Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd (No 7)
[2014] NSWSC 1188
•28 August 2014
Supreme Court
New South Wales
Medium Neutral Citation: Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd (No 7) [2014] NSWSC 1188 Hearing dates: 23 July 2012 - 31 July 20121 August 2012 - 15 August 20122 November 201212 December 201212 August 2013 26 August 2013 2 September 2013 - 30 September 2013 1 October 2013 - 2 October 201315 October 20132 December 2013 - 12 December 2013 Decision date: 28 August 2014 Jurisdiction: Common Law Before: Price J Decision: 1. Verdict and judgment for the plaintiff (the Roads and Traffic Authority of New South Wales now known as Roads and Maritime Services) against the first defendant (Barrie Toepfer Earthmoving and Land Management Pty Ltd).
2. Verdict and judgment for the cross-defendants (CGU Insurance Ltd, Vero Insurance Ltd, and NTI Ltd) against the cross-claimant (Barrie Toepfer Earthmoving and Land Management Pty Ltd) on the first cross-claim.
3. Verdict and judgment for the cross-defendants (the Roads and Traffic Authority of New South Wales, and the State of New South Wales) against the cross-claimant (Barrie Toepfer Earthmoving and Land Management Pty Ltd) on the second and third cross-claims.
4. See 'Orders for Referral' at p 172.
Catchwords: CIVIL - s 102(2) Roads Act - Hexham Bridge - truck load over height - whether negligence or culpability is a necessary ingredient of a claim - whether RTA officer directed re-configuration of load which increased the height above the maximum permissible - whether RTA officer breached his duty of care - INSURANCE - whether truck driver was reckless - conditions of insurance policy - whether driver had actual knowledge of the danger - whether finding of driver's recklessness entitled insurers to refuse indemnity - whether s 234 Roads Act protects RTA and State from suit - whether RTA officer was employed in the service of the Crown - CAUSATION - whether RTA officer's negligence was a necessary condition of damage - whether RTA officer was acting in good faith - whether inconsistency between s 49 Roads Transport (General) Act and s 234 Roads Act - whether s 102 Roads Act displaces concepts of the law of damages - consideration of cost of making good the damage - whether cost of investigating damage falls outside s 102 whether principles of reasonableness have relevance - DAMAGE - pre-existing damage - whether recovery limited to making good damage to bridge caused in accident - whether defendant must take bridge as it found it - whether defendant's liability reduced for pre-existing damage - findings as to pre-existing damage - findings as to damage caused in the accident - expert evidence - emergency repairs - mechanical damage and other inspections - traffic control - whether defendant liable for replacement of ropes and counterweights - lift span repairs - structural bridge repairs - mechanical - electrics - referral to referee. Legislation Cited: Australian Road Rules r 102
Civil Liability Act 2002 (NSW) ss 3A, 5B, 5B(2)(b), 5B(2)(c), 5D, 5D(1), 43, 46
Fire Brigades Act 1909-1956 (NSW) s 46
Interpretation Act 1987 (NSW) ss 30, 30(1)
Law Reform (Vicarious Liability) Act 1983 (NSW) s 8
Limitation Act 1969 (NSW)
London Government Act 1939 (UK) s 181(3)
Main Roads Act 1924-1954 (NSW) s 40
Public Sector Employment and Management Act 2003 (NSW)
Road Transport (General) Act 1999 (NSW) ss 6, 49, 49(1), 49(2), 49(2)(b)
Road Transport (Vehicle Registration) Regulation 1998 (NSW) cl 56 Sch 4.76
Roads Act 1993 (NSW) ss 102, 102(1), 102(2), 231, 231(1)(b), 234, 247
Transport Administration Act 1988 (NSW) s 46(3)
Transport Legislation Amendment Act 2011 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 20.14Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Allison Insurance Co Ltd v Body Corporate Strata Plan No 4303 [1983] 2 VR 339
Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105
British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673
Brodie v Singleton Shire Council [2001] 206 CLR 512
Browne v Dunn (1893) 6 R 67
Cambridge v Anastasopoulos [2012] NSWCA 405
Carslogie SS Co v Royal Norwegian Government [1952] AC 292
Commissioner for Main Roads v Engel 80 WN (NSW) 37
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd [1975] HCA 23; 132 CLR 323
Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898
Gagner Pty Ltd t/a Indochine Cafe v Canturi Corporation [2009] NSWCA 413
Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447; [1970] 1 All ER 225; [1970] 1 Lloyd's Ref 14
Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313
Kensington Borough Council v Waters [1960] 1 QB 361
Kodak (Australasia) Pty Ltd v Retail Traders Mutual Indemnity Insurance Association (1942) 42 SR (NSW) 231
Legal and General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390
McCann v Switzerland Insurance Australia Ltd [2000] HCA 650
McColl v Dionisatos [2002] NSWSC 276
Murphy v Brown 1985 1 NSWLR 131
Performance Cars v Abraham [1961] EWCA Civ 3; [1962] 1 QB 33
Plasteel Windows Australia Pty Ltd v Sun Alliance (1989) 5 ANZ Ins Cas 60-918
Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd [2010] NSWSC 1063
Sigmar Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684
Strong v Woolworths Ltd [2012] HCA 5
The Stonedale No 1 [1954] C.A; [1954] 2 All ER 170
VACC Insurance Ltd v BP Australia Ltd [1999] NSWCA 427
Vero Insurance Limited v Power Technologies Pty Ltd [2007] NSWCA 226
Woolfall & Rimmer Ltd v Moyle [1942] KB 66Texts Cited: Halsbury's Laws of Australia, vol 9
Harvey McGregor, McGregor on Damages, (17th ed 2003, Sweet and Maxwell)
Kenneth Sutton, Insurance Law in Australia, (3rd ed 1999, LBC Information Services)Category: Principal judgment Parties: Roads and Traffic Authority of New South Wales (Plaintiff - Cross-defendant)
Barrie Toepfer Earthmoving and Land Management Pty Ltd (First-defendant - Cross-claimant)
State of New South Wales (Cross-defendant)
CGU Insurance Limited, Vero Insurance Limited, and NTI Limited (Cross-defendants - second cross-claim)Representation: Mr Glissan QC & Mr Manion (Plaintiff – Cross-defendant)Mr Toepfer in person (First-defendant – Cross-claimant)Mr Deakin QC and Mr Stockley (Cross-defendants – second cross-claim)
Solicitors:
Mr Saxton and Mr Davis - Robertson Saxton Primrose Dunn (Plaintiff - Cross-defendant)
Mr Hedges and Ms Antoun - Walker Hedges Solicitors (Cross-defendants - second cross-claim)
File Number(s): 2009/293003
Judgment
HIS HONOUR:
Background
In its 468km journey from the Western slopes of the Liverpool Range to the mouth of the Tasman Sea at Newcastle, the Hunter River flows past Hexham which is located at the junction of the Pacific Highway to Brisbane and the New England Highway. For many travellers, Hexham is known for 'the Oak', a large milk bar and take-away food complex established by the Hunter Valley Diary Co-operative and the nearby Hexham Bridge which traverses the Hunter River.
In the 19th Century, the river was crossed at Hexham by punt. A steam punt followed which over time became inadequate with increasing motor traffic. The construction of a bridge was delayed by World War II but in December 1952, the Hexham Bridge was opened.
The Hexham Bridge (the bridge) is a lift span opening bridge. The bridge has six main steel truss spans that consist of two tower spans, one lift span and three normal spans. The approach consists of three steel girder spans at the Northern end: Fok report PTB1 pp 39-102. The opening span (the lift span) provided a 100ft vertical clearance over high water. The weight of the lift span is balanced by two concrete weights suspended on wire ropes which pass over four sheaves located at the top of the towers. The lift span is operated by an electronic motor located in the machinery house: Karmalsky report ex DDDD p 2.
The bridge has two lanes. When the bridge was opened, one lane was used for southbound traffic and the other for vehicles travelling north. This soon became inadequate and a concrete bridge just upstream of the bridge was opened in August 1987. Since that time, the bridge has carried only southbound traffic, with the concrete bridge carrying northbound traffic. A helpful diagram of the bridge is found in exhibit N.
The Hexham Bridge
The Pacific Highway, which crosses the bridge, was classified as "State Highway 10" pursuant to the Roads Act 1993 (NSW): NSW Government Gazette No 39, 7 February 2003. The definition of "Road" in the dictionary to the Roads Act includes a "bridge".
On 15 April 2003, Gregory Luck (the second defendant), was driving a prime mover that was towing a low loader on which was an excavator in a southerly direction over the bridge. The excavator arm struck the bridge spans causing extensive damage. Barrie Toepfer Earthmoving and Land Management Pty Ltd (the first defendant) was the owner of the prime mover and low loader. Mr Luck had been employed by the first defendant for in excess of five years.
There was a sign on the northern end of the bridge that indicated Low Clearance 4.8m (PTB1 p 188). Rule 102 of the Australian Road Rules was as follows:
"102 Clearance and low clearance signs
(1) A driver must not drive past a clearance sign, or a low clearance sign, if the driver's vehicle, or any vehicle connected to it, is higher than the height (in metres) indicated by the sign.
Offence provision
Note. Driver's vehicle is defined in the dictionary.
(2) In this rule:
vehicle includes any load carried by the vehicle."
When measurements were taken on 23 April 2003, the clearance at the northern end of the truss was 5.58m at the kerb and 5.52m at the road centreline: Report of Truck Impact Damage (PTB1 p 141). On either side of the lift span, there are girders with a clearance of 5.38m at the kerb and 5.32m at the road centreline.
The Roads and Traffic Authority of New South Wales (now known as Roads and Maritime Services) (the plaintiff, but conveniently referred to as the RTA) and the State of New South Wales (conveniently referred to as the State) were represented by Mr Glissan QC and Mr Manion. Barrie Toepfer Earthmoving and Land Management Pty Ltd (conveniently referred to as Barrie Toepfer Earthmoving) was not legally represented, however, Barrie Toepfer, a director of the company, was granted leave to appear on its behalf. Gregory Luck has never been served with the statement of claim and the plaintiff did not pursue its claim against him. CGU Insurance Ltd is the first cross-defendant, Vero Insurance Ltd is the second cross-defendant, and NTI Ltd is the third cross-defendant. The cross-defendants will collectively be referred to as "the insurers" throughout this judgment. Mr Deakin QC and Mr Stockley represented the insurers.
With the agreement of the parties, the proceedings were conducted on the understanding that I would determine the issues of liability and damage caused to the bridge by the accident. Questions as to the quantum of damages are to be referred to a referee under r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW).
At Mr Toepfer's request, his presence was excused during the evidence as to damage, and submissions: T191-192; T529 L9-26; T1533 L15-18. The first defendant's interest on the issue of damages was protected by Mr Deakin. Mr Glissan made submissions on the insurance question.
Before proceeding further, it is convenient to provide an overview of the proceedings. The overview is not intended to embrace all of the submissions of the parties. As the pleadings are of some length, they will be summarised.
