Grills v Leighton Contractors Pty Ltd (No 2)

Judgment

1. [1]

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

2. [2]

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

3. [3]

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

4. [4]

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

5. [5]

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

6. [6]

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

7. [7]

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

8. [8]

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

9. [9]

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

Unpleaded defence

1. [10]

   The General Practice Direction required that: "APPENDIX B 57. Within 7 days of a hearing date having been allocated: (i) The plaintiff's legal representative is to prepare a draft chronology of relevant events and serve a copy of it upon other parties which have an address for service; (ii) Each party is to prepare a draft schedule of damages, outlining in detail the heads of damages, and identifying the evidence which supports that head of damage. (iii) Each party is to prepare its final schedule of issues in dispute. 58. Within 28 days of a hearing date having been allocated a plaintiff is to file and serve a joint chronology, a schedule of damages and a schedule of issues which identify the areas of agreement and the areas in dispute"

2. [11]

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

3. [12]

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

4. [13]

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

5. [14]

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

6. [15]

   Section 56 of the Civil Procedure Act 2005 also imposes relevant obligations on both the Court, the parties and their legal advisers. It is designed to ensure that litigation is conducted efficiently and not by ambush or surprise. It provides: "56 Overriding purpose (cf SCR Part 1, rule 3) (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3): (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs. (6) For the purposes of this section, a person has a relevant interest in civil proceedings if the person: (a) provides financial assistance or other assistance to any party to the proceedings, and (b) exercises any direct or indirect control, or any influence, over the conduct of the proceedings or the conduct of a party in respect of the proceedings."

7. [16]

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

8. [17]

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

9. [18]

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

10. [19]

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

11. [20]

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

12. [21]

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

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

1. [22]

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

2. [23]

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

3. [24]

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

4. [25]

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

5. [26]

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

6. [27]

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

7. [28]

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

8. [29]

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

9. [30]

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

10. [31]

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

11. [32]

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

12. [33]

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

13. [34]

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

14. [35]

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

15. [36]

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

16. [37]

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

17. [38]

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

18. [39]

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

19. [40]

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

20. [41]

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

21. [42]

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

22. [43]

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

23. [44]

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

24. [45]

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

25. [46]

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

26. [47]

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

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

1. [48]

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

2. [49]

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

3. [50]

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

4. [51]

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

5. [52]

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

6. [53]

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

7. [54]

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

8. [55]

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

9. [56]

   Mr Couch made a statement to police on 25 February, after the accident. The officer's notes record that he then said by reference to the five boomgates which he identified that: "Q) Who gave the direction to lower the gates A) I did Q) Where [sic] you given that direction by someone else A) I was requested to put up the signs and lower the boom gate. Our standard protocol when the road is closed [is] to lower the boomgates Q) Who gave that direction A) Insp Blair Q) How many boom gates are there A) 5 in total Q) Where are they located A) [1)] St Dowling and E/D 2) St Dowling nth Cleveland 3) Anzac Pde a triangle 4) E/D and Cathedral St 5) Bourke St on ramp"

10. [57]

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

11. [58]

    Leightons' computer record of the conversation which Mr Couch had with Inspector Blair was: "Insp. Steve Blair called to advise of todays closures and confirmed we can close the boom gates and adjust signage. Plan is SB closed at 0710 for xray. NB 20 minutes prior to motorcade (about 8am) [sic]"

12. [59]

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

13. [60]

    Mr Couch also created a note of what he did that day, which was annexed to his statement. It is also incomplete, referring only to two of the three access road boomgates which he closed that day. It records this conversation: "Insp Steve Blair called to advise of the days events. He advised southbound will be closed at about 0710 for a scan by x-ray vehicle. Northbound will be closed about 20 minutes prior to departure of motorcade which was scheduled for 0800. Insp Steve Blair confirmed I will close boom gates and change VMS to advise road closed. If no police cars present SGT Appleby to contact Insp Steve Blair by mobile phone. Number provided." [sic]

14. [61]

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

15. [62]

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

16. [63]

    In an email which Mr Couch later wrote on 24 August 2007, he said: "I received a telephone call from Inspector Steve Blair. He ran through the days events. This includes: Insp. Blair confirmed I would be closing boom gates and change the variable message signs (VMS) to advise the road was closed. To that I confirmed that would be the case, this is a standard Eastern Distributor procedure. [sic]"

17. [64]

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

18. [65]

    In the statement which he made for these proceedings, Mr Couch gave a fuller account of the conversation he remembered. He said: "[19] I recall Inspector Blair rang me, and he initially discussed the closure of the southbound lane, then the closure of the northbound lane, and then he also said during the course of that discussion that an X-ray scanning vehicle would be passing through the tunnel to ensure safety for the motorcade. [20] I recall he then said to me words to the effect, to the best of my recollection: "Can you lower the boom gates, because it was effective on Thursday night." I replied, to the best of my recollection: "okay, yes.' [21] I also recall that Inspector Blair said words to the effect, to the best of my recollection: "Will you activate the signage when you lower the boom gate." I replied to the best of my recollection: "Okay, yes." "

19. [66]

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

20. [67]

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

21. [68]

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

22. [69]

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

23. [70]

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

24. [71]

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

25. [72]

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

26. [73]

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

27. [74]

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

28. [75]

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

29. [76]

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

30. [77]

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

31. [78]

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

32. [79]

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

33. [80]

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

34. [81]

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

35. [82]

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

36. [83]

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

Was Mr Grills' speed excessive?

1. [84]

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

2. [85]

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

3. [86]

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

4. [87]

   Road Rule 305 applied. It provides: "305 Exemption for drivers of police vehicles (1) A provision of these Rules does not apply to the driver of a police vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the provision should not apply, and (b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm."

5. [88]

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

6. [89]

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

7. [90]

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

8. [91]

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

9. [92]

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

10. [93]

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

11. [94]

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

12. [95]

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

13. [96]

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

14. [97]

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

15. [98]

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

16. [99]

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

17. [100]

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

18. [101]

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

19. [102]

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

20. [103]

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

21. [104]

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

22. [105]

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

23. [106]

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

24. [107]

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

25. [108]

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

Duty of Care

1. [109]

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

2. [110]

   Leightons denied owing him any such duty. Whether such a duty existed in its case must be determined in light of s 5B and s 5C the Civil Liability Act which provides: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

3. [111]

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

4. [112]

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

5. [113]

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

6. [114]

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

7. [115]

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

8. [116]

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

9. [117]

   As discussed by McColl J in Novakovic v Stekovic [2012] NSWCA 54 recently observed at [39] - [42] (Whealy JA and Tobias AJA agreeing): [39] ...The duty to take reasonable care required the respondents to protect the appellant, or the class of person of which she was a member, from a "not insignificant" risk which could reasonably be foreseen and avoided. The measure of the discharge of the duty, at common law, was what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 (at 663) per Deane J. The measure is now prescribed by s 5B of the Civil Liability Act. 40 The inquiry about whether the respondents ought to have taken the precautions for which the appellant contends turns on (amongst other relevant matters) the foreseeability of the risk, whether that risk was not insignificant and whether in the circumstances, a reasonable person in the person's position would have taken those precautions. The inquiry is not to be undertaken in hindsight (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J), but must be answered prospectively, before the incident occurred: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 (at [31]). 41 The inquiry is not confined to what could have been done to eliminate, reduce or warn against the risk. While asking what could have been done will reveal what was practicable, it is necessary to ask also: would it have been reasonable for the respondents to take those measures?: Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 (at [93]) per Hayne J. In other words, the knowledge of how the appellant actually came to sustain her injury has to be excluded when considering whether the respondents were obliged to take any precautions in the circumstances of having a dog in the house to which guests had been invited: Neindorf v Junkovic (at [96] - [97]) per Hayne J. 42 A person does not breach his or her duty of care merely because there are steps that he or she could have taken to avert the risk that actually materialised: Thornton v Sweeney [2011] NSWCA 244; (2011) 59 MVR 155 (at [131]) per Sackville AJA (Campbell JA and Tobias AJA agreeing)."

10. [118]

    So approaching the evidence, it is apparent that it was known to Leightons that the Police Force's decision to preclude normal civilian traffic accessing the motorcade route on 25 February, did not involve the closure of the Distributor. The Police Force prevented only certain traffic entering the Distributor by closing various access roads, so that non-civilian traffic could travel through the Distributor, which was to remain open. That decision did not remove or alter the duty of care which Leightons owed to those who it knew were not to be denied access to its Distributor that day, by such road closures.

11. [119]

    On 22 February, Leightons lowered three boomgates at access roads where police officers were stationed, to assist in preventing civilian traffic gaining access to the Distributor, when the access roads were closed. That is established by the computerised record which it maintains. There recorded is that at 21:00 Inspector Blair 'advises expected closures re motorcade'. At 21:05 'TMC request full Motorway closure by our staff, not theirs. SURPRIZE'. Then various steps were taken to close the Toll Plaza and on ramps. At 22.25 it records the Xray vehicle and a police squad conducting sweeps of the "toll booths/toll tunnels and carriageways". At 22.40 a call is logged from the Chief Duty Officer to the Chief Executive Officer of the RTA, who is recorded as saying 'under no circumstances will any tunnel remain closed after the "lockdown".' The motorcade is recorded entering the tunnel at 22:56 and then the Distributor was reopened northbound at 23.05 and southbound at 23:20.

12. [120]

    The submission that this record reflects that the operation on 22 February did not go smoothly was not made out on the face of the record itself. It was contrary to other evidence. Had there been any real difficulty that day, no doubt Leightons would have led evidence to establish what occurred.

13. [121]

    On the evidence Leightons conducted its normal surveillance of the traffic using the Distributor that day. All of Leightons' operations, including the boomgates, the operation of the cameras and the control room operator's surveillance of the traffic which was using the Distributor, remained entirely under Leightons' control. The Distributor remained open and was used by non-civilian traffic, including for the sweeps undertaken prior to the motorcade's travel along the route. The same was to occur on 25 February.

14. [122]

    In those circumstances it is simply not open to conclude that Leightons no longer owed a duty of care to those who it knew were again to use its Distributor on 25 February, after civilian traffic was again precluded from entering the Distributor.

15. [123]

    Contrary to Leightons' submission, Mr Couch's evidence establishes that the risk of injury which lowering this boomgate posed to users of the Distributor that day was both foreseen and significant. That boomgate was usually not lowered when there was traffic using the Distributor. That reflects Leightons' acknowledgement that the risk of harm 'was not insignificant if a motorcyclist struck a boomgate while travelling on a motorcycle'. The submission that 'the risk was insignificant in the context of the instructions given to Leightons on 25 February may not be accepted. As I have explained, Mr Couch was not instructed to lower the boomgate which Mr Grills struck. That was the result of a misunderstanding on his part.

16. [124]

    As to the precautions which should have been taken, this involves a prospective inquiry that "seek[s] to identify what the response would have been by a person looking forward at the prospect of the risk of injury" (see Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [126] per Hayne J).

17. [125]

    A reasonable person in Leightons' position would not have lowered this boomgate. It would have taken available steps to inform Mr Couch that its role in the operation and his duties that day involved lowering only the boomgates on the three access roads and that like on 22 February, there was to be no departure from the normal practice that the boomgates on the distributor were not to be lowered, given that there was to be non-civilian traffic on the Distributor that day.

18. [126]

    Clearly on 22 February the necessary instructions had been given to the control room operator on duty that day, to ensure that there was no departure from that practice. The result was that the mirror operation conducted only the preceding Thursday, had been undertaken without the boomgates on the Distributor being lowered. That day users of the Distributor such as police officers like Mr Grills were thus not put at the risk of injury to which Mr Grills was exposed on 25 February, when Mr Couch departed from that practice.

19. [127]

    There was an obvious risk of serious injury created for users of the Distributor once this boomgate was lowered. The reason why the boomgate was not usually lowered when there was traffic on the Distributor was readily apparent. The evidence was that the lowered boomgate was difficult to see against the background, given its thickness, height and colour. It did have some small flashing lights and stop signs mounted on it, but Mr Grills did not see them in sufficient time to stop, or avoid the lowered boomgate. The evidence of one of the two police motorcycle riders stopped at Link Road, some 500 meters away from the boomgate, who watched Mr Grills ride off, after slowing down near them, was that he only noticed the lowered boomgate just before Mr Grills hit it. On the experts' evidence it was easier to see when stationary, than by a moving rider.

20. [128]

    On 25 February, the risk which lowering this boom posed to a police officer riding a motor cycle in the expectation that like the preceding Thursday, the north and south bound lanes of the Distributor would remain open, so that a final sweep of the tunnels could safely be conducted, was thus obvious. The scope of the duty which Leightons owed users of the Distributor on 25 February like Mr Grills, included not exposing them to unnecessary risk, by lowering the boomgate while the Distributor was to remain open to them, at least without giving adequate prior warning that the Distributor was to be closed to such traffic.

21. [129]

    Given the serious risk of injury which lowering the boomgate posed to such a police officer, a reasonable person in Leightons' position would have taken readily available precautions to avoid that risk materialising. They included properly instructing Mr Couch as to Leightons' role in the operation and in his duties as control room supervisor that day.

22. [130]

    That could have been done either orally, or by way of a simple written document, or by instructing him to familiarise himself with the record it kept of the 22 February operation. Any of these steps would have precluded the misunderstanding which arose from eventuating, as the result of the incorrect assumptions which Mr Couch made that day, which permitted the departure from Leightons' usual practice in relation to the operation of the boomgate and the instruction he was given the preceding Friday.

23. [131]

    The social utility of what was being undertaken that day reinforces the conclusion that Leightons owed Mr Grills a duty of care.

24. [132]

    As earlier mentioned, Leightons argued that it owed Mr Grills no duty because it was obliged to obey not only the orders which the Police Force had given that ordinary traffic not be given access to the Distributor during the course of the operation, but also the direction which Mr Couch had been given by Inspector Blair on the morning of 25 February, that the boom on the northbound lanes of the Distributor be closed. That this direction was given has not been established, as I have explained.

