001) 67 ALD 731; [2001] FCA 1333

Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485; [1995] HCA 53

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Yarrabee Coal Company Pty Ltd & Anor v Lujans [2009] NSWCA 85

Texts Cited:

Owner’s Manual for the Ford Ranger

Police 4WD Training Manual 2008

Police Association Safety Circular 35, 11 August 2010

Police Safe Driving Policy 2009

Records Keeping Code of Best Practice

Category:

Principal judgment

Parties:

Jillian Oliver (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
Mr J Morris SC with Mr T Ower (Plaintiff)
Mr D E Baran (Defendant)

Solicitors:
Cardillo Gray Partners (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2024/00088030

Publication restriction:

None

Judgment

Table of Contents

Introduction	[1]
Procedural background	[2]
Factual background	[3] – [29]
Issues	[30]
Disparity of respective damages submissions	[31] – [33]
Plaintiff’s undisputed background circumstances	[34] – [47]
Pleadings review	[48] – [52]
Evidence review	[53] – [58]
Review of documentary evidence on liability	[59] – [140]
(1) Exhibit “H” – Technical documents	[60] – [72]
(2) Documents prepared by Sergeant Martin	[73] – [92]
(3) Statements by Senior Constable Bentley	[93] – [104]
(4) Statements by Senior Constable Wilson	[105] – [118]
(5) Speed limit on Knodingbul Forest Road	[119]
(6) Statement by Senior Constable McCaig	[120]
(7) Statement by Sergeant Moir	[121]
(8) Statement by Senior Constable Reid	[122]
(9) Plaintiff’s appeal - Safe Driving Panel decision	[123]
(10) Safe driving panel review decision	[124]
(11) Police insurance property damage claim form	[125]
(12) 4WD Manual 2008 / Safe Driving Policy 2009	[126]
(13) Plaintiff’s medical discharge from Police Force	[127]
(14) Photographs of the accident scene	[128]
(15) Operational orders for Strike Force Unwin	[129] – [138]
(16) Absent documents and records	[139] – [140]
Expert liability evidence	[141] – [200]
Review of oral evidence	[201] – [216]
- Plaintiff’s evidence	[202]
- Mr Fehon’s evidence	[203] – [214]
- Ms Frost’s evidence	[215] – [216]
Submissions of the parties	[217] – [234]
- Plaintiff’s liability submissions	[218] – [225]
- Defendant’s liability submissions	[226] – [231]
- Quantum	[232] – [234]
Issue 1 – Dismissal of defendant’s notice of motion	[235] – [411]
(1) Section 318 of the WIM Act and its purpose	[243] – [256]
(2) Review of evidence in support of the motion	[257] – [264]
(3) Timing and basis of defendant’s application	[265] – [282]
(4) Issues raised by defendant’s s 318 motion	[283] – [287]
(5) Defendant’s submissions in support of the motion	[288] – [290]
(6) Plaintiff’s submissions in support of the motion	[291] – [298]
(7) Defendant’s submissions in reply	[299] – [302]
(8) Consideration	[303] – [406]
- Defendant’s “things went wrong” argument	[304] – [342]
- Non-retrieval of displaced cannabis plants	[343] – [381]
- Assumptions made by Sergeant Martin	[382] – [406]
(9) Conclusion dismissing defendant’s s 318 motion	[407] – [411]
Issue 2 – Reliability of documentary evidence on liability	[412] – [480]
(1) Senior Constable McCaig’s statement	[416] – [422]
(2) Sergeant Moir’s statement	[423] – [426]
(3) Senior Constable Reid’s statement	[427]
(4) Sergeant Martin’s materials	[428] – [438]
(5) Senior Constable Bentley’s materials	[439] – [442]
(6) Detective Senior Constable Wilson’s statements	[443] – [470]
(7) Commander Dorrough’s materials	[471] – [475]
(8) Operational Orders for Operation Unwin	[476] – [479]
(9) Conclusion on documents relating to liability	[480]
Issue 3 – Credibility and reliability of witness testimony	[481] – [505]
Issue 4 – Factual findings on relevant matters	[506] – [618]
(1) Instructions regarding Operation Unwin	[508] – [514]
(2) Historical concerns over vehicle safety	[515] – [535]
(3) Culling, stacking cannabis plants on vehicle	[536] – [544]
(4) Probable weight of culled cannabis plants	[545] – [557]
(5) The drive to accident scene	[558] – [562]
(6) Accident circumstances	[563] – [570]
(7) Plaintiff’s version provided to investigating police	[571]
(8) Non-Retrieval of lost cannabis plants	[572]
(9) Rescue details	[573] – [574]
(10) Injuries, medical assessment and treatment	[575] – [599]
(11) Disabilities	[600] – [613]
(12) Effects on earning capacity	[614] – [618]
Issue 5 – Duty of care, scope and content	[619] – [643]
Issue 6 – Negligence	[644] – [776]
- Particulars of alleged negligence	[645] – [647]
- Applicable legal principles	[648] – [652]
- Framework for consideration	[653] – [654]
(1) Factual circumstances & scale of Operation Unwin	[655] – [679]
(2) Plaintiff’s care for her own safety	[680] – [703]
(3) Risk of harm	[704] – [705]
(4) Reasonable foreseeability	[706] – [716]
(5) Response of a reasonable employer	[717] – [723]
(6) Employer negligence?	[724] – [771]
(i) Plaintiff’s statutory obligation	[726]
(ii) Nature of the risks	[727] – [741]
(iii) Magnitude and remoteness	[742] – [747]
(iv) Probability of occurrence	[748]
(v) Reasonableness of response to risk	[749] – [765]
(vi) Degree of difficulty and inconvenience	[766] – [769]
(vii) Conflicting responsibilities / factors	[770] – [771]
(7) Conclusion	[772] – [776]
Issue 7 – Contributory negligence	[777] – [792]
Issue 8 – Causation	[793] – [800]
Issue 9 – Assessment of damages	[801] – [857]
- Past economic loss	[806] – [819]
- Past loss of employer funded superannuation	[820]
- Future economic loss	[821] – [834]
- Future loss of employer funded superannuation	[835] – [836]
- Fox v Wood	[837] – [840]
- Buffer for additional past economic loss elements	[841] – [851]
- Buffer for additional future economic loss elements	[852] – [856]
- Summary for damages assessment	[857]
Disposition	[858]
Costs	[859]
Orders	[860]

Introduction

1. Pursuant to s 5 of the Crown Proceedings Act 1988 (NSW), the plaintiff, Jillian Oliver, nee Moar, a former police officer, brings this contested work injury damages claim against the defendant, the State of New South Wales as the entity vicariously responsible for the relevant acts, neglects and defaults of her former employer, the New South Wales Police Force.

