RTA v Capelo; Cremona v Capelo

[2004] NSWSC 721

CITATION:	RTA v Capelo; Cremona v Capelo & Anor [2004] NSWSC 721
HEARING DATE(S):	02/08/04 03/08/04
JUDGMENT DATE:	12 August 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Kirby J
DECISION:	1. The Notice of Motion by Mr Capelo for summary dismissal of the cross claim by the RTA is dismissed; 2. Mr Capelo should pay the costs of the RTA in respect of that Motion; 3. The Motion by the RTA to amend the cross claim to add a count in contract is allowed; 4. The RTA should, thereafter, within 28 days of the amendment having been made, and no later than 56 days from the date of this judgment, discontinue the proceedings 20200/01, paying the costs of Mr Capelo to be agreed or taxed; 5. The costs of the Motion for amendment of the cross claim should be costs in the cause.
CATCHWORDS:	Application for summary judgment - unsafe system of RTA - whether driver also arguably a concurrent tort feasor - application to amend cross claim to add contract count - whether amendment would be futile.
LEGISLATION CITED:	Compensation to Relatives Act 1897 Occupational Health and Safety Act 1983 Motor Accidents Act 1988 Supreme Court Act 1970 Law Reform (Miscellaneous Provisions) Act 1946 Transport Administration Act 1988
CASES CITED:	General Steel Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Kim v Cole (2002) Aust Torts Reports 81-662 Horton v Jones (1939) 39 SR (NSW) 305
PARTIES :	20200/01 Roads & Traffic Authority (Pl) Jose Antonio Capelo (Def) 20292/03 Minna Maarit Cremona (Pl) Jose Antonio Capelo (1st Def/Cross Def) Roads & Traffic Authority (2nd Def/Cross Claim)
FILE NUMBER(S):	SC 20200/01; 20292/03
COUNSEL:	20200/01 B Gross QC/A Porthouse (Pl) D Yakenian, sol (Def) 20292/03 No appearance (Pl) B Walker SC/B Kelleher (1 Def/Cross Def) B Gross QC/A Porthouse (2 Def/Cross Claim)
SOLICITORS:	20200/01 I V Knight (Pl) J S Pinto & Co (Def) 20292/03 Corrs Chambers Westgarth (Pl) Abbott Tout (1 Def/Cross Def) I V Knight (2 Def/Cross Claim)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVID KIRBY J

Thursday 12 August 2004

20200/01 ROADS AND TRAFFIC AUTHORITY v JOSE ANTONIO CAPELO
20292/03 MINNA MAARIT CREMONA v JOSE ANTONIO CAPELO & ROADS AND TRAFFIC AUTHORITY

JUDGMENT
`

1 KIRBY J: On 28 May 1993 at 6.40 pm Dr Cremona was driving on the F6 Freeway north towards Wollongong. He was in the fast lane and travelling at 100 kph. As he came over the crest of a hill he was confronted by a large, slow moving truck. It was in the same lane. It was being driven by Mr Jose Capelo and was carrying spoil from roadworks which were being undertaken by the Roads and Traffic Authority of New South Wales ("the RTA"). Dr Cremona did not brake. He collided with the rear of the vehicle as he attempted to pass it on the inside. He received severe injuries from which he died within a matter of hours.

2 I have before me two Notices of Motion which relate to cross claims commenced as a result of litigation concerning the death of Dr Cremona:

· First, a Motion by Mr Capelo for summary judgment on the cross claim against him by the RTA.

· Secondly, a Motion by the RTA to amend its cross claim against Mr Capelo to add a count in contract or, alternatively, an order that a separate Statement of Claim issued by the RTA against Mr Capelo (matter number 20200/01) (which includes a count in contract) be heard at the same time as the cross claim by the RTA against Mr Capelo.

3 It is convenient to deal with the application for summary judgment first. An understanding of the issues requires a description of the accident and the course of proceedings to this point.

The accident.

4 On 9 May 1993 the RTA began resurfacing sections of the F6 Freeway between Figtree and Berkeley. The freeway comprised three northbound and three southbound lanes separated by a grass nature strip. The nature strip adjacent to the site of the accident was 17 metres wide. The work was carried out at night to minimise the disruption to traffic.

5 On 28 May 1993 the RTA began work on lane three (the outside lane) for southbound traffic in an area approximately 200 metres north of the Nolan Street overpass at Unanderra. The section of road was about 450 metres long. The operation was described by a consultant (Roger Stuart-Smith) in these words: (Exhibit 1: 30.09.02 p7)

"The roadworks included the use of a 'Rotor Mill' machine that stripped the surface of the pavement and passed the spoil up a conveyor belt to fall into the trays of waiting trucks in front of it. A paving crew some distance behind the Rotor Mill then laid a new bitumen surface. Three mobile flood lighting assemblies illuminated the area."

6 To shelter the crew, the RTA closed lane three southbound shortly after 4.00 pm for a distance of 2 kms to the north. The traffic was warned that work was taking place and that it should merge into lanes one and two. The mill began operating at about 5.00 pm. It continued to operate throughout the night feeding 6 tipper trucks, including the truck of Mr Capelo. The trucks were operated by owner drivers under contract with the RTA. Loading each truck took 3 or 4 minutes. Each load consisted of 9 or 10 tonnes of spoil. The spoil was taken to a designated stockpile, which had been identified by the RTA, and which was located at Five Island Road. The round trip took about 20 minutes.

7 The RTA did not determine the route which should be taken by the truck drivers in their journey from the mill to the stockpile. Nonetheless, those in charge were aware of the route which was in fact taken. After each truck had been filled with spoil, it was driven south in the barricaded southbound lane three for about 60 to 100 metres. The trucks then made a U-turn across the median strip, turning into the outside lane of the northbound freeway, sometimes using the road shoulder (about 1.8 metres wide) between the median strip and lane three before entering the outside lane.

8 The northbound freeway at this point consisted of a long sweeping right hand bend, sloping upwards towards a crest. The RTA did not regard the northbound lanes as relevant to their works. Accordingly, there were no signs warning motorists that roadworks were being undertaken, or that slow moving trucks would merge with traffic. The speed limit on the freeway was 100 kph. The trucks, before they gathered momentum, travelled at speeds much less than that.