25. [133]

    Leightons' submissions rested in part on the provisions of the s 186 of the Law Enforcement (Powers and Responsibilities) Act, which provides: "186 Police may temporarily close road or road related area to traffic ... (1) A police officer may: (a) close any road or road related area to traffic during any temporary obstruction or danger to traffic or for any temporary purpose, and (b) prevent the traffic of any vehicles, persons or animals in or on any road or road related area closed to traffic under paragraph (a) or under the authority of any other Act. (2) A person must not, without reasonable excuse, fail or refuse to comply with any direction of a police officer given in pursuance of a power conferred by this section. Maximum penalty: 20 penalty units"

26. [134]

    In my view this provision is of no assistance to Leightons. Its case as to what Mr Couch was asked to do has not been established. There was no evidence that Leightons was otherwise given any direction, let alone any direction given under this provision. On the evidence it may have been simply co-operating in this operation with the various government agencies involved. Had such a direction been received, no doubt Leightons would have called evidence from someone senior to Mr Couch, present when the direction was given to establish when it was given and by whom.

Leightons

1. [135]

   Leightons submitted that ordinarily it had a duty to take reasonable care, but its duty was not to prevent harm occurring to others (see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330). That submission must be accepted. Its duty required it to take reasonable care in the operation of the boomgate which Mr Grills struck on 25 February, which the evidence showed was then entirely under its control.

2. [136]

   Leightons' case was that it had taken the necessary care required of it on 25 February, given the instructions Mr Couch had received that morning from Inspector Blair, to close the Distributor, which he later implemented by lowering the boomgate. This was not established on the evidence, as I have explained.

3. [137]

   In the result, the cases advanced by all of the other parties, that Leightons not only owed Mr Grills a duty of care, but that it was breached, were made out.

4. [138]

   Leightons kept a record of what it had done on 22 February, but failed to take available steps to ensure that Mr Couch replicated what the operator on duty that day did, as he was requested to do. The evidence establishes that was because it did not properly instruct Mr Couch in his duties on 25 February. Had it done so, the misunderstanding which resulted from the assumptions which he wrongly made on 25 February, as to what Inspector Blair was asking him to do, would not have occurred.

5. [139]

   The result was that Mr Grills was exposed to a significant and foreseeable risk of harm, that being defined in s 5 of the Civil Liability Act as harm of any kind, including injury or death. That involved a breach of the duty which it owed Mr Grills.

6. [140]

   Mr Couch was not instructed to close access to the northbound tunnel, or to lower the boomgate located there. It was never intended to be closed during the operation conducted on either 22 or 25 February. The boomgate was not lowered on 22 February. On 25 February, it was Mr Couch's decision to lower it, he having misunderstood what he was asked do that morning, as I have explained.

7. [141]

   Leightons' submission, that there was social utility in the boomgate being lowered that day must be rejected, particularly given that the result of that decision would have hampered access to the Distributor, in the event of an emergency. That there might be a need for police officers to travel at speed thought the Distributor during this operation, must also be accepted as having been entirely foreseeable.

8. [142]

   Leightons did not inform the Police Force that Mr Couch intended to lower the boomgate. The only notice which he gave of his decision was immediately before he lowered the boomgate, when he announced in the control room 'There is no northbound so I'm going to lower the boomgate now.' In the circumstances that announcement was not effective in conveying his decision to the Police Force, let alone to users of the roadway such as Mr Grills.

9. [143]

   Mr Couch was then monitoring about 12 cameras showing different parts of the Eastern Distributor. Amongst the various things which he did not know, was what Constable Appleby's role in the operation was. He agreed, however, that he was not expecting anyone to disagree with his assessment and that he did not ask for her approval, before lowering the boomgate.

10. [144]

    Mr Couch was clearly not adequately instructed by Leightons as to its role in the operation, or in his duties, or even as to the purpose of Constable Appleby's presence. It was Leightons' failure to give him necessary instructions as to these matters, which allowed his misunderstanding to arise.

11. [145]

    In this case, a reasonable person in Leightons' position would have taken the relatively simple precautions I have mentioned, which would have avoided the risk to which Mr Grills was exposed from arising earlier explained. Mr Couch could also have been instructed to make enquiries of his manager or of the Inspector, through Constable Appleby, if necessary, in case of any uncertainty on his part as to what he was to do, in implementing Leightons' part of the operation. Any such steps would have involved no real burden for Leightons.

12. [146]

    Mr Couch was given no such instruction and made no enquiries of anyone, as to what boomgates Inspector Blair was referring to, when asked to lower those which had been lowered on 22 February. That such an enquiry should have been made is apparent, given that ordinarily the boomgate was not lowered when there was any traffic using the Distributor. That Mr Couch did not know that there was to be traffic in the northbound lane and did not see any vehicles using the Distributor before he lowered the boomgate was difficult to accept. That the 12 cameras by which he was keeping the Distributor under surveillance could have permitted him to overlook such traffic, but underscores the inadequacy of the instructions he was given by Leightons as to his duties on 25 February.

13. [147]

    Given the probability of the harm that might occur if such precautions were not taken and the likely seriousness of the harm which the lowering of the boomgate which closed access to the northbound lanes of the Distributor, without prior consultation or warning posed to a person like Mr Grills, it is apparent that a reasonable person in Leightons' position would have taken such precautions.

14. [148]

    In the circumstances, that Leightons breached the duty which it owed Mr Grills was well established.

The State

1. [149]

   The same conclusion must be reached in relation to the State, despite the cases it, Mr Grills and QBE finally advanced.

2. [150]

   The State acknowledged the nature of the duty which it owed Mr Grills, but its case was that the injuries Mr Grills suffered were the result of the speed at which he was riding his motorcycle, his failure to keep a proper lookout and Leightons' lowering of the boomgate, not its negligence. The pleaded breaches against it were essentially a failure to instruct, supervise and warn, which had not been established on the evidence.

3. [151]

   The State submitted that there was good reason for concluding that there had been no breach of its duty established, given the evidence of the successful implementation of the mirror operation the previous Thursday. QBE advanced a similar case.

4. [152]

   It seems to me that the mirror operation was conducted without problem on 22 February was fortunate, but does not establish that the State's duty to Mr Grills was not breached on 25 February, when the planned operation was departed from without prior warning by Leightons.

5. [153]

   While it has not been established that Mr Grills' speed was excessive, I do accept that Leightons' lowering of the boom and his failure to keep an adequate lookout, contributed to the materialisation of the risk to which he was exposed.

6. [154]

   In my view Leightons also established that the Police Force was negligent in failing to take available, reasonable precautions to ensure that there was no unplanned departure from the operation on 25 February, which required that the northbound lanes of the Distributor remain open to those who were to have access to it that day, including Mr Grills.

7. [155]

   While the operation being conducted was under the control of the Police Force, the operation of the Distributor's control room and the boomgates remained within Leightons' control. The plan being implemented required the Distributor to remain open. Leightons' role in the planned operation thus had to be adequately communicated to it and its implementation adequately monitored, to ensure that what was planned was implemented, so that officers, such as Mr Grills, were not exposed to the risk which materialised.

8. [156]

   I do not, however, accept Leightons' submission that the evidence also established that the Police Force had not properly implemented its part of this operation on 25 February, because vehicles were getting onto Southern Cross Drive when the public ought to have been excluded from the route.

9. [157]

   That submission rested on the evidence that Mr Grills had slowed down near Link Road, to observe the two police officers stationed there dealing with cyclists. There was no evidence that they had failed in their task. To the contrary, Mr Grills' evidence was that he rode on, being satisfied that the cyclists were being adequately dealt with and were not interfering with the sterility of the route. This evidence did not establish any basis for Mr Couch's decision to close the boomgate. Mr Couch certainly gave no evidence that he had observed the cyclists, or that was what led him to close the boomgate.

10. [158]

    Mr Couch did not understand that lowering the boomgate was a significant and dangerous departure from the plan. While the police officer present with him in the control room must have heard him announce that there was no traffic northbound and that he was lowering the boomgate, that could not have alerted that officer to his decision to close the Distributor. In any event, that officer was not there either to supervise Mr Crouch, or even to warn the Police Force of any such departure from the planned operation. Nothing was in place to deal with such an eventuality arising, not even by the Police Force accessing the cameras in the Distributor, to observe what Leightons was doing, as was available to those in the police control room, had the available services of the RTA control room been utilised.

11. [159]

    In the result, when Leightons departed from what was planned, the Police Force had no prior warning and was thus not in a position to give Mr Grills the warning he required. That was not merely the result of Leightons' failures, but also those of the Police Force.

12. [160]

    The lowered boomgate effectively closed the northbound lanes Mr Grills had been sent to sweep a final time. The State accepted that Mr Grills was then proceeding in the expectation that there would be nothing of that kind impeding his sweep. The risk which lowering the boomgate posed to an officer given such an urgent duty must have been obvious not only to Leightons, but also to the Police Force. Inspector Blair had not only inspected the control room operation and discussed the boomgates with Leightons beforehand, but the Police Force had also been provided with plans of the Distributor.

13. [161]

    Given that it was Leightons which retained control over closure of the entrance to both the northbound and southbound lanes of the Distributor, and that those lanes necessarily had to remain open, for safe implementation of the operation which the Police Force had control of, it had to take adequate steps to ensure that it met the duty which it owed to the police officers involved in the operation. In the case of those assigned duties like those given to Mr Grills, the Police Force ought to have taken reasonably available precautions to ensure that Leightons understood that the lanes had to remain open and that if Leightons decided to close them, that it would give the Police Force adequate prior warning of its decision.

14. [162]

    The Police Force had ensured that even individual police officers responsible for different parts of this operation received written instructions as to their particular duties on 25 February. Further, they were each under the direct supervision of supervisors who reported to Inspector Blair, as to the implementation of the operation. On Inspector Blair's evidence, the Police Force was not able to exercise such direct supervision over Leightons.

15. [163]

    Nor was the Police Force in a position itself to direct Mr Couch in the performance of his duties, or to ensure that he was supervised in the way that police officers on the ground were being supervised in relation to their assigned duties. It had to rely on Leightons to ensure that the Distributor's lanes, both northbound and southbound remained open, to permit passage of the planned non-civilian traffic though the Distributor.

16. [164]

    Despite knowing this, the Police Force did not document the important role which Leightons, and more particularly its control room operator, were to play in the operation it was conducting. Had that been done, Mr Couch's misunderstanding would not have arisen and if it did, Leightons and the police officer in the control room would have been alert to the departure from the planned operation which closure of the northbound lanes involved. At least, a police officer undertaking the duty assigned to Mr Grills on 25 February could then have been warned of the lowered boomgate and the risk to which he was exposed avoided.

17. [165]

    For Mr Grills it was submitted that the totality of the communications between Leightons and the Police Force were in evidence and that one could not infer from that evidence that the Police Force was aware, or ought to have been aware of some deficiency in the collective state of knowledge on Leightons' part. The difficulty with this submission, it seems to me, is that if there had been some documented communication between the Police Force and Leightons as to what its role, or that of its control room operator was, that document would have been tendered. The inference which must be drawn from the absence of such a document being tendered, is that no such written communication existed.

18. [166]

    Even though a police officer was placed in Leightons' control room, she was not given information which might have enabled her to observe the implementation of Leightons' role by its control room operator, or to identify problems, such as unplanned closure of the Distributor, so that she could raise them with Leightons, or Inspector Blair, or those present with him at the Police control centre. The role she was given was limited to providing a means of communication between the control rooms. Nothing prevented her being given the role of observing Mr Couch to identify any unplanned departure from the plan, even if the Police Force could not direct him as to what he was to do.

19. [167]

    The risk involved in this approach was apparent. Inspector Blair was cross-examined as to his considerable duties during the operation, which involved many police officers on the ground and others supervising them. Given that there was no such control able to be exercised over Leightons, leaving its understanding and implementation of what was being asked of it to verbal communications, involved obvious risks which some simple precautions could have avoided.

20. [168]

    The Police Force could have taken relatively simply steps to ensure that no misunderstanding could arise as to the roles which Leightons and its control room operator were to play in the operation and that no departure from what was planned occurred. Had that information been documented, in the Traffic Management Plan, for example, or in written instructions like those given to police officers, a copy could have been provided to Leightons, its control room operator and the officer present in the control room. As it transpired, the absence of such documentation both permitted Mr Couch's misunderstanding to arise and for it not to be identified or addressed by a warning being given, when implemented.

21. [169]

    Had such simple and available precautions been taken, the resulting departure from the planned operation, which created the risk to which Mr Grills was exposed, would have been avoided.

22. [170]

    The Police Force proceeded on the assumption that Leightons' part of the operation would be implemented again on 25 February, without difficulty, as it had been on 22 February. That approach involved it in a breach of the duty it owed to Mr Grills. Whether it was Inspector Blair or one of the supervisors who reported to him, who spoke to Mr Couch that morning, the assumption implicit in what Mr Couch was asked to do that day was that he was aware of what boomgates had been closed on 22 February. Given the significant risk which lowering the Distributor boomgates posed, that was an assumption which a reasonable person in the position of the Police Force would not have relied on.

23. [171]

    Inspector Blair had earlier met with Leightons to discuss the operation. He had observed the control room and discussed the boomgates, but the traffic management plan which he developed did not deal with the Distributor boomgates, or which of them were to be closed. It could easily have identified that it was only the boomgates on the three access roads which were to be lowered.

24. [172]

    Leightons was not given any written information about the operation or what its control room operator was to do in relation to the boomgates. The Police Force could easily have provided such information to Leightons. Such documents would have avoided the misunderstanding which arose on 25 February.

25. [173]

    A reasonable person in the Police Force's position would have taken these simple and easily available precautions, just as they did in the case of the police officers on duty that day. They would have avoided the risk to which Mr Grills was exposed from materialising.

26. [174]

    It follows that the breach of the duty which the Police Force owed Mr Grills was established.

Causation

1. [175]

   The onus of proof must be approached in accordance with s 5E of the Civil Liability Act. In determining whether that onus had been met, s 5D and s 5F must be considered. Section 5D provides: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

2. [176]

   Consideration must also be given to the question of whether the risk which the boomgate posed was 'obvious' as Leightons submitted. On Mr Couch's evidence it was certainly obvious to Leightons. Whether it was obvious to Mr Grills, is a different matter. The Act provides in that regard: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable." "5G Injured persons presumed to be aware of obvious risks (1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. (2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection."

3. [177]

   In order for Leightons to be held liable for the harm which Mr Grills suffered, it has to be established on the balance of probabilities, that its negligence was a necessary condition of his harm. The determination of factual causation under s 5D(1)(a) is a statutory statement of the "but for" test of causation (see Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 at 443 [55] per French CJ, Gummow, Hayne, Heydon and Crennan JJ; and Strong v Woolworths Ltd t/as Big W [2012] HCA 5; (2012) 246 CLR 182).