The RTA's claim against Barrie Toepfer Earthmoving
By a further amended statement of claim filed on 5 June 2012, the RTA claims that on 15 April 2003 Mr Luck was driving a prime mover and low loader (conveniently referred to as the truck) that was carrying an excavator southbound on the Pacific Highway at Hexham. Barrie Toepfer Earthmoving was the owner of the truck and excavator. The RTA claims that at the time the truck was driven onto the bridge, the excavator projected beyond the vertical clearance available on the bridge and the excavator or some part of the truck or its load struck the overhead structural members of the bridge causing damage. The plaintiff pleads that by virtue of s 102(1) Roads Act, Mr Luck is liable for the repair costs and by virtue of s 102(2), Mr Luck and Barrie Toepfer Earthmoving are jointly and severally liable for the repairs to the bridge as a debt. The plaintiff claims $12,761,054.22 for repair works, $136,195.00 for professional assistance in assessing and managing the repair works and other costs that have been adjudged to have been incurred in making good the bridge, interest, and costs.
In a further amended defence filed on 18 October 2010, Barrie Toepfer Earthmoving admits that Mr Luck was driving the truck and it was carrying an excavator. However, Barrie Toepfer Earthmoving says that the legal owner of the excavator was the National Australia Bank Ltd and it was the hirer and user of the excavator pursuant to a lease purchase agreement that was entered into on or about 7 August 2002. Barrie Toepfer Earthmoving pleads that it does not know what part, if any, of the excavator came into contact with the bridge, and if it did, it does not admit that it caused damage to the overhead structural members of the bridge or any damage at all. Further, Barrie Toepfer Earthmoving denies that the plaintiff incurred costs for which it is jointly and severally liable. Barrie Toepfer Earthmoving does not admit that any repairs to the bridge were carried out as a consequence of any damage or otherwise caused or are attributable to it. Barrie Toepfer Earthmoving denies that the plaintiff is entitled to relief.
The RTA's claim is founded on s 102(1) Roads Act, which provides:
"(1) A person who causes damage to a public road, or to any road work on a public road ... is liable to pay to the appropriate roads authority the cost incurred by that authority in making good the damage."
There is no dispute that the RTA was the appropriate roads authority (ex A). The RTA sues Barrie Toepfer Earthmoving as the owner of the vehicle and does not rely upon any vicarious liability of Barrie Toepfer Earthmoving for the actions of Mr Luck. The RTA's case is that a statutory liability is imposed upon Barrie Toepfer Earthmoving directly, as owner, where the damage is caused by its motor vehicle. Mr Glissan submitted that "the question is not whether the damage was caused by the driver" (PWS p 5 par 18).
Although the question of ownership of the excavator appears to have been placed in issue in Barrie Toepfer Earthmoving's further amended defence, Mr Toepfer's evidence was that Barrie Toepfer Earthmoving had owned the excavator for two years prior to April 2003 (T216 L19-22). I find that the owner of the truck and excavator on 15 April 2003 was Barrie Toepfer Earthmoving.
Section 102(2) Roads Act provides:
"(2) If damage referred to in this section is caused by a motor vehicle... the owner and the driver of the motor vehicle... are jointly and severally liable for the damage."
Mr Glissan submitted that fault is not an element of the cause of action under s 102 Roads Act. Whilst acknowledging that he could not bind Barrie Toepfer Earthmoving, Mr Deakin agreed that s 102 is not concerned with fault or negligence.
As Mr Toepfer did not make any submissions, no arguments were advanced before me on this issue on behalf of Barrie Toepfer Earthmoving. However, the first defendant was represented by senior counsel in interlocutory proceedings when the issue was well ventilated. In Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd [2010] NSWSC 1063, McCallum J carefully considered the authorities relevant to a claim under s 102. Her Honour concluded at [40]:
"I do not think that the authorities relied upon by Mr Neil derogate from the principle in Engel that the provision there under consideration did not require proof of culpability or liability in accordance with common law principles."
In my opinion, it is well established that negligence or culpability is not a necessary ingredient for a claim under s 102. In Commissioner for MainRoads v Engel 80 WN (NSW) 137, Jacobs J when considering s 40 Main Roads Act 1924-1954 (NSW) (a section equivalent to s 102) observed at 140:
"I think that sub-s (3) is directed to the situation where the damage is caused by the use of the vehicle in circumstances where the driver may not be properly described as causing the damage or injury... I am not here referring in any way to culpability or responsibility."
Jacobs J applied Kensington Borough Council v Waters [1960] 1 QB 361 where Edmund Davies LJ said at 367 in respect of s 181(3) of the London Government Act 1939 [a similarly worded statute]:
"the subsection... without importing blame or penalty provides a simple remedy for the recovery of the cost of damage done to property vested in the local authority. It renders liable the person whose person or property actually, accidentally or carelessly damages such property..."
It follows that s 102 does not depend upon any concept of tort or breach of contract. As Mr Glissan submitted, s 102 establishes a strict liability in the interest of the RTA, unrelated to fault or liability in tort.
The evidence establishes on the balance of probabilities that the boom of the excavator struck several of the bridge's transverse beams. The real issues in dispute between the RTA and Barrie Toepfer Earthmoving concern causation, the ambit of s 102 and the quantum of damage.
The Cross-Claim against the Insurers
During the hearing all parties agreed that the insurance policy in force at the time of the accident was the Commercial Motor Vehicle Policy (ex CD8)(T526 L25-50, T527 L1-50, T528 L1).
By an amended cross-claim, Barrie Toepfer Earthmoving claims that the insurers have wrongly denied that they are liable to indemnify Barrie Toepfer Earthmoving under the contract of insurance. In their amended defence to the amended cross-claim, the insurers deny liability on what was claimed to be Barrie Toepfer Earthmoving's failure to comply with the reasonable care and precaution condition (condition 3) and the breach of exclusion clause 7(i) of the policy.
Section 2 of the policy relevantly provides:
"We will pay any amount up to a liability limit of $25,000,000 in total for any number of claims arising out of one event, which you are held legally responsible to pay as a result of an accident, for damages in respect of:
...
(B) Damage to property of Another Person if caused
(1) by You using your Motor Vehicle;"
The terms "You" and "Your" are defined in the Definition section of the Policy to mean:
"the Client (or any of them) named on the Schedule"
The term "Another Person" is relevantly defined to mean:
"Under Section 2 of this policy, the term "Another Person" means an individual or number of individuals other than;
...
Where you are a firm or corporation, a person who is a director, partner or employee acting as same."
In the 'Policy Schedule', the "Client" is stated to be "Barrie Toepfer Earthmoving and Land", however, in "Policy Comments" (Schedule 2) there is the notation that the insured's name should read as "Barrie Toepfer Earthmoving and Land Management Pty Ltd."
The prime mover and trailer are included in the Policy Schedule.
The exclusion clause relied upon by the insurers is found at pages 6 and 9 of the policy under the heading "Exclusions". The policy relevantly provides:
"We will not pay for:
...
(7) Loss or damage or liability caused by:
(i) Recklessness by You or any person acting on Your part or by reckless failure to comply with any statutory obligations and by-laws or regulations imposed by any public authority, for the safety or Motor vehicle/s and, for the carriage of goods and merchandise."
The reasonable care and precaution condition is contained under the broad heading Conditions commencing at page 10 of the policy. The relevant condition is as follows:
"Conditions
We may refuse to pay a claim, or may reduce the amount payable under a claim to the extent that Your breach of any condition of this policy causes or contributes to loss, damage or liability or prejudices Our interest or rights, in respect of that claim:
...
3. Reasonable Care
You and any person acting on Your behalf must exercise reasonable care and precautions to prevent loss or damage to the Motor Vehicle, and comply with all statutory obligations and by-laws or regulations imposed by any public authority, for the safety of the Motor Vehicle/s and, for the carriage of goods and merchandise."
The insurers claim that Mr Luck acting on Barrie Toepfer Earthmoving's behalf was reckless in breach of exclusion 7(i) of the policy. Furthermore, that Barrie Toepfer Earthmoving in breach of condition 3 of the policy has failed to establish that Mr Luck acting on behalf of Barrie Toepfer Earthmoving exercised reasonable care and precautions to prevent loss or damage to the motor vehicle (including its load) and that Mr Luck had complied with all statutory obligations, by-laws or regulations imposed for the safety of motor vehicles and for the carriage of goods and merchandise. It is the insurers' case that:
(a) The vehicle was in breach of Road Transport (Vehicle Registration) Regulation 1998 No 341 cl 56 Sch 4.76 prohibiting the use of any vehicle on a road or road related area exceeding 4.3m; and
(b) The vehicle was driven past a clearance sign contrary to rule 102 of the Australian Road Rules with a vehicle that was higher than the height of 4.8m indicated by the low clearance sign on the Northern approach to the bridge.
Barrie Toepfer Earthmoving denies that Mr Luck was reckless. Mr Glissan also argued that Mr Luck was not acting on behalf of Barrie Toepfer Earthmoving and did not fall within exclusion clause 7(i) or condition 3 of the policy. Mr Glissan submitted that Road Rule 102 was not a regulation "for the safety of motor vehicles and for the carriage of goods and merchandise."
Barrie Toepfer Earthmoving's cross-claims against the RTA and the State of NSW
By an amended second and third cross-claim against the RTA and the State filed on 22 October 2010, Barrie Toepfer Earthmoving pleads that on 15 April 2003, Mr Luck was directed by way of electronic signage to take the vehicle into a heavy vehicle checking station on the Pacific Highway at Twelve Mile Creek (the weigh station). At the RTA facility, after making a visual inspection, an RTA officer orally directed Mr Luck and his co-driver to reconfigure the position of the excavator on the vehicle. They moved the excavator to a position marked on the C-channel on the side of the vehicle which was confirmed by the RTA officer with spray paint. The bucket of the excavator was repositioned onto the gooseneck of the vehicle. Further, or in the alternative, the RTA officer gave directions in circumstances where the RTA and the State had delegated to the RTA officer a task that the RTA performed and the RTA officer was at all material times acting in service of the RTA and the State. Barrie Toepfer Earthmoving claims that during and after the process of reconfiguration, the RTA officer appeared to check the height of the excavator. The checking of the height and the directions provided constituted express and or implied representations that the height of the excavator was safe for travel. These representations were false and negligent. The RTA officer failed to warn Mr Luck and his co-driver of the hazard created by the reconfiguration. The RTA officer was at all material times subject to the general directions and control of the RTA and or the State and purported to act within the scope of authority conferred on him by the cross-defendants and the Roads Act.
Barrie Toepfer Earthmoving further pleads that if it is, for any reason, held liable under s 102 Roads Act then the RTA and the State owed it a statutory duty to inter alia promote traffic safety, give safe directions to road users and ensure that directions would not create a hazard to the safety of Mr Luck and his co-driver, road infrastructure, the public or Barrie Toepfer Earthmoving. Additionally or alternatively, the cross-defendants owed Barrie Toepfer Earthmoving a common law duty of care which they have breached.
In defences to the amended second and third cross-claims the RTA and the State deny that the RTA officer directed Mr Luck and his co-driver to reconfigure the excavator, that the RTA officer checked the height and provided express or implied representations and or advice that was false or negligent. The cross-defendants further deny that the RTA officer was acting in the service of, or as a representative for, the RTA and the State. They deny that the RTA officer knew or ought to have known where the truck was heading and that the manner in which he directed Mr Luck and his co-driver would be an actual or potential hazard to the road infrastructure. The cross-defendants deny the existence of any statutory duty or common law duty of care and that it breached a statutory or common law duty. The State relies on s 234 Roads Act which provides the State with absolute exemption for liability for any matters arising out of the action alleged. Further, the RTA rely on ss 43 and 46 of the Civil Liability Act 2002 (NSW) to say that they have not committed a breach of statutory duty.