9 It was in these circumstances that Dr Cremona collided with the rear of Mr Capelo's truck on 28 May 1993.

Proceedings by Dr Cremona's widow.

10 Mrs Minna Cremona, the widow of Dr Cremona, commenced proceedings against Mr Capelo (the first defendant) and the RTA (the second defendant) under the Compensation to Relatives Act 1897 on her own behalf and on behalf of the children of the marriage. She asserted that her husband's death had been caused by the negligence of one or other, or both, defendants. Cross claims were commenced by each defendant against the other.

11 The RTA was prosecuted under s16 of the Occupational Health and Safety Act 1983 for failing to ensure that persons not in their employment were not exposed to risks to their health and safety arising from their undertaking. The Summons was accompanied by Particulars which identified the following shortcomings of the RTA's undertaking:

"e) The defendant failed to adequately warn traffic on the northbound highway of the hazard of trucks entering the fast lane from the median strip.
f) The defendant failed to direct and instruct the drivers as to what route should be used so that the risks to persons using the highway were removed or reduced.
g) The defendant failed to ensure that the trucks were adequately equipped with flashing lights and other warning devices.
h) The defendant failed to provide adequate written instructions on procedures to be adopted when working at night.
i) The defendant failed to take all necessary steps to adequately assess and monitor the risks to persons using the highway and to persons not in its employ arising from the system of work used."

12 The matter came before Fisher CJ in the Industrial Court. The RTA pleaded guilty. A statement of agreed facts was tendered. His Honour was invited to sentence upon that basis. The statement included the following:

"9. There was no signage placed along the northbound lanes of the freeway to warn traffic of the hazard of trucks entering the fast lane from the median strip. There were no flashing lights on the tipper trucks used to remove the spoil. ..."

13 It was acknowledged that the absence of warning signs and flashing lights was a departure from the Authority's usual practice (para 17).

14 The agreed facts identified a number of "near misses", where other motorists, that day, almost collided with trucks emerging from the median strip onto the northbound carriageway. In the context of work which began at 5.00 pm, the agreed facts were as follows:

"21. At approximately 5.25 pm on the said day Brent Edwards a motorist on the northbound fast lane of the freeway was travelling at approximately 100 kph when he saw a truck on the median strip. When he was 75 metres from the truck it pulled partially into the fast lane at 10 kph leaving insufficient room in the fast lane for Edwards. The adjoining lanes had other traffic which prevented Edwards from taking evasive action other than braking. He was able to change lanes when he was 20 metres from the truck. The truck had begun to pull back off the road onto the median strip.
22. At approximately 5.40 pm on the said day, Anne Evans a motorist using the northbound fast lane of the freeway saw a truck about 100 metres ahead. The truck had completed a 'U' turn and was ready to enter the free at an angle which would have encroached on both the fast lane and lane 2.
23. At approximately 5.50 pm on 27 May 1993 Robyn Spilsbury was travelling on the northbound fast lane of the freeway when a truck pulled out in front of her and she had to change lanes to avoid a collision. The truck appeared to have no lights. On 28 May 1993 at 5.50 pm at the same sit a truck pulled out and did a 'U' turn in front of her and entered lanes 2 and 3.
24. At approximately 6.10 pm on the said day, Lorraine Buckley was travelling in lane 2 of the northbound freeway at approximately 100 kph when she saw a truck ahead. The truck was travelling at 20 kph and she was required to brake suddenly.
25. At approximately 6.20 pm on the said day Phillip Waddell was travelling on the northbound freeway at approximately 80 kph when a truck travelling at 5 kph pulled out in front of him at an angle to the freeway which took up all of the three lanes. A car 50 metres in front of Waddell braked and swerved. Waddell did not see the truck's side clearance lights until he was close to the vehicle. No indicator was used by the truck. The accident involving Dr Cremona occurred at 6.40 pm."

15 There was no system for reporting "near misses" (para 40).

16 The agreed statement identified alternatives which were open to the RTA, which would have been safer, and which were not used. Instead of permitting trucks to make a U-turn across the median strip, and thereafter merge with other northbound traffic, the Authority acknowledged that it could have directed drivers to use other routes which were identified. All routes were longer. Some required traffic controllers. A number, however, were identified as "feasible" options.

17 The agreed statement further acknowledged that, even using the system which was employed, crossing the median strip, there were alternatives. The statement said this:

"35. A fifth option would have been to signpost the northbound carriageway advising the public that trucks were merging from the right and to funnel the traffic away from lane 3 until the trucks could attain a speed whereby they could safely merge with the traffic. This would have allowed the trucks to execute 'U' turns safely and as such was a feasible option."

18 The document ended with an acknowledgement by the Authority that it had failed to ensure the health and safety of persons not in its employ, and that its system of work for the removal of spoil by tipper trucks was unsafe in the following respects: (para 41)

"(i) The truck drivers were allowed to make a 'U' turn on a median strip and enter the fast lane of the freeway in order to reach the dump site.
(ii) The visibility of the truck drivers was impaired.
(iii) The trucks were not fitted with flashing lights or other warning devices.
(iv) There was no signs posted to warn oncoming motorists of the hazard of trucks entering the northbound lanes.
(v) The lighting used at the worksite of the southbound lanes created a collage effect on the visibility of motorists using the northbound lanes.
(vi) No directions were provided to the drivers as to what route was to be taken.
(vii) The procedures manual provided to employees lacked any instruction on the signage to be used when night work was being carried out.
(viii) There was inadequate planning as to what safe routes were available to the drivers.
(ix) There was a lack of direction as to who was responsible for the activities of planning and routing the trucks and of posting adequate signage.
(x) There was no procedure in place whereby near misses were reported."

19 Fisher CJ gave judgment on 29 August 1996. He recounted the submissions by the prosecution in these terms: (p12)

"The hazards were self evident. The hazard as almost akin to placing a large rock in the northbound lane. On reaching the fast lane of the northbound traffic the trucks were almost stationary and poorly lit, they were hard to see and had been the subject of numerous complaints the day before. There were no signs on the northbound expressway, no warning lights, it was pitch black, slow moving almost stationary trucks were entering directly into the fast lane. He submitted that there was clearly a case of gross negligence."