Procedural background

2. On 26 February 2025, pursuant to s 151D of the Workers' Compensation Act 1987 (NSW) (“WC Act”), the plaintiff obtained an order granting leave for her to continue these proceedings filed on 7 March 2024. The timing of that order was made against the background of the stringent pre-filing processes required by that legislation, where statutory thresholds of maximum medical improvement and whole person impairment had to be satisfied before the proceedings could go forward: s 151H of the WC Act. The claim is limited by statute to economic damages: s 151G of the WC Act.

Factual background

3. The plaintiff was injured in a single vehicle motor accident in the course of her work as a police officer at about 3:15pm on the afternoon of Tuesday 23 November 2010. At that time, together with other police officers, she was engaged in a police cannabis eradication program variously referred to as Strike Force Unwin or Operation Unwin carried out in a State forest on the mid-north coast of New South Wales.

4. At the time of her injury, the plaintiff was driving what she claims was an unsuitably assigned police Ford Ranger 4WD utility vehicle provided to her for that operation without appropriate safety instructions or warnings, particularly as to the load carrying capacity and handling stability of that vehicle.

5. The vehicle assigned to the plaintiff was described as a rural crime car fitted with standard road tyres, not off-road tyres. At the time of the accident, she was driving the vehicle in a northerly direction downhill on Knodingbul Forest Rd, a dirt and gravelled mountain road within a State forest known as Dingo Tops.

6. With the benefit of hindsight, the plaintiff claims that the vehicle had become overloaded with cannabis plants that she and colleagues had culled and loaded onto the vehicle beyond the weight of its safe carrying capacity in circumstances where she had not previously been informed of the safe carrying capacity of that vehicle and she had no means of determining that capacity before embarking on her assigned duties. She had not been provided with any means of determining the weight of the culled plants in the designated field of operations.

7. The plaintiff was familiar with the road in that area having safely driven on it in police and other vehicles on numerous occasions without incident, including on the day of the accident when the vehicle was unladen. At the time of the accident she was certified as a silver standard driver of police 4WD vehicles.

8. The plaintiff claims that at the time of the accident the vehicle was heavily laden with what she had tallied as 740 uprooted cannabis plants of an unknown total weight. She was not provided with the means by which to weigh the loaded plants and did not know what the load limits of the vehicle were, or if it had been overloaded. Those plants were being transported to a designated location in accordance with the operational orders of Operation Unwin. The tray of the vehicle was fitted with a raised profile fibreglass canopy.

9. The plaintiff claims the loaded cannabis plants had been densely pressed down, stacked and layered horizontally, root ball in first, on the floor of the tray of the vehicle up to the full maximum internal height of the canopy. The number and the weight of those plants was a fact in issue in these proceedings.

10. As the plaintiff drove the vehicle north into a right sharp blind bend on a downhill section in the road at a relatively low speed the rear of the vehicle unexpectedly lost traction, fishtailed, became uncorrectable, and veered off the road and then bounced multiple times out of control down the steep embankment of the adjacent densely wooded ravine where it came to rest against a log in dense bushland approximately 175 metres below the roadway above.

11. The plaintiff had not been given any formal operational orders for Strike Force Unwin. Although she had previously been officially certified to drive police 4WD off road vehicles she was not given any formal training or specific instruction in relation to the operation and safe loading of the Ford Ranger utility that was provided to her for use on the day. She did not know, and she was not told of the safe load limits for that vehicle. As a result, she claims she was required to participate in an unsafe system of work.

12. The plaintiff and her assigned police colleague were given only limited information comprising the details of the location of the cannabis plantation to which they were sent in order to cull the plants. They were instructed to load the culled cannabis plants onto the vehicle and take them to a designated mustering location for exhibit identification, marking, and ultimate destruction under supervision.

13. Previously, either through routine police email communications received over time, or from discussions with other police officers, the plaintiff had a general but non-specific background awareness of a history of some industrial agitation initiated by the Police Association concerning the operational safety of Ford Ranger utility vehicles that had been used by the Police Force where those vehicles were fitted with Varley prisoner pods.

14. Other evidence shows that the issue of concern in that industrial dispute was that of vehicle instability due to an alteration of the handling characteristics due to the weight of the added pod, leading to a tendency for the vehicles to become unstable and rollover in certain conditions, including when cornering. This phenomenon had been documented before the subject accident on 7 occasions over a period of 15 months and this fact was known to the Police Force at a command and management level.

15. That issue had been the subject of expert evaluation and industrial litigation brought by the Police Association. Notwithstanding those events, the plaintiff had no knowledge of the potential for a heavily loaded Ford Ranger utility without a Varley Pod to also have altered handling characteristics and to also become uncontrollable and fishtail under a heavy load whilst cornering.

16. The Ford Ranger utility vehicle driven by the plaintiff had been fitted with a fibreglass canopy with an approximately similar height profile dimensions as the Varley Pod, although the canopy was of a lesser weight than a Varley prisoner pod. A question arises as to whether a heavy load above a certain weight placed on the tray of the utility would also cause handling difficulties of a similar kind to vehicles that had been fitted with a Varley Pod.

17. The plaintiff relied upon unchallenged and uncontradicted expert evidence concerning the significance of those facts.

18. The topography of the roadway in question included a number of bends described as sharp blind corners with limited visibility ahead when travelling downhill in a northerly direction. The downhill road surface comprised dirt and gravel, where over the course of time, loose road surface gravel had aggregated at the edges of the road due to the effects of movement of heavy logging trucks in the area tending to use the centre of the road.

3. The series of photographs that follows provide some indication of the appearance of the area where the accident occurred.

4. The photograph copied below shows the general downhill view of the southern approach to the bend where the accident occurred:

[Exhibit “A”, Volume 3, Tab 138, p 701]

21. The photograph below shows a closer view of the configuration of the corner of the bend in the road at the scene of the accident (taken in 2021 by which time the camber of the road surface had changed). The photograph shows the plaintiff standing at the point which she said represents the position of the commencement of the blind corner where the surface gravel had been pushed to the left side of the roadway:

[Exhibit “C”, page 90]

22. The photograph below (also taken in 2021 by which time the camber of the road had changed) shows the opposite general uphill view of the northern approach to the bend where the accident occurred. This photograph depicts something of the counterview of the view depicted in the photograph reproduced at paragraph [21] above:

[Exhibit C, page 91]

23. The centre portion of the photograph copied below and marked with an added blue arrow which partly shows the juxtaposition of the white coloured vehicle that had been driven by the plaintiff depicting where it came to rest in the downhill undergrowth of the ravine:

[Exhibit “A”, Volume 3, Tab 138, p 734]

24. The following photograph, reproduced here in a redacted form to de-identify the attending police officers who appear in that photograph, shows the position of the battered vehicle where it came to rest after tumbling down the ravine:

[Exhibit “A” Volume 3, Tab 139, p 733]

25. The nature of the plaintiff’s injuries, and the steep and awkward topography of the ravine required that for rescue access from that location she had to be moved on a stretcher using ropes and winches, including with the assistance of a helicopter.