In short, Barrie Toepfer Earthmoving's claim is that, but for the alteration to the load at the direction of Mr O'Neil, an RTA officer stationed at the weigh station, the collision between the load and the bridge would not have occurred.
Although the Limitation Act 1969 (NSW) was pleaded in the defence to the cross-claim, Mr Glissan informed the court that it was not relied upon by the RTA and the State.
Some matters of evidence on liability
The principal witnesses on liability were Gregory Wyborn and Steven O'Neil. Mr Luck did not give evidence during the proceedings but statements that he made to police and to an insurance investigator were tendered. The following is a summary of some of the evidence on liability.
Senior Constable David Collier's affidavit is exhibit C. On 15 April 2003, Senior Constable Collier received a call on the police radio of an accident on the Hexham Bridge southbound. He attended the bridge and observed a low loader bearing vehicle registration XZF 992 with an excavator on the back stopped on the southern side of the bridge. He observed that every cross member on the bridge had been struck by some object causing varying degrees of damage. The driver, Gregory Luck, was accompanied by one passenger, Gregory Wyborn. Mr Luck said words to the effect of "[w]hen we crossed the bridge the truck was shuddering as we hit each member. I pulled up as soon as I could". An investigation was subsequently undertaken which included the preparation of a police event report dated 27 July 2003, and interviews with Mr Wyborn (see ex C par 14) and Mr O'Neil, an RTA officer (PTB7 pp 2070-2079, ex C par 10-14). He agreed that the transcript of the interview with Mr O'Neil (PTB7 pp 2070-2079) was accurate.
Brian Condon's affidavit is exhibit D. The statement he made to police is exhibit PTB7 1892-1893. At about 3.50pm on 15 April 2003, Mr Condon, working as a truck driver for Mozzy Waste, was driving southbound at 60 km/h approaching the bridge. As he approached the bridge, he moved from the left hand lane to the right hand lane. Ahead of him was a truck towing an excavator on a low loader (ex D par 5). There was a 4.8m height sign directly above where the slope and the bridge meet (T48 L44-50, T49 L1). He was changing lanes when he "saw a traffic sign falling from the bridge onto the roadway in front of [him]" which he then ran over (PTB7 p 1892 par 4; see also T50 L11-15). He thought that the truck with the excavator hit the sign. He stopped but the truck continued going over the bridge and as it did he saw "the arm of the excavator strike the overhead crossbeams of the bridge as the truck passed over the bridge" and "saw sparks come off the bridge and the boom as they came into contact. [He] saw dust and debris falling down onto the road...[he] saw the engine bay doors on the excavator come open" (ex D par 6; PTB7 p 1892 par 4-5; see also T50 L17-48 and T51 L17-20). He was not sure if he saw the left engine bay door come open but he was sure that the right one had. He saw the driver pulling over to the left hand side and he saw him "slam the excavator bay door of the excavator shut" (PTB7 p 1893 par 7, T51 L8-15). He did not hear any noise (T50 L50, T51 L1-6) and did not notice if the truck and excavator were bouncing up and down (T51 L22-28).
In cross-examination by Mr Deakin, Mr Condon said that it was a directional sign that came down. He said the excavator cab was shaking "pretty severely" (T52 L23-25). He did not at any stage see the vehicle slow down as it progressed across the bridge, but it stopped on the southern side. He said that the vehicle had started in the right lane but had turned left to change lanes. He observed "damage to some of the cross-members, they were bent and the grey paint had been taken off them. [He] could see red paint underneath the grey" (PTB7 p 1893 par 6).
Ian Hardiman's affidavit is exhibit E. On 15 April 2003, Mr Hardiman was driving southbound on the Pacific Highway at Hexham and about to cross the bridge (ex E par 3). Ahead of him was a truck with a flat bed semi with an excavator. The arm of the excavator was bent up in an upside-down "V shape" (ex E par 5). He estimated that they were both travelling at 60km/h. He recalled seeing "the apex of the bent excavator arm hit the crossbeams" hard (ex E pars 8, 11). He could see the crossbeams suffered damage and saw "grey paint had been flaked off where the arm hit the crossbeams" (ex E par 11). He called the RTA and reported the incident (ex E par 12).
In cross-examination, Mr Hardiman said he only saw "paint coming off" (T54 L45-48). He did not see the sign fall onto the roadway (T55 L26-27). Further, he did not remember, even though it was still daylight, seeing any sparks being generated by the excavator as it struck the beams (T55 L29-31, T56 L5-16).
Neil Carter's affidavit is exhibit F. Mr Carter was a police officer who spoke to Mr Luck on 17 April 2003 and the entries in his notebook of this conversation are exhibit PTB1 131-137. Mr Luck signed the police officer's notebook at the conclusion of the entries.
According to the entries in the notebook, Mr Luck agreed that he was the driver of the vehicle (PTB1 p 131). He described the excavator as 2.6m wide, which is 100 mm over the legal limit. He was not sure of its loaded height but said the boom was always the highest point (PTB1 p 134). This was the second time he had carted the excavator, his fifth time towing the low loader, and his fourth or fifth time driving the prime mover (PTB1 pp 134-135). The police officer recorded that Mr Luck said he had been to the RTA weigh station, just before he got to the bridge. He said that the RTA had weighed the front, middle and rear axles and told him that he was not overweight overall but was overweight on the rear axle of the trailer. He was told to pull up just past the weighbridge. He told the police officer that the RTA measured the wheelbase of the whole truck and trailer. The notes record the following (PTB1 p 136):
"The RTA made me move the bucket and boom forward so the bucket was at the front at the trailer at the highest point at the trailer. The RTA then told me to put paint marks on the trailer where the machine was to go, so we would know for next time. I thought that this made the boom higher than it was before, but I didn't think that it would be any problem."
The police officer recorded that Mr Luck said that he was travelling at about 55km/h, a little less than the traffic was moving, and about 100m before the bridge he moved into the right hand lane ready to make a right hand turn (PTB1 pp 131-132). He guessed that it would take a prime mover with that load that was travelling at 55km/h, 100m to stop (PTB1 p 135). As he proceeded onto the flat part of the bridge he started to hear a clicking noise. Mr Luck asked the excavator driver named Greg (Mr Wyborn), "What's that?" to which he did not receive a reply (PTB1 p 132). The noise was getting louder so he put his left hand flasher on and started to change lanes and started to brake (PTB1 p 132). He said to Greg "I think that we are hitting the top" (PTB1 p 132). By the time he stopped he was all the way over to the left hand side (PTB1 p 132). He got out of the truck and he could not see anything wrong with the excavator or the bridge (PTB1 p 132). A woman in a car pulled up next to him and said, "You've demolished the bridge" (PTB1 p 132). He drove the truck around the corner and parked in a side street near a service station (PTB1 p 133). He noticed that the flashlight from the lamp at the rear of the vehicle was missing (PTB1 p 133). He thought that the lady meant that the flashing light had been demolished (PTB1 p 133). He said if he was hitting the bridge "he had no knowledge that he was or thought it would hit the bridge" (PTB1 p 135).
He did not report the matter to police because he could not see any damage and he thought that if he did report the incident it would be to an RTA member.
In a statement provided to the insurer, Mr Luck recounted (ex L):
"The officer in charge said that the excavator in which we were carrying was overweight on the back axle and to pull off the weight bridge, to the right, unchain the machine and move it forward and that the bucket be put on the turn table of the float.
They then said to reverse the truck back onto the weight bridge. We did so to their requests and we were still overweight on the rear axle. We did this three times until he said that the machine was right to weigh and I did confirm with them three times if they were sure that is where the machine has to be and was told 'Yes that is where the machine has to be and mark it with paint.'
We continued on to Hexham at approximately 5 kilometres an hour less than the speed limit and onto the bridge. When some distance onto it, could hear a ticking noise. I looked over at the operator and said 'What's that?' The noise got louder in a short time, with one larger jolt the truck some short distance from the exit."
Steven O'Neil's affidavit is exhibit G. In October 1993, Mr O'Neil began working for the RTA as an Inspector Vehicle Regulations Level 3 and has continued to be employed as an inspector. He has 13 years experience as an RTA inspector (T108 L35-37). His job entails "the enforcement of all regulatory authority duties such as licensing, registration, log books (work diaries), fatigue, mass and maintenance, speed limiting devices, overloading etc" (ex G par 2). In his oral evidence, he agreed that it is an important part of his responsibility as an RTA inspector to address questions of height as vehicles in excess of legal heights give rise to safety aspects as far as members of the public are concerned (T153 L23-24, T154 L4-7). He was working at Twelve Mile Creek Station from when it opened right through to the date of the accident (T109 L22-24).
This weigh station has a screening lane which is a lane that exits the highway to the left and which every vehicle with a gross vehicle mass (GVM) of 8 tonnes or more is required to enter (ex G par 5, T122 L33-41). A vehicle entering the screening lane will first pass between two posts containing a laser, which is a height sensor set at 4.6m (ex G par 6, T123 L41-54).
Mr O'Neil explained that anything above 4.3m to 4.6m is over height or works into a different category of vehicle (T87 L20-23, T97 L1-3). The standard height for a standard vehicle is 4.3m (T87 L26-27). It is possible to obtain a permit for a greater height (T87 L36-38). The limit was now 5m, however in April 2003 it was 4.8m (T87 L40-41, T88 L6-8). A vehicle with a permit would be recognised by the over height gauge (T87 L43-46). The gauge does not indicate a height. It only indicates in red that the vehicle has exceeded a height of 4.6m (T123 L47-50). The light did not turn red in respect of this vehicle (T124 L5-7, L47-50, T125 L1). At the time, the "height gauge was unreliable and often not working" (ex G par 8, T123 L34-39). There was no height gauge on the exit from the inspection station (ex G par 9). After the height sensor device there is the heavy vehicle check station hangar which contains a weight measuring sensor plate that detects individual axle weights and axle spacing. Vehicles with an anomaly are redirected to the weighbridge (ex G par 10).
His shift was from 8am to 4pm. He had already closed the weigh station when a bus missed the turn-in to the screening lane so he opened it to permit the bus to come back around and enter. The bus re-entered with the Barrie Toepfer Earthmoving vehicle immediately behind it (ex G pars 3-4). The truck and trailer with loaded excavator was considerably higher than the bus (T113 L5-7). There was a bucket attached to the excavator's jib arm facing the front of the trailer (ex G par 16). The trailer had a step down deck below the gooseneck (T111 L33-35).
Mr O'Neil stated that the truck with the trailer and excavator, driven by Mr Luck, had been directed to the inspection station because the rear axles weighed 18.8 tonnes which exceeded the permissible weight of 16.5 tonnes (ex G pars 12-13, 20). After the weighing, he measured the length of the vehicle wheel to wheel, axle to axle with a tape measure (T131 L38-50, T132 L1, L14-19).
He told Mr Luck that he was going to have to issue him with a weight breach (see PTB1 pp 103, 103A, 138). A weight breach is distinct from a direction which is outlined in s 231 Roads Act (as at April 2003). Section 231 provides an officer with the ability to issue a direction if a vehicle's mass or axle loading exceeds 10 per cent (T91 L34-43). Mr O'Neil could not point to anything that affected the way he exercised discretion over 10 per cent (T92 L12-15). He was not sure whether the 20 per cent tolerance was customised with procedure for weighing a vehicle (T92 L26-28). However, in cross-examination, it was adduced that there was a policy in writing (book form) when he first joined the RTA that was in relation to the 20 per cent overweight policy (T95 L19-33, T96 L4-42).