20 His Honour reached the following conclusion: (p13)

"No precautions of any kind were taken against the hazards arising from the insertion, in darkness, of trucks into the fast northbound lane of traffic. Some of the obvious precautions that were neglected were well within the Authority's previous experience and knowledge. Matters such as trucks carrying flashing revolving lights, warning signs and lights, closure of the fast lane, stop signs to approaching traffic to permit safe crossings, were ignored. This performance is very much below any acceptable standard. The accident and the death of Dr Cremona should not have happened. I can find nothing of excuse in the narrative given."

21 He imposed a fine of $150,000.

22 Following the plea of guilty, the plaintiff filed a Notice of Motion seeking summary judgment against the RTA. The Motion was heard by Dowd J. Judgment was given on 7 August 1998. His Honour said this: (p5)

"It is alleged by the plaintiff in support of this application that as there is clear evidence of negligence on the part of the defendant, such matter not being challenged before me, and that there is no defence disclosed by the RTA, that the plaintiff is thus entitled to summary judgment. This, of course, would still leave on foot the action by the plaintiff against Capelo and the cross action on the part of the RTA against Capelo if this application for summary judgment were to succeed. The issue of damages still has to be resolved as between all parties."

23 His Honour added: (p13)

"It is irrelevant for the purposes of this application that Capelo may have committed breaches of traffic regulations. The issue is as to whether his actions were the sole cause of the collision. In my view they can not be."

24 His Honour therefore concluded as follows: (p13)

"It seems to me therefore that there can be no triable issue on the question of negligence on the part of the RTA and that on the whole of the evidence no substantial triable defence could be raised on any of the issues raised by the RTA. I consider therefore that the plaintiff should be entitled to summary judgment on liability against the RTA."

25 The RTA sought leave to appeal against that decision on 28 September 1998. Leave was refused (Handley and Stein JJA). The damages recoverable against the RTA were to be assessed applying principles under the common law. On the other hand, damages against Mr Capelo had to be assessed according to the Motor Accidents Act 1988. Part 6 of that Act introduced limitations upon the amount that could be recovered under various heads of damage. Accordingly, there was advantage to the plaintiff in proceeding against the RTA, rather than Mr Capelo.

26 Having secured summary judgment against the RTA, the plaintiff then sought, and was given, leave to discontinue against Mr Capelo. The action proceeded against the RTA. The cross claims were postponed. The plaintiffs were awarded (after adjustment on appeal) $5,788,900, plus costs.

The application for Summary Judgment.

27 Against this background, Mr Bret Walker SC, senior counsel for Mr Capelo, identified three bases which justified the unusual step of bringing to an end the cross claim by the RTA against Mr Capelo. They were:

· First, the statement of agreed facts in the prosecution of the RTA before the Industrial Court, being the same statement the plaintiff had relied upon when making a similar application before Dowd J.

· Secondly, a report of 24 January 1995 by A Krestovsky, an Occupational Health and Safety consultant to the RTA, which had been revealed through the discovery process.

· Thirdly, the Australian Standard (AS1742.3-1985) which identified the responsibilities of the RTA in the situation which confronted them on the evening of 28 May 1993.

28 This material, it was suggested, made it clear that the death of Dr Cremona was the consequence of a system failure. The truck driver was not responsible for the system. Indeed, he like Dr Cremona, was potentially a victim of that system. It would be "unthinkable that the truck driver would have to bear any of the burden" for this tragedy (T4). There was, on the argument of Mr Capelo, no evidence of responsibility personal to him. He was simply someone operating within an inadequate and dangerous system created by the RTA.

29 The test on an application for summary judgement is, of course, well known. It nonetheless bears repeating. Barwick CJ, in General Steel Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, said this: (at 128/9)

"The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. ... It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action -- if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal -- is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'' 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'."

30 Turning then to the first plank in the argument, the statement of agreed facts, the statement plainly identified a number of grievous shortcomings in the "system" devised by the RTA. It was a system, as the Coroner described, which was "inherently dangerous". A direction to truck drivers (such as made after the incident) (Exhibit B p288ff) to use a more circuitous but safer route should have been given. In circumstances where truck drivers were permitted to cross the median strip, and enter the northbound lanes, there ought to have been signs warning motorists of roadworks. Lane three ought to have been closed for a distance to enable trucks to gather momentum so that they could safely merge at a time when they would be visible to other motorists. Trucks ought to have been fitted with flashing lights.

31 The neglect of the RTA therefore cannot be doubted. However, that does not answer the question: was there also neglect on the part of Mr Capelo, such that he was capable of being regarded as a concurrent tortfeasor? An inadequate system may be made worse by the failure of a person, operating within that system, to exercise reasonable care.

32 I do not find much assistance from the fact that Dowd J entered summary judgment against the RTA, and the Court of Appeal refused leave to appeal against that decision. There was, as I have said, obvious neglect on the part of the RTA, and no defence. At the time summary judgment was entered, the plaintiff was maintaining an action against Mr Capelo. The plaintiff later, for reasons which are readily understood, chose to abandon that claim.

33 The statement of agreed facts does not, in terms, criticise Mr Capelo nor suggest that his neglect was a contributing cause of the accident. Indeed, it included paragraphs which identified difficulties which the RTA's system created for him:

"36. On the said day the tipper trucks were executing the 'U' turns and entering the northbound carriageway just north of a road side sign which stated 'No Turning or Stopping'. When entering the freeway the truck drivers could enter at an angle of 90 degrees which provided them with a good view of the approaching traffic. However by entering at this angle the risk of collision increased since they would have to complete a right hand turn at slow speed across both lanes of the freeway. Alternatively the trucks could enter at a smaller angle which would have allowed the driver to accelerate along the breakdown lane and verge into the fast lane. This option however would adversely affect their vision of approaching traffic.
37. The topography of the worksite was such that Dr Cremona approached the truck travelling on a long sweeping right hand bend and upwards towards a crest. The effect was to point the headlights of Dr Cremona's car away from the road and to the left of the truck as the car travelled along the bend. The probability of the head lights picking up an object in an unlit median strip was low as they would not illuminate the truck until the car was 'lined up' in lane 3. Further the bend in the road would have made it difficult for the truck driver to determine at night in which lane an approaching car was travelling."