26. In the evolving dynamics of the accident, as the vehicle tumbled down the ravine out of control, shortly stated, the plaintiff sustained multiple injuries to her head, neck, right shoulder and in particular, a complex fracture of her right wrist. She subsequently developed an intractable chronic complex regional pain syndrome in her right dominant arm.

27. Over time, that condition became more progressively debilitating to the extent that ultimately led to the plaintiff making a carefully considered decision, based on multi-disciplinary medical advice, to have a below elbow surgical amputation of her right arm in the hope of alleviating her pain and discomfort due to the swelling of her hand. That procedure was unsuccessful in alleviating her pain. Along that timeline, the plaintiff developed a major depressive disorder.

28. The defendant has conceded that the seriousness of the plaintiff’s physical and psychological situation is properly described as catastrophic, without any suggestion of exaggeration on her part: T218.33 – T218.37.

29. The preponderance of the medical evidence shows that the physical and psychological consequence of the plaintiff’s injuries has led to the complete destruction of her earning capacity. Her claim in these proceedings is limited to economic damages that arise for determination according to the common law of negligence as modified by the Workers Compensation Act 1987 (NSW) (“WC Act”) and the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) (“WIM Act”).

Issues

30. The parties presented disparate iterations of the issues calling for determination. In essence, the outcome of the case will be determined by findings as to whether or not the vehicle assigned to the plaintiff was overloaded, and whether or not that caused or materially contributed to the plaintiff’s injuries: T223.5. Following my review of the evidence and arguments, I consider that the combination and the sequence of the issues calling for determination may be conveniently stated to be as follows:

1. The reasons for dismissal of an intra-trial motion filed by the defendant seeking leave pursuant to s 318(2) of the WIM Act to rely upon material not served with the defendant’s pre-filing defence as was required according to the restrictive provisions of the regulatory scheme for such cases. My reasons for refusing that grant of leave appear between paragraphs [235] to [411] below.

2. The reliability of a range of documents of police provenance as a basis for drawing at liability fact findings. My findings on those matters appear between paragraphs [412] to [480] below.

3. The credibility and reliability of witness testimony on factual matters. My findings on those matters appear between paragraphs [481] to [505] below.

4. Findings on a series of relevant matters of fact concerning the instructions given to the plaintiff with regard to:

1. Instructions given regarding Operation Unwin;

2. Historical concerns regarding the safety of Ford Ranger vehicles as modified and used by the Police Force;

3. The extent of the work undertaken for cannabis plant culling and stacking on the police vehicle;

4. The probable weight of the culled and loaded cannabis plants;

5. The drive to the accident scene;

6. The circumstances of the accident;

7. Rescue details;

8. The plaintiff’s injuries, medical assessment and treatment;

9. The plaintiff’s disabilities; and

10. The effects of the plaintiff’s disabilities on her earning capacity.

My findings on those matters appear between paragraphs [506] to [618] below.

5. The scope and content of the duty of care owed by the defendant. My findings on those matters appear between paragraphs [619] to [643] below.

6. Whether the plaintiff has established her claim of negligence. My findings on those matters appear between paragraphs [644] to [776] below.

7. Whether the defendant has established its claim of contributory negligence. My findings on those matters appear between paragraphs [777] to [792] below.

8. Whether the plaintiff has established that her injuries, her disabilities and her work incapacity were relevantly caused by or materially contributed to by the negligence of her employer. My findings on those matters appear between paragraphs [793] to [800] below.

9. The assessment of the plaintiff’s entitlement to economic damages as limited by legislation. My assessment of those entitlements appears between paragraphs [801] to [857] below.

Disparity of respective damages submissions

31. Although the parties were able to agree on some of the financial elements required for the calculation of economic damages up to the date of judgment based on applicable awards, they produced disparately polarised calculations in their submissions on those matters.

32. The plaintiff’s written submissions on damages, subject to some yet to be quantified elements, totalled $2,704,508. In contrast, the defendant’s written submissions on damages, subject to those elements, totalled $1,147,643. Those additional elements were subsequently quantified as they apply to the date of judgment and they will be accounted for in these reasons.

33. Those disparities and variations were founded upon a series of differing factual assumptions regarding the plaintiff’s likely future employment, which required consideration and determination according to a range of matters that needed to be resolved by findings based on the evidence and the arguments presented.

Plaintiff’s undisputed background circumstances

34. The plaintiff was born in 1976. She is presently aged almost 49 years. At the time of her injury on 23 November 2010 she was aged 34 years. She had been a police officer for 12 years. She had been promoted to the rank of Senior Constable after 6 years of service at the relatively young age of 28 years. She aspired to be promoted to higher ranks. Prior to the accident, for a time, she had acted up in the position of Sergeant at a relatively young age to fill a temporary vacancy. Those circumstances augured well for the possibility of a future promotion.

35. A retired former Police Force Commander, a Superintendent with personal knowledge of the facts concerning the plaintiff’s last posting at the Manning Great Lakes Local Area Command gave oral evidence in which he spoke positively of her work ethic and of her abilities as a police officer. He provided information that shed light on promotional pathways and her promotional prospects prior to her injury.

36. At the time of the accident, the plaintiff was in robust good physical and psychological health. Despite the general stressful nature of police work, she faced no particular obstacles or adverse challenges in exercising her earning capacity.

37. The plaintiff has been involved in a range of communal service activities since the age of 10 years. She had attended a selective high school where she completed her HSC studies in 1994. Thereafter she worked in a variety of casual outdoor and clerical jobs. Overlapping those activities, for seven years she was an SES volunteer in a rescue team and she ultimately became a trainer for that unit. She was involved in a number of active sports and physical pastimes. She was also a leader in the guides movement. She had an impressive history and ethos for community service.

38. In 1997, the plaintiff commenced training at the Goulburn Police Academy in order to pursue her chosen career as a police officer. She became an attested Probationary Constable in February 1998 at age 21 years 6 months. She was confirmed as a Constable of Police in February 1999. She was initially assigned to carry out general duties at the Bankstown Local Area Command, which was recognised as a demanding posting. In February 2002, she was transferred to the Manning Great Lakes Local Area Command. In those events, she had found her niche in life in her role as a police officer.