Mr O'Neil knew the driver was from Tasmania and knew from what he was told that the driver had little familiarity with the bridge (T132 L21-30). Mr Luck said, "[t]his is one of the first times [he had] carried this excavator." He also asked if he could move it onto the low loader for future reference because he did not have a clue where the excavator should be. Mr O'Neil said, "[w]e don't normally allow this..." and "[w]e do not do adjustments of loads...You knock yourself out and do whatever you want to do" (ex G par 21). He denied that he directed Mr Luck or his passenger to move the excavator. According to Mr O'Neil the direction was not provided because the weights recorded were "well within the twenty per cent tolerance" (ex G par 37).
Mr O'Neil stated that whilst he was in the "pie hut", Mr Luck and his passenger proceeded to unchain the excavator and then the passenger got into the excavator and moved it, during which time Mr Luck was talking and making gestures to him. He later described the operator moving the excavator on the low loader, moving the bucket, but he did not see the boom being raised (ex G pars 29, 31). The rear axle of the low loader was still on the scales. He estimated that the excavator was moved forward 6 to 8 inches (ex G par 22, T137 L45-46). The weight breach noted "readjusted load to continue" (PTB1 p 103, ex G par 36, T137 L32-40). Mr Luck had recorded the reposition attempts on the back of the weight breach (ex PTB1 103-103A, T87 L7-17, L30-36). The weights listed on PTB1 p 138 are different to those written on the back of breach report (ex PTB1 103-103A). Mr O'Neil said that Mr Luck made two attempts at the readjustment but the report is the accurate reflection of weights after it left the station (T144 L42-50, T145 L1-19, L33-42). The numbers on the back of the breach report were to help Mr Luck.
He went out and gave Mr Luck liquid paper and said "if you want to mark it, that's where you should put the mark because the axle weight is 'spot on' on the back end now" (ex G par 24). He denied that he spray painted the trailer. He did not take notice as to whether or not they marked the gunner rail of the truck with the liquid paper (ex G par 25). He denied that he told Mr Luck to move off the weigh bridge and to take off the chains (T155 L10-14) and that he could move the excavator to take weight off the axles (T155 L16-18).
He knew the bridge travelling southbound had marked a 4.8m maximum height with a small margin of leeway (T110 L8-17). When the rig left it did not appear over-height to him (ex G pars 28-29, 31). Neither the driver nor his passenger suggested the vehicle was over-height (ex G par 35). His concern had been to ensure that all axle weights were correct and at no stage did the height of the boom "come into the equation" in his mind (ex G par 30). He stated that the movement of the machine took place whilst he was inside the pie hut doing the breach. He did not see the boom being raised and it did not appear to him when he looked at it that it had been noticeably raised or was over-height when it left the station. He accepted that the excavator may have been marginally over width, but that was not something that was specifically addressed on the day (T163 L39-43).
Mr O'Neil agreed that there was no measuring stick available at Twelve Mile Creek Station on 15 April 2003 (T115 L2-4, T186 L30-45). He said that:
"RTA vehicles are fitted fully equipped with all the height stick, tape measure" but "the station did not have a height measuring stick" (T116 L1-10).
He stated that it is very difficult to assess the height of some vehicles. A height stick is provided, as part of the usual equipment in each RTA inspector's utility. His RTA ute was being serviced at that time, and the replacement vehicle supplied was not one equipped with the usual equipment. There was no height stick provided as part of the Inspection Station equipment at that time (ex G par 33).
During cross-examination, Mr Deakin questioned Mr O'Neil on photographs (ex PTB1 163-167) of the truck and excavator that had been taken by Wayne Murray, the supervisor for the Mt White Heavy Vehicle Checking Station on 28 April 2003. Mr O'Neil agreed that photograph (PTB1 p 163) accurately depicted the approximate position of the excavator on the low loader when it entered the weigh station. In that photograph the bucket of the excavator is located immediately behind the gooseneck on the top of the turntable. When shown photograph PTB1 p 166, Mr O'Neil said that the excavator depicted in that photograph was not exactly in accordance with the appearance of the excavator at the time it left the weigh station. He explained (T118 L25-30):
"...where the vertical angle to the front would be showing say 20 degrees, and where the inspector has got the height stick, the bucket or the jib would have been back 20 degrees back the opposite way, like on a pendulum..."
Mr O'Neil marked on the photograph (ex J) what he had described.
He agreed that Mr Murray's reconstruction of height in pre-adjustment closely accorded with his evidence of about 4.3m (T166 L12-15). He agreed that if the height was 5.45m after the load had been adjusted then he should have been aware of it (T171 L16-18), and it would have been a serious error on his part to permit the vehicle to depart from the weigh station.
I will further refer to Mr O'Neil's evidence in my assessment of the evidence.
Mr Murray did not give evidence during the proceedings as he was living in the Philippines. No request was made for his evidence to be given by video-link. A statement made by Mr Murray on 30 April 2003 was tendered in the insurers' case (ex CD7). Mr Murray records that the height of the truck and excavator when loaded prior to adjustment at the weigh station was 4.350m with a width of 2.600m. When the excavator was re-positioned to where it was loaded when it left the weigh station, Mr Murray recorded the height as being 5.45m with a width of 2.600m. Mr Murray noted that when weighed at the weigh station, an additional "bucket" was loaded on the trailer deck.
Barrie Toepfer's affidavit is exhibit D1. Mr Toepfer gave evidence that Barrie Toepfer Earthmoving was his first company and it was established in 1994 (T198 L12-14, ex D1 par 2). The business is mainly "earthmoving, land management, and advice on land use, power line maintenance, and local heavy vehicle transport around the Newcastle and NSW Central Coast areas" (ex D1 par 3)
Some of the equipment, including the excavator, had to be floated. To the best of his knowledge, he had owned the excavator for two years (T216 L19-22, ex D1 par 15).
The company's depot was at Wyee, 40 to 50 kilometres from the bridge (T214 L13-15). He agreed, that there were other ways of getting to the depot other than by crossing the bridge. He said that Mr Luck could have gone back through Williamtown and Sandgate. This would have taken an additional 45-50 minutes (T214 L23-41).
Mr Luck worked for him for well over 5 years, he was a driver on the water cart for "perhaps, four of those years", and a driver for a semi-trailer for "intermediate or short shifts, for 12 months" (T213 L34-45, ex D1 par 14). To Mr Toepfer's knowledge, Mr Luck had not driven that combination north of the Hunter River on any prior occasion (T204 L14-16). He agreed in cross-examination that Mr Luck was an experienced driver (T213 L47-50).
He said that his employees told him "that they asked to shift the machine. And [the employees] had questions as to whether it was correct but said, clearly, that they took the advice of the officer in charge" (T215 L18-20). Mr Toepfer agreed that a reconfiguration could have been adopted which would have given rise to no height or weight problems (T215 L43-50, T216 L6) and that such a reconfiguration would have been achieved by just moving the excavator forward on the float as this would have taken the weight off the rear axle (T216 L10-17).
Mr Toepfer gave evidence that four RTA inspectors arrived the morning after the accident with portable scales (T204 L28-48, T218 L3-6, ex D1 par 32). Upon arrival, he was asked "is this the truck and machine that was involved in the accident?" to which he replied, "that's the only one I've got" (T205 L3-8). He also said that the truck and machine were in the same condition that it was in when it came back (T205 L14-16). Mr Toepfer thought they weighed it first, then reconfigured it and weighed it again (T205 L18-19). Height measurements were taken before and after the reconfiguration by the surveyors who "measured right to the last millimetre" (T206 L29-34). At the time of the initial measurements, the bucket was up on the gooseneck (T207 L16-18). To reconfigure it, it was moved forwards (T205 L32-33) and "the boom was just tucked down instead of being left up and the machine moved if [he] rightly remembered about 150 mils on the float" (T205 L26-28).
Mr Toepfer's inspection of the truck and excavator "did not reveal any damage" except for the broken light (ex D1 par 33). According to Mr Toepfer, there were no marks on the float prior to the RTA officer saying to him that "[he'll] put some spray paint on here for you so as there can be no errors...in the future" (T206 L14-17, T218 L41-43). He also said he was told, "if you use these [marks], you won't have any more trouble overloading" (T219 L1). He did not see any of the small white paint marks that Mr O'Neil referred to in his evidence (T219 L3-11). However, he said it was possible the marks were there (T219 L13-14). When asked for his observations of damage to the excavator, he said that he could see a distinct scratch on the lug (T212 L28-32). There was also a broken flashing light on the excavator.
Gregory Wyborn's affidavit is exhibit CD6. Annexed to his affidavit are a transcript of his interview with police on 7 May 2003, a copy of a statement made by him to police on 11 June 2003 and a copy of a statement made by him to a loss assessor on 30 April 2003.
During the police interview, Mr Wyborn said (ex CD6 p 6):
"We had to pull into the checking station as, you know, we've got to do it. So we pulled in there. We found out that we were two tonne over. And the guy in the weigh bridge said he would move the machine around so it was correct weight so we spent probably half an hour, three-quarters of an hour doing that, sort of jostling it backwards and forwards...we found the position for the right weight. He said leave it there which was with the boom over the gooseneck, which is about face to what what we usually do and ah, well consequently that put the boom up higher. I asked the truck driver as we were pulling out should we move that and he said no the RTA guy said this is where we've got to have it and so we just went back home. We approached the Hexham bridge and I said to him mainly, part joke 'I hope we're under 4.8 metres' - because there was a sign there. He said 'Me too'. And we continued across the bridge. Probably would have been a quarter of the way over and we started - I heard a - what would you say (laughs) - a contact noise and as we kept going it just got louder and louder until we stopped over the other side..."
Mr Wyborn agreed in the interview that in his mind, he knew that the load was contacting. He described physically moving in the cabin. Mr Wyborn said that he did not think that after heavy contact started with the bridge, the truck could have safely stopped more quickly.
In his statement to police (ex CD6 annexure C p 2), Mr Wyborn stated inter alia:
"The RTA inspector said to the driver 'If you move the machine around I will re-check the weight to make sure it is right'. I started to move the machine, the inspector then said 'Put the boom on top of the gooseneck and move the machine as far back as you can towards the ramps.' The inspector checked the weight a couple of times. On about the third time the inspector said 'Ok everything is alright you are right to leave.' As we pulled out of the station I said to the driver 'Mate are we going to stop and change the machine back to where it was originally because it is too high' The driver said 'No, that is the position the RTA inspector has directed us to load it.'
As we approached the bridge at Hexham I said to the driver 'I hope we are less than 4.8 high'. The driver said 'Me too'. When we entered the bridge I heard some noise but it was not a loud noise, however as we continued our journey by the time we reached halfway the noises got louder and I began to be thrown around the cabin a bit.