34 In the context of those paragraphs, Mr Walker made the following submission: (T6)

"In our submission on the one I asked ... your Honour to flag as the thing that could stymie our application before you, namely a triable issue about my client's responsibility in terms of keeping a look out. The combination of paragraphs 36 and 37 really suffice even before we get to the Krestovsky and Australian Standards documents to make it unthinkable that the truck driver should bear any of the responsibility at all wherein the statutory contributions claimed by the Authority should be dismissed summarily."

35 It is convenient to repeat, in this context, the acknowledgment of systemic failure by the RTA, directly relevant to Mr Capelo, namely: (para 41)

"(i) The truck drivers were allowed to make a 'U' turn on a median strip and enter the fast lane of the freeway in order to reach the dump site.
(ii) The visibility of the truck drivers was impaired.
(iii) The trucks were not fitted with flashing lights or other warning devices."

36 If, as now suggested, Mr Capelo materially contributed to the accident, would you not have expected such an assertion by the RTA in the agreed statement of facts? The sentencing Court was concerned with the criminality of the RTA. One may have cases where an employer devises and implements a safe system where, in a moment of neglect, they fail to exhort employees to observe that system. The employer in such circumstances may still be guilty of a breach of the absolute duty under the section. However, its criminality would be the less because there was at least a proper system, and neglect on the part of an employee to observe that system. If that were the employer's case, you would expect such matters to be raised in any agreed statement of facts placed before the sentencing Court.

37 Here, however, the RTA had plainly not devised a safe system. Its neglect was obvious and acknowledged. It would not have really ameliorated its neglect had they pointed out that Mr Capelo may also have been guilty of neglect. I find it unsurprising therefore that the statement of agreed facts did not seek to identify Mr Capelo as being, in part, blameworthy. There is, nonetheless, evidence in the material before me that, even before the plea, the RTA did regard Mr Capelo as being in part to blame. The Authority sought advice from the then Crown Advocate (R N Howie QC) before the plea was entered. That advice included the following reference to the RTA's contention that Mr Capelo was at fault:

"The matters put by the RTA seem to me to be raising a defence under s53 of the Act. Firstly, it is said that it was not reasonably practicable to have set up a system for a fixed warning in a situation the workers constantly moved along the road: see s53(a). Also it is said that the accident was a result of the negligence of the driver of the truck and that no provision could reasonably [have been] made to provide against ... such an occurrence: see s53(b)."
(emphasis added)

38 The agreed statement itself does hint at issues relating to Mr Capelo's part in the accident. The following paragraphs appeared:

"13. The driver of the truck Mr Jose Antonio Capelo had just prior to the accident loaded his tipper truck with approximately nine (9) to ten (10) tonnes of spoil. According to his statement to the police he indicated that after filling his truck he drove about 100 metres south of the Rotor Mill before commencing to turn on the median strip prior to moving onto the northbound lanes. He said that he made the 'U' turn on the median strip at a speed of about 5-10 kilometres per hour. He observed no vehicles approaching and turned into the fast lane and travelled for another 100 metres before he heard a bang. He estimated that the truck was travelling at approximately 40-50 kilometres per hour at the time of impact.
14. The statement of Mr Capelo is inconsistent with the statement provided to the police of Juli Warwick, a passenger in the car immediately behind Dr Cremona's on the said day. Ms Warwick stated that she saw a quick movement to the right of Mr Cremona's car and within the next instant there was an impact.
...
28. The driver of the truck, Mr Capelo, is facing criminal charges under the Crimes Act."

39 In the oral submissions before the Industrial Court on the plea, counsel for the RTA said this: (Exhibit A: p32)

"We accept vicarious liability for our subcontractor Mr Capelo the truck driver. It is still uncertain what happened just before this accident. Mr Capelo had been a subcontractor doing work for the RTA for eight years. He was an experienced driver and to a large extent the RTA is dependent on its contractors doing the right thing and exercising caution, driving safely and paying attention. He was fully licensed in accordance with the requirements of the law and we cannot go everywhere with our subcontractors."

40 Let me move from that to the second plank in the applicant's argument, the report of Mr Krestovsky. Two officers of the RTA were charged with manslaughter as a result of Dr Cremona's death. They sought Crown representation. Before representation could be provided, it was necessary to undertake a thorough investigation. Mr Krestovsky carried out that investigation. He roundly condemned the RTA system and the "culture" within which its employees (including those charged) were operating.

41 Mr Krestovsky examined the accident to determine the causes. He looked, amongst other things, at the role of Mr Capelo. His report included the following: (Exhibit B: p27)

" The topography of the worksite limited the truck driver's sight distances.
Mr G Butler, Senior Constable from the Accident Investigation Squad carried out observations that indicate that Dr Cremona's car headlights should have been visible to the truck driver about 10 seconds before the impact time. With Dr Cremona travelling at 100 km per hour, this is a distance of 280 metres.
The median between the carriageways is not flat but is graded so that it is lower in the middle than at the edges, to allow for draining of water. This means that a truck which is entering at 45 degrees to the F6 Freeway, as Mr Capelo's was, would not be horizontal, but at an angle with the driver's side some 5 degrees lower than the passenger side. This would have affected the truck driver's line of sight.
The bend in the road would make it difficult for the truck driver to determine, at night, in which lane the approaching car was travelling."

42 As it happened, an optometrist, Mr Quinsey, came upon the accident scene soon after it occurred. He was in a unique position to comment upon certain aspects of the lighting. Mr Krestovsky summarised those comments in these words: (Exhibit B: p27/28)

"Mr Quinsey ... has stated that:
-- the position of the bright floodlights at the work site against a very dark background;
-- the long gentle sweep of the road combined with the incline of the road; and
-- the distant movement of the Authority's trucks, other vehicles at the worksite and southbound traffic, behind the truck emerging from the median strip;
combined to create a 'collage' of lights that resulted in detrimental effects on drivers' night vision and an extremely severe visual hazard making it:
-- 'impossible or extremely difficult' for Dr Cremona to see the truck moving into his path, against such a background; and
-- difficult for the truck driver to see Dr Cremona's car approaching."