39. In 2003, the plaintiff married a fellow police officer. They bought a farming property on the North Coast. In 2023, the marriage ended in divorce following post-accident interpersonal difficulties that had arisen due to her post-accident disabilities and the strain those problems reportedly placed on the marriage. Unfortunately, the property dispute in the divorce proceedings involved considerable hostility, which she found upsetting. The plaintiff and her ex-husband are no longer on speaking terms. Whilst those events were stressful for the plaintiff, they have had no lasting effect on her psychological state in terms of her earning capacity. The two sons of that marriage, born in 2003 and 2005, are independent adults.

40. Earlier, in May of 2003, when it became known that the plaintiff was pregnant with her first child, in accordance with police employment policy, she was assigned to restricted duties. She took 6 months maternity leave after her first son was born.

41. On 22 December 2004, at age 28 years, the plaintiff was promoted to the rank of Senior Constable. In that role she was assigned to general duties work “on the trucks”. In May 2005, she was again assigned to restricted station duties after it became known that she was pregnant with her second child. She took 3 months maternity leave when her second son was born, following which she returned to part-time duties working 28.5 hours per week. She had requested those part-time duties in order to accommodate the parenting arrangements which prevailed in her family at that time.

42. In May 2008 the plaintiff successfully applied to join a police Target Operations Group (TAG) in Taree. That work involved some undercover work in conjunction with anti-drug operations on the mid-North Coast. Previously, she had gained some experience in field intelligence work in her previous placement involving surveillance. In October of that year, she was trained and certified to drive police 4WD off road vehicles. In August 2010 she was transferred from Taree to Forster to fill a part time vacancy as the Child Protection Register Officer.

43. At the time of the accident, although the plaintiff’s part-time duties involved her working 28.5 hours per week, she said she was intending to exercise her right to return to full time work as a police officer when her youngest son was due to commence school at age 5 years in early 2011. However, the accident intervened and that goal was no longer achievable for her.

44. The debilitating effects of the accident have thwarted the plaintiff’s future work plans. She has been unable to work since the accident. Her employment with the Police Force was formally terminated when she was medically discharged from the Police Force on 28 February 2013.

45. Despite the plaintiff having sought out appropriate medical advice, treatment and rehabilitative assistance, the preponderance of the medical evidence shows that the prospect of her ever obtaining any form of remunerative employment should be seen as being extremely remote and unlikely.

46. Presently, by choice, the plaintiff mostly spends her time in solitude with minimal meaningful activity other than through some diversional art activity. Although she is able to manage basic self-care tasks, she is largely house bound except for basic shopping needs and occasionally seeing a few supportive friends.

47. In her former career as a police officer the plaintiff had accumulated a number of commendations and documents, including a folder of personal records relating to her work as a police officer. In her changed circumstances, after January 2011, out of feelings of frustration, hurt and anger over what had happened to her, and in light of her dismay over how she had been treated by her employer, particularly where she was informed that she was to be prosecuted for alleged negligent driving, a charge which was later withdrawn by the DPP, she destroyed a lot of those items (T 60.34) as they seemed to have been triggering reminders of what she has lost. She became demonstrably upset when speaking about that subject.

Pleadings review

48. The pleadings provide the particular framework for the proceedings: Dare v Pulham [1982] HCA 70; 148 CLR 658, at [6]. Relevantly, in this case, the pleadings comprise not only the filed statement of claim and the filed defence, but also the enabling precursors to those documents, namely, the respective pre-filing statement and the pre-filing defence. Those documents are reviewed in the paragraphs that now follow.

Plaintiff’s pre-filing statement dated 17 August 2023

49. On 17 August 2023, as required by legislation, the plaintiff filed a pre-filing statement of claim with annexures to form the framework for her claim: Exhibit “A”, Volume 1, Tab 12, pp 88 – 150. Her statement of claim and her case is founded upon that framework which clearly identified the issue of vehicle overloading as a central plank in her case which the defendant was required to meet.

Defendant’s pre-filing defence dated 28 September 2023

50. On 23 September 2023 the defendant filed its pre-filing defence which provided the parameters for its defence to the plaintiff’s claim: Exhibit “A”, Volume 1, Tab 12, pp 151 – 153. The pre-filing defence placed in issue the weight ranges of the culled cannabis plants, the sizes and the number of those plants. During the hearing the defendant unsuccessfully sought leave to expand upon the parameters of its pre-filing defence by filing a notice of motion seeking leave pursuant to s 318(2) of the WIM Act.

Statement of claim filed on 7 March 2024

51. The plaintiff’s statement of claim was filed on 7 March 2024: Exhibit “A”, Volume 1, Tab 1, pp 1 – 14. After pleading the material facts (paragraphs 1 – 20), the duty of care and the scope and content of that duty were appropriately identified with regard to the plaintiff as an employee (paragraphs 21 – 30). The document then went to allege relevant causative breaches of the duty of care owed to the plaintiff, along with appropriately detailed particulars of the alleged breaches, focussing on alleged failures to provide warnings as to the safe loading and operation of the vehicle in question; failure to provide appropriate education and training in relation to the use and limits on the use of the vehicle; failure to undertake an appropriate risk assessment in relation to the use of the vehicle; failure to comply with sections 8, 10 and 11 of the Occupational Health and Safety Act 2000 (NSW) and regulations 5, 6,7, 9 – 16 of the Occupational Health and Safety Regulations 2001 (NSW); and a claim of wrongfully allowing the plaintiff to perform her duties in an unsafe manner (paragraphs 31 – 32).

Defence filed on 11 April 2024

52. The defence filed on 11 April 2024 made some formal admissions concerning the plaintiff’s employment, her rank, some of the peripheral circumstances of the accident, and it raised a series of disputed allegations of contributory negligence centering around the alleged speed and manner of her driving as she approached the bend in question, along with an alleged failure to heed warnings from the police colleague who was a passenger in the vehicle for her to slow down, and an alleged failure to display driving competence in accordance with the training she had received for safe driving: Exhibit “A”, Volume 1, Tab 2, pp 15 – 18.

Evidence review

53. The plaintiff’s documentary exhibits were tendered and marked in the series Exhibits “A’ to “K”. Exhibit “A” comprised the plaintiff’s substantive exhibit consisting of a three-volume court book: Exhibit “A”, Tabs 1 – 153, pp 1 – 849.