We reached the end of the bridge and stopped, we got out of the truck to assess the situation, I was surprised at the small amount of damage sustained by the boom of the excavator." (Italics as in the statement)
During his oral evidence, Mr Wyborn said he recognised the photograph (PTB1 p 163) as the prime mover, low loader and excavator and agreed that the position within the photo was the position prior to it being adjusted within the RTA station (T241 L14-21)
He said that he played a role in altering the excavator, in that "[he] moved it from backwards to forwards until [they] got the correct weight and it was weighed off and [they] were told to go" (T242 L1-7). He said the truck driver was dealing with the RTA officer and the driver was telling him to go backwards and forwards (T242 L9-29). He could not really remember where the RTA officer was whilst he was moving the excavator, however, he did remember that "he was outside of his office at one stage" but could not provide further clarification (T242 L22-29). He said that he "couldn't say for sure how many times but it did take more than one turn to do it" (T242 L44-47). "[He] didn't hear anything from the RTA guy because... [he] was going through the truck driver and [the truck driver] said it was right and we were ready to go" (T243 L1-2, ex CD6 annexure B p 3). It was his understanding that the RTA officer had suggested that the vehicle be moved (T243 L15-17). Under cross-examination by Mr Toepfer, Mr Wyborn gave evidence that "[Mr Luck] was taking instructions from the RTA officer all the way through" (T250 L34-39).
Mr Wyborn said that he was possibly 50m away when he first saw the
4.8m height sign. As soon as he saw that, he made the off the cuff remark "I hope we make it under there" (T35-37). He did not think that they were going to hit the bridge. Height had never been an issue with them so neither of them thought of it. They had just been to the RTA who told them to go.
Mr Wyborn agreed that his recollection was better at the time he made his statements which he had intended to be truthful (T256 L1-11; see also T256 L35-42).
Mr Wyborn said "[t]he way [they] had it loaded coming into the RTA, the stick, the boom, was at the front with it curled underneath and that sort of lowers your boom so height is not really a - an issue" (T243 L19-24). After the adjustment had occurred, he recalled that it appeared as it does in exhibit J, "[t]he stick is up higher, [the] boom is up higher" (T244 L25-35). He said the suggestion that the effect of moving the excavator was to in fact lower the height of the boom was wrong (T244 L37-40). He said the purpose of turning the excavator around would have lowered the boom and reduced the overall height and, if permitted to do so by the RTA inspector he would have done so (T256 L48-50, T257 L1-10). He was concerned that the adjusted excavator "looked too high".
In his oral evidence, he said that when they went on to the bridge they were doing the "speed limit" (T251 L34-35). He agreed that as they got on the bridge they were in the right hand lane and there was a noise consistent with the truck striking more than one overhead structure
(T246 L23-33; see also T251 L24-29, T252 L14-17). He said, "the further [they] got towards the ends, the lights, the louder the noise" (T249 L1-6; ex CD6 annexure D). He agreed that even though they originally intended to get across the bridge in the right lane, the driver moved towards the left lane and slowed down (T252 L14-20). He did not see the excavator actually hitting the beams or any sparks coming off from the excavator's boom (T247 L43-50, T248 L1-2). Further, even after they had crossed the bridge he wasn't sure that they had hit the top of the bridge (T254 L3-5).
He remembered, "there was a lady that...said, 'You have left crap all over the bridge'" (T248 L7-8; ex CD6 annexure B p 5, annexure C p 3). He went back halfway up the bridge and "all [he] could find was a flashing light on the - on the ground. That was all. [He] couldn't see anything above... [he] wasn't looking for that much damage. It was just the light that was broken" (T248 L4-10; ex CD6 annexure B p 5, annexure C p 3). The broken flashing light "used to sit on a... bit of pipe near the ramps at the back" (T248 L14-17).
The surveyor's report
A report from Evans and Smith (ex CD9) was admitted into evidence without objection. The surveyors measured the height of the rig in its usual configuration prior to the reconfiguration at the weigh station and the height of the rig after that reconfiguration. In its usual travelling configuration, the high point of the load was the hose connector of the excavator. This was 4.49m above the road surface.
The layout of the rig was then altered into the position as allegedly instructed by the RTA officer. This involved lifting the bucket and driving the excavator forward on the trailer and setting the bucket down on a higher part of the trailer. Gregory Smith, the author of the report states (ex CD9 p 4):
"It was apparent that in this configuration the high point of the rig was now substantially higher and in a different position relative to the rig. The high point now was ... where the hydraulic arm was attached to the outer boom of the excavator."
A mark near the top of the boom was confirmed as being the impact point of the boom with the bridge.
The high point of the boom in its reconfiguration was 5.46m above the road surface. The height of the impact point was 5.22m above the road surface.
Argument as to the events at the Weigh Station
In submissions, the RTA recognised that a contest on the facts exists. Mr O'Neil stated that Mr Luck shifted the load while he did no more than to allow Mr Luck to do so whilst the vehicle was on the scales and to provide him with a bottle of liquid paper to mark upon the gunwhale of the truck the proper position of the axle centres. The RTA referred to Mr O'Neil's evidence that he did not notice any difference in the height of the excavator boom after the adjustment, and his attention was neither drawn nor directed to it. The RTA submitted that a later reconstruction and height measurement was possibly flawed as the bucket fitted was different, "but that reconstruction suggests that a significant difference in the height existed between the original position and the shifted position" (PWS p 116, par 303). The RTA put to the court "[w]hether this was enough to be noticed by the naked eye from ground level is inconclusive on the evidence" (PWS 116 par 303).
The insurers submitted that the evidence overwhelmingly supported the vehicle being in excess of 5m high when it left the weigh station and in excess of 4.3m high before it entered the weigh station. The insurers argued that it would have been obvious to Mr O'Neil that the height of the load had been increased by the re-configuration of the load and he should not have permitted it to drive on the road. The insurers contended that although there was no direction from Mr O'Neil in the exercise of any power at the weigh station, he clearly permitted the reconfiguration of the load and at the least assisted the driver and the excavator operator to a significant extent.
Some findings of fact
When assessing the honesty and reliability of witnesses, I take into account that they were required to give evidence of events that occurred some nine years before they entered the witness box. Furthermore, I give less weight to the statements made by Mr Luck to police and the insurance investigator, as unlike Mr O'Neil and Mr Wyborn, he did not give evidence, and his account of events was not subject to cross-examination.
One of the matters that requires earnest consideration in assessing Mr O'Neil's credit, was his remarkable reluctance to accept that the adjustment of the excavator at the weigh station had increased the height of the load and that this would be a matter of concern. Mr O'Neil's testimony on this topic in cross-examination by Mr Deakin included the following (T127 L4-22):
"Q. So, you knew, when that vehicle entered your weigh station, that its maximum height, fixed by regulation, was 4.3 metres?
A. That's correct.
Q. And if this vehicle was over 4.3 metres when it entered your station, you should have been aware of it, shouldn't you?
A. That's correct.
Q. You agree with this, do you not, that the effect of having the load adjusted was to raise the height of the excavator boom?
A. That is false.
Q. Do you not agree that the obvious effect of moving this load forward, and putting the bucket up on top of the gooseneck, was to increase the height of the excavator boom?
A. That is false.
Q. You do not accept that at all?
A. No."
And further (T127 L30-49, T128 L1-11):
"Q. Well, I am asking you, if the effect of moving the bucket up onto the gooseneck was to increase the height of that vehicle, you should have noticed, shouldn't you?
A. No, not at all.
Q. Even if it was a metre increase in height?
A. No.
Q. You don't think you should have noticed that?
A. No.
Q. You don't accept that an increase of height of a metre or more is something that you should have noticed in the course of your duties as an inspector?
A. That's exactly right.
Q. And even if the consequence of that increase in height was to put it close to 4.5 metres or more, it still was not anything that you needed to be concerned about, Mr O'Neil?
A. That's correct.
Q. And what if the increase in height resulted in a height of about 5.45 metres?
A. I can't make a comment on that.
Q. I want you to assume that that was the effect of the load being adjusted, that it was increased in height to 5.45 metres; was that anything that you would have been concerned about?
A. No.
Q. Not at all?
A. No."
And further (T129 L 24-42):
"Q. But your assessment of it was that it was about 4.3?
A. Yes.
Q. And you witnessed the adjustment of the load?
A. I did.
Q. And you signed off on the adjustment of the load on the breach report?
A. Yes.
Q. And I want to put it to you again, that the obvious effect of moving the bucket up from the deck of the trailer, up onto the gooseneck, was to increase the height of the boom on the excavator; do you agree with that or not?
A. I didn't have any input into that.
Q. I will come back to that. But do you agree it had that effect, Mr O'Neil?
A. As you said before, my observation was that the arms is up high, it was lengthened out, tucked under, which would have made it lower.
Q. You don't agree that it had the effect of increasing the height?
A. No, it didn't."
To my mind Mr O'Neil's answer that an increase in height to 5.45m was not a matter that would have concerned him was extraordinary and undermined his credibility. He had been employed with the RTA for some nine years as a vehicle inspector and it was an important part of his responsibilities to address the question of height. Ultimately, Mr O'Neil acknowledged that an increase in height to 5.45m would cause him concern when he said (T130 L10-19):
"Q. I'm asking you a different question. I'm asking you if the effect of this load being adjusted was to increase the height of the boom from 4.3 metres, or thereabouts, to 5.45 metres, or thereabouts, do you say to his Honour that would not have been of any concern to you?
A. The way you put that, yes. But that was not the fact.
Q. Because if it was an increase of that order, you should never have allowed this vehicle to leave the station, should you?
A. That's correct."
Before venturing further, it is necessary to consider the RTA's submission that the later height measurement was possibly flawed as the bucket fitted to the excavator was different. It appears that the RTA was referring to Mr Murray's notation in his inspection report (ex CD7) to an additional "bucket" being loaded on the trailer deck when the truck and excavator were weighed at the station. There is no suggestion, however, that the survey (ex CD9) undertaken by Mr Smith was inaccurate. There is barely a difference in the measurements undertaken by Mr Murray and Mr Smith as to the highest point of the load after the excavator had been reconfigured. Mr Murray was an RTA employee, being the Field Manager of the West Gosford Vehicle Regulation Unit and I have no doubt that he did his best to obtain accurate measurements. In any event, I propose to accept the heights above the road surface determined by Mr Smith as he had the assistance of Mr Luck and Mr Wyborn and there is no reference in the report to a difference in the bucket.
Accordingly, I find on the balance of probabilities that the height of the load when it entered the weigh station was 4.49m and upon departing was 5.46m. After the reconfiguration at the weigh station, the high point of the rig had been increased by almost a metre. As Mr Smith states (ex CD7 p 4):
"The layout of the rig was then altered into the position as allegedly instructed by the RTA officer. This involved lifting the bucket and driving the excavator forward on the trailer and settling the bucket down on a higher point of the trailer...It was apparent that in this configuration the high point of the rig was now substantially higher and in a different position relative to the rig. The high point now was ... where the hydraulic arm was attached to the outer boom of the excavator." (italics added)
The reconfiguration of the load had substantially increased the high point of the rig. Both Mr Luck and Mr Wyborn noticed that the boom of the excavator was higher than before. It is apparent from Mr Smith's report that the increase in height by the placement of the bucket on the higher part of the trailer was obvious. Mr O'Neil was aware that the bucket had been moved to the higher part of the trailer: see in particular sketch B in Weight Breach Report dated 22 April 2003 (PTB1 p 138). I find that the change in configuration was so substantial that the increase in height was sufficient to be noticed from ground level and a measuring stick was not required.
I conclude on the balance of probabilities that the increase in height should have been noticed by Mr O'Neil and the truck should not have been allowed to leave the weigh station with the excavator in that configuration.
Another troubling aspect of Mr O'Neil's evidence was that he had no input into the adjustment of the load, but the Breach Report (PTB1 p 103) bears Mr O'Neil's notation "Re adjusted Load to continue".