43 Mr Krestovsky pointed out that between 5.25 pm and 6.30 pm 12 to 14 trucks entered the northbound lanes of the F6 Freeway. Four resulted in "near misses" and the fifth in a fatality. He said this: (Exhibit B: p30)

"When entering the Freeway the truck drivers were faced with a dilemma. If they enter the Freeway at an angle of 90 degrees, they had a good view of the approaching traffic through the passenger window, but the risk of collision increased since they would have to complete a right hand turn at slow speed across both lanes of the Freeway. During this manoeuvre the whole length of the truck would have to be moved across the fast lane. Alternatively they could complete the U-turn on the median and enter the Freeway at a smaller angle. This would allow them to accelerate along the breakdown lane and merge into the fast lane, but the position of the truck at an angle to the Freeway would adversely affect their ability to see approaching traffic.
Mr Capelo testified that he chose the second course of action, entering the Freeway at about 45 degrees to the carriageway about 60 - 100 meters prior to the impact point accelerated along the breakdown lane and merged into Lane 3 at an estimated speed of 50 km per hour. However Mr Quinsey, an optometrist, estimates that the truck entered the F6 Freeway 15 to 25 metres before the point of impact."

44 No doubt Mr Krestovsky had available to him the account provided by Mr Capelo in his record of interview with the police on 7 June 1973. In that interview Mr Capelo said this: (Exhibit 1: p15)

"Q11. Would you care to tell me how this collision occurred?
A. I was working on the southbound fast lane, I went down 100 metres, I looked to see if there were any cars coming in the northbound lane. No cars came so I turned into the fast lane I travelled along the fast lane for about 100 metres. As I went through the gears I heard a big bang from behind my truck, I felt a sharp pain in my back. My foot was knocked off the accelerator and my right knee hit the dash."

45 The interview continued: (Exhibit 1: p16/17)

"Q20. After leaving the road mill, you said that you travelled down 100 metres and then turned into the northbound fast lane. How did you make this turn?
A. I looked down, there was no traffic coming, the road was clear so I turned into the grass and then into the northbound lane.
Q21. By the grass, do you mean, the grass median strip which separates the north and southbound traffic?
A. Yes, that's correct.
Q22. From the position you commenced your U turn, how far could you see, to the south?
A. I could see, say about to Kanahooka Road.
Q23. Did you see any vehicles approaching you at all?
A. No I didn't see no vehicles approaching at all.
Q24. Did you see the glare of any headlamps approaching you from the distance?
A. No, none at all.
Q25. Can you tell me the speed at which you made your U turn?
A. About 5 to 10 kays. I had stopped before I commenced the U turn.
Q26. Where had you stopped?
A. Just on the lane in front, the fast lane.
Q27. Did you stop again, before turning into the northbound fast lane?
A. No, as I turned into the grass middle, I saw there was no traffic coming, I went into the lane.
Q28. What do you mean by the fast lane?
A. Just the ones on both sides, in the centre near the grass strip.
Q29. Whilst your vehicle was on the grass, where did you look to check for traffic?
A. As I was going towards the grass I looked through the window towards the passengers side.
Q30. At what angle was your truck in relation to the northbound lanes, as you were entering onto them?
A. About 45 degrees."

46 Mr Capelo said that at the time of the collision he was doing "40 to 50" kph (Q32). He agreed that when he looked (to the south) there was nothing obstructing his view (Exhibit 1: p18 Q47).

47 Against that background, Mr Krestovsky examined what he termed "accident kinetics". He said this: (Exhibit B: p35)

"This calculations shows that at the time the truck driver completed his U-turn and looked for the approaching traffic, Dr Cremona was, between 9.6 and 13.1 seconds travelling time away from impact point. But Mr G Butler, Senior Constable from Accident Investigation Squad established that the glow of approaching headlights becomes visible over the crest of the road about 10 sec before the car reaches the impact point. Therefore, when the truck driver looked to see if there was any approaching traffic, at best Dr Cremona's car headlights were just beginning to glow on the horizon or most likely could not be seen. This combined with the earlier described limitations on the truck driver's line of sight due to the truck's position and site topography, can explain the truck driver's claim that he did not see approaching headlights when he took his decision to move on to the Freeway.
If the truck was not visible to Dr Cremona until illuminated by his headlights, when they 'lined up' in Lane 3, the truck would have been about 65 meters away which represents 3.5 to 4.5 seconds of time before impact. Normal reaction time is 1 second, but due to darkness and the need to perceive the truck and its much slower speed, it could have been 2 seconds. Therefore there should have been just enough time for an attentive driver to decelerate the car from 100 km per hour to 50 km per hour, which was the speed of the truck as claimed by the truck driver. At the very least Dr Cremona should have been able to take some breaking action to reduce the impact velocity, but there is no evidence of this happening."

48 The report concluded with an identification by Mr Krestovsky of "accident causes" (Exhibit B: p36/37). The primary cause was the inadequacy of the Authority's risk management systems. The situation was made worse by "incorrect knowledge and beliefs" on the part of the Authority's personnel. Mr Krestovsky then identified what he termed "other contributing causes". He said this: (Exhibit B: p37)

"Other contributing accident causes were:-
1. adverse effects of site topography and truck position at the end of U-turn on truck driver's line of sight; and
2. adverse effects of site topography and environment on Dr Cremona's ability to perceive the truck in time to avoid impact.
Finally Dr Cremona may have contributed to his own death because of:

· inattentive driving, or

· self-administered narcotic drug;

but there is no clear evidence to support or dispel these propositions.
In summary it can be said that the Authority was conducting its operations on the 28 May 1993, on the F6 Freeway, in such a way that there was little 'safety margin' available for drivers in the northbound carriageway, who were not fully alert and attentive in their driving."

49 Mr Capelo was not identified as a cause. There was no suggestion by Mr Krestovsky that he was at fault.

50 The third aspect of the applicant's argument concerned the Australian Standard. At the time of the Industrial Court criminal proceedings, counsel for the RTA was under the mistaken belief that there was no Australian Standard applying to the RTA operation. However, there was such a standard. Indeed, the Authority was a member of the committee which formulated that standard. The preface to the standard identified the philosophy which it embodied in these words: (Exhibit A: p90)

"The philosophy adopted in developing this standard was that road users should be given a general warning in advance of works activity and then positively guided through, around or past the work site in an appropriate and safe manner. This differs from previous practice which relied heavily on specific warnings and labelling of activities to the detriment of effective guidance."