4. [178]

   Mr Grills thus had to prove, on the balance of probabilities, that Leightons' negligence was a necessary condition of his harm.

5. [179]

   Proof of the causal link between Leightons' acts and omissions and the harm suffered requires consideration of the probable course of events, had those acts and omissions not occurred. In this case the evidence establishes that the probable course of such events was that like on 22 February, Mr Grills, the police officer conducting the final sweep of the Distributor that day, would not have been exposed to the risk of harm which the lowered boom created. The same conclusion must be reached in relation to the State.

6. [180]

   In terms of the considerations dealt with in s 5D(1), factual causation was here established in circumstances where it is unarguably appropriate for the scope of both the State's and Leightons' liability to extend to the harm which Mr Grills suffered. That their negligence was a necessary condition of the harm he suffered was also established.

7. [181]

   For its part, the Police Force failed to provide adequate information to Leightons as to what was being asked of it on 25 February and to take available steps to ensure that if it departed from that plan, that it was identified and dealt with. For Leightons' part, neither the Police Force nor Mr Grills were adequately warned of Mr Couch's decision to close access to the northbound lanes of the tunnel by lowering the boomgate. That decision involved a departure from Leightons' usual procedures, from what had been planned and what had been implemented on 22 February. The acts and omissions of both the Police Force and Leightons resulted in the materialisation of the risk of harm to which Mr Grills was exposed. Leightons was not, as it submitted, merely the operative which pressed the button which caused the boomgate to be lowered.

8. [182]

   The evidence establishes that the risk which lowering the boomgate posed to users of the Distributor, both generally and on 25 February, was well known to Leightons and must also have been apparent to the Police Force, given that it designed and implemented the operations on 22 and 25 February, after consulting with Leightons as to the operation of the Distributor. Given the relatively simple precautions which would have prevented this risk from materialising as it did on 25 February, it must be accepted that the scope of the liability of both Leightons and the Police Force, extended to that risk.

9. [183]

   The requirements of s 5D(1) are satisfied.

10. [184]

    For reasons which I have already explained and will return to in connection with contributory negligence, the evidence establishes that Mr Grills was not aware of the risk posed by the lowered boomgate, until shortly before the collision. Then he did not have sufficient time to stop or avoid the lowered boomgate, in order to avoid hitting it.

11. [185]

    In the circumstances, the risk that Leightons would depart from the plan, lower the boomgate, closing the Distributor to traffic, at the time Mr Grills had been given the task of conducting a final sweep of the Distributor on an urgent duty basis, just before the departure of the motorcade, was not a risk which would have been obvious to a reasonable person in Mr Grills' position.

12. [186]

    Even if it were found that there was such an obvious risk, the evidence established that Mr Grills was not aware of the risk in sufficient time to avoid striking the lowered boomgate.

Contributory negligence

1. [187]

   The onus to establish contributory negligence rests on the defendants. In Leightons' case, the allegation of contributory negligence must be determined in light of the provisions of s 5R of the Civil Liability Act, which provides: "5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."

2. [188]

   In its case, the State relied on the observations of McHugh J in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 522 at [39]: "In other areas of contributory negligence, a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained. A pedestrian or driver who enters a railway crossing in the face of an oncoming train cannot escape a finding of contributory negligence because he or she was not, but should have been, aware of the train. Nor does it make any difference that the pedestrian or driver had defective hearing or sight. Contributory negligence is independent of "the idiosyncrasies of the particular person whose conduct is in question. ...."

3. [189]

   Leightons' case was that there would be a discount for Mr Grills' contributory negligence of 75%. This would properly reflect that it was he who directly caused the collision. His injuries were the result of his failure to observe the lowered boomgate, as he should have; his failure to obey the primary rule that he should obey the speed limit; and his failure to adhere to the requirement that he drive at a speed consistent with his own safety. The motorcade was not to proceed until his sweep was completed and he had earlier stopped to deal with matters that required rectification. In the result he had primary responsibility for the accident.

4. [190]

   The State urged a similar conclusion as to Mr Grills' negligence. It submitted that Mr Grills had travelled at excessive speed and had not kept a proper lookout. It relied on evidence that the officers stationed at Link Road saw the boomgate before the collision, although accepting that the evidence of the experts was that because they were stationery, it would have been easier for them to see it than for Mr Grills. It submitted that he ought at least to have been cued to the possibility of an obstacle by various signage and lights activated by Mr Couch, including that on the boomgate itself, so that he ought to have slowed, before he did. For reasons already explained, this cannot be accepted.

5. [191]

   Mr Grills relied on s 5B(1), to submit that the lowered boomgate presented a risk which was not foreseeable, that is, one of which he knew or ought to have known. He had not been negligent, but if contrary to his submission any negligence was found, it would be assessed at no more than 10%.

6. [192]

   It should be observed at this point that Mr Grills' evidence was candidly given. He readily made concessions, even when seemingly contrary to his interests when that was warranted, for example, accepting that he was obliged to look out for hazards while undertaking his urgent duty and that the lowered boomgate was such a potential hazard. His evidence must be accepted. It included that he had not previously known that the boomgate which was lowered was located there and that he was not travelling too fast, given the urgent duty he had been assigned.

7. [193]

   The evidence establishes that Mr Grills did not know and could not have anticipated that the northbound lanes of the Distributor would be closed by the boomgate being lowered as it was. He was then conducting a final sweep of the northbound route on an urgent duty basis, following the x-ray vehicle, scanning to identify anything which might compromise the sterility of the route, which was to be kept open.

8. [194]

   That the various signage warning that the Distributor was closed and directing traffic off the Distributor would have warned Mr Grills that the boomgate had been lowered was not established. QBE's submission that a reasonable person in Mr Grills' position was entitled to assume that these signs were not directed to him, but to civilian traffic must be accepted. His evidence that it confirmed that access to other traffic had been denied, as was planned and that he understood that this signage did not apply to him, must also be accepted. Closing the Distributor was not planned and involved a departure from the plan which he could not have reasonably anticipated.

9. [195]

   In the circumstances, the warning lights activated by Mr Couch to indicate that the Distributor was closed, did not give Mr Grills sufficient warning that the boomgate had been lowered. The lowered boomgate itself was not easy to see, as I have explained.

10. [196]

    Mr Grills had stopped twice, he had attended to things he had identified as requiring his attention during his sweep and had slowed down near the police officers stationed at Link Road who were then dealing with some cyclists. Seeing that this was in hand, Mr Grills rode on, checking behind him and to the sides, as he proceeded.

11. [197]

    Given this, it seems unlikely to me that he was travelling at the highest possible speed postulated, slowing from 140 kph once he saw the boomgate, as I have explained. It seems more likely that his top speed was closer to 110 or perhaps 115 kph, but that he had insufficient opportunity to brake or swerve, when he saw the lowered boomgate. That was not an excessive speed in the circumstances of the urgent duty Mr Grills had been allocated to perform on what was intended to be an open, empty motorway, which was well known to him, as I have explained.

12. [198]

    Even though he was on urgent duty, however, and not anticipating the closure of the Distributor, he was still obliged to keep a proper lookout, while engaged in that duty, as he accepted (see Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 at [11] - [12].) Thus, he was obliged to keep a lookout for anything which might obstruct the route. His evidence that he recalled looking ahead as far as possible, has to be understood in the light of his other evidence, that he does not recall what happened after he rode on, having checked his rear vision mirror and scanned the sides of the roadway.

13. [199]

    He could not remember seeing the boomgate, but given the CCTV footage, it is evident that he did see it, before he struck it. The experts did not agree as to whether Mr Grills should have seen the boomgate earlier than he did, as I have explained. It carried both stop signs and lights. The day was gloomy and on Mr Stuart-Smith's evidence, the lowered boomgate itself was hard to see. That accords with the footage in evidence. Mr Grills was understandably concentrating on his sweep, but he did see the boomgate before he struck it, just not in sufficient time to avoid it.

14. [200]

    It must be concluded on all of that evidence that some negligence on his part has been established. In Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380; (2005) Aust Torts Reports 81-815 it was explained at [68]: "Bound up with the importance of personal responsibility when assessing apportionment of liability are the following remarks of Callinan and Heydon JJ in Vairy (at [220]): "[O]f relevance to any question of contributory negligence ..., we would seek to make the point that it is not right to say, without qualification, that the difference between the duties of an injured plaintiff, and those of a tortfeasor, is that the former owes absolutely no duties to others including the defendant, while the latter owes duties to all of his 'neighbours'. The 'duty' to take reasonable care for his own safety that a plaintiff has is not simply a nakedly self-interested one, but one of enlightened self-interest which should not disregard the burden, by way of social security and other obligations that a civilized and democratic society will assume towards him if he is injured. In short, the duty that he owes is not just to look out for himself, but not to act in a way which may put him at risk, in the knowledge that society may come under obligations of various kinds to him if the risk is realized."

15. [201]

    Given the urgent duty he was undertaking, Mr Grills was required to look not only behind him and to the sides of the route he was travelling, but also ahead, where it was possible, even if unlikely, that there might be something obstructing the roadway, which it was his task to find. That being so, he had to take reasonable care to ensure that he was sufficiently aware of what was ahead of him, to be able to react to and deal with such an eventuality, if it arose, either by stopping or swerving to avoid that obstruction.

16. [202]

    It must thus be accepted that even though Mr Grills understood that the Distributor was to be open and did not anticipate that it had been closed by the boomgate being lowered without any warning, he had to look out for an obstruction on the road itself, including one which precluded entry to the Distributor. Given his focus to the sides and behind him, he did not look for or observe the obstruction which was ahead, the lowered boomgate, until it was too late. That this was not a type of obstruction which he was searching for, is not to the point.

17. [203]

    The risk which an obstruction across the road ahead posed was not insignificant, and in the circumstances was one which a reasonable person in his position would have taken available precautions to avoid, namely by scanning the road ahead.

18. [204]

    In all of the circumstances, it seems to me, that there was some contributory negligence on Mr Grills' part, albeit relatively minor compared to that of Leightons and the State. Mr Grills had a proper basis for not expecting the Distributor then to have been closed, which he acted on. He did not expect access to the tunnel to have been shut off as it was. Given his duty, however, that was a situation which he had to deal with when it materialised, impacting as it plainly did on the operation as he understood it to have been planned and the final sweep which he had been assigned to undertake on urgent duty.

19. [205]

    Mr Grills' negligence has to be assessed in the context of that Leightons and the State, given their respective roles in the creation and materialisation of that risk, just before Mr Grills approached the boomgate on his final sweep. Contrary to their submissions, it seems to me that theirs was the much greater negligence.

20. [206]

    Leightons argued that it could not be concluded that Mr Grills contribution had been small, but that it should be assessed at greater than 75%. The State pressed a similar submission.

21. [207]

    In Leightons' case, that rested in part on a submission as to Mr Grills' knowledge that on 22 February access to the Distributor had been precluded by the lowering of boomgates. Mr Grills was cross-examined about this, although there was a problem with the form of the questions which he was asked and the use of the term 'barrier' as well as 'boomgate'. This was because there was evidence that as well as the boomgates lowered at the access roads to the Distributor, police officers stationed there and elsewhere had erected barriers.

22. [208]

    I am satisfied that Mr Grills' evidence that he did not know of the presence of the boomgate which Mr Couch lowered on the Distributor itself must be accepted. It was consistent with that boomgate not usually being lowered while there was traffic on the Distributor, with it not having been lowered on 22 February, and with it not having been planned to have been lowered that day, or on 25 February.

23. [209]

    Mr Grills accepted that he knew that effective barriers had to be established to close the Distributor; that effective measures had to be put in place to stop civilian vehicles gaining access to the Distributor; that boomgates at the access roads had been lowered; and that the Distributor had been cleared of civilian vehicles before he commenced his sweep. He had been ordered to undertake the sweep on an urgent duty basis and was travelling above the speed limit at times, while obliged still to drive in a safe manner, which was not going to cause him any injury on what was to be an open, empty road.

24. [210]

    But for the lowered boomgate, the evidence showed that the way in which he pursued his duty would not have put him at any risk of harm. The submission that the various signage indicating the closure of the road provided Mr Grills with any warning that the boomgate had been lowered, cannot be accepted, for reasons which I have already explained.

25. [211]

    It was only Mr Grills' failure to observe the hazard which the lowered boomgate posed in sufficient time to stop or swerve, which gave rise to any risk from the way in which he was undertaking his duty. That was a failure which is properly reflected in a finding of contributory negligence, but not of the kind for which Leightons, or the State for that matter, contended.

26. [212]

    I assess Mr Grills' contributory negligence to have been 15%.

Apportionment between Leightons and the State

1. [213]

   The parties accepted that the determination of apportionment would resolve the cross-claims, as well as the s 151Z of the Workers Compensation Act 1987 issue, in the case of the State. Section 5 of the Law Reform (Miscellaneous Provisions) Act, governs contribution between joint and several tortfeasors, providing in s 5(2) that "the contribution recoverable from [a joint tortfeasor] shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage".

2. [214]

   In Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492, there in the context of contributory negligence, it was explained that such apportionment: " ... involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination" (at 494)."

3. [215]

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

4. [216]

   Leightons submitted that if it was found to be negligent, still the State must be found to have the lion's share of responsibility, given that it was in charge of the high security operation underway; it had responsibility to ensure safe passage of the motorcade; police were managing closure of the Distributor and exercised statutory powers as to its closure; Inspector Blair was supervising the operation; and the Police Force failed to inform Mr Grills of the boomgate closure by radio, as it could have done, given that Constable Appleby was present in the control room.

5. [217]

   It also submitted that the State had planned the operation, it did not provide Leightons with plans and instructed Mr Grills in the duty he was to undertake on urgent duty. Leightons had no knowledge of that duty. The boomgate served the useful purpose of closing off the Distributor and Constable Appleby had direct vision of that occurring, when Mr Couch said that he was lowering the boomgate. That could have been observed by the Police control room, if the Leightons' cameras had been accessed through the RTA Traffic management centre. There was no evidence that Leightons knew that it was essential or necessary to keep the lanes open. It was not privy to operational information. The plans it had provided showed the location of the boomgates and Inspector Blair had observed the control room and its operations. In the result, it should have no liability apportioned to it.