54. The defendant’s documentary exhibits were tendered and marked in the series Exhibits “1” to “3”. Ultimately, Exhibit “2” was withdrawn. Exhibit “1”, which was tendered as a single volume “supplementary” court book with Tabs 154 – 176, pp 1 – 141 was modified in that Tabs 154 (pp1 -19), Tabs 160 – 164 (pp 94 -106) were withdrawn and removed from the tender bundle.

55. Particular aspects of those documentary exhibits will be referred to in these reasons where it becomes relevant to do so. The length of these reasons reflects the factual density of those documents.

56. In the plaintiff’s case, oral evidence was given by the plaintiff and by Mr Paul Fehon, a retired Detective Superintendent of Police who had personal knowledge of the plaintiff’s service in his former capacity as the Commander of the Manning Great Lakes Local Area Command.

57. The defendant did not call any oral evidence in its substantive case. The plaintiff submitted that the state of the evidence justified drawing a number of adverse inferences against the defendant on account of evidence that had not been called.

58. The defendant called evidence from an administrative employee of the Police Force, Ms Carly Frost, in its unsuccessful application for leave pursuant to s 318 of the WIM Act seeking to rely on evidence in addition to material served in its pre-filing defence.

Review of documentary evidence concerning liability

59. The documentary evidence on matters of liability is reviewed in the paragraphs that now follow.

(1) Exhibit “H” – Technical documents

60. A report from Delta V Experts report dated 28 July 2010 by Dr Shane Richardson, a vehicle testing engineer was tendered relating to a 2010 NSW Police Force Ford Ranger vehicle 2x4 utility vehicle: Exhibit “H”, Tab1, pp1 – 16.

61. A further Delta V Experts report dated 2 December 2010 by Dr Richardson was tendered concerning the analysis of NSW Police Force Ford Ranger 2x4 and 4x4 vehicles fitted with Varley Pods: Exhibit “H”, Tab 2, pp17 – 30.

62. A further report dated 5 January 2011 report from Delta V Experts by Dr Richardson was tendered concerning some revised vehicle handling assessment criteria: Exhibit “H”, Tab 3, pp 31 – 79.

63. A 23 July 2010 report by a Senior Constable Ken Lincoln, a police Driver Training Instructor, was tendered relating to issues with Ford Ranger vehicles fitted with a Varley Pod: Exhibit “H”, Tab 4, pp 80 – 84.

64. A NSW Police Force Safety Risk Assessment Form relating to Ford Ranger vehicles fitted with a Varley Prisoner Module on 23 July 2010 was tendered: Exhibit “H”, Tab 5, pp 85 – 89.

65. A situation report was tendered relating to an incident on 30 April 2010 involving a Ford Ranger 4WD 4 x 2 with a Varley Pod: Exhibit “H”, Tab 6, p 90.

60. The Mobility Engineering certification report dated 19 August 2009 for a Ford Ranger fitted with a Varley Module was tendered. This was addressed to the Technical Officer of Logistic Services of the NSW Police Force (Exhibit “H”, Tab 7, pp 91 – 103).

61. A New South Wales Police Force Safety Risk Assessment Form dated 28 July 2010 was tendered. In a tabulated format, it noted that the Ford Ranger utility vehicles fitted with the Varley Pod posed a hazardous risk of injury from rollover or loss of vehicular control: Exhibit “H”, Tab 5, pp 85 – 89.

62. The table referred to the Delta V Experts analysis of the performance of such vehicles. Using a series of alpha-numeric codes (C4 and C5 at levels A and B and L4 and L5), it somewhat cryptically identified risks and risk escalation features variously tabulated as severe (C5), likely as almost certain (A), critical (C4), and unacceptable (using another A classification) requiring mitigatory measures such as restriction of use to general duties and prisoner transport, making certified drivers aware, by Commanders or Duty Officers, of the limitations of the vehicles, limiting the manner of non-aggressive driving to that which is appropriate to a utility vehicle, restricting use to applicable speed limits, to avoid the risk of loss of directional control.

63. Notably, the tabulation of risk control measures included a warning that in certain situations, such as aggressive driving, the vehicle may roll over irrespective of the speed. That tabulation also referred to the potential for mitigation strategies to be undertaken with the assistance of the manufacturer to explore measures such as the use of wider tyres and the retrofitting of a more stable suspension package.

64. The matters summarised in the preceding paragraphs raised questions as to whether a Ford Ranger utility vehicle without a Varley Pod, if heavily laden so as to place greater strain on the rear suspension, would cause similar alteration to vehicular handling characteristics as had been explained in that fitting configuration of the vehicle which including the addition of the Varley prisoner pod. That question will be revisited when recording relevant findings of fact at a later point in these reasons concerning Issue 4.

65. The plaintiff submitted that the array of documents as described above was relevant because they had been provided to the expert mechanical engineer retained in her case, Dr Veronica Gray, and this provided unchallenged evidence that served as a clear warning that the Ford Ranger vehicles in service with the NSW Police Force, when fitted with a Varley Pod, could behave with unpredictable handling characteristics when driven at low speed.

66. The argued relevance was that a Ford Ranger vehicle without a Varley Pod but with a fibreglass canopy, when used to transport heavy loads such as that involved in the plaintiff’s accident, could foreseeably behave in a similar fashion to a Ford Ranger vehicle fitted with a Varley Pod, and this ought to have been known at management and command levels within the Police Force at the time vehicles were being supplied to police officers for use in Operation Unwin to carry loads of uncertain and variable weight on unsealed mountain roads with blind corner bends, including when fitted with tyres that were not wider than the standard tyres that had been fitted.

(2) Documents prepared by Sergeant Martin

73. Sergeant Michael Martin, of the Forster Highway Patrol, was the senior police officer assigned to investigate the circumstances of the accident. He prepared a series of nine relevant documents.

74. The substance of those documents are set out below as a pre-cursor for the later assessment of the reliability of those documents as a basis for making findings of fact on the liability issues.

75. Sergeant Martin’s first significant written account of the events consisted of an obviously lucid statement that he took from Senior Constable Wilson, the passenger in the vehicle driven by the plaintiff. That statement was taken at 21.28 hrs on the day of the accident, in hospital, some 6 hours after the event (Exhibit “A”, Volume 3, Tab 111, pp 612 – 614), which was in the following terms:

“Q. Can you tell me what happened today with the MVA

A. I was the passenger in MGL 114 unmarked utility S/C Moar was driving. We were travelling North on Knodigbual [sic] Rd, we were going from one job to another job (drug eradication OP) there was no time frame to get to where we needed to go. We approached a right hand bend with a slight down hill slope. The speed was about 20k/h. It wasn’t a speed where I was worried. The road surface was gravel. As we were passed the apex of the bend, the rear slightly slide [sic] out to the left. I remember looking at Jill trying to correct to the left. The rear then slid to the right then I noticed the vehicle slide to the left again. I noticed Jill trying to correct to the right I think we then went sideways (my side first) over the edge. I thought we were going to stop. When we went over the side, I remember going down & hitting a log. Then the car flipped & a lot of rolling backwards on 4 wheels then we must have rolled over any which way, nose flip, rear end flipping over, sliding on the roof, rolling sideways. We must have rolled 10 – 12 times. At one stage a log came through the cabin.