51 The standard contained elaborate measures to achieve these ends, including signs and various other devices which could be used to warn motorists of the presence of danger. The terms of the standard are helpfully set out in written material tendered by the applicant at the conclusion of their submissions (p13ff). The standard simply underlines what cannot be doubted, namely that the RTA had an obligation to devise a safe system to manage their work, and the means available to achieve that end.

The response of the RTA.

52 The RTA retained a consultant, Mr Roger Stuart-Smith, a traffic engineer. Mr Stuart-Smith examined the statements and exhibits in the criminal prosecution of Mr Capelo and the two RTA officers, as well as other material gathered in the course of the civil litigation. He prepared a number of reports. The reports acknowledge the deficiencies in the RTA system, and their contribution to the crash. Mr Stuart-Smith, however, focussed upon Mr Capelo and whether he, by the manner in which he drove the truck, had also contributed to the accident. He critically examined the account provided by Mr Capelo to the police, comparing that account with the objective data emerging from the police investigation and the statements from eye witnesses.

53 His report included a description of the road geometry (Ex 1: report p9), and an identification of the point of impact and the likely point where Mr Capelo left the shoulder of the road and began using the northbound lane (lane three) (p11). Mr Stuart-Smith examined the probable lighting conditions (p22) and the statements of various witnesses as to sight distances (the road geometry having since altered). He said this: (p24)

"In his interview, Mr Capelo reported that he could see as far as Kanahooka Road (around 3.7 km south of the crash site). Mr Capelo was possibly referring to Northcliffe Drive, the nearest interchange to the south. Northcliffe Drive is approximately 1,000 m south of the start of the Armco railing near where Mr Capelo turned. The merge point of the northbound on-ramp from Northcliffe Drive is approximately 640 m south of the start of the Armco railing.
From the median strip beside the POI (presumably seated in his car), Senior Constable Butler recorded the time it took for northbound vehicles to reach the POI from the first glimpse of headlamps. He recorded an average time of 10 seconds. This time corresponds to a distance of around 280 m (assuming average approach speeds of 100 km/h). In evidence at the Coroner's Court, Senior Constable Butler reported that sight distance for northbound traffic to the POI would have been around 250 m (stated as 300 m at the District Court)."

54 Mr Stuart-Smith added: (p26)

"Assuming a driver's eye height of at least 2 m (Mr Capelo's eye height), a view to the headlight height of approaching vehicles would have been possible for approximately 330 to 350 m southwards from the possible merge location. This distance would reach a location around 60 m prior to the end of the large cutting seen in Photograph 7. The view shown in the photograph is consistent with this measurement."

55 However, because the accident occurred at night, the reflection from headlights could be seen over a greater distance than the direct line of sight. Mr Stuart-Smith summarised the evidence in these words: (p26)

"Nonetheless, views of the reflections of headlamps from the Northcliffe Drive on-ramp (around 640 m away) would be expected in the dark circumstances. As a minimum, an additional 200 m could be expected beyond the direct headlight view for a view of headlight reflections on the cutting wall (ie a view of more than 530 m). Mr Crinnion's estimate of 30 to 40 seconds (corresponding to a probable distance of 830 to 1100 m at 100 km/h) could have been possible, but may not have been the case in all circumstances."

56 Having crossed the median strip, Mr Capelo had a choice which Mr Stuart-Smith identified in these words: (p27)

".... either merging with lane 3 (the fast lane) on the northbound lanes and subsequently moving across into lane 2 and then lane 1 (the slow lane), or continuing directly across the northbound lanes to lane 1."

57 A number of truck drivers employed by the RTA had provided the police with statements as to their practice. Mr Spyros Spyrou made a statement of 23 June 1994 in these terms:

"When the truck was full I would drive forward and turn on to the median strip and head north and you slowly go on to the right lane but if no one there you go into the left lane straight away."

58 Mr Stuart-Smith contrasted Mr Capelo's description of what he did and the observations by others. Whereas Mr Krestovsky, in his report, appeared to accept Mr Capelo's account, Mr Stuart-Smith plainly doubted a number of aspects of his account. There were differences between the account of Mr Capelo and that of eye witnesses in respect of the angle at which he had entered the freeway (45 degrees cf 90 degrees), the point of entry into lane three from the shoulder of the road, the distance he travelled in lane three before Dr Cremona collided, and whether he could and should have seen the approach of Dr Cremona's vehicle in his rear vision mirror.

59 After a lengthy analysis, Mr Stuart-Smith reached the following conclusion: (Exhibit 1: report p40/41)

"As noted in Section 10.2, it is possible that Mr Capelo accelerated for around 30 to 40 m before the crash. It is not known whether he merged early and accelerated within lane 3 or accelerated along the median shoulder and then moved into lane 3 shortly before impact. The observations of Dr and Ms Warwick are indicative of the latter, Mr Capelo's report is indicative of the former.
In either case it is likely that he accelerated for around 6 to 10 seconds (based on an acceleration of 0.05 g to 0.1 g from an initial speed of 5 to 10 km/h).
As noted in the previous section, a similar time would have been required to reach lane 1. Consequently, Mr Capelo's decision not to move into lane 1, but to merge with lane 3, exposed the approaching northbound traffic to an unnecessary and hazardous risk.
At the time Mr Capelo commenced to accelerate, it is likely that he initially moved into the lane when Dr Cremona was within sight to the south (around 160 to 280 m away). Dr Warwick was reportedly a further 30 to 45 m behind Dr Cremona (6 to 10 car lengths) and thus also within the sight of Mr Capelo."

60 He then dealt with a further alternative in these terms: (p41)

"For Mr Capelo to have moved into lane 3 when the two vehicles were visible (some distance away) and then stay in that lane whist accelerating very slowly from a very slow speed, cannot be regarded as reasonable driving behaviour from a road safety perspective. Mr Capelo should have moved over and out of the way into lane 2 or lane 1 (should traffic have been in lane 2, he should not have attempted to move onto the northbound lanes at all). Even if the approaching vehicles had been out of direct sight (which is unlikely), Mr Capelo should have moved out of lane 3."

