Byron council to pay damages
By HELEN JACK
BYRON Shire Council has been ordered to pay former policeman Bruce Carmichael $185,000 in damages after an accident involving one of council's graders.
Chief District Court Judge Blanch found council and the driver of the grader to have been negligent during the accident in Upper Main Arm Road in 2001.
During the ordeal, Mr Carmichael received spinal injuries and has since left the police force.
The court was told that on the day of the accident Mr Carmichael and three other police from the State Protect Support Unit (SPSU) had responded to a call to attend an incident in a remote area along Upper Main Arm Road where a man had assaulted his father and had fired a shot from a .303 rifle.
The man was known by police to have a criminal history and police were concerned over the safety of his mother, who was also at the location.
Floodwaters had inundated the area and all the causeways along Upper Main Arm Road were under water. Unable to use a helicopter to get to the location, police approached Byron Shire Council for help.
Council offered the use of its Caterpillar grader and the services of its overseer of road construction, Cec Charleton, a 30-year grader-driving veteran.
Senior Constable Wayne King rode in the cabin beside Charleton, Senior Constables Vincent and Barry Carr rode on the engine cover and Senior Constable Carmichael at the back of the cabin.
Mr Charleton testified he was confident of his ability to deliver the officers and their equipment, which included guns and bullet-proof vests, to the location through fast-flowing floodwaters. He explained how he could retrieve the grader if a wheel were to go over the edge of a causeway by lowering the grader's blade to the ground and articulating the vehicle back on to the causeway.
Mr Charleton said after moving the two front wheels of the grader into fast-flowing water on the second causeway, one which he thought was the most dangerous, he was satisfied the grader could not be washed away because he believed the other causeways were not as dangerous.
When the grader reached the sixth causeway near Upper Main Arm School its left front wheel dropped over the edge of the pavement and on to the grader's main chassis, stopping the machine.
Within seconds the grader began to roll to the left and into the raging water.
Mr Charleton testified he threw open the right-hand side door and jumped clear of the grader and into the water, ending up on a clump of lantana downstream.
He said he grabbed hold of Snr Const Carr as he floated past, hauling him from the water.
Both men kept hold of a fence to keep from falling back into the water and were able to clamber back to the road and to the school. They found a rope and returned to rescue the others from the water.
The men spent the night at the school.
Judge Blanch said the policemen felt safe in the hands of Mr Charleton and his ability to get them to the location through the floodwaters.
He said Mr Charleton always knew there was a possibility the left wheel may go over the edge of a causeway, but he was confident if it did happen he could safely recover the situation.
But on causeway six, which was narrower than the others, a combination of floodwater flowing across the road and down the road somehow caused the grader to overturn.
Judge Blanch said it was apparent Mr Charleton had no idea where the left side of the causeway was and his memory was not good enough to allow him to know where the bend in the causeway went.
"Whether his breach of duty of care is deciding to cross the causeway, or his failure to negotiate the causeway, it is clear in my view there was a breach in his duty of care as a reasonably prudent driver and in the circumstances."
Judge Blanch said there was an assurance given that the very experienced grader driver was confident he could transport the police officers along the road in those circumstances to the agreed location and he awarded damages to Mr Carmichael.
He also found the police service was not at fault for sending its officers into the location under the circumstances.