Jill was screaming I put my right arm out across her chest & kept telling her to brace. We eventually came to a stop on all 4 wheels sideways on the hill, slightly pointing up. I told Jill to get out, undid seatbelt, asked Jill to get s/belt. I crawled out passenger window & Jill crawled across & out the passenger window. White smoke was everywhere & we moved away from the vehicle. Then I radioed through what happened.

Q. Is there anything else you can recall.

A. There is nothing that I can recall which concerned me.

[Signature of James D. Wilson 23 November 2010 21:28]”

76. Sergeant Martin’s second significant record commenced at 23.01 hrs on 23 November 2010 when he started making entries in the COPS template for Event No. E15948335: Exhibit “A”, Volume 3, Tab 110, pp 599 – 609.

77. That template was progressively updated between 23 November 2010 and 21 June 2011. Page 608 of Exhibit “A” records that on 23 November 2010, Sergeant Martin created an infringement notice for the alleged offence of negligent driving in relation to the plaintiff as the named person of interest in a major traffic crash.

78. Sergeant Martin’s third significant written account which followed his initial accident investigation was created at 23:44 hours on the day of the accident when he filled out a police Incident Notification Form (Exhibit “A”, Volume 3, Tab 112, pp 616 – 617) in which he provided the following short narrative account of how he thought the accident had occurred:

“Travelling North along Knodingbul Rd, Wherrol Flat whilst on Special Operation, Sen Con MOAR has lost control of vehicle and as a result a motor vehicle accident occurred.”

79. Sergeant Martin’s fourth written account of the events consisted of the assessment form he completed at the end of his shift on the night of the accident when he completed a report to the Safe Driving Panel/ Traffic Sergeant in which he identified what he considered the contributing factor to the collision as being “speed … based on physical evidence”: Exhibit “1”, Tab 169, p 117.

80. Sergeant Martin’s fifth significant written account of the events comprised a Situation Report (SITREP) which he completed at 01:15 hrs on 24 November 2010. His narrative within that form was in the following terms:

“ISSUE:

Police MVA 23/11/2010, 3.15pm - Knodingbul Road, Wherrol Flat 21km North of Nowendoc Road. S/Cst Jill MOAR, Reg No. 32122, DOB: [redacted] (Injured), Cst Jamell WILSON, Reg No. 42307, DOB: [redacted] (Injured).

BACKGROUND:

About 3.15pm on Tuesday 23 November, 2010 S/Cst MOAR was the driver of Police Motor Vehicle Reg No. AZ-89-JY, an Unmarked Ford Ranger Utility (Serial No. 75883), with Con Jamell WILSON the front passenger. At the time, they were travelling North along Knodingbul Road, Wherrol Flat at an unknown speed. (unsealed gravel road), as the driver was travelling dew n a slight grade, on a right band bend, it appears the rear of the vehicle has began to slide to the left as they were rounding the right hand bend. MOAR has attempted to correct this, however the rear of the vehicle appears to have slid to the right & again to the left, before plummeting over a steep heavily wooded gorge rolling several times, before coming to rest approx 175 metres from the edge of the roadway. Both officers were winched out of the scene, by rescue personnel. Cst WILSON was conveyed to Manning Base Hospital. S/Cst MOAR was conveyed by Westpac Rescue to Port Macquarie Hospital.

CURRENT POSITION:

WILSON Spoken to and version obtained. MOAR yet to be spoken lo due to hospitalisation. Insp STEPHENS appraised of situation whilst at scene. Supt FEHON & D/A/Insp WILLIAMSON in attendance at Manning Base Hospital. Supt FEHON appraised of initial investigation. Supt BINGHAM - SCC informed of situation. Duty Officer Insp SULLIVAN in attendance at Port Macquarie Hospital with S/Cst MOAR. Northern Region Ops Manager advised by Insp STEPHENS.

WELFARE ISSUES:

Cst WILSON underwent X-Rays at Manning Base Hospital & was medically examined. As a result, he is suffering from soreness to the neck & bruising to the ribs. Released from hospital after medical clearance. S/Cst MOAR, was conveyed to Port Macquarie Hospital. She underwent X-Rays and at this time, is still being examined. It appears that she has a broken right wrist, contusion to head and soreness to the neck. Still undergoing medical observation. MOAR Hospitalised overnight, with review AM 24/11/2010. At this stage both officers will not be fit for duty. The period of time at this stage is unknown. P902 forms submitted accordingly. Wife of Cst WILSON informed & in attendance at Manning Base Hospital. Husband of MOAR, S/Cst OLIVER in attendance at Port Macquarie Hospital. Both officers to be spoken to about services of EAP. Follow up inquiries with both officers to be made by Duty Officer on 24 November, 2010.

FURTHER/PROPOSED ACTION:

S/Cst MOAR is to be spoken to in relation to matter. At a date to be advised.”

[Exhibit “A”, Volume 3, Tab 113, p 618]

81. Sergeant Martin’s situation report preceded the statement he later obtained from the plaintiff. In that situation report he noted that the plaintiff was yet to be spoken to in relation to the matter on a date to be advised.