6. [218]

   This cannot be accepted. Many of the arguments Leightons advanced were not established on the evidence, as I have explained.

7. [219]

   The State's case was that if it was found to have breached its duty to Mr Grills, a proper analysis as between it and Leightons, would lead to an apportionment of 20% Police Force and 80% Leightons. That would reflect that the predominant fault lay with Mr Couch's error. Given the terms of his conversation with Inspector Blair, the Police Force could not have been alerted to his intended departure from what was planned and had been implemented on 22 February. On his evidence the decision was prompted by something he had overheard on the Police radio. He gave no warning and made no enquiry as to whether there was anyone in the Distributor, even though he must have known that there was activity going on there.

8. [220]

   QBE supported the State's approach, submitting that it was Leightons' road and its employee who departed without warning from what had been done on 22 February. These submissions, it seems to me, do not adequately reflect the negligence on the State's part, which I have earlier described.

9. [221]

   In the circumstances I have concluded that the apportionment between Leightons and the State, properly reflecting their respective contributions to the materialisation of the risk to which Mr Grills was exposed was 47% Leightons and 53% the State.

10. [222]

    That conclusion reflects the significant contribution which Leightons' negligence played, given its ordinary approach to lowering this boomgate while there was traffic using the Distributor and the inadequacy of the instructions it gave Mr Couch. I have concluded that despite that negligence, the State's responsibility for what occurred was somewhat higher, given that it developed, implemented and controlled the operation on 25 February and yet took clearly inadequate steps to ensure that Leightons and its control room operator could not misunderstand what was to occur in relation to the closure of the Distributor. Given that it could not direct Mr Couch in his duties, as it could individual police officers, its failures were what allowed his misunderstanding to arise.

The Motor Accidents Compensation Act 1999

1. [223]

   Whether Mr Grills' injuries fell within this statutory scheme was in issue. That depends on the operation of the Motor Accidents Compensation Act as in force at the date of the accident. Section 3A provided: "3A General restrictions on application of Act (1) This Act (including any third-party policy under this Act) applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control. (2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents."

2. [224]

   The relevant definitions of 'injury' and 'motor accident' were: "injury means personal or bodily injury and includes: (a) pre-natal injury, and (b) psychological or psychiatric injury, and (c) damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses. motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during: (a) the driving of the vehicle, or (b) a collision, or action taken to avoid a collision, with the vehicle, or (c) the vehicle's running out of control."

3. [225]

   For Mr Grills it was finally submitted that the evidence did not satisfactorily establish negligence on the part of the State, but if any negligence was established, it would be concluded that its negligence was not only negligence as an employer, but also as an owner of the motorbike Mr Grills was riding. That submission rested on the contention that as owner of the motorbike, it had allowed Mr Grills to get into a dangerous situation of riding the bike at high speed, without being equipped with advance knowledge or warning that the boomgate had been lowered. His speed was the product of its negligence and thus it was the State which had put him into a dangerous situation. Further, his own negligence in driving the motorbike was sufficient to bring him within this legislative scheme. Excessive speed has not been established, as I have explained.

4. [226]

   QBE submitted that the cause of Mr Grills' injuries was not any fault in his actual driving of his motorbike, for which the State would be vicariously liable, or any defect in the motorbike. In the result, there was no liability under this Act. Even though Mr Grills' injuries resulted from the collision with the boomgate, that was the result of an unsafe system of work, namely in the final sweep which he was required to undertake on an urgent duty basis, without giving him any warning that the Distributor he was to sweep had been closed, resulting in his collision with the boomgate. His actual driving of the motorbike did not cause it. Nor was the collision caused by his speed. Any control, direction or warning which the Police Force ought to have given him, was not as the owner of the motorbike, but as his employer.

5. [227]

   The State agreed with QBE's submissions, that any negligence on its part was as an employer and not as an owner of the motorbike Mr Grills was riding.

6. [228]

   Leightons' case rested on facts which were not established, including that Inspector Blair directed Mr Couch to lower the boomgate, but failed to warn Mr Grills that such an instruction had been given.

7. [229]

   For Mr Grills it was submitted that QBE would be obliged to indemnify the State, because damages would be payable under this Act, rather than the Workers Compensation Act. That followed from Spigelman CJ's observations in Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; (2001) 52 NSWLR 193 at [28] - [29], said to have been adopted in Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 at [14] - [25] and [125] - [136] and TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149; (2012) 60 MVR 535, which was in issue: "28 In Zurich Australian, the plaintiff was injured when lifting a ramp which was part of a trailer attached to a truck, without mechanical aids. Spigelman CJ addressed the submission as to why the injury fell outside the Motor Accidents Compensation Act, at [29]: "The first submission was, essentially, one of characterisation. The Appellant submitted that the injury was not caused "in the use and operation of" the trailer. The injury was caused by an unsafe system of work or in the design of the trailer. Nothing in the language used, or the scope, purpose or operation of the Act, suggests that a dual characterisation of 'fault' is impermissible. The definition applies so long as the fault may be characterised in the way set out within it. It matters not that some other characterisation may also be appropriate." 29 The High Court did not overrule Zurich Australian in Allianz, but in Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529 Gleeson CJ, Gummow, Hayne and Heydon JJ noted that the Court had not, in Allianz, adopted the characterisation of "fault" used by Spigelman CJ in Zurich Australia: GLG Australia at [28]. It did however accept that the question was "one of characterisation": at [31]."

8. [230]

   For Mr Grills it was argued that the authorities which QBE relied on were not pertinent to this case, because his injuries were the result of his driving of the motorbike.

9. [231]

   QBE's case has that despite various amendments to the definitions of 'injury' and 'motor accident' under s 3 of the Act, consistently under this statutory scheme was a requirement that the death or injury of a person claiming compensation was caused by the fault of the owner or driver of the motor vehicle.

10. [232]

    This concept of causation was intended to limit the scope of the Act, as discussed in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 at [49] and Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234 at [42]). It is concerned with 'proximate cause' found in insurance law, as discussed in Allianz Australia at [95] - [102]. In that case that cause was concluded to have been (at [103]): "It was the system of work adopted by GSF to deal with the problem of unloading presented by the failure in operation of the motorised T-bar and, in particular, the direction to use the crowbar to lever the containers which had a predominant quality for, and an immediacy to, Mr Oliver's injury. The defect in the T-bar was not a defect by which the accident was caused in the necessary statutory sense."

11. [233]

    QBE also submitted that, contrary to the reliance placed for Mr Grills in Spigelman CJ's observations in Zurich Australia Insurance Ltd, where an injury sustained in a motor vehicle is properly characterised as resulting from or caused by an unsafe system of work and not otherwise, then damages are to be assessed under the Workers Compensation Act. It relied on what was discussed in RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117; (2013) 63 MVR 375 at [40] - [41]: "40 In Nominal Defendant v GLG at [29] the plurality in a passage cited by the primary judge, observed that it was necessary to give weight to the word "in" in the expression "in the use or operation of the vehicle" in s 3A(1) of the MAC Act. Relevantly, the words "in the use" means with respect to, as a consequence of, or by reason of the use of the relevant vehicle in the circumstances. That in turn points to the need to examine the alleged "fault" in the actual use or operation of the relevant vehicle at the particular time and place of the injury. At [31] their Honours considered that the question was one of characterisation. Relevantly, the question is whether the facts of the case are to be characterised as revealing fault (in this case, negligence) on the part of the driver of the relevant vehicle in its use or operation. 41 There have been many cases since Nominal Defendant v GLG which state the relevant principles as determined by the plurality in that case but which have been decided on their own particular facts. For instance, the question of characterisation was emphasised by Giles JA, with whom Handley AJA agreed, in JA & BM Bowden & Sons Pty Limited v Doughty [2009] NSWCA 82 at [31]; (2009) 52 MVR 552. His Honour observed that the plurality in Nominal Defendant v GLG at [29] regarded "in" as restrictive in the definition of "injury", just as much as "if, and only if", and expressed the restriction in the consequential need to examine fault in the actual use or operation of (in that case) the forklift truck at the particular time and place of the injury. I pause to observe that the provisions in s 3A were originally in the definition of "injury" before being moved to a separate section after the above authorities were decided. However, the words are identical."

12. [234]

    It seems to me that Mr Grills' contentions have not been made out.

13. [235]

    In Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; (2006) 228 CLR 529, the result of the necessary characterisation was found to be that: "27 It is true that the occupier was at fault. The fault, however, lay not in the use or operation of the forklift truck, namely, the driving of it. The occupier itself was not driving, nor was the driver it employed driving in a negligent way. The occupier's fault lay in designing and implementing a system of work that involved driving the vehicle in the manner in which it was driven, rather than devising and providing a reasonably safe system of unloading the containers which would not cause vibrations likely to destabilise the boxes being unloaded. ... 29 The flaw in the occupier's contention that the words before 'if, and only if' are to be broadly construed ... is that the contention gives no weight to the word 'in' in the expression 'in the use or operation of the vehicle'. As counsel for the occupier accepted, 'in the use' here means with respect to, as a consequence of, or by reason of the use of the forklift truck in the circumstances. That in turn points to the need to examine fault in the actual use or operation of the forklift truck at the particular time and place of the injury, and excludes an inquiry that goes more widely to instances of fault in the planning which led to its deployment and which may have taken place at points of time and place remote from those of the injury."

14. [236]

    As QBE submitted, Mr Grills did not see the lowered boomgate until it was too late to avoid his body hitting the boomgate, causing him to fall to the ground, for the reasons earlier explained. He was not warned that the boomgate had been lowered, as he ought to have been. The cause of his injuries was not negligence in his use or operation of the bike. It was not speed, or any resulting loss of control, which caused the collision.

15. [237]

    The control and direction exercised by the Police Force over the duty Mr Grills was assigned that morning was not as owner of the bike he was riding, but as his employer. Its failure to properly inform Leightons of its part in the operation resulted in Mr Couch's closure of the Distributor. It was a failure in the motorcade operation it was conducting, which resulted in Mr Grills' injury. That was the result of the unsafe system of work it had put in place, when it required him to conduct the final sweep of the Distributor on urgent duty, unaware that Mr Couch proposed to lower the boomgate, closing the Distributor to all traffic, or that he had acted on that intention, contrary to what was planned. The closure of the boomgate without prior warning to Mr Grills was the proximate cause his injury, the result of the way he went about his assigned duty being that he did not observe it in sufficient time to stop or swerve to avoid it. This properly has to be characterised as resulting in a claim for damages to which the Workers Compensation Act applies.

Cross-claims and the Workers Compensation Act 1987

1. [238]

   The conclusions reached resolve the cross-claims and result in the need for calculations under s 151Z of the Workers Compensation Act to be undertaken.

Damages

1. [239]

   At the time of the collision Mr Grills was a serving police officer to whom the provisions of the Crown Employees (Police Officers - 2009) Award applied. Mr Grills' salary was thus not in issue, nor was the basis upon which his claim for future earnings would be calculated. There was no loss of salary to July 2010 when he was medically retired, because his compensation payments were topped up. He also continued to receive superannuation contributions. This has to be taken into account in calculating past loss.

2. [240]

   Mr Grills had no prior history of any psychological injury, or relevant physical injury. The State conceded that his whole person impairment exceeded 15% and that s 151H of the Workers Compensation Act was satisfied. In large part it relied on the submissions of Leightons as to damages not subject to the Workers Compensation Act limitations.

3. [241]

   Various other matters were agreed between the parties, but some were in dispute. The State finally reached some agreements with Mr Grills which Leightons did not join. The parties agreed that they would confer as to the calculation of any damages, once this judgment was given, including as to the s 151Z calculation.

4. [242]

   Leightons' case was that the majority, if not the entirety of Mr Grills' ongoing problems were psychological and that with appropriate treatment they would abate to a large extent in future, especially if he was weaned off addictive narcotic analgesics, which were having adverse side effects. There was no objective pathology to support the claim that his pain and incapacity were due primarily, or at all, to any ongoing physical disability. It relied on the common view of the psychologists, that he was suffering from an adjustment disorder with anxiety and depressed mood and that this litigation was a considerable stressor. This supported the view that his emotional state and symptoms should improve with treatment, after the litigation was over.

5. [243]

   Mr Grills accepted that the resolution of the litigation would be of assistance to him, but disputed the assessment that his problems were mainly psychological or what his future might hold.

Mr Grills

1. [244]

   Damages must be assessed in light of Mr Grills' personal circumstance. He applied to join the police force after finishing high school and commenced at the Goulburn Academy in February 1994. He became a probationary constable in August 1994 and a constable in August 1997. He then joined the Highway Patrol and completed the solo cyclist course in February 2000. He was promoted to Senior Constable in August 1999. Before his accident he had relieved in the role of Acting Sergeant. He had received a number of commendations for his work.

2. [245]

   Shortly after he was injured he was appointed to a position of Leading Senior Constable, for which he had applied in 2006. He was then due to undertake the Sergeant's pre-qualifying assessment.

3. [246]

   There was no issue that Mr Grills was an effective, successful member of the Highway patrol. His appointment to the Leading Senior Constable position was not only a merit-based appointment, after examination, but as the result of a vote of his peers and commander. Mr Grills completed the computer-based exam for that position while on sick leave. His position was held open for him, but he was never able to return to work.

4. [247]

   Mr Grills completed a Diploma of Policing in October 2000. Later he began studying for the Bachelor of Policing through Charles Sturt University. He deferred that course for a time after his accident, but completed it in May 2009. On his evidence he pursued those studies with difficulty, because he then had every intention of getting back to work and pursuing his career.

5. [248]

   It was the opinion of Ms Sugden, that had he been able to return to work, he would have succeeded in achieving further promotion, she considered to the rank of Sergeant or even a commissioned rank. Senior Sergeant Grace considered that Mr Grills was a career police officer who could have easily attained the rank of Sergeant or Senior Sergeant.

6. [249]

   Mr Wright, formerly an Incremental Sergeant holding the position of On Road events co-ordinator, also considered Mr Grills to be an outstanding police officer, who had the makings of a very good Unit Commander and the determination to attain the rank of Duty Officer, (Inspector). That positive view of Mr Grills was also was shared by Mr Johnson. He believed Mr Grills would achieve promotion to the rank of Sergeant at least.