61 The conclusions reached by Mr Stuart-Smith, after this analysis, were stated in these terms: (p46)

"4. Merging from the median was a hazardous manoeuvre due to the foreseeable substantial speed differential between that of approaching vehicles and the slow moving truck.
5. Notwithstanding his role as a subcontractor to the RTA, Mr Capelo had a responsibility to drive on public roads in a manner consistent with expected safety standards. By entering lane 3 northbound (the fast lane) in a slow moving truck from the median, Mr Capelo undertook a manoeuvre that was foreseeable by any typical driver, as hazardous.
6. Given that Mr Capelo had performed a U turn and intended to merge with the northbound lanes, the procedure with the least safety exposure to other motorists would have been to wait for a sufficient gap in traffic in all lanes and then cross to lane 1.
7. It was possible for Mr Capelo to view approaching traffic for a considerable and adequate distance, by manoeuvring his truck to an appropriate angle before entering the northbound lanes.
8. The available sight distance was sufficient to enable Mr Capelo to reach lane 1 before the arrival of approaching traffic, had there been sufficient gaps. Without sufficient gaps, the manoeuvre was foreseeable as dangerous and should not have been undertaken.
9. Based on witness reports and supported by an analysis of the truck's speed at impact, it is likely that Mr Capelo accelerated over a distance of around 30 to 40 m, either alongside or within lane 3, to reach a speed of around 20 to 25 km/h by the time of impact within lane 3.
10. Mr Capelo failed to minimise the hazard presented by his truck, by not moving across to lane 1 (the slow lane) as quickly as possible.
11. Mr Capelo most likely either commenced to move into lane 3 when both Dr Cremona's vehicle and the following vehicle would have been some distance to the south, but in his view and likely to catch up to his slow moving truck, or he commenced to move into lane 3 directly in front of the approaching vehicles. In either case, he apparently did not observe the two vehicles when it could have been expected that he would do so.
12. When within lane 3, Mr Capelo did not observe the two vehicles approaching behind him when they should have been clearly visible in his rear vision mirror.
13. ....
14. It [is] not possible to determine whether Dr Cremona could have been expected to have had sufficient time to observe and avoid the truck given the low reach of his low beam headlights, the right curve, the bulk of the truck, the possible distraction of nearby lights and the low expectancy of the event.
15. Mr Capelo had the same responsibility as that of other drivers when entering a fast flowing traffic lane, to minimise the potential safety risks to those drivers. Mr Capelo failed to wait for a sufficient gap in the traffic before moving out. When he did move out, he stayed in the fast lane instead of moving into a slower lane. These actions were the principal contributing factors to the crash."

62 Mr Walker SC (for Mr Capelo) questioned the admissibility of some of these conclusions. However Mr Stuart-Smith, as a traffic engineer, was required to examine the interaction between road geometry, systems and motorists, taking account of the way motorists behave, or may behave. In the result, no objection was pressed. I need not, on this application, finally determine the admissibility of each observation. Some may be common sense observations based upon the data assembled rather than expert evidence.

63 However, it seems to me that there is clearly a triable issue concerning the actions of Mr Capelo. I am not satisfied that the applicant, Mr Capelo, has met the rigorous tests for summary judgment.

The Motion of the RTA for amendment.

64 The cross claim by the RTA against Mr Capelo was filed on 10 January 1995. It claimed contribution or indemnity as between tortfeasors. It did not plead an indemnity in contract. It later came to the notice of the RTA that a document dated 21 August 1989 had been executed by Mr Capelo. The document (said to be MR Form No 376) was headed as follows:

"DEPARTMENT OF MAIN ROADS, NEW SOUTH WALES
TENDER FOR THE HIRE OF MOTOR TRUCK/S WITH DRIVER/S"

65 The document was accompanied by a further document which carried the same heading. The body of the document included these words:

"AGREEMENT made this twenty-first day of August
one thousand nine hundred and eighty-nine between Jose Antonio Capelo
(hereinafter and in the general conditions annexed hereto marked 'A' called the Contractor) of the One Part and THE COMMISSIONER FOR MAIN ROADS (hereinafter and in the said general conditions called the Commissioner) of the Other Part WITNESSETH ....."

66 The document was executed by Mr Capelo in the presence of a person who subscribed his signature and provided his address as "c/- RTA Bellambi". Stamp Duty was paid.

67 The General Conditions, which were annexed, included the following Indemnity clause:

"10. The contractor shall undertake the whole risk of carrying out the contract, and without limiting the generality thereof, shall -
(a) hold the Commissioner indemnified against all claims arising out of -
(i) damage to the property of the Contractor or any third party;
(ii) death of or bodily injury to the Contractor of his employees or employees of the Commissioner or any third party including persons transported in vehicles engaged by the Contractor.
whether such damage, death or bodily injury is caused by the use of a motor vehicle or by goods falling or projecting therefrom or otherwise howsoever."

68 The RTA (being the second defendant in the proceedings) then filed a Notice of Motion in which it sought, amongst other orders, the following:

"3. That the Second Defendant be granted leave to file an Amended Cross Claim.
4. Such further or other order as seems appropriate."

69 The Notice of Motion was returnable on 20 June 1997. It came before Dowd J. After argument it was stood over until 25 August 1997. On that day there were objections to an affidavit which were dealt with. The matter was then stood over again. No date was fixed.

70 It appears that the Motion was then overtaken by other aspects of the claim. On 7 August 1998 Dowd J made an order that there be summary judgment against the RTA in the proceedings by the widow of Dr Cremona. That claim was then heard in March and April 1999. Dowd J gave judgment on 25 July 2000. The judgment on the appeal was handed down on 7 December 2001.

71 The RTA filed a Further Statement of Claim against Mr Jose Capelo on 23 March 2001. An affidavit by the solicitor for the RTA states that the proceedings were commenced because of concern that the Motion had not been determined, and to prevent the claim being defeated by the Statute of Limitations. The Statement of Claim included the following:

"3. By a contract in writing made on 21 August 1989 ('the Contract') the defendant agreed in consideration of payments to be made by the plaintiff, to perform for the plaintiff prescribed work within the meaning of the Contract.
4. It was a term and condition of the Contract that the defendant would undertake the whole risk of carrying out the Contract and would hold the defendant indemnified against all claims arising out of the death of any third party in carrying out the Contract however so occurring."

