Motorbike cop cleared of crash blame

A New South Wales motorcycle policeman who was seriously injured in a crash while preparing for a United States vice-presidential motorcade has been cleared of any fault.

Senior Constable Adam Lee Grills was injured when his bike hit a boom gate while he was inspecting a Sydney motorway in preparation for former US Vice President Dick Cheney’s motorcade to Sydney International Airport on February 25, 2007.

He successfully sued Eastern Distributor operator Leighton Contractors Pty Ltd and the State of NSW for negligence and duty of care breaches, but appealed against NSW Supreme Court Judge Monika Schmidt’s finding he was 15% responsible for the crash.

The original trial was told Senior Constable Grills was part of a NSW Police highway patrol team working with Leighton Contractors to keep the Eastern Distributor clear for the motorcade.

The officer had been instructed to conduct an urgent “sweep” of the motorway after authorities learned Vice President Cheney had left his hotel for the airport earlier than expected.

Senior Constable Grills believed the motorway to be free of traffic and hazards and was riding at speeds of between 110km/hr and 140km/hr.

The court heard a Leighton staff member lowered a boom gate during the security sweep, possibly due to him misunderstanding comments from a police inspector in the control room or insufficient instructions from his employer.

Senior Constable Grills was unaware of the lowered boom gate and did not see it until it was too late to stop or avoid it. Justice Schmidt estimated he hit the gate at about 115km/hr.

She found both Leighton Contractors and the state of NSW negligent because they had breached their duties of care to the police officer. She attributed responsibility to NSW at 53% and Leighton at 47% but also found contributory negligence of 15% against Senior Constable Grills for failing to keep a proper lookout.

Senior Constable Grills appealed against the contributory negligence finding while Leighton and the New South Wales Government cross appealed against their negligence findings, each blaming the policeman’s speed and lack of care, and the actions of the other for the incident.

The police officer also appealed against the finding of negligence against the State because a finding of liability against Leighton only would have been more advantageous to him under the NSW Workers’ Compensation Act.

Appeal Court President Justice Margaret Beazley, with whom Justices Reginald Barrett and Fabian Gleeson agreed, on March 27 this year dismissed Leighton’s and the State’s contention Senior Constable Grills’ speed and lack of attention had caused the crash.

Justice Beazley said the officer received clear instructions to inspect the motorway urgently because the Vice President’s motorcade was heading to the airport, and it would have been understood the inspection would take place at speed.

Under the circumstances, Senior Constable Grills’s speed could not be considered excessive but it meant he would have had difficulty seeing the lowered boom gate or stopping in time, the judge said.

She rejected both Leighton and NSW’s attempts to blame each other for the actions that led up to the crash.

“There was no evidence police stationed in the control room had an oversight role” and were therefore not in control of the Leighton employee who lowered the boom gate, Justice Beazley said.

“The officer was present only as a line of communication between the control room and the police.”

She said it appeared little formal instruction of what needed to be done to secure the road for the motorcade had been provided to Leighton employees by the contractor or the police on duty.

While a Leighton’s employee had lowered the boom gate, which made the contractor responsible for the action, he had followed a police inspector’s “ambiguous” instruction.

“The instruction was inadequate on many levels. It did not have the clarity or detail required to convey precisely what was to be done or not done,” Justice Beazley said.

She said Justice Schmidt was correct in ruling the NSW Police Force had breached its duty of care to Senior Constable Grills as an employee of the State and could not escape liability.

“The State owed [Senior Constable Grills] a non-delegable duty ... to take reasonable care to avoid exposing him to unnecessary risks,” she said.

She upheld Justice Schmidt’s apportionment of negligence against Leighton Contractors and the State of NSW but cleared Senior Constable Grills of fault. Justice Beazley rejected the policeman’s attempt to have the state cleared of negligence to help him with his workers’ compensation claim.

“On its face, the appeal in this matter is curious,” she said. “A plaintiff who had succeeded against each defendant came to the Court of Appeal seeking to establish that one of those defendants was not negligent at all.

“The answer to the curiosity is to be found in the somewhat tortuous provisions of the Workers Compensation Act. For the purposes of the assessment of damages, the appellant was better off to have no verdict against the State and for liability to reside only in Leighton, or alternatively for the apportionment of liability to the State to be as low as possible.”

Justice Beazley said Senior Constable Grills had not achieved his purpose in that respect, although he was successful on having the contributory negligence finding overturned.

She said Leighton and the State had each failed in their cross-appeal in all respects.

(Grills v Leighton Contractors Pty Ltd [2015], NSWCA 72, 27/03/2015)