82. Sergeant Martin’s sixth significant written account of the events consisted of the statement he obtained from the plaintiff between 1.40pm and 3pm on 14 December 2010 (Exhibit “A”, Volume 3, Tab 117, pp 628 – 633), some 22 days after the accident, which was in the following terms:

“Q. Were you the driver of Police Veh Rego No. AZ-89-JY on 23.11.10 3.15p. on Knigbual [sic] Forest Rd Nowendoc which was involved in a MVA

A. Yep

Q. Can you tell me what happened.

A. We (S/C Wilson & I) had just finished a pick up of Cannabis plants. We were told to head to Dingo Tops Park which was about 6k’s north of where we were. There was no time constraints we were being followed by a radio tech vehicle. I had the vehicle in 4 high (4 wheel drive). I know the road because I have travelled on it previously & I had just travelled on it up & back once on that day. As we were coming up to that [sic] the corner because I knew it was a sharper corner (right hand) I slowed down & applied the brake prior to the corner. I kept out a little bit wider to the left because I know that log trucks are constantly using that road. I mentioned it to Jim just prior that I didn’t sit near the inside of the corner because of log trucks & cars coming the other way. As we went around the corner the back end slid out to the left causing the vehicle to veer to the right towards the embankment on the right. I tried to correct it lightly [sic] because I could feel it slipping & I took my foot off the accelerator. I just felt like the car had or was slipped in gravel & headed off to the left & I tried to brake gently & steer back away from the corner but the car was still sliding & then went over the edge. We were airborne for a bit & then ended up on the roof & then it rolled onto its side & back onto it’s [sic] wheels. We just kept rolling every way. A log came in through the window of the car & hit me in the forehead & we just kept rolling until we stopped. The car was revving & smoking. I knew something was wrong with my arm (right). I couldn’t reach over to turn it off. Jim was yelling get out because his side was on the high side. We climbed out through the window, because I was worried it would start rolling again. We sat away from the car, Jim grabbed the radio from the car & then climbed up about 60 mts & we then waited.

Q. How fast were you going prior to the accident

A. 30-40 km/h. I wasn’t going fast through it.

Q. Can you recall how far you had travelled from where you left to where you had the accident

A. 4 or 5 k’s

Q. Have you done 4wd d [sic] training?

A. Yes, through the Police & outside the job.

Q. When did you last have your Police 4wd training

A. Oct 2008

Q. Is there anything else you can remember

A. I looked at the tyres at lunchtime because the food was being served out of it & I saw they were legal but only standard road tyres

Q. What time did you leave the location where you & Jim had left prior to the accident

A. About 2.50 or 2.55pm to go to Dingo Tops, we weren’t in a rush to go anywhere the radio techs didn’t know where to go, so they followed us, & they couldn’t go very fast because they had a lot of equipment in the back, they said they were alternating btw 2nd & 3rd gear because it was revving too high in 2nd & not enough in 3rd.

Q. Anything else.

A. Only that the gravel was pushed pushed [sic] up on the left & right (inside) edges.

[Plaintiff’s signature]”

[Exhibit “A”, Volume 3, Tab 117, pp 628 – 633]

83. Sergeant Martin’s seventh significant account of the events comprised his own statement dated 26 December 2010 (Exhibit “A”, Volume 3, Tab 118, pp 634 – 637), which omitting formal parts, was in the following terms:

“…

3. About 3.15pm on 23 November, 2010 I heard a message broadcast via Police Radio. As a result of this message, I was spoken to by Inspector STEPHENS. Shortly after this conversation, myself and Senior Constable Michael REID left Forster Police Station and travelled to Knodingbuhal (sic) Road, Nowendoc.

4. Sometime later that day, we arrived at the scene of a motor vehicle accident involving a Police Vehicle. Upon arrival at the scene, I observed a number of Police vehicles parked on the side of the road along with a VRA Vehicle. A number of Police were standing near the VRA vehicle holding a rope, which extended over the side of a deep gorge.

5. I looked over the side of the road and observed dense bushland which was heavily timbered. The vehicle could not be seen, however it was approximately 175 metres down the slope. A number of Police officers carrying another person (injured female officer, Senior Constable MOAR) on a caged bed. The emergency officers have winched the injured officer up the slope. They have reached the roadside and shortly after Westpac Rescue Helicopter arrived at the scene, before the injured officer was winched up and then conveyed to Port Macquarie Base Hospital.

6. Senior Constable REID and I then made observations of the road surface and the scene. The road surface was a dirt gravel surface which was slightly corrugated on the inside of the corner. The road surface was dry, it was a slight downward grade.

7. I commenced to make detailed notes of the site in my Police Notebook F 491127, Pages 6 to 9. I spoke to a number of people. As a result of this, I had a conversation with Sergeant MOIR attached to the Zetland Radio Section and Senior Constable McCAIG from Waratah Police radio Section. I recorded their details and informed them to do certain things in relation to the matter.

8. I also spoke to Detective Senior Constable Paul KELLY who was on the Operation and had a conversation with him. As a result of this, I told him to do certain things in relation to this incident. From this conversation I ascertained Senior Constable Jill MOAR (OLIVER) was the driver of the Police Vehicle NSW Registration Number AZ-89-JY a White unmarked Ford Ranger 4 x 4 Utility. Senior Constable WILSON was the passenger in the vehicle at the time of the incident. I was informed he was conveyed to Manning Base Hospital.

9. I spoke to Senior Constable REID and as a result, I observed distinct skid marks in the gravel surface, from where it appeared the driver has appeared to lose control of the vehicle. I followed these marks from the edge of the road where the vehicle has gone over the side of the road and followed them back up the road to around the right hand bend. Senior Constable REID' has taken a number of photographs. We have then collected some witches hats and placed these hats along where we could see the skid marks. Photographs were taken where the hats were placed along the skid marks, which appeared to be before the right hand corner and continue for a distance around the corner and appeared to be fishtailing from left to right along the road, before finishing at the edge of the road, where the vehicle has then gone over the side of the road.

10. At the conclusion of this, we then waited for a local towing company to arrive at the scene. Upon their ,arrival, they were spoken to. As a result of those conversations, it was decided on a course of action to try & extricate the vehicle. 11. Senior Constable REID and I then left the scene and returned to Manning Base Hospital. Upon arrival at the hospital, I spoke to the Commander of Manning Great Lakes Superintendent FEHON. Shortly after, I had a conversation with Senior Constable WILSON. As a result of this conversation I recorded this in my Police Notebook F 491127, Pages 10 to 15 inclusive.

12. Shortly after this, I returned to Taree Police Station, where I completed paperwork in relation to the matter. I also spoke to Senior Constable OLIVER & Senior Constable GALE to ascertain the condition of Mrs OLIVER.

13. On 24 November, 2010 I commenced duties at Forster Police Station. I had received a typed statement from Sergeant MOIR and Senior Constable McCAIG in relation to the matter. I made contact with Port Macquarie Base Hospital to check on the condition of Mrs OLIVER and was told certain things. I later also received a statement from Detective Senior Constable KELLY in relation to the matter.

14. About 10pm that night, I received a phone call from the Taree Tilt tray towing company and was told . certain things. As a result of this conversation, I attended Victoria Street, Taree opposite Fays Twin Cinema and observed Motor vehicle AZ-89-JY was on the back of a Tow Truck. I then inspected the vehicle and made certain observations of the damage sustained to the vehicle.