In written submissions the RTA acknowledged the difficulty that this created (PWS p 115):
"Complicating matters, and on the face of it supporting Luck's contentions, Mr O'Neill (sic) made a notation on the breach report that the load was 'readjusted-journey (sic) to continue.'"
Mr O'Neil provided two reasons for the notation. At paragraph 38 of his affidavit (ex G), Mr O'Neil stated that he wrote the comment "because he thought it proper to record on the breach report that the load had been readjusted before the vehicle continued the journey." In his oral evidence, Mr O'Neil's explanation for the notation was as follows (T137 L37-40):
"'The readjusted load to continue' was because the driver stated to me he just started with Mr Toepfer and he did not have a clue where the load was, so that was one reason why it was readjusted."
I find it difficult to understand how Mr O'Neil had no input into the positioning of the load if "[Mr Luck] did not have a clue where the load was."
It is apposite to note that in the report (PTB1 p 138) Mr O'Neil states:
"I said: Whilst I'm completing the weight breach form, if you wish to re-position the load to get it correct for your future positional reference, you and your offsider may do so."
In other words, it was his suggestion that the load be repositioned whereas in his affidavit (ex G par 21), it was Mr Luck who asked his permission to move the load. I do not accept Mr O'Neil's evidence that he allowed the excavator to be moved at Mr Luck's request. However, I accept Mr O'Neil's evidence that the RTA's policy in force at the time required him to direct the adjustment of the load for weight infringement only if the load was 20 per cent or more above the legal maximum. I find that he did not give a direction requiring Mr Luck to adjust the load pursuant to s 231(1)(b) Roads Act.
Overall I found Mr O'Neil to be an unimpressive witness.
There are inconsistencies between the statement made by Mr Wyborn to police dated 11 June 2003 (ex CD6 annexure C) and his oral evidence. For instance, in the police statement (ex CD6 annexure C p 2), Mr Wyborn recounted what was said by the RTA inspector to the truck driver but in his oral testimony, he stated that "[he] didn't hear anything from the RTA guy because [he] was going through the truck driver..." (T243 L1-2). This evidence is consistent with the answers Mr Wyborn gave during the police interview on 7 May 2003 (ex CD6 annexure B p 6) that it was Mr Luck who was talking to the RTA inspector and he heard none of the conversation clearly. Nevertheless, there is a common theme in Mr Wyborn's evidence that Mr Luck was speaking to the RTA inspector during the time the excavator was being moved. Mr Wyborn's evidence supports the statements made by Mr Luck that the Officer in Charge was involved in the reconfiguration of the excavator. I found Mr Wyborn overall to be a genuine witness who was doing his best to recall what occurred on 15 April 2003.
I am satisfied on the balance of probabilities of the following further facts:
(i) At approximately 3pm on 15 April 2003, the truck was directed into the weigh station as the weight over one of the axles was detected as exceeding the maximum permissible weight.
(ii) The layout of the excavator on the trailer when the truck entered the weigh station was that shown in the photograph at the bottom of p 3 of Mr Smith's report (ex CD9). The bucket of the excavator was set down below the higher part of the trailer. The high point of the rig was the hose connector which was 4.49m above the road surface. In this configuration, the truck and its load were below the permissible height on the bridge and would have crossed the bridge without incident.
(iii) The maximum permissible vehicle height on New South Wales roads was 4.3m without a special permit. The maximum permissible height with a special permit was 4.8m.
(iv) The screening lane upon which the truck entered the weigh station contained a height sensor set at 4.6m. At the time the height sensor was unreliable and often not working.
(v) There was no height sensor on the exit from the weigh station.
(vi) When the truck entered the weigh station, Mr O'Neil had been in the process of closing the weigh station. His shift finished at 4pm.
(vii) Mr O'Neil weighed the truck, trailer and its load over the scales. The rear axles (which were tandem axles) weighed 18.8 tonnes. The maximum permissible weight on the rear axles was 16.5 tonnes.
(viii) Mr O'Neil issued a weight breach form that was signed by Mr Luck.
(ix) Whilst the vehicle was on the scales, the excavator was moved around so that the load was no longer overweight on any of the axles. This was done at the suggestion of Mr O'Neil who assisted Mr Luck and Mr Wyborn with the re-configuration of the load, during which the bucket of the excavator was placed on the high part of the trailer. In this position, the weight on the rear axles was reduced to 16.40 tonnes, but the weight on the second axle was increased from 6.90 tonnes to 9.00 tonnes. There was a slight increase in the weight on the first axle from 5.0 tonnes to 5.30 tonnes. Mr O'Neil confirmed that the axle weights conformed with the permitted weights.
(x) The reconfiguration of the load had increased its height to 5.46m. Accordingly, the height of the load exceeded the maximum permissible height for vehicles with or without a special permit.
Was Mr O'Neil negligent?
During cross-examination by Mr Deakin, Mr O'Neil gave the following evidence (T153 L22-39, T154 L5-34):
"Q. You agree that height was one of the things that you were required to address, wasn't it, in the performance of your work as an RTA inspector?
A. If it was brought to my attention, yes.
Q. Don't worry about whether it was brought to your attention or not, you were required in the course of your work as an RTA inspector to pay attention to the heights of vehicles, weren't you?
A. I'm well aware of that, yes.
Q. And it was an important part of your responsibilities as an RTA inspector to address the question of height, wasn't it?
A. Yes.
Q. Because if vehicles are in excess of the legal height for the applicable vehicle, firstly, that constitutes a breach of the regulations?
A. It does, yes.
Q. If vehicles are permitted to be driven on the highways of New South Wales in excess of legal heights, it can give rise to safety aspects, as far as members of the public is concerned?
A. I'm well aware of that.
Q. And you were aware of it in 2003?
A. Yes.
Q. One of the matters that can cause concern is over height vehicles can strike objects over the highway?
A. That's correct.
Q. Trees, branches and other overhanging items such as that?
A. Yes.
Q. Low slung high electricity wires?
A. Yes.
Q. And structures like underpasses and bridges?
A. That's correct.
Q. And the risk of high vehicles striking those sorts of objects involves a very real risk of things falling onto the highway?
A. Yes.
Q. Branches, masonry and even metal objects?
A. Yes, insecure loads.
Q. And items being dislodged from the vehicle also falling on to the highways?
A. Very true."
And at T128 L12-35:
"Q. Mr O'Neil, you knew, from what the driver told you, that he was heading to Wyee?
A. I asked for a place of origin and place of destination, yes.
Q. The answer to my question is, yes?
A. Yes.
Q. And you knew that to get to Wyee, this truck had to travel south on the Pacific Highway across the Hexham Bridge?
A. Among other routes, yes.
Q. What do you suggest is the normal route to get from the Twelve Mile weigh station to Wyee?
A. Pacific Highway, Hexham Bridge.
Q. Thank you. Assuming that this driver drove in the usual way that you expected, you knew full well that he was going to have to cross the Hexham Bridge?
A. That's correct.
Q. And you knew that the height of the Hexham Bridge as marked was 4.8 metres?
A. That's correct."
Mr O'Neil was an authorised officer of the RTA (T305 L33). As an RTA inspector, he was vested with "a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care": Brodie v Singleton Shire Council [2001] 206 CLR 512 per Gaudron, McHugh and Gummow JJ p 559 at [102]. Mr O'Neil had a duty to ensure the safety of drivers and vehicles using NSW roads. He was obliged to make sure that vehicles of a height between 4.3m and 4.8m did not travel on the State's roads without a special permit and vehicles of a height in excess of 4.8m did not travel on the State's roads at all.
Mr O'Neil was aware of the obvious risk to safety that a vehicle with a height in excess of 4.8m posed. Moreover, he knew of the likelihood that Mr Luck would, during the journey to Wyee, drive the truck across the Hexham bridge and the bridge had a Low Clearance height of 4.8m.
Breach of duty of care is governed by s 5B Civil Liability Act. There was a foreseeable risk of harm that Mr O'Neil ought to have known, the risk of harm was not insignificant and a reasonable person in Mr O'Neil's position would not have permitted Mr Luck to continue his journey without the height being reduced. At the very least, Mr O'Neil should have warned Mr Luck and Mr Wyborn of the risk that the height of the load created. The "likely seriousness of the harm" was undoubtedly grave and the "burden of taking precautions to avoid the risk of harm" was not significant: s 5B(2)(b)-(c) Civil Liability Act. Mr O'Neil breached his duty of care to the first defendant.
Was Mr Luck reckless?
It is convenient to deal with the issues of recklessness and the asserted breach by Barrie Toepfer Earthmoving of the reasonable care and precautions condition of the policy, as the insurers' contentions are founded upon Mr Luck's conduct after he drove from the weigh station.
Argument
The insurers submitted that Mr Luck had the benefit of three warnings from Mr Wyborn which drew his attention to concern about the height of the vehicle. It was contended that by the time he reached the maximum height sign (if not before) Mr Luck was made aware that the load was higher than the maximum height available on the bridge. Having struck the first braces, he undoubtedly knew that the load was higher than the bridge and the impacts were continuing to occur. The insurers submitted that Mr Luck continued to drive across the bridge notwithstanding the increasingly severe impacts which were occurring between his load and the structure of the bridge and he failed to stop or slow down to avoid or lessen the impact damage.
The insurers argued that there were numerous places where the vehicle could have been pulled over safely to readjust the load well before approaching the bridge and even on the bridge's approach. Further, as Mr Toepfer and Mr O'Neil confirmed, an alternative route avoiding the low height problems on the bridge could have been employed. The insurers contended at the very least, Mr Luck should have stopped to check the height or proceed cautiously towards the first part of the bridge in order to satisfy himself that the height would not interfere with the bridge.
The insurers submitted that even if all of those acts were not reckless, proceeding at 65-70km/h onto the bridge without checking to see whether it could be safely crossed "was clearly reckless especially in circumstances where Mr Luck himself confirms what Mr Wyborn stated in his evidence that it was obvious the beams were being struck with increasing noise volume and jumping around of the vehicle as it proceeded across the Bridge" (IWS p 17 par 55).
Another contention was that it was Barrie Toepfer Earthmoving who bore the onus of proving that the reasonable care and precautions condition was complied with. The insurers submitted that Mr Luck through a lack of concern, deliberately adopted a course of action which he realised exposed him to the risk of someone being injured by the recognised danger. The insurers argued that Mr Luck's conduct in entering the bridge with an illegally high vehicle and proceeding across the bridge in the knowledge that the structural members above his truck were being severely impacted failed to satisfy the reasonable precautions test and satisfied the standard of recklessness.
The RTA submitted that Mr Luck's conduct was not reckless as "recklessness" has been understood at law. It was inarguably negligent, but the insurer has failed to demonstrate that Mr Luck's state of mind contained the necessary elements to establish recklessness. The RTA pointed out that recklessness requires an advertence to the risk and a conscious decision to disregard the risk.
The RTA contended that on the facts of the case, Mr Luck would have been unlikely to have had actual knowledge that a danger existed and known the actual height of the reconfigured load, and nor had it been physically measured. It was put to me that Mr Wyborn's evidence in chief might suggest that a question was raised in Mr Wyborn's mind, but there was nothing to suggest in his testimony that he warned Mr Luck about his suspicion as to height. Whilst Mr Wyborn's statement to the police does record that at one point he said words to the effect that it is too high, this was not referred to in his oral testimony which in other respects displayed a good recollection. The RTA submitted that it was likely that Mr Luck was pre-occupied with the axle weights and it was not until they were already on the "approach ramp" [i.e. span 7] to the bridge at the "4.8 metre" height sign that Mr Wyborn first mentioned the height.