7. [250]

   Mr Grills was aged 32 and single at the time he was injured. At the time of the hearing he lived with his partner and two children. Before his injury Mr Grills was physically active. He was independent and lived alone, undertaking renovations to his home, such as painting and tiling, and upgrading the yard and sheds. He was no longer able to undertake such work.

8. [251]

   Mr Grills' computer skills were largely self-taught. As well as his formal studies pursued through distance education, he had undertaken various training during his employment. After he was injured he suffered considerable pain and tolerance issues, experiencing problems sitting for extended periods, with neck flexion and with concentration. He explained that he could pursue his studies only bits at a time and that he had received assistance from his partner, with completing assignments.

9. [252]

   Mr Grills' had various interests, for example watching motor sport, collecting models, membership of a model club, scale modelling and participating in competitions, but explained that he experienced difficulties pursuing those interests, even though he attempted to do so. He explained what he had done, which included finishing projects begun before his injury, as well as starting some new projects and attending club meetings and modelling competitions, including wins in 2010 and 2011.

10. [253]

    Mr Grills explained the consequences of his inability to exercise, whereas formerly his work had been physical and he had actively pursued physical fitness. He also explained his considerable narcotic use at the time of the hearing of Oxycontin, Oxymora for break through pain and a slow release narcotic administered to address the problem of drug dependence being developed, so that he could take breaks from the other medication. Nurofen was taken four hourly for headaches, as well as a muscle relaxant to deal with pain caused by coughing and sneezing and to ease muscles which cause tension headaches. He also had to use various sleeping tablets, to deal with problems he experienced in getting to sleep, which tended to make him groggy. He had been trying to reduce their use.

11. [254]

    Mr Grills described the consequences of the medication on his ability to focus and concentrate, which he said exacerbated the effects of the pain he experienced. He described feelings of irritation and frustration with the need to spend time laying down to rest, in order to relieve pressure which he felt on his spine, and the need to stretch it, which often resulted in him falling asleep, a couple of times a day. He explained how this affected his domestic and social life, and his interaction with his partner and young children and his inability to work. He explained the impact it had on his ability to undertake domestic duties, as well as the assistance he had received from his mother, partner and commercial providers with domestic duties. He also explained how he tended to avoid his peers as a result.

12. [255]

    Mr Grills explained the discussions he had pursued with treating doctors such as Dr Kevin Boundy as to work he might be able to manage, which was at best, self paced, home-based work, without pressure or deadlines, given his problems with ongoing pain and the effects of medication.

13. [256]

    Mr Grills' partner, Ms Graham, corroborated much of his evidence as to the nature of the pain which he continues to suffer and the problems which it caused him and their family. They had met prior to his injury and so she was able to shed some light on the considerable changes which had been wrought in his life. She described his difficulties in moving and even waking from sleep because of pain and the impact on his mood and pursuit of even ordinary activities, such as household work and shopping.

Mr Grills' injuries

1. [257]

   Mr Grills was injured when his head and shoulder struck the boomgate. He collided with a concrete wall and fell to the road. Given his speed, he seems to have suffered serious but remarkably limited physical injuries, as well as serious, ongoing psychological injuries. Up until the time of hearing, his injuries have prevented him from working.

2. [258]

   Mr Grills suffered fractures of his cervical and thoracic spine, for which he was treated by a neurosurgeon, Dr Tim Steel, at St Vincent's Hospital. They did not require surgery. He also suffered extensive soft tissue injuries, which required bed rest and pain medication.

3. [259]

   There was no issue that all of Mr Grills' spinal fractures have healed, but he has never recovered sufficiently to resume work and he was eventually medically retired from the Police Force in 2010.

4. [260]

   Mr Grills' evidence that he has complied with all of the treatments he has pursued must be accepted. At the time of the hearing he said that his current exercise regime was basically restricted to mobilisation exercises, designed to make sure that he didn't cramp and that his muscles didn't waste. They included non-weight bearing, water-based exercises, largely self-directed, as well as use of his home gym.

5. [261]

   His considerable medical records were in evidence. At the time of the hearing, he remained under the care of Dr Boundy, and under the treatment of a psychologist, Ms Lorraine Simpson, who he was seeing about every 5 weeks.

6. [262]

   Despite various ongoing investigations, specialist treatment, including pain management treatment, medication, physiotherapy and exercise programs, injections to strengthen ligaments, as well as treatment by a TENS machine and by a psychologist, even at the time of the hearing Mr Grills continued to suffer considerable pain.

7. [263]

   Dr Steel's 2007 and 2008 reports evidenced Mr Grills' then ongoing pain and the investigations undertaken to establish its cause. A report of 31 October 2007 from his physiotherapist, Mr Aaron Lewis, referred to mobilisation treatment which Dr Steel had recommended, with a view to him returning to work. Treatment was described and Mr Lewis' concern that Mr Grills was evidencing fear avoidance behaviour, being pain focussed in rehabilitation, explained. He recommended a return to work on light duties 3 - 4 days per week and a course of cognitive behavioural therapy, if he could not tolerate a graduated return.

8. [264]

   In cross-examination, Mr Grills was asked about discussions with Dr Steel about a return to work. He said that he was told in July 2007, that it would take at least another 6 months before he could get back to his pre-injury role. Mr Grills said also that he remembered that Dr Steel considered that it would be February 2008 before anything would be considered.

9. [265]

   Mr Grills' then GP was Dr Bishara, who he saw initially and then he came under the care of Dr Boundy, a sports physician, who had continued to supervise his care and treatment, including referring him to Dr Raj Sundaraj, for pain management treatment, as well as Dr Alex Ganora, for rehabilitation and pain management.

10. [266]

    Mr Grills was cross-examined about discussions with the Police Force in the latter part of 2007 about a return to work. He attended a return to work meeting at Surry Hills, where his difficulty in travelling from his home at Glenmore Park was discussed. He said in re-examination that at that meeting, his boss would not agree to having him in the station, given the medication that he was on. He agreed that an arrangement had then been made for him to work at Penrith, but he was not able to take that up, because of ongoing problems with pain management, at a time when he was under the care of Dr Boundy. He did not then consider himself to be reliable enough to undertake police work.

11. [267]

    Mr Grills was assessed by Dr Peter Endrey-Walder, a general and trauma surgeon in February 2008. He agreed with the physiotherapist that he appeared to be showing fear avoidance behaviour and that the psychological aspect of his injuries needed to be addressed and his narcotic intake reduced.

12. [268]

    Reports prepared by Dr Boundy from time to time for the insurer explained his ongoing symptoms and their effects upon his life. Mr Grills saw an orthopaedic specialist Dr Michael Ryan in October 2008. He agreed that he was then doing some light cleaning and cooking, but not all that he had been able to do before he was injured, and some of it, such as vacuuming only with difficulty.

13. [269]

    Dr Matheson saw Mr Grills in October 2008. He said he expected his fractures to heal without disability, and that his medication was inappropriate, for his physical condition. He required treatment by a physiotherapist and should be capable of sedentary employment.

14. [270]

    Dr Ryan also saw Mr Grills in October 2008. He then considered that Mr Grills had a combined 26% whole person impairment, because of his fractures, but that his limitations appeared excessive for his physical limitations, which suggested non physical causes. Theoretically he should be able to work. He required cognitive behavioural therapy and a general exercise program.

15. [271]

    Mr Grills began seeing Ms Simpson, a clinical psychologist, in October 2008. In a July 2009 report Ms Simpson, described the pain he continued to suffer and how it prevented him sitting for long periods and the consideration being given to work which he could manage, with his ongoing problems and the treatment he was receiving.

16. [272]

    By December 2008, Dr Boundy reported that he considered that Mr Grills' condition had plateaued and that there was little more that could be offered by way of physical treatment. Pain was being managed by narcotics and he continued to see Ms Simpson. Over time Dr Boundy became concerned about the effects of his chronic narcotic use, tolerance and dependence. Various medications were resorted to, including Oxycontin.

17. [273]

    Dr Elias Matalani, a consultant, occupational physician, saw Mr Grills in July 2009. He noted Mr Grills report of pain in the neck, mid-back, numbness in the right leg with prolonged sitting and pain radiating into the right ribs, as well as tingling in the hands and fingers. After noting CT and MRI investigations of his cervical and thoracic spine and his brain, as well as bone scans and the range of movement he demonstrated on examination, Dr Matalani concluded that his impairment was permanent, his manual handling ability and occupational functioning were adversely affected and that his long term prognosis was guarded.

18. [274]

    In a 6 November 2009 report, Dr Brian Stephenson, an orthopaedic surgeon, referred to various investigations, medical and psychiatric reports, and the results of his own physical examination of Mr Grills. He found restricted neck and back movement, which made it unlikely that he could return to work in the police force. He considered that Mr Grills could not successfully participate in a graded return to work plan, even on restricted hours and days. Based on his progress and need for pain management medication, he doubted that he was capable of managing any full-time work, but did not exclude the possibility that he might receive some benefit from non-drug related treatment, which could permit some resumption of work in the more distant future, but not in the police force.

19. [275]

    In February 2010, Dr Ryan saw Mr Grills again and observed that a failure to return to work within 6 months of injury led to only a 50% chance of a return to work. Physically he ought to be able to manage most activities and that he required less pain medication and behavioural therapy directed at weaning him off his medication, as well as treatment directed at reactivation. Resumption of work was theoretical, but unlikely to occur because of the passage of time.

20. [276]

    In March 2010, Dr Boundy reported that: "As a direct result of Adam's motorbike accident he has sustained compression fractures to C7, T1, T7, and T8. Because not all of these fractures were initially diagnosed at the time of the accident there was no surgical intervention. The fractures were managed by observation only. Adam is therefore left with a loss of height in all of these 4 vertebrae. MRI scans of Adam's back showed that he has damaged all of the intervertebral discs between C7 and T8. All of the discs are seen to be compressed and desiccated. Close review of the MRI reveals bony irregularities through the vertebra in this region consistent with osteoarthritic change as a result of the loss of intervertebral disc height. The combination of the crushed vertebra and crushed intervertebral discs mean that Adam has lost height in his thoracic spine. The ligaments that stabilise the spine are now no longer taut and Adam has been left with a chronic instability in the area. The chronic instability means that he has non-physiological movement taking place between the injured vertebra and associated soft tissues. It is this non-physiological movement of the damaged tissues that is causing him pain. Adam will never be able to return to work because he has difficulty supporting the weight of his own head as he moves around. He would not be able to wear a crash helmet without experiencing severe pain in his neck and back. He would not be to ride a motorbike because the forces associated with acceleration and deceleration would cause excessive movement in the area causing him pain. Because of the instability Adam has great difficulty with any movement whether he be sitting or standing for any period. He would certainly not be fit to run or engage in any crowd control with his condition."

21. [277]

    Mr Grills' condition was considered to be stable and Oxycontin and Oxymora medication continued. In September 2011, after further MRI examination, Dr Boundy expressed concern at muscle wasting because of Mr Grills' sedentary lifestyle, because of the pain caused by movement and recommended an exercise program. Physiotherapy and hydrotherapy were later recommended, as well as continuing pain medication. Dr Boundy then described Mr Grills' experiencing pain so severe, that he could not get out of bed some days.

22. [278]

    In April 2012, Dr Boundy recommended after the birth of Mr Grills' baby, that he continue seeing his psychologist, in preference to him, so that he could maintain good psychological health. Narcotics treatment continued.

23. [279]

    In March 2013, Dr Boundy reported that Mr Grills was suffering with problems he had developed in his feet, as the result of his gait, developed to reduce shock being transmitted to his injured thoracic spine, which were causing him pain. He began treatment with Celebrex, while continuing Oxycontin.

24. [280]

    In July 2013, Dr Boundy reported that: "For the purposes of assessing total and permanent incapacity much has been made of whether or not Mr Grills has sustained a fracture to the T8 vertebra. I have always believed that Mr Grills' pain has come from damage to the soft tissues and compression of the thoracic intervertebral discs. The loss of height throughout his upper thoracic spine has meant that the supporting ligaments are no longer held taut. The lack of tension in the supporting structures would allow nonphysiological movement to take place within the upper thoracic vertebrae, and I believe that it is this uncontrolled movement of the upper vertebrae that causes much of his pain. On reviewing the enclosed reports I note that in 2007 Aaron Lewis, physiotherapist wrote "my biggest concern though is that he appears to be showing fear avoidance behaviour and is very concerned with his prognosis and is clearly pain focused in his rehabilitation." I note, however, that in a psychological impact assessment performed by Olga Asad in 2012 she writes "the psychological assessment I conducted indicates he is not precluded from working due to his psychological symptoms, however they certainly would impact on his ability to learn new things and adapt to a different job if he had to learn new tasks. This is primarily due to his depressive symptomatology and poor concentration due to pain and discomfort." A subsequent report from Dr James Maguire, psychiatrist states "he noted a tendency to irritability at times and this is fairly common in people with painful conditions. In the same way, the reduction in his social activity and ability to work relates to his physical problems rather than his emotional state." I make note of these reports because it would suggest that Mr Grills has been experiencing an adjustment disorder as a result of the pain he continues to have from his injuries. He is not exhibiting fear avoidance behaviour or overly focussed on his pain. Review of his medical records show that he found the physiotherapy quite painful, and ultimately stopped attending because it was not helping his condition, but in the short term making it worse."

25. [281]

    Dr Boundy also referred to conflicting opinions of Dr Matheson, a consultant neurosurgeon in October 2008, that his injuries would take 2 years to settle down and that of Dr Casiker in 2013, that in normal circumstances he should have recovered from those injuries in 3 months.

26. [282]

    Dr Boundy considered in 2013 that Mr Grills' bone fractures had healed, that his ligament injuries had responded to treatment and that his condition was relatively stable, but that the inherent instability in his thoracic spine had not been addressed. This caused him pain, reduced movement and stiffness and muscle spasm, which required ongoing narcotic treatment.

27. [283]

    After further examination by Dr Boundy, in July 2013 reported no change in Mr Grills' condition, which he observed had essentially not changed in all of his years of treatment. He noted habituation, tolerance and dependence on Oxycontin, which was not ideal. He could recommend no other treatment, but opined that future treatments were likely to be developed, which could assist him.

28. [284]

    In his oral evidence Dr Boundy explained that Mr Grills had unsuccessfully attempted to lower the levels of his pain medication, describing him to be 'chasing his tail' and suffering side effects, such as disorientation. He considered the prospect of successfully reducing his levels of medication to be poor and that his pain was the result of the structural causes of his spine, which could not be changed. That was not the view of other specialists, whose evidence I consider must be preferred.

