The case of Grills v Leighton Contractors Pty Ltd (No 2) [2013] NSWSC 1951 (20 December 2013) was brought to my attention by a professional colleague who thought it would be of interest to readers of this blog given what it says about the duty of police officers when proceeding on urgent duty. I will get to that, but in fact I think readers of this blog will be more interested in what the case says about the attitude of insurers to injured workers, and even more interested in what it says about how we manage significant events in NSW. If this is risk and emergency management at its best, I’d hate to see it at its worst.

The facts:
The Vice President of the United States was visiting Australia in February 2006. A motorcade was to take him too and from Sydney airport via the Eastern distributor. The distributor was to be closed in that no vehicles other than those involved in the motorcade were to be on it. I shall return to that issue.

On 22 February, when the Vice President arrived, everything when according to plan (to the extent there was a plan). Three boomgates, that blocked off access to the Eastern Distributor were closed, the Vice Presidential motorcade passed through and all was fine. Three days later, on 25 February, the VP was to return and the procedure was to be as it had been three days before. Police officers were stationed at the access roads and the boomgates lowered. Two motorcycle police officers were meant to do a final sweep of the route just prior to the motorcade departing. One of those officers was held up on other duties and the time of departure had been moved forward so it was up to one officer to ride the route in both directions. That officer was Senior Constable Grills.

Senior Constable Grills set off at high speed, that is proceeding on ‘urgent duty’. As he travelled along the Eastern Distributor he saw signs indicating the road was closed and there were red crosses, rather than green ticks, in the lane indicator lines, all of which are there to show drivers the road is closed. He understood that to mean, as it had been three days earlier, that the road was closed to civilian traffic, but it would seem obvious that the road was in fact open as a motorcade was about to pass through it. In fact a control room operator employed by the road operator, Leighton, had lowered a boom gate across the road, effectively closing the road to all traffic. Senior Constable Grills did not know that, as he proceeded he collided with the barrier and was seriously injured, so seriously that he was ultimately retired from the police force on medical grounds.

The real issue
This was a fight between insurance companies. Leighton said it was all the fault of the State (ie the police) as they were in charge of the operation. The police said it was the fault of Leighton as they operated the control room and closed the boom gate. All vehicles, including police vehicles, are registered and carry third party insurance. The third party insurer, QBE said the cause of the work was poor work standards not the use of the motorcycle so it should be the workers compensation insurer not the CTP insurer that should pay. And everyone said, in any event, it was S/C Grills fault for riding too fast and not keeping a proper lookout.

The real problem
My reading of the case was the real problem was not the conduct of S/C Grills but the whole operation. I don’t usually editorialise on cases, but this one is hard to believe. Here was the Vice President of the United States travelling through Sydney and no-one seemed to know what the plan was.

The operator at Leighton’s said he was told to close the road and he said he understood that meant to, literally, close the road, even though that had not been done three days before and even though it was intended that the road was to be used by the motorcade. The Inspector, running the show denied having that conversation with the operator. It appears that the only communication he had with Leighton’s at all was sometime before the event. One can imagine that, at that time, there was discussion about ‘closing the road’ but that meant closing it to civilian traffic, not to all traffic.

A police officer was stationed in the Leighton’s control room as a liaison officer, but the control room operator did not know why she was there, and it was not her job to direct him. So he said he was going to close the boomgate, he didn’t ask her if that was OK and she wasn’t in a position to know what he was meant to do in any event.

Why didn’t someone follow the plan? It appears there was none, or at least none in writing. The police officers, including S/C Grills were all given written instructions but no written plan was developed with Leighton. Notwithstanding they had carried out the operation three days before and there was evidence from the Roads and Traffic Authority that they recorded that the road itself was not to be closed, no-one thought to look back over the records of that operation and see what they had done before or were meant to be doing this time.