The RTA argued that there was no evidence that Mr Luck adverted to the risk and there could be no finding of recklessness on Mr Wyborn's evidence. The jocular exchange as they entered the bridge, it was submitted, "ought not to be interpreted as a serious warning of the risk, and in any event as Wyborn says it was said in a 'joking' manner, and the insurer [could] not establish that Mr Luck ought to have taken it seriously, or had sufficient time to assess it and react" (PWS par 244). The RTA contended that the proper inference is that Mr Luck did not advert to the danger, as even Mr Wyborn admitted that whilst crossing the bridge, he was unsure about the cause of the impact, at least initially.
The RTA submitted the evidence disclosed that there was other traffic on the bridge and the inference is that it would be unsafe to stop in the circumstances. It was contended that the evidence falls short of that required to establish reckless advertence as demanded by the case law governing England and NSW. Further, "the evidence fails, critically, to disclose that Mr Luck knew that the excavator was too high to pass the bridge" (PWS par 250).
Another submission was that clause 7(i) (recklessness) of the policy was an exclusion clause and the onus of proof rests upon the insurers to establish on the balance of probabilities that all of the matters necessary to activate the exclusion are proved.
Legal principle
Clause 7(i) of the policy is found under the heading "Exclusions". Upon a proper construction of the policy it is an exclusionary clause and the onus lies on the insurers to prove, on the balance of probabilities, a breach of the clause. On the other hand, the condition of reasonable care (condition 3) is a condition precedent to indemnity and the onus lies on Barrie Toepfer Earthmoving to bring itself within that condition: Kodak (Australasia) Pty Ltd v Retail Traders Mutual Indemnity Insurance Association (1942) 42 SR (NSW) 231 at 237; Legal and General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390.
GLISSAN: I object. It's now beyond the question.
DEAKIN
Q. Would that time that you've referred to in your opinion give rise to a conclusion such as you ultimately arrived at or a different sort of conclusion?
A. No. You would come to the conclusion because you would know that the factor of safety with the ropes would be five or six and you would come to the conclusion it was all okay pretty quickly."
Mr Pearson was of the opinion that the counterweights did not have to be removed to enable the structural elements of the lift span to be repaired. He stated (ex CD13 par 3.31):
"The two counterweights operate in spans 3 and 5 and move down the towers of these spans as the lift span rises, being in balance with the lift span. The lift span deck is a simply supported span and the tower spans are also simply supported. Hence there is no deck continuity over the these three spans. If the counterweights are locked into the towers, the lift span can rest on its bearings separated from the counterweights."
Unlike the RTA engineers, Mr Pearson did not see the damage to the lift span which had been physically moved and was no longer securely located by its fixing mechanism.
All of the engineers tasked with the bridge repair considered that it was necessary to remove the counterweights, as the lift span had been severely damaged. I prefer their evidence on this issue to that of Mr Pearson who did not inspect the damage. The weight of the lift span had been balanced by the counterweights. In my view, it does not matter that the counterweights and counterweight ropes were not damaged as their removal was a reasonable and necessary step in making good the damage to the lift span.
Although Mr Wiltshire considered that damage could be calculated mathematically, the RTA was obliged to ensure the safety of the public. As Mr Gooley said, the counterweights were capable of destroying the bridge if they fell. In my opinion, the RTA's duty of care required that visual and scientific tests be undertaken to ascertain their condition.
The question remains whether the counterweights and counterweight ropes would have been replaced whether or not the accident occurred. There is some material which suggests that this was a consideration before Mr Luck's accident.
Mr Pearson expressed the opinion that "there is firm evidence that the replacement of counterweights and ropes was required because of deterioration due to age" (ex CD13 par 3.34).
An email from Kevin Strange to Mr Manchanayake on 6 November 2000 included the following (ex CD18 Tab 1):
"It may be an opportune time for the RTA to also consider replacing the counterweight ropes. These ropes are as original i.e. 50 years old, and their structural integrity is unknown, which presents a major risk to the users of the bridge."
I have previously referred to Mr Gooley's 33-point task list. Items 30 and 31 were the "change out" of the up haul and down haul ropes and counterweight ropes. Item 27 was "inspect report and repair / replace counterweights" and item 28 "inspect, report and repair counterweight rope attachments".
Mr Gooley's evidence included the following (ex KKK par 13):
"As at 15 April 2003, the bridge was operating normally, even though it was over 50 years old and an obsolete design, it was operating with some obsolete machinery such as the vintage tractor engine but was still functioning properly. We knew of concrete spalling in the counterweights, which required investigation, the wire ropes were over 50 years old, and there was corrosion of steel including some in some structural members. The guide ropes had recently been adjusted to correct a twist in the lifting platform, although at that stage we did not [k]now the cause of the twist. My view as the project engineer was that there were no significant safety concerns requiring urgent or immediate repair and that to undertake the proposed repairs would involve serious traffic disruption. To my knowledge there were no plans to undertake the repairs referred to in 33 point plan at that date."
In an email dated 3 December 2002 from Bullivants to Mr Gooley concerning "Wire Rope Inspections", Hans Tiller expressed his belief that the ropes could be inspected "and achieve a high certainty that any internal deterioration can be confirmed." Mr Tiller stated that he would assess during the preliminary inspection "if changing these ropes one at [a] time... is realistic" (ex CD18 Tab 40). He attached a copy of samples from the ropes removed from the Batemans Bay Bridge and noted that the samples demonstrated that these ropes were replaced at an appropriate time.
The management meeting minutes of 13 December 2002 disclose that the results of the Kenshaw annual rope inspection had been received. The minutes record (ex CD18 Tab 42):
"This inspector conducted a superficial inspection and recommended that all ropes should be changed out."
A second inspector was to be asked to prepare a brief and price estimate.
On 25 March 2003, Mr Tiller suggested in a facsimile to Mr Gooley that "[n]ow that the election is over and won, perhaps the steps outlined in the attached can be implemented" (ex CD18 Tab 51). Mr Tiller had recommended a visual inspection of the ropes be undertaken. Mr Tiller was critical of the rope inspection carried out in November 2002. He observed (ex CD18 Tab 51):
"No quantitative comments regarding rope detioration were made. The inspection was apparently carried out without moving the ropes. The report recommends a non-destructive examination which, as discussed, is not possible, and concludes that due to their age the rope be replaced. No reference to any standard regarding rope detioration is made and apart from age, which in itself is not a detiorating factor, no reason for rope removal is given."
In a report dated 24 November 2004 to Freeman Pty Ltd concerning the increased cost of the restoration and repair of the bridge, Mr Parry-Williams wrote (PTB5 p 1259):
"Over more than fifty years, the two counterweights had deteriorated to a condition where they were deemed to be at the end of their life. They were cracked, split, spalling, and showing signs of internal damage."
and (PTB5 p 1260):
"A quotation was obtained for the new ropes, and this price was used as the estimated cost. However, the rope end hardware had worn and deteriorated such that these also needed replacement with new stainless steel hardware."
Mr Parry-Williams' concern about the condition of the two counterweights was not supported by the tests conducted by Mr Salome. As previously recounted, Mr Salome concluded that the counterweights were generally sound and not significantly affected by 50 years of service. However, he noted that "there are some indications that unless remedial measures are taken, they may not continue to remain in sound condition for the medium to long term" (PTB3 p 603).
Mr Salome was of the opinion that the efflorescence in itself was not a cause for concern, but continued leaching of lime from concrete could eventually allow corrosion to develop. The cracks through the concrete that were present, were not considered to be of great significance in their own right, "except that they also provide a conduit for moisture and chlorides into the concrete where they can reach the reinforcing steel and enhance the onset and rate of corrosion" (PTB3 pp 603-604).
Mr Salome stated that cracks of this nature can be filled by injection, and sealed over using flexible membranes. However, he was of the opinion that (PTB3 p 604):
"a more effective solution to both the efflorescence and the cracking would be to either cover the counterweights with a roof, or to fill the wells with a lightweight material and install falls and a membrane to shed water from the top."
Mr Gooley's 33-point task list prioritised neither the "change out" of the counterweight ropes nor the inspection of the counterweights.
An inspection prior to Mr Luck's accident would have revealed that there was no need to replace the counterweights. Mr Tiller was critical of the superficial inspection that recommended that the counterweight ropes be changed and opined that age was not in itself a deteriorating factor.
I am not persuaded that it is more likely than not that the counterweights and counterweight ropes would have been replaced whether or not the accident occurred. All that was contemplated was that they should be inspected.
I am satisfied, however, that it was inevitable that the counterweight ropes and counterweights would have been inspected and the remedial work recommended by Mr Salome undertaken. Accordingly, the RTA is entitled to a judgment for the items claimed in Item 10 but the cost that Barry Toepfer Earthmoving is liable to pay is to be reduced by the cost of Mr Salome's "more effective" solution to both the efflorescence and the cracking of the counterweights as set out in [499] above. A further reduction is to be the cost of Mr Salome's inspection of the condition of the counterweights. Quantification is a matter for the referee.
Items 9(d), (e) and (f) relate to the lift span warp. The lift span warp preceded Mr Luck's accident and there is no evidence that the warp was affected by it. In any event, the RTA no longer presses its claim for costs associated with the repair of the lift span warp. The claim for items 9(d), (e) and (f) are not allowed.
There was pre-existing damage to the lift span which has been detailed at [276] and [405] above. The Parvez-Shah report recommended that the nine damaged top chord braces be replaced. Professor Ansourian's opinion that this earlier damage increased the damage caused by Mr Luck's accident was embraced by Mr Pearson (ex CD12 par 4.69). The cost that Barry Toepfer Earthmoving is liable to pay for the lift span repairs is to be reduced by the cost of the repair or replacement of the nine damaged top chord braces identified in the Parvez Shah report. Furthermore, the extent to which the RTA's failure to repair or replace the damaged top chord braces before Mr Luck's accident increased the new damage occasioned in that accident is to be quantified by the referee and is to be deducted from the amount payable to the RTA.
With those qualifications, the RTA is entitled to a judgment for the items claimed in Items 5, 7 and 9(a), (b) and (c). Quantification is a matter for the referee.
Item 8 - Structural Bridge Repairs
This part of the RTA's claim concerns repairs to the horizontal transverse members or chord braces damaged by Mr Luck's accident, including damage to the two tower spans and their locking mechanisms.
I have previously found that the damage caused by the excavator arm was severe and caused damage to the braces and girders north of the lift span and light damage to five span 2 members south of the lift span. However, there was significant pre-existing damage to truss spans 2, 6 and 7 and tower spans 3 and 5 which is detailed in the Parvez Shah report at [276] above. I making findings of the pre-existing damage to these spans in accordance with the Parvez Shah report.
Mr Pearson's tabulation of the pre-existing damaged members and the members damaged in Mr Luck's accident is set out at [403] above.
I am satisfied that the methodology adopted by the RTA in changing out the beams was appropriate. I accept the following evidence of Dr French (ex V V par 9):
"The steel Hexham was built of was thus very forgiving. The replacement of the members was considered the most reasonable course to adopt bearing in mind all the circumstances. The suggested alternative method of heat straightening can cause embrittlement of the metal where excessive cycles of heating are required to straighten the member."