29. [285]

    Dr Boundy said, however, that more recent MRI's had established that despite intervertebral disc damage, there was no pressure from disc bulges and no pressing on Mr Grills' nerves or the spinal cord, which would cause radiculopathy pain. In cross-examination, he explained how Mr Grills had come to be treated with such extensive levels of medication and why he had not been referred to a pain management course at a tertiary hospital. He said his past experience of such programs had been variable. He agreed that he had no qualifications in drug and alcohol addiction, neurology, or orthopaedic surgery and that he was not in a position to offer Mr Grills treatment which would drastically change his outcome. He said Mr Grills was now being treated only by a GP, who he considered had reasonable experience with narcotic treatment of the type he was receiving. It is difficult to accept that opinion given the other evidence received.

30. [286]

    Dr Boundy considered that a physical activity program would benefit Mr Grills, but explained that past attempts had failed, because they increased his pain.

31. [287]

    In May 2013, Dr Ryan again assessed Mr Grills, almost six years after his accident. He then noted his lack of work and social life, dependence on narcotics for healed physical injures and limitations, far in excess of the physical severity of his injures. He also noted the result of intrusion of non-physical factors on examination.

32. [288]

    Dr Endrey-Walder examined Mr Grills in May 2013, referring in his report to various reports of Dr Boundy. He reported little change in Mr Grills reported pain levels and similar restricted range of movement and a habitation to daily narcotic analgesia and lack of intellectual work. He referred in his second report of 20 May to Dr Casikar's view that his injury should have recovered in 3 months, saying '[i]t is impossible to predict in any individual case as to how long symptoms of fractured vertebrae cause ongoing debility'.

33. [289]

    In his June 2013 report, Dr Matalani noted ongoing complaints of pain in the neck, upper part of the thoracic spine and mid-back, fluctuating from 0 to 10 in pain intensity, with an average level of 5 to 6. There was intermittent pain in the ribs and ongoing tingling in the little and ring fingers, more on the left side. Pain in the feet, related to altered gait had been experienced from the end of the last year.

34. [290]

    Dr Matalani noted Mr Grills' report that he could walk and stand for only approximately 10 to 15 minutes, and that sitting for longer than 20 minutes aggravated pain, so that he avoided driving. Pain disturbed his sleep and cold weather aggravated his symptoms, as did coughing and sneezing. Pain impeded carrying out household duties, or lifting heavy weights. It was managed with Oxycontin and Oxynorm.

35. [291]

    Dr Matalani reviewed Mr John Raue and Ms Christine Leaver's vocational capacity report, which he considered provided options which were suitable in theory, but presented many practical problems. He considered that if Mr Grills obtained part-time clerical work, he would require regular breaks and postural flexibility, to avoid exacerbating his condition, if it was to be sustained long term. He could not tolerate prolonged sitting, working at a computer, given his physical symptoms and medications. That would impact his ability to perform call centre or radio despatch work. He could not perform the full range of duties of an insurance investigator. He considered that he required self paced work, which allowed intermittent time off, not too far from home, to prevent aggravation caused by travel. He would need to be able to continue and perhaps increase the use of painkillers, which would reduce his concentration and performance. He considered his prospects of employment in the open labour market to be quite reduced.

36. [292]

    Dr Matalani considered Mr Grills' prognosis to be guarded and that his condition was unlikely to change substantially, even with further treatment. It had reached maximum improvement. He required part-time sedentary employment, which did not require a high level of concentration or alertness. His chronic pain and narcotic treatment made it difficult for him to sustain full-time employment.

37. [293]

    Dr Matalani also explained that he disagreed with the view that Mr Grills in normal circumstances should have been able to return to work, 3 months after his injury, given that he had suffered a severe ligamentous injury, as well as various fractures, consistent with a crush injury, which had also damaged discs. He considered it not to be surprising that Mr Grills still suffered pain unexpectedly with certain activities, which caused unexpected exacerbations. The result was that any work which he undertook required flexibility in terms of posture and that prolonged sitting would aggravate his symptoms. The heavy medication he was currently taking would also adversely affect his working ability.

38. [294]

    In cross-examination, Dr Matalani explained that there had been no loss of stability in Mr Grills' cervical spine, but that in his thoracic spine there had been a loss of integrity, because of the consequences of the compression fractures. He agreed that he required pain management, that he needed to reduce his narcotic medication, that the litigation was a significant stressor that was contributing to the level of his incapacity to work and that he had developed a fear of and avoidance of any tasks which he feared would affect his pain levels. He believed that subject to being able to manoeuvre from sitting to standing positions on a regular basis, Mr Grills could work in a clerical position for less than 8 hours a day. He considered that Mr Grills had developed a tolerance to his medication, so that its efficacy had reduced, while still adversely affecting his concentration and alertness. He would encourage him to pursue work which was within his restrictions.

39. [295]

    In re-examination Dr Matalani agreed that given the nature of those restrictions, suitable work would be difficult to find, but explained that Mr Grills' current medication would not be providing him effective pain relief because of habitation and tolerance and that reducing his medication could not increase his pain levels. He needed pain relief, but there were better types available.

40. [296]

    Dr James Maguire, a consultant psychiatrist saw Mr Grills in February 2013. In his March report he referred to the explanation Mr Grills gave of his initial expectation that he would recover his health and return to work and the impact of his ongoing symptoms and eventual discharge from the Police Force. He described being angry and depressed, with ongoing problems of pain, concentration and mobility causing headaches, broken sleep, tiredness and an inability to work. He diagnosed Mr Grills to be suffering from chronic adjustment disorder with anxiety and depressed mood. He considered the litigation to be a significant stressor and that he needed ongoing treatment by a psychologist, as well as pain management. He thought that his emotional state would eventually resolve, with the result that he could pursue employment. He agreed with Ms Olga Asad's opinions as to treatment requirements.

41. [297]

    In her July 2013 report Ms Simpson also described the impact which his injuries, disabilities, problems with chronic pain and pain management and retirement from the police force had posed for Mr Grills. She agreed that he was suffering from an adjustment disorder with mixed anxiety and depressed mood, as the direct result of his accident.

42. [298]

    Ms Simpson considered Mr Grills to be a fairly emotionally steady man, but also considered that he would require ongoing treatment. She agreed with Dr Maguire's conclusions as to his condition, situation and prognosis, but emphasised that in any future employment, his physical capacities had to be realistically taken into account. She considered that the only vocational option likely for him was a business where his partner could do the hands on work and he could do the administrative side of things, in a flexible way, to permit him the rest during the day that he needed.

Vocational reports

1. [299]

   Mr Grills described the difficulties he encountered with standing, squatting, kneeling and stair climbing and the pain involved. He described his limited ability to undertake tasks such as shopping, driving and his participation in other domestic activities and the care of his children. He had undertaken a vocational assessment, but had not looked for work. He agreed that he could look for work, which could accommodate his limitations, or could consider opening a business, options which he had discussed with his treating doctors and psychologist, given his limitations and tolerances.

2. [300]

   In May 2012, Ms Asad, an organisational psychologist, examined Mr Grills and referred to various medical reports and investigations. She provided a report in which she concluded that Mr Grills had no current earning capacity in the open labour market.

3. [301]

   Ms Asad considered that Mr Grills had plenty of transferable skills and the ability to undertake further retraining for other vocational options, but observed that if he had been fit for other suitable duties, he would have been accommodated within the Police Force. She did not consider that his psychological symptoms precluded him from working, but that his depression and poor concentration would have various impacts. She recommended continuation of his psychological treatment.

4. [302]

   Ms Asad also described barriers to Mr Grills' employment, including employer bias against people with a disability, endurance limitations, concentration problems, headaches and pain, physical restrictions, the need for medical clearance to re-enter the workforce, his compensation history and long term unemployment.

5. [303]

   Ms Asad gave concurrent evidence with Ms Leaver, a physiotherapist and Mr Raue, a consultant psychologist, who had also examined Mr Grills.

6. [304]

   Mr Raue administered various tests of intelligence and skills. In his vocational assessment report he analysed the tasks Mr Grills had performed as police officer, as well as in earlier employment. He concluded that had he not been injured, Mr Grills could have worked in a range of associate professional type work, at Diploma level, if he had not continued with police work, even without further training. He had skills for various clerical work, but Mr Raue considered that his presentation, unusual posture and difficulty in standing or sitting for long periods and with travel, made employment difficult. If that could not change, it would present difficulties in most workplaces.

7. [305]

   Otherwise Mr Raue postulated suitable work to be work such as a community and personal services, clerical and administrative, such as supervisor of bar attendants, enquiry clerk, call centre work, radio dispatcher and insurance investigator. Reports of 8 February 2010 and 22 July 2013 provided outlines of duties and pay rates for a range of such positions, as well as positions for which retraining was required, such as real estate agent work.

8. [306]

   Ms Leaver's report of 10 February 2010 outlined the outcome of Mr Grills' functional testing. She concluded that he could not return to his police work, but that he could manage work of at least sedentary demands, with non-paced duties, because of his pain focus, which did not present well to employers. She considered, however, that there would need to be improvement with improved pain management techniques and motivation to return to work, before it was achievable.

9. [307]

   In the concurrent evidence it emerged that these experts had only had a brief time to prepare a handwritten joint report and had not had access to all of the same reports. In part their differences rested on Ms Asad preferring certain medical opinions over those expressed by Ms Leaver as to the results of her testing.

10. [308]

    Mr Raue and Ms Asad considered that Mr Grills had similar levels of skills, ability and transferable skills, but Mr Raue explained that he had kept an open mind as to whether Mr Grills' complaints of pain were genuine, or the result of a decision not to co-operate. There was finally no issue between the parties as to the nature of the pain Mr Grills continues to endure.

11. [309]

    Ms Asad remained of the view that Mr Grills was not fit for any work. Ms Raue believed that he had the capacity for full-time work and Ms Leaver that he had that capacity, possibly after upgrading from part-time work.

12. [310]

    Mr Raue agreed with the obstacles which Ms Asad identified, but considered them to be obstacles which could be managed. Ms Asad said that with rehabilitation support anyone could get a job if they were physically capable, but there were impediments to Mr Grills obtaining work.

13. [311]

    Ms Asad considered that episodic severe pain could impact on Mr Grills' attendance and performance, and that poor sleep could affect his mood and concentration, which could also be affected by the mental impact of his reduced career and opportunities. His stiffness of movement and long term unemployment also provided impediments. Mr Raue agreed that such difficulties existed, but did not consider that they were unmanageable and would prevent employment, given the extensive skills Mr Grills had to offer. Ms Leaver also considered they would not pose impediments, but that he could pursue sedentary work.

14. [312]

    Mr Raue and Ms Asad considered both full-time and part-time work were available to Mr Grills in administration, but considered full-time employment easier to obtain than part-time wok, which generally required higher levels of skill and experience.

15. [313]

    Both Mr Raue and Ms Asad also considered that self employment could be an option for Mr Grills, allowing him to manage his restrictions, but Mr Raue said that would require a very good idea and strong motivation and could require a lot more than simply being at home. It would also not necessarily allow self paced work, because of the need to make money and respond to customers. If Mr Grills had such motivation, it would point to his capacity to work for someone else.

16. [314]

    All of this evidence has to be considered in light of the medical evidence which I have earlier outlined.

The occupational therapists

1. [315]

   Ms Ravagnani assessed Mr Grills in February 2013, but did not provide a report until February 2014. He was assessed by Ms Hammond in July 2013. They prepared a joint report in which it was agreed, amongst other things, that his condition had stabilised, but that he presented with persistent pain.

2. [316]

   Ms Hammond and Ms Ravagnani also agreed that Mr Grills had required assistance with domestic tasks after the accident; that he required no further occupational therapy; that he required continuing assistance for heavy domestic tasks, including spring cleaning, gardening, outdoor tasks, home handyman, car cleaning and maintenance; and that further vocational assessment was not required.

3. [317]

   What was not agreed was the allowance which should be made for past personal and domestic care, future domestic assistance, future physical treatment and exercise, child care, vocational training and counselling education and employment needs, transport and driving needs and additional equipment.

4. [318]

   In their concurrent evidence it was explained that Ms Ravagnani considered that the acute phase of Mr Grills' injury, when he required personal care assistance was for six months, because he had suffered a spinal injury and Ms Hammond thought it was only three. She clarified that it could be up to six months, but that was a medical assessment. They agreed that afterwards such care was no longer required, but the need for domestic assistance continued.

5. [319]

   Their differences as to the amount of domestic assistance Mr Grills required, rested on their views as to his physical, as opposed to psychological capacity to undertake certain tasks. An assessment undertaken by a Ms Taylor had recommended a strategy of tasks being attempted, even though they caused discomfort, in small lots, which Ms Hammond considered reasonable and important for both Mr Grills' physical and mental health. Ms Hammond and Ms Ravagnani agreed that further problems resulted, when because of psychological problems, such tasks were not attempted.

6. [320]

   Ms Hammond considered that future physical treatments, such as acupuncture and physio treatment for relief of symptoms was not required, because Mr Grills had received significant treatment in the past, to which he had not responded. While he should keep physically active any specific treatment should be determined by a physiotherapist. Ms Ravagnani considered 16 hours of such treatment a year was required for symptom relief and to monitor his progress. It was necessary for him to commence physical activity in a supervised environment. Both housework and at home exercise was also to be encouraged.

7. [321]

   There were also disagreements as to the cost of such services and the need for childcare assistance, given his level of ongoing disability, and the need for various equipment Ms Ravagnani identified. This evidence too, must be considered in light of the medical evidence.

Damages QBE

1. [322]

   Despite the conclusion reached in relation to the claim under the Motor Accidents Compensation Act, it should be noted that QBE's case on damages was that the majority of Mr Grills' ongoing problems were psychological and that with appropriate treatment they might abate, if he was weaned off pain medication.

2. [323]

   It submitted that there was no evidence to support the conclusion that he had satisfied the jurisdictional limit imposed by s 131 for non economic loss (of 10% ); that past out of pocket expenses were to be born by the workers compensation injury and Mr Grills; that $15,000 should be allowed for future medication and $10,000 for future psychiatric treatment and $4,450 for a GP and $3,500 for vocational retraining. Future loss of income had to be calculated on the basis of a real prospect of a return to work in the next couple of years, earning amounts specified in the vocational reports. The jurisdictional limit for past care would only have been exceeded intermittently, after Mr Grills began living with his partner, with the result that $20,000 should be allowed. Future assistance should be assessed at $146,204, there being no entitlement under s 15B(2)(a) of the Civil Liability Act for child care.