15. About 1.40pm on Wednesday 14 December, 2010 I attended an address in Wingham, where I spoke to Mrs OLIVER in relation to the motor vehicle collision on 23 November, 2010. I said, "Were you the driver of Police Vehicle Registration Number AZ-89-JY on 23 November, 2010 about 3.15pm on Knodingbuhal Road, Nowendoc, which was involved in a motor vehicle accident? She said, "Yep." I said, "Can you tell me what happened? She said, "We (Senior Constable WILSON and I) had just finished a pick up of Cannabis plants. We were told to head to Dingo Tops Park which was about 6 km's North of where we were. There was no time constraints, we were being followed by a radio techs vehicle.

I had the vehicle in 4 high (4 wheel drive), I know the road because I have travelled on it previously and I had just travelled on it up and back once on that day. As we were coming up to the corner, because I knew it was a sharper corner (right hand), I slowed down and applied the brake prior to the corner. I kept out a little bit wider to the left, because I know that log trucks are constantly using that road. I mentioned it to Jim just prior that I didn't sit near the inside of the corner because of log trucks and cars coming the other way.

841. This element of the claim, which requires an impressionistic approach, does not require documentary evidence as was submitted by the defendant. The justification for this claim emerges from the evidence of the plaintiff, her past earning history, the evidence of Mr Fehon, and an impressionistic view of the evidence relating to the claim for economic loss supported by the industrial awards tendered in evidence.

842. The plaintiff’s submissions in favour of a buffer sum for past loss of those of overtime and shift allowances is based on the following material:

1. The plaintiff’s payslips for the 23 weeks between 1 June 2010 and 23 November 2010 showing the plaintiff received $508.48 or $22 per week in shift allowances;

2. The plaintiff’s payslips for the 23 weeks between 1 June 2010 and 23 November 2010 showing the plaintiff was paid $1,324.11 or $57 per week for overtime;

3. The plaintiff’s claim which assumes a likelihood of promotion within 5 years of the time of the accident as was in my view supported by the general tenor of the evidence of retired former Commander Superintendent Fehon as summarised at paragraph [214] above, also incorporating likely periods of acting in the role of Sergeant where she had already successfully acted in that role.

847. MFI “13” sets out the agreed rates of difference between the rates of renumeration for the ranks of Senior Constable and Sergeant between 1 July 2015 and 1 July 2025 with increments incorporated, showing the range in that period to start at $46 per week in 2015 increasing incrementally to $272 per week in 2025, which has relevance to the quantification of sub-paragraph (3) of the preceding paragraph.

848. The plaintiff submitted, reasonably in my view, that when those factors are considered as applicable over the period of about 14.64 years since the accident, allowing for the initial settling into school period, those elements may be quantified as follows:

1. Shift allowances and overtime of $77 per week or $50 per week net at $2,600 per year, or $36,700 for the whole period;

2. Allowance for promotion to the rank of Sergeant after 5 years post accident, or at least acting up in that role, involving a difference in salary of 20 percent or $62,067 for the period;

3. Allowance for a proportionately commensurate loss of superannuation of $6,827 for that period.

849. In the plaintiff’s submissions, those amounts, which total $105,594, were appropriately discounted and rounded down to $100,000.

850. The defendant disputes this element of the claim on the basis of speculation. I do not accept that submission. The financial elements within the plaintiff’s submitted buffer assessment should be seen as being an ordinary aspect of police employment where the opportunity exists for professional advancement to potentially high levels where gender is no longer the barrier it used to be for such achievements. I accept the plaintiff’s submission on the justification for this claimed buffer as being fair and reasonable.

851. Therefore, I assess the plaintiff’s claim for a buffer sum for past loss of probable but not precisely calculable shift allowances, overtime and promotional prospects at $100,000.

(7) Buffer for additional future economic loss elements

852. Similar to the claim for past loss of shift allowances and overtime, the plaintiff makes a claim for such loss in the future, and also including the loss of the prospect of income based on a promotion to the rank of Sergeant.

853. Given the plaintiff’s attributes as described in the evidence of Mr Fehon, and given her aspirations for promotion and her good standing as a police officer, I consider it highly likely and most probable, that within 5 years of the accident, but for the accident, she would have most probably attained the rank of Sergeant, and would therefore have derived the increased income which goes with that rank.

854. The precise timing of the likely promotion along those lines is difficult to predict, as is the ongoing incidence of overtime and shift allowances, hence the need for an assessment of an impressionistic buffer: Allianz Australia Insurance Ltd v Kerr (supra), at [7] – [9]; [25] – [27].

855. In my assessment, balancing the need for fairness to the plaintiff without inflicting unfairness on the defendant, I consider the appropriate buffer sum to compensate the plaintiff for those probable losses over the next 18 years is the submitted sum of $200,000.

856. I therefore assess the plaintiff’s claim for a buffer sum for future loss of probable but not precisely calculable shift allowances, overtime and promotional prospects at $200,000.

Summary of damages assessment

857. My assessment of the plaintiff’s damages is summarised as follows:

(1) Past economic loss	$1,095,905
(2) Past loss of employer funded superannuation	$120,549
(3) Future economic loss	$1,123,466
(4) Future loss of employer funded superannuation	$139,708
(5) Fox v Wood	$70,963.61
(6) Buffer for additional past economic loss elements	$100,000
(7) Buffer for additional future economic loss elements	$200,000
Total	$2,850,591.61

Disposition

858. The plaintiff has successfully established her claim against the defendant. She is therefore entitled to a verdict in her favour in the assessed amount of $2,850,591.61. The defendant is entitled to an offset in the sum of $549,016.40 for total weekly payments of workers’ compensation made to date. After that offset, the plaintiff should have a judgment entered in her favour for the balance in the net sum of $2,301.575.21.

Costs

859. As the plaintiff has succeeded in obtaining a judgment in her favour and she has succeeded on all issues that were contested, she should have an order that the defendant should pay her costs of the proceedings on the ordinary basis unless a party can show an entitlement to some other costs order. Liberty for the parties to apply for orders as to costs and to amend the judgment to account for Fox v Wood damages, if required.

Orders

860. I make the following orders:

1. Discharge the interim non-publication order made on 25 June 2025 concerning Operation Unwin;

2. Verdict for the plaintiff in the assessed sum of $2,850,591.61;

3. Judgment for the plaintiff in the net sum of $2,301,575.21 after deducting payments for workers’ compensation paid to the plaintiff in the amount of $549,016.40 pursuant to s 87B of the Workers’ Compensation Act 1987 (NSW);

4. Defendant is to pay the plaintiff’s costs;

5. Exhibits may be returned;

6. Liberty to apply on 7 days’ notice if further or other orders are required.

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Decision last updated: 29 August 2025