The cost that Barry Toepfer Earthmoving is to pay for the structural bridge repairs is to be reduced by the repair or replacement of the pre-existing damage to truss spans 2, 6 and 7 and tower spans 3 and 5 identified in the Parvez Shah report. Furthermore, the extent to which the RTA's failure to repair or replace this damage before the accident increased the new damage occasioned in that accident is to be quantified by the referee and is to be deducted from the amount payable to the RTA.
With those qualifications, the RTA is entitled to a judgment for the items claimed in Item 8. Quantification is a matter for the referee.
Item 11 - Sheave Bearings
The insurers contended that Barry Toepfer Earthmoving should not bear the cost of the three items claimed, which they contended was created by normal wear-and-tear over many years. Mr Pearson observed (ex CD13 par 3.39):
"There is no substantian of damage to sheaves or bearing arising from the impact loading of the event of 15 April 2003. In fact Professor Ansourian's analysis (item A3) of the impact effect on the towers and such movement should not have a detrimental effect on the bearings. If the bearings were worn such detioration would have been due to constant use over many years."
Mr Pearson accepted that a reasonable cost for investigating the condition of the sheaves and bearings would be appropriate in the circumstances.
Mr Wiltshire concluded that there was an extremely low probability of the impact of the excavator arm leading to damage in the sheaves and trunnion bearings. Mr Wiltshire agreed that a prudent engineer would have wanted to investigate whether there was any damage to the sheaves and trunnions.
In his report (PTB5 pp 1255-1264), Mr Parry-Williams states:
"Item 11 - Sheaves and Sheave Bearings
The original estimate allowed for the replacement of the sheave bearings alone, it was later identified that the sheaves and trunnions needed to be removed for NDT testing. After NDT cracks in the trunnions were identified and repaired and trunnions reinstalled. Access to many of the bearings, bushes and grease nipples required men to climb into hazardous locations. New grease manifolds were installed in safe locations with grease lines running to these bearings and bushes."
I am not satisfied on the balance of probabilities that Mr Luck's accident caused damage to the sheaves, sheave bearings or trunnions. I find that it was a necessary and reasonable step for the RTA to investigate whether any of the items had been damaged in the accident. The removal of the sheaves and trunnions for NDT testing was a reasonable course for the RTA to adopt. However, I am not satisfied that Barry Toepfer Earthmoving should bear the cost of repairs or the replacement of the sheaves and trunnions as the cause of the their replacement was not Mr Luck's accident.
Accordingly, the RTA is entitled to a judgment for the cost of investigating the condition of the sheaves, bearings and trunnions and the cost of their removal for NDT testing and their reinstallation. Quantification is a matter for the referee. The RTA is not entitled to the cost of the repair or replacement of any of these items.
Item 12 - Mechanicals
The mechanical components claimed under this head refer to the mechanical components in the drive house on the lift span, including the structure of the drive house itself. It includes components such as winches, gears and drums that hauled the ropes that raised and lowered the lift span, motors such as the emergency auxiliary motor and the generator, and the various non-electrical componentry of the drive house. The RTA does not pursue its claim for repair of the winch drum bearings and idler bearings.
I have previously referred to the mechanical damage to the bridge. The damage to the lift span and drive house / control room was undoubtedly severe. I am satisfied that none of the pre-existing damage to the lift span impacted upon the mechanical components of the bridge and nor did it prevent the bridge from operating as a lift span. I accept the RTA's submission that all of the damage that occasioned the need to remove and replace the mechanical components was caused by Mr Luck's accident.
The principal contention by the insurers was that the replacement of the drive house instead of its repair resulted in a considerable improvement in the quality of the building and hence there was a high degree of betterment. Mr Pearson proposed that the cost of replacement be shared in a similar manner to the cost of removal of the original building (ex CD12 par 4.101).
The new steel-framed drive house replaced the hardwood timber-framed drive house which had been designed in 1943. It was undoubtedly an improvement on the existing structure. However, there is no evidence that the RTA contemplated the replacement of the drive house before Mr Luck's accident. The drive house was effectively destroyed by the accident and even if it had not been damaged, it had to be demolished to effect the structural repairs to the lift span.
In these circumstances, Barry Toepfer Earthmoving is not to be given credit for betterment of the drive house. The RTA is entitled to the cost of the demolition and replacement of the drive house.
The drive house petrol motor was damaged and could not be repaired due to its age. The issue of fire safety drove the change from petrol to diesel. A new diesel motor was used to replace it of equivalent power. There is no evidence that the RTA contemplated the replacement of the drive house motor before Mr Luck's accident. No credit is to be given to Barry Toepfer Earthmoving for betterment of the motor, other than any cost difference between a petrol and diesel motor. Accordingly, the RTA is entitled to the cost of dismantling, removing and reinstalling all of the mechanical components in the drive house. There is to be a judgment for the RTA for all of the items claimed in Item 12. Quantification is a matter for the referee.
Item 13 - Electrics
The RTA principally relies on the evidence of Mr Kennedy who was said to be in the best position of all the witnesses to assess the electrical condition of the bridge and the extent of the works undertaken. Mr Kennedy's affidavit is ex QQQ and his immediate post accident report is found at PTB2 pp 339-359.
I accept that the wiring and electrical operations of the bridge were in good functioning condition before Mr Luck's accident.
Mr Kennedy's observations of electrical damage after the accident included damage to all three-lock pin proximity switches and to some cabling under the bridge. Replacement of the damaged beams required the removal of the old wiring. None of this old wiring required replacement before the accident.
When the drive house motor was replaced, the installation of a new control board and cabling was required. All new wiring had to be completed in accordance with Australian Standards and modern wiring standards.
Mr Kennedy stated that the bridge had old limited protection devices which were no longer in use. Because of this, the RTA was required to install new protection devices and cables that were compatible with the replacement drive house machinery.
KBR in their report (PTB2 pp 361-382) found that the power supply to the control room had been damaged where it passed onto the lift span but the electrical services on the span were not damaged. KBR concluded that the repairs required to allow the electrical services to perform their intended function were:
Repair the incoming power cable at the junction of the span and the fixed bridge section. This repair should also include mounting the cable from below the beam so that it was not exposed to future damage.
Realign safety interlocks when the lift span structure was repaired and the control room realigned.
KBR observed that in order to repair the structure of the lift span it would be necessary to disconnect all cabling on the underside of the control room.
Mr Pearson noted that while relatively minor electrical damage had been reported, the quantum of the RTA's claim would suggest that there had been a general replacement of the electrical components with up-to-date equipment. There would have been, he said, a considerable betterment factor in modernising the electrical installations.
It appears from Mr Kennedy's affidavit that the electrical work was not confined to the damage caused by Mr Luck's accident. He said (ex QQQ par 18):
"In order to bring the system up to appropriate standards, including those of New South Wales Fair Trading and the Australian Wiring Rules, we were required to replace the whole wiring system." (italics added)
and further (ex QQQ par 35)
"...on top of that Stramit was engaged by RTA who asked us to bring the bridge up to AS for lighting. The lighting had to comply to provide for pedestrian traffic to cross the bridge." (italics added)
I am satisfied that the disconnection and removal of the electrics under the lift span and the removal of the control panel and motor control panel in the drive house were reasonable and necessary steps, in making good the damage caused by Mr Luck's accident. The installation of the new control board and cabling, the repair of the incoming power cable at the span junction, the mounting of that cable, the realignment of the safety interlocks and the installation of new protection devices and cables compatible with the replacement drive house machinery were also reasonable and necessary steps. The RTA is entitled to a judgment for the cost of this work.
I accept that all of the new wiring had to be completed in accordance with Australian Standards and modern wiring standards. Although by the provision of the new equipment and modern wiring there was a degree of betterment, there is no evidence that the RTA contemplated carrying out that work before Mr Luck's accident. No credit is to be given to Barry Toepfer Earthmoving for betterment.
I am not satisfied, however, that the RTA is entitled to recover for any electrical work carried out on the bridge other than in the area of the lift span and the drive control house.
The RTA is entitled to a judgment for the cost of design of the electrical systems in making good the electrical damage to the lift span and drive control house.
As to the cost of the installation of the temporary electrical supply and of the power feeders and power supply, the RTA is entitled to a judgment, but the amount of the judgment is to be reduced by that part of the cost that is attributed to the pre-existing damage and work that was un-associated with the electrical damage to the lift span and drive house. Quantification is a matter for the referee.
Item 15 - Bridge Access
Item 16 - Commissioning
Item 20 - Site Facilities
Item 21 - Project Management
In oral address, Mr Glissan submitted that the court might say that all of the above items are "matters part of which will be recoverable as necessary parts of the cost of making good the damage caused by the truck, but the division, the determination of which parts is properly a matter for the reference out" (T1591 L7-14).
It is plain that bridge access, commissioning, site facilities and project management were required to make good the damage caused by Mr Luck's accident, but part of these costs were incurred in repairing or replacing the pre-existing damage or in upgrading the bridge. Mr Glissan's suggestion is sensible and was not opposed by Mr Deakin. Mr Pearson proposed that these costs be apportioned.
Accordingly, the RTA is entitled to a judgment for Items 15, 16, 20 and 21 in such amounts determined by the referee as reasonably incurred by the RTA in making good the damage caused by Mr Luck's accident. Quantification is a matter for the referee.
Orders
I make the following orders:
1. Verdict and judgment for the plaintiff (the Roads and Traffic Authority of New South Wales now known as Roads and Maritime Services) against the first defendant (Barrie Toepfer Earthmoving and Land Management Pty Ltd).
2. Verdict and judgment for the cross-defendants (CGU Insurance Ltd, Vero Insurance Ltd, and NTI Ltd) against the cross-claimant (Barrie Toepfer Earthmoving and Land Management Pty Ltd) on the first cross-claim.
3. Verdict and judgment for the cross-defendants (the Roads and Traffic Authority of New South Wales, and the State of New South Wales) against the cross-claimant (Barrie Toepfer Earthmoving and Land Management Pty Ltd) on the second and third cross-claims.
Orders for Referral
I make the following orders for referral to a referee:
a. The parties agree on a referee to prepare a report into the questions identified for referral in the Schedule.
b. That the referee hold structural engineering qualifications, be a certified member of Engineers Australia, and be a registered / chartered member recognised by the National Engineering Registration Board.
c. Direct that, if the parties agree on the form of the orders appropriate to give effect to the decision of this court, they shall within 14 days file an agreed short minutes of those orders naming an agreed referee to conduct the assessment.
d. Direct that, if the parties cannot agree on the form of the orders appropriate to give effect to the decision of this court, each shall within 21 days file their own short minutes of the orders for which they contend, together with brief written submissions not exceeding 5 pages in support of the making of those orders.
e. Direct that, in preparing proposed orders for the court, regard is to be had to Annexure 2 to Supreme Court Practice Note Equity 3.
Schedule
The questions arising for referral to the referee are contained within the following paragraphs of the judgment:
(i) 439 - 446;
(ii) 447;
(iii) 448 - 453;
(iv) 454 - 461;
(v) 462 - 466;
(vi) 467 - 506;
(vii) 507 - 512;
(viii) 513 - 518;
(ix) 519 - 538; and
(x) 539 - 541.
Costs
Direct that if the parties do not agree as to costs, they are to file and serve written submissions as to costs within 21 days.
Grant liberty to the parties to apply to re-list this matter on 7 days notice to each other.
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Decision last updated: 28 August 2014
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