One can see the confusion. The operator is told the road is to be closed. The police mean ‘closed to civilian traffic’ but he took them to mean ‘closed to everyone’. No-one at Leighton gave him instructions as to what he was to do, the police gave some verbal instruction to someone some time before the event, but not to their liaison officer and none of it was recorded in writing. The Leighton’s operator did not know why the liaison officer was there and no-one had regard to what they’d done just three days before.

I think that’s all that needs to be said.

Law Enforcement (Powers and Responsibilites) Act 2002 (NSW) s 186
Leighton’s attempted to make an interesting argument regarding this section. It says:

(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

They argued that as they were complying with s 186 they could not be responsible for the consequences. In legal terms their duty to comply with s 186 meant they had no duty of care to S/C Grills.

That is an interesting argument and would be relevant to others in the emergency services. For example if a police officer directed a member of the RFS to close a road there could be no duty to other road users that would require them to pass. Equally if the road was closed at some point where it was dangerous the RFS could not be liable if it was the police that had given them the direction that the road be closed there.

An interesting argument but it got nowhere because, notwithstanding the accident happened in 2006 and the case was heard in 2013, Leighton’s didn’t ‘plead’ this defence until the second day of the trial. The court rules say that each party has to explain the case it’s going to make well before the trial and they didn’t. Further, as the judge found, no direction was given under this section so the argument was irrelevant.

The resolution
At the end of the day the judge found that it was a workers compensation, not a traffic accident case (letting QBE off the hook) and that the State was liable for 53% and Leighton’s for 47% of S/C Grills’ damages.

Contributory negligence
There was also the issue of whether or not S/C Grills contributed to his own injuries due to the speed at which he was riding and his failure to observe the boom gate which everyone agreed (given the light, angle of approach etc) was every hard to see, but he was doing a sweep of the route so presumably was meant to be looking for things that would impede the motorcade.

Strangely enough it ‘was put to Mr Grills in cross-examination… that a police officer must obey all road rules, including the speed limit which ordinarily applied to the Distributor’ ([88]). I say that is strange as that is a question of law, not of fact. The law says the contrary; in this blog I’ve referred to clause 306 of the Road Rules 2008 (NSW) which relates to the driver’s of emergency vehicles (fire appliances, ambulances, SES vehicles). Clause 305 is in the same terms and applies to police.

The judge simply repeated clause 305 to conclude that ‘it is not always the case that a police officer must obey all road rules’ (emphasis added).

The speed limit on the Distributor was 80km/h. It was alleged that S/C Grills was travelling at 140 km/h but this was rejected. The judge found {at [197]} ‘his top speed was closer to 110 or perhaps 115 kph’. This, in the judge’s opinion was not unreasonable given the urgent nature of his duty and the expectation that he was travelling on a road that was free of other traffic.

Even though he did have an obligation to take care. As the judge said at [198] and [201]:

Even though he was on urgent duty … he was still obliged to keep a proper lookout, while engaged in that duty, as he accepted… 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.

Leighton and NSW argued that he should be held to have contributed 75% to his own injuries. The judge found that his contributory negligence was 15% [212].

Legal lesson
The legal lessons from this case, being the decision of a single judge, are limited. They are, at best:

1) ‘it is not always the case that a police officer [or emergency worker] must obey all road rules’ but
2) ‘Even though … on urgent duty … [a driver is] still obliged to keep a proper lookout’

Neither of those findings are new or controversial. They are clearly part of the law and have been for many years.

The EM lesson
The lesson for emergency management is surely also not new or controversial. It’s about the need for communication between agencies and not assuming that what you’ve said has been understood. The ambiguity between closing the road to civilian traffic and closing the road to everyone was part of the problem. But failing to have a plan that has been negotiated between the agencies (NSW Police, RTA, the Australian Federal Police, the Prime Minister’s department, the Australian Defence Force, Leightons, the ambulance service (what if there had been an incident involving the VP on the road, could an ambulance get in), putting that plan in writing, and, ideally, practising it, simply beggars belief, as does having a liaison officer without clear instructions as to what her role was. Failing to ensure all of that was done was a failure by the State that was managing the visit. But how could the operator think his job was to physically close the road that the VP was to travel along?