3. [324]

   The conclusions which I have reached in relation to these various heads of damage, would have applied to the case against QBE, had a case been made out against it.

1. [325]

   The case advanced for Mr Grills was that given that he was aged 32 at the time of the accident and the permanent condition which he now suffered, Mr Grills would have to endure its effects for a long time. His police work had been a very central part of his life. He had lost his career, police work being the only work he had known since age 19, work which, on his evidence, had played an important part of his enjoyment of life and which he had intended to pursue.

2. [326]

   He still continued to endure severe levels of unpredictable pain. The uncertainty as to what is going to set that pain off and make it worse, made the pain he endured more likely to be a cause of psychological distress to him. His enjoyment of his life had been adversely affected, causing him the psychological distress he suffered. His disabilities also had a big impact on his enjoyment of life in relation to various activities he had previously pursued, as well as his enjoyment of his family life.

3. [327]

   Leightons' case was that Mr Grills suffered a skeletal issue to his spine at sites which in the course of ordinary healing resolve within 3-6 months. He had also suffered muscular and/or ligamentous injuries, which should have resolved in a similar time frame. Those injuries had been overlaid by emotional factors, which, although chronic, could be dealt with by conservative treatment in the form of counselling and physical activity and reconditioning. Mr Grills' ongoing pain was caused by emotional factors. There was hope that his condition would stabilise and reduce, after this litigation was over. In the result, his non-economic loss would be assessed at a lesser percentage than would be the case, if there had been neurological complications arising from the sole fractures which he had suffered.

4. [328]

   In the result Leightons submitted that this loss would be assessed at no more than 30-35%. Mr Grills submitted that it would be assessed at 50%.

5. [329]

   This claim is governed by s 3 of the Civil Liability Act, where non-economic loss is defined as: "... any one or more of the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement."

6. [330]

   Mr Grills' evidence as to what he has suffered since his injury, including very considerable, ongoing pain, was not challenged. Indeed, there was no real challenge to his credit. He has also developed other problems as the result of that persistent pain, which has physical consequences for his feet and gait, for example, as well as other problems such as concentration. His evidence as to what he has endured as a result must be accepted. The evidence given by his partner supported it. The evidence of his medical history and ongoing symptoms establishes that Mr Grills has been caught up in a most vicious cycle of treatments designed to alleviate pain which have not only not succeeded, but have resulted in other serious problems. While in the past his pain was caused by his physical injuries, the cause of his ongoing pain is now largely not physically based. That ongoing pain and the problems which it and his psychological injury continue to cause him has, however, affected not only Mr Grills' approach to his life and daily activities, but also how he is able to interact with his family and friends.

7. [331]

   There have been extensive endeavours at pain management, which have not brought him lasting benefits, reflective of the consensus which emerged, that much of his pain now has emotional causes. He has unquestionably suffered a serious psychological injury, for which he has received psychological counselling over the last five years, although the evidence did not establish that this treatment was directed at his psychological injury being causative of his pain, rather than the pain having a physical basis.

8. [332]

   Mr Grills' treatment history provides no basis for confidence of a complete recovery, once this litigation has come to an end, although Mr Grills himself accepted that would relieve certain stressors that he was labouring under. Nor will that necessarily be achieved simply as the result of, or a change in medical practitioner or treatment regime.

9. [333]

   Dr Boundy, for example, considered that Mr Grills' current pain management was inefficient and that there was a recognised need to wean Mr Grills off the considerable volume of drugs he is being unsuccessfully treated with, in order to break the cycle. That view was supported by the evidence of Dr Casikar and Dr Ivan Lorentz and Dr Ryan. That such measures will succeed cannot be assumed. That a further 12 months of psychological counselling will necessarily achieve what has not been achieved in the past 5 years, is also difficult to see.

10. [334]

    Leightons had to take Mr Grills as they found him (see Watts v Rake [1960] HCA 58; 108 CLR 158 at 160). As it accepted, it is undoubtedly true that he still continues to experience significant pain, even though in their joint report Dr Casikar and Dr Lorentz agreed that an otherwise fit and healthy male of his age would have been able to return to suitable part-time light duties after 3 months, progressing to pre-injury duties after a period of 6 months. They considered that the reason this had not occurred, was probably due to emotional causes, which they considered to be the principal cause for his inability to perform his previous duties and his ongoing pain.

11. [335]

    Dr Lorentz was not available to give evidence and so was not able to explain why he had come to agree with Dr Casikar, in the views expressed in the joint report. For Mr Grills it was urged that these views would not be accepted, in part because Dr Lorentz was not available to explain why he had departed from views expressed in his earlier reports and because the joint report did not adequately explain the reasons for the agreement which the doctors came to.

12. [336]

    It was urged that the views Dr Lorentz had initially explained would be accepted.

13. [337]

    In a report of 16 May 2013, Dr Lorentz, a consultant neurologist, said that Mr Grills' life was probably saved by the fact that the barrier he struck with his head was flexible. He had sustained significant trauma to his cervical and thoracic spine and to a lesser extent, his lumbar spine. His injuries made employment in the Police Force impossible and that psychological factors, continuing pain and anxiety and depression, as well as the use of narcotics and antidepressants, meant that he required cognitive therapy and psychiatric treatment. He had little prospects of employment.

14. [338]

    In his report of 27 June 2013, Dr Lorentz disagreed with Dr Casikar, that the spinal injuries which Mr Grills had sustained were 'minimal in nature', or that he would have recovered within three months, observing that even with a simple whiplash injury, in the absence of any demonstrated X-ray or CT changes, let alone fractures, pain in the neck, shoulders and arms could continue for up to 18 months. He expected that there would have been some improvement by three months and that light work could have been offered, after three or four months. A reluctance to return to motorcycle duties was understandable, but the reasons were both physical and psychological.

15. [339]

    The difficulty with these submissions was that it was Mr Grills who led evidence of Dr Lorentz's reports and who decided to proceed, notwithstanding that he had become unavailable to give concurrent evidence. It must be inferred that the two doctors discussed their respective views and that Dr Lorentz came to agree with Dr Casiker in terms of their joint report having regard to the matters that he explained his views rested on. Dr Casikar was cross-examined as to the basis of his views. The inability to cross-examine Dr Lorentz as to why he agreed, is not a basis for rejecting Dr Casikar's opinions, or those expressed in the joint report.

16. [340]

    In his oral evidence, Dr Casikar confirmed that he did not consider that Mr Grills' ongoing pain was attributable to either fractures of his spine or muscular or ligamentous injuries and explained why. He also explained that his opinion was that Mr Grills was suffering from the pain he described, but that it was not because of his fractures or any spinal instability. The fractures had healed and there was no instability. His pain was not caused by disc compression. His discs had not been injured by the axial load to which they had been subjected. Nor had the reduction in spine height by a few millimetres caused any significant impairment in spinal movement. The impact on the ligaments had also healed and thus could not be the cause of Mr Grills' ongoing pain.

17. [341]

    Dr Casikar explained that for such a serious accident, Mr Grills had suffered very minimal neurological injuries. In normal circumstances recovery from that level of injury would take three to six months. He explained that the ongoing symptoms of pain could be explained by the emotional disturbance Mr Grills had also suffered, there being only two possible causes, physical or emotional. If there was not recovery from pain within the normally expected timeframe for physical recovery, an emotional cause had to be looked for.

18. [342]

    For its part, Leightons submitted that Dr Casikar's opinion in his original report, that Mr Grills ought to have been able to return to his pre-injury duties without restriction and is physically capable of any kind of employment without restriction, would be accepted. That overlooked not only what in fact happened, namely that Mr Grills' attempt to return to work did not succeed and that the Police Force medically discharged him, but also the opinion which Dr Casikar later joined in the joint report. There it was agreed that given his medical discharge in 2010 and that he had not been able to perform any work for six years since the accident, it was more probable than not that Mr Grills is permanently unemployable.

19. [343]

    Dr Casikar also confirmed in cross-examination that he considered that given Mr Grills' persistent pain, not having worked for six years as a result, that he was permanently unemployable, given his ongoing symptoms of pain, depression, lack of self esteem and reluctance to go back. Dr Casikar also agreed that what had caused this situation was a question for a psychiatrist.

20. [344]

    On the evidence, Mr Grills' psychological condition certainly contributed to his failure to recover, as Dr Casikar and Dr Lorentz considered he ought to have, after the accident. Nevertheless, the other possible causes for persistent pain after three months which they identified, namely ongoing subjective pain after fractures have healed (normally in about three months) and spinal instability due to ligamentous injury, also have to be taken into account.

21. [345]

    Dr Casikar and Dr Lorentz did not find any spinal instability at the time they examined him and therefore discounted that as the cause of Mr Grills' ongoing pain. In his oral evidence Dr Casikar said that he expected such ligamentous injury to resolve within three to six months and that the elastic properties of the ligaments would have made the area stronger than normal tissue, because of the effects of healing. Thus there was no physical reason why he could not work and that the remaining barrier to his return to work must be emotional.

22. [346]

    Those opinions departed from the opinions of treating doctors, Dr Matalani, Dr Endrey-Walder and Dr Boundy, whose opinions rested in part on damage to his discs, which on the joint view of the neurologists, was not likely to cause ongoing spinal instability, or the level of pain which Mr Grills continues to experience. I consider that Dr Lorentz and Dr Casiker's views must be preferred.

23. [347]

    The end result of his injuries for Mr Grills is, however, unquestionably significant and ongoing. While there is real room for hope that he will achieve improvement in the future with different treatment, that he will improve in the manner submitted for Leightons is not assured.

24. [348]

    In the result, given the very significant impact on his health and his life and the likelihood that this will have a considerable and ongoing impact in the future, I have concluded that his non-economic loss must be assessed at 40%.

Past and future economic loss

1. [349]

   The principles that apply to the assessment of economic loss include what was discussed in Rabay v Bristow [2005] NSWCA 199 at [79]: "[79] The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as 'the process of estimation of possibility' in Malec v J C Hutton Pty Limited [199] HCA 20; (1990) 169 CLR 638 at 643 per Deane Gaudron and Gummow JJ. This is, as Santow JA has pointed out, 'necessarily an imprecise matter of estimation, carried out within broad parameters ...': Donald v McKeown [2004] NSWCA 285 at [38]."

1. [350]

   The past loss claim was based on the salary of a Leading Senior Constable, possible promotion and took into account wage increases over the relevant time and also the wages top-up received from the Police Force. There is no question that this aspect of the claim was established, for reasons which I have earlier explained.

2. [351]

   The calculation was also made on the basis that in the past Mr Grills had no residual earning capacity. That was in issue.

3. [352]

   The State submitted that the views of Drs Lorentz and Casikar would be preferred, with the result that it would be concluded that Mr Grills' fractures and ligamentous injures should have resolved within two years. It conceded nevertheless, that he should be allowed full loss of capacity to the time he was medically retired in July 2010.

4. [353]

   It submitted that it would be concluded that subsequently, he had residual capacity for employment of a sedentary nature, which should be assessed at 50% of his earning capacity as a police officer of $650 net per week, although in the oral submissions it was conceded there were some problems with that approach. In the result its case was that damages should be calculated at $1,100 per week for the period 25 February 2007 to 31 July 2010 and at $650 thereafter.

5. [354]

   For Leightons it was submitted that Dr Maguire's opinion, that Mr Grills had developed a range of psychological symptoms consistent with chronic adjustment disorder and anxiety and depressed mood, was one which seemed to accord with the preponderance of specialist opinion and that of the experts. Its case was that his condition could be successfully treated in the future. It has not been in the past.

6. [355]

   Leightons submitted that it would be concluded that Mr Grills was physically capable of work from 6 months post injury, as Dr Steel certified in April 2007 and Dr Bishara certified in November 2007. This had been complicated by his emotional problems. It was accepted that their effects were real, but argued that their extent was not such as to have precluded him from all work in the past.

7. [356]

   That submission did not, however, pay any regard to the evidence elicited from Mr Grills in cross-examination, as to Dr Steel's view that he would not be able to return to his pre-injury role before February 2008.

8. [357]

   Mr Grills had been placed on various exercise programs, which he had undertaken, on his evidence it was also submitted for Leightons, in order to maintain his mobilisation. He also had the ability to type, operate computers, use the Internet and recording devices. He had not returned to work, but had won prizes for models that he had entered in the Plastic Modellers Association competitions.

9. [358]

   His evidence was that he would like to return to the workforce for his own wellbeing and feelings of self worth. He had discussed with Ms Simpson the possibility of working in his own business, with his wife. He had expressed an interest in working in the field of real estate. The occupational therapists agreed that more physical activity would be of benefit to him.

10. [359]

    In the result, it was argued that it would be concluded that he was perhaps more pessimistic as to his likely ability than his condition warranted. In the view of the psychiatrist, there was a need for his self-esteem and self worth to be built up.

11. [360]

    It was urged that it would be concluded either, that Mr Grills had a residual capacity to perform some work, which had not been utilised, from six months after his accident, or that he was incapable of performing the duties of a police officer, up to the time of his medical retirement, but afterwards, he was capable of performing sedentary duties, which had not been tested.

12. [361]

    That residual capacity would be assessed at least at 50% of his pre-accident employment. The sedentary work of a clerk or other casual employee was available to him in the past and might increase in the future.

13. [362]

    The difficulty with the case so advanced is that it does not pay sufficient regard to Mr Grills' psychological injury, the unquestionable effects of the pain which Mr Grills was suffering and the consequences of the increasing narcotic treatments he was being prescribed, in order to deal with that pain and the views of the doctors, I have referred to, as to the importance of these problems in his ability to work.

14. [363]

    Mr Grills has not worked since the accident, although he was able to work at home, at his own pace, on his computer in order to complete his degree. He attempted, but failed to resume work with the Police Force and was medically retired in 2010. At times he was assessed to be physically capable of returning to work, but on his evidence, given the levels of pain he was enduring and its consequences and those of the treatment he was receiving, he was not able to do so. That he was ever able to work in the past can simply not be accepted, given all of the evidence I have referred to, especially that of Dr Lorentz and Dr Casiker. He is still not able to do so, given the ongoing consequences of his psychological injury and pain.

15. [364]

    While I consider that there is room for the view that Mr Grills has a residual earning capacity which he may be able to tap into in the future, that it existed in the past, in any practical way, given his psychological injury, the treatment he received and their consequences, that he had such a capacity in the past which he failed to utilise as he should have, was not established.

16. [365]

    It follows that Mr Grills has established the past loss which he claims. There can be no deduction for any residual earning capacity in the past.

Future loss

1. [366]

   The assessment of future economic loss must be undertaken in light of s 13 of the Civil Liability Act which provides: "13 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."

2. [367]

   Mr Grills accepted that when this litigation is over, there will be less stress and therefore an improvement in his mental state, but it was submitted that it was not open to conclude on the evidence that there would then be a loss of the real pain that he continues to suffer, or that he would achieve a greatly increased capacity to return to the workforce.

3. [368]

   For Mr Grills it was submitted that future economic loss could not be so calculated. For him a calculation based on Mr King's scenario C was urged, that assuming that Mr Grills achieved promotion to the rank of inspector, with an adjustment to the vicissitudes percentage, which could take into account that he might not fully achieve that scenario, from which figure there would be a deduction for any residual earning capacity found. Such capacity would be calculated over the same period, by reference to a figure which reflects a proper allowance, on an average weekly basis, for the fact that notwithstanding that Mr Grills does not look to be competitively employable, he might find some part-time work. Such a finding as to residual earning capacity would allow for the chance of improvement, not only in the level of his disability, but also his capacity to potentially find something.

4. [369]

   The figure advanced for Mr Grills fell into the range of nil to $250 per week. It was not based on any of the projections of the Vocational Capacity Centre, which had regard to the consequences of him achieving sedentary employment in fields such as clerical work, call centres, radio dispatch or in real estate, no basis for their adoption having been established. The figure, it was explained, reflected Mr Grills' total potential earnings. It was arrived at by starting from a gross figure of about $15,000 or $16,000, about $350 gross per week. It reflected that Mr Grills would be a totally unreliable employee, in terms of when he could perform intermittent duties and also allowed for potentially long gaps in employment.

5. [370]

   Leightons submitted that the assessment of his future economic loss was complicated by the nature of Mr Grills' injury and the treatment he has received. Mr Grills himself recognised that he ought to get back to some activity or work for his own self worth and self-esteem and that his emotional problems, which caused his pain, might be reduced as a result.

6. [371]

   This, it was submitted could be reflected in the assessment of future economic loss in one of three ways: 1. Initially a 50% residual capacity for a few years, which increased then, resulting in a reduced causation of loss; or 2. An increase in the usual reduction for vicissitudes; or 3. By adoption of a buffer, balancing the imponderables raised on the evidence, for example, a loss of $500 per week for 26 years with a reduction for vicissitudes of 30%.

7. [372]

   Alternatively scenario B of the calculations undertaken by Mr King, which assumed that Mr Grills achieved the rank of senior sergeant, could be reduced by 50% for residual capacity. This would be consistent with the adoption of the evidence of Mr Raue.

8. [373]

   This assessment must be approached in the way discussed in Nominal Defendant v Livaja [2011] NSWCA 121 where it was observed at [65]: " ... Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation ..."

9. [374]

   In Mead v Kerney [2012] NSWCA 215 reference was made to at [25] to the evidential onus which falls on defendants to show that the plaintiff has a residual earning capacity that he is practically capable of exercising. In Kallouf v Middis [2008] NSWCA 61 it was observed at [52] that: "In Arthur Robinson (at 657) Barwick CJ observed that lost earning capacity 'ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate', a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) in Morgan v Costello [2004] WASCA 260 (at [99]) as supporting the proposition that 'the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity.'" (Emphasis added)

10. [375]

    The evidence did not establish that any jobs were in fact open to Mr Grills, either presently, given his current problems, or in the future, if his pain and its consequences improve with further treatment. Given the views of the occupational and vocational experts I have referred to, there must be real reservations about how much is achievable and how soon.

11. [376]

    It cannot, however, be doubted that Mr Grills has transferable skills which, apart from his ongoing pain, psychological problems and the impact of the medication which he takes on his ability to concentrate, for example, would allow him to exercise a residual earning capacity. That would not only be to his real benefit, but what he himself desires to achieve. He is an intelligent man who had considerable success in his career in the Police Force, commanding the respect of his peers and superiors and but for his injuries, would plainly have advanced further in his career. Even after his accident he was able to utilise his intelligence and skills to complete his degree.

12. [377]

    In cross-examination, Mr Grills said that he would like to return to the workforce, for the sake of both himself and his family and would even consider acquiring a business, which he and his partner could work in together, but that would depend on both his health and his finances. Understandably he could not jump blindly and had to be realistic as to the impact of his limitations.

13. [378]

    The difficulty with an assessment of his residual earning capacity into the future is the consequences of his ongoing problems, particularly the real pain which continues and which has prevented him from pursuing paid work and the effects of the treatment which he receives for that pain and the available of work which could accommodate his problems. That his pain has had a physical basis in the past, was established. That in large measure it now continues as the result of his ongoing psychological problems, must be accepted. That problem is unquestionably exacerbated by his dependence on pain medication and the physical consequences of that dependence.

14. [379]

    From both the evidence of his own desires and the medical evidence I have referred to, there is a basis to expect that he will be able to improve with further treatment. There can, however, be no certainty of a complete recovery.

15. [380]

    All of this means, it seems to me, that it must be concluded that for a period, Mr Grills will continue to have no residual earning capacity, because even if further treatment begins to succeed, the exercise of that capacity could only be part-time, intermittent and unreliable. There is no evidence that employment which could accommodate such difficulties is realistically available to him now, or in the immediate future.

16. [381]

    There will come a point when that is likely to change. Even then, there will be challenges, because of competition for work and the difficulty of finding an employer prepared to accommodate Mr Grills' problems and the fact of what will by then have been a considerable time out of the workforce. That there will then be work of the kind which he requires available to him, is not guaranteed. Nor is it guaranteed that he will be able to go into business for himself.

17. [382]

    In the result, I have concluded that his future loss of earnings should be by way of a buffer calculated firstly on the basis of no residual earning capacity for a further period of two years and secondly, from then, on the basis of scenario B in Mr King's report, based on the applicable award rates, less a residual earning capacity of $250 per week, with vicissitudes calculated at 12%. That I consider, is appropriate in this case, given the basis of the calculation, namely scenario B in Mr King's report and the evidence as to Mr Grills' prospects for career advancement, had he not been injured.

18. [383]

    In Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 the deduction for vicissitudes was thus explained: "18. It is necessary to say something as to contingencies or "vicissitudes". Calculation of future economic loss must take account of the various possibilities which might otherwise have affected earning capacity. The principle and the relevant considerations were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter ((1968) 122 CLR 649 at 659) as follows: "Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are superseded by new and different techniques, the onset and effect of automation and the mere daily vicissitudes of life are not adequately reflected by merely - and blindly - taking some percentage reduction of a sum which ignores them." 19. It is to be remembered that a discount for contingencies or "vicissitudes" is to take account of matters which might otherwise adversely affect earning capacity and as Professor Luntz notes, death apart, "sickness, accident, unemployment and industrial disputes are the four major contingencies which expose employees to the risk of loss of income" (Assessment of Damages for Personal Injury and Death (3rd ed, 1990), p 285. See also Jones v Schiffman (1971) 124 CLR 303 at 305 per Barwick CJ; Mitchell v Mulholland (No 2) [1972] 1 QB 65 at 75). Positive considerations which might have resulted in advancement and increased earnings are also to be taken into account (See, for example, Lulich v Bell Bros Pty Ltd (1967) 41 ALJR 268 at 268, 270 ; Broadribb v Hanna [1969] 1 NSWR 35 at 42 ; Jones v Schiffman (1971) 124 CLR 303 at 315 where positive contingencies were taken into account. See also Ritchie v Victorian Railways Commissioner (1899) 25 VLR 272 at 276 ; General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234 at 258 ; Murphy v Houghton & Byrne (Qld) Pty Ltd [1964] QWN 6 at 15-16 ; Sinclair v Bonnefin (1968) 13 FLR 164 Mallett v McMonagle [1970] AC 166 at 177 ; Toneguzzo-Norvell v Burnaby Hospital [1994] 1 SCR 114 at 124 ; 110 DLR (4th) 289 at 295 where it was recognised that contingencies can be favourable as well as adverse) for, as Windeyer J pointed out in Bresatz v Przibilla ((1962) 108 CLR 541 at 544. See also Teubner v Humble (1963) 108 CLR 491 at 508-9 Blackstock v Patterson [1982] 4 WWR 519 at 533), "(a)ll 'contingencies' are not adverse: all 'vicissitudes' are not harmful". Finally, contingencies are to be considered in terms of their likely impact on the earning capacity of the person who has been injured, not by reference to the workforce generally (Lewis v Todd [1980] 2 SCR 694 at 714 ; 115 DLR (3rd) 257 at 271-2). Even so, the practice in New South Wales is to proceed on the basis that a 15% discount is generally appropriate (See, for example Moran v McMahon (1985) 3 NSWLR 700 at 713-14 . Note the criticism of Kirby P at 706. See also Burnicle v Cutelli [1982] 2 NSWLR 26 at 30 ; Hobell v Leonard (SC(NSW), 29 May 1990, unreported) at 4), subject to adjustment up or down to take account of the plaintiff's particular circumstances."

19. [384]

    In Bresatz v Przibillai [1962] HCA 54; (1962) 108 CLR 541, Windeyer J also observed at pp 543-4: "What it involves depends, not on arithmetic, but on considering what the future might have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid. He might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these "contingencies", or the "vicissitudes of life" as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. We were told that in South Australia it is a common practice to subtract twenty-five per cent "for contingencies". Indeed counsel for the appellant, in the calculations he made in support of his claim for higher damages, conceded that this should be done. But he did not explain why. I know of no reason for assuming that everyone who is injured and rendered for a period unable to work would probably in any event have been for a quarter of that period out of work, or away from work and unpaid. No statistics were presented to justify this assumption. Moreover, the generalization, that there must be a "scaling down" for contingencies, seems mistaken. All "contingencies" are not adverse: all "vicissitudes" are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad."

20. [385]

    In this case the calculation as to future earnings proceeds on an appropriate basis as to Mr Grills' future promotion prospects and likely earnings in the Police Force. Had he not been injured, on the evidence it is, however, conceivable that he would have achieved greater success in his career. It is accordingly not appropriate to further increase the usual discount for vicissitudes, but rather to decrease slightly the usual 15% discount, to properly take into account this possibility. Accordingly, vicissitudes should be calculated as 12%.

21. [386]

    The State submitted that attention would be paid to the retirement age for the Police Force of 60 years of age, with an option to retire at 55. Notwithstanding that provision, I consider that the calculation should be based on a retirement age of 65, as Mr Grills claimed. As the State accepted, this calculation rests on certain assumptions. But for his injury Mr Grills might have done better. A calculation to age 65 is, it seems to me realistic in this case and has regard to matters such as increasing life expectancy, which not only drives ongoing interest in continuing employment, but need.

Superannuation

1. [387]

   The calculation of both past and future superannuation losses was agreed.

Out of pocket expenses

1. [388]

   Past medical expenses were agreed.

Future medical expenses

1. [389]

   Mr Grills' claim was for a buffer figure of $40,000, which was explained to be based on future care by a GP, not a specialist such as Dr Boundy, as well as further treatment for a period by a psychologist and the ongoing costs of medication. Mr Grills accepted that this assessment could not be precise.

2. [390]

   Leightons' case was that Mr Grills would require ongoing medication for a period, as well as further treatment, but that given that there was no physical reason standing in the way of his recovery, the figure should be smaller of some $30,000. QBE urged a total sum of some $32,950.

3. [391]

   It seems to me that to approach this head of damage on the basis of a buffer is appropriate in this case, but that the figure should be somewhat higher than Leightons proposed, given that it seems to me that Mr Grills' recovery is not certain and his improvement may not be as rapid as it postulated.

4. [392]

   I have concluded that this head of damage should be assessed at $35,000.

Past care

1. [393]

   An agreed figure of $37,444 for past care was arrived at with the State after discussion, which was not opposed by Leightons, Mr Grills having accepted that the six hour statutory threshold would not have been passed after six months.

Future care

1. [394]

   Mr Grills submitted that the evidence established his need for future care, some of which required a house keeper or babysitter to be engaged. At the time of hearing his children were aged 6 and 1. He finally pressed a figure of $131,350, being a $100,000 buffer for all future care, paid or voluntary, incorporating both child care or care of the plaintiff in relation to his needs to look after the children, plus $31,500 calculated by reference to $33 per week for gardening.

2. [395]

   Such an order was not opposed by the State.

3. [396]

   Leightons' position was that it accepted the calculation for gardening, but otherwise its position remained unaltered. It had earlier submitted that this assessment had to have regard to the concurrent evidence of Ms Hammond and Ms Ravagnani. They had a fundamental difference in approach, given Ms Hammond's assessment that Mr Grills required domestic assistance of only some 1.5 hours per week from 2008 and Ms Ravagnani that he would require 6.6 hours. They also differed in their opinions as to the role such work played therapeutically, although they agreed that it was important for Mr Grills to continue to pursue such activity, as it would assist him. They also agreed that it would assist him to have another trial of vocational rehabilitation.

4. [397]

   Leightons submitted that the evidence did not establish that Mr Grills would exceed the statutory threshold in s 15 of the Civil Liability Act for gratuitous care and that it would be concluded that only the heavier domestic tasks are beyond Mr Grills, as Ms Hammond had assessed. Section 15 relevantly provides: "15 Damages for gratuitous attendant care services: general (1) In this section: attendant care services means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months."

5. [398]

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

6. [399]

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

7. [400]

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

8. [401]

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

9. [402]

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

10. [403]

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

Future therapy, driving aids and equipment

1. [404]

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

2. [405]

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

3. [406]

   In the result that claim must succeed.

Order

1. [407]

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

2. [408]

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

3. [409]

   In the event that the parties need to be heard further on such matters, they should approach. Otherwise short minutes of the agreed orders should be filed. 24 March 2014 - slip rule and by consent - 40% and 45% changed to 47% and 53%. Amended paragraphs: [221]