72 Indemnity was claimed (para 12) for the damages awarded to Mrs Cremona and her children:

"... subject to credit being given to the defendant for the difference between such judgment and the amount which that judgment would have been if damages had been calculated not under the general law but under the Motor Accidents Act 1988."

73 A Statement of Defence was filed on behalf of Mr Capelo, which included the following:

"2. The Defendant admits paragraphs 3 and 4 to the extent they allege the entry by the plaintiff and the defendant into an agreement but does not otherwise admit that any indemnity contained therein extended to claims arising out of negligence and/or breach of the said agreement by the plaintiff."

74 A separate Notice of Motion was filed by the RTA on 28 July 2003 seeking that the hearing of these proceedings (20200/01) be heard together with the cross claim.

75 The application is, therefore, that the RTA be given leave to amend the cross claim against Mr Capelo to add the claim for indemnity based on contract, or that the two actions be heard together. They rely on s63 of the Supreme Court Act 1970. That section expresses a fundamental principle designed to avoid the multiplicity of proceedings. Here the parties were the same and, according to the RTA, the contractual issue will need to be determined in any event in resolving the claim as between tortfeasors. The affidavit of the solicitor for the RTA included the following paragraph:

"21. The RTA will contend that the contractual indemnity clause requires that the cross claim as between tortfeasors under section 5 of the Law Reform (Miscellaneous Provisions) Act must itself be resolved, subject to the operation of the Motor Accidents Act, by reference to the contractual indemnity clause, as, for example, occurred recently in Kim v Cole (2002) Aust Torts Reports 81-662."

76 Mr Gross QC, on behalf of the RTA, drew attention to the head note of that case, which was in these terms, referring to the Queensland statute equivalent to s5(1)(c):

"[Per McPherson JA with whom McMurdo P and Helman J agreed]:
1. It is a mistake to segregate liability in tort and liability in contract in order to assess respective contributions towards a plaintiff's loss. Under sec 7 of the Act there is only one apportionment to be made: a 'just and equitable' apportionment, having regard to all the relevant circumstances as well as the whole conduct of each party. Moreover, attributing primacy to notions of 'causation' or 'culpability' in determining apportionment is not warranted under the Act.
2. The circumstances to be considered in assessing contribution include the terms of any contract purporting to govern the rights and liabilities of the parties at the time the damage was done. While general duties of care are imposed by law, it is still open to the parties to enlarge or to circumscribe the scope of such duties through the express or implied terms of a contract. In the present case, the parties' contractual dealings indicated that the appellant ought to contribute a disproportionately larger share towards the respondent's loss."

77 Mr Walker, on behalf of Mr Capelo, asserted that a close reading of that case did not support the headnote. McPherson JA was the only Judge, in terms, to take the view set out in paragraph 2 above, upon which the RTA relies. The clear terms of the Law Reform (Miscellaneous Provisions) Act 1946, s5(1)(c) meant, according to Mr Walker, that the view was wrong and ought not to be followed. Whether that submission be right or wrong (and it is unnecessary for me to decide), it seems to me plainly convenient that both proceedings should be heard at the same time since they involve the same parties and many of the same issues.

78 However, the preferred course, from the viewpoint of the RTA, is to amend the present cross claim and discontinue the separate proceedings. From the perspective of Mr Capelo, there is not, it was acknowledged, very much difference between an amendment of the cross claim or the two actions proceeding together. The only issue, therefore, is whether the proposed amendment is capable of satisfying the test for amendment, that is, that it is not "so obviously futile that it would be struck out if it appeared in the original pleadings. ..." (Horton v Jones (1939) 39 SR (NSW) 305, per Jordan CJ at 310).

79 On that issue, Mr Walker made certain submissions on the supposed "contract" between the RTA and Mr Capelo. He drew attention to the date on the document, namely, 21 August 1989, and to the form of the document, on stationary used by the Department of Main Roads. By the Transport Administration Act 1988, Schedule 7 (which commenced operation on 16 January 1989), the Department of Main Roads was abolished (s23). It was replaced by the RTA. There was, by s24, a transfer of assets including (s24(e)) any contract or arrangement entered into with the "former Authority" (defined to include the Department of Main Roads) before the abolition and "in force immediately before the abolition" (see also s24(g)).

80 Counsel for the RTA, however, pointed to the following provision which he suggested was of general application and operated to overcome any problem that may otherwise exist through the use of an inappropriate form:

" 41 Superseded references
(1) In any other Act, or in any instrument made under any Act or in any other document of any kind, a reference to (or required immediately before the commencement of this clause to be read as a reference ):
(a) the Urban Transit Authority shall be read as a reference to the State Transit Authority, and
(b) The Commissioner for Main Roads shall be read as a reference to the Roads and Traffic Authority, and
(c) the Commissioner for Motor Transport shall be read as a reference to the Roads and Traffic Authority, and
(d) the Traffic Authority shall be read as a reference to the Roads and Traffic Authority, and
(e) the Railway Workshops Board shall be read as a reference to the State Rail Authority.
(2) In any other Act, or in any instrument made under any Act or in any other document of any kind, a reference required immediately before the commencement of this Act to be read as a reference to the State Rail Authority or the Chief Executive of that Authority shall continue to be read as a reference to that Authority or that Chief Executive, as the case may be."

81 That argument was rejected by counsel for Mr Capelo. This was not a suit for rectification. It was a claim in contract, relying upon a very onerous indemnity clause. The Statute, the Transport Administration Act 1988, Schedule 7, effected a massive reorganisation, involving a number of departments, including the Department of Main Roads. It followed a standard format, with transitional provisions. The Department of Main Roads was abolished. There was no principle of statutory construction that allowed the Court to look benignly upon the use of superseded stationary. A document in the name of the Department of Main Roads, executed after its abolition, had no effect. No doubt Mr Capelo could rely upon a quantum meruit. Even were the amendment allowed, there will be issues as to whether the third party insurer (the NRMA) is obliged to indemnify Mr Capelo in respect of any liability which ultimately depends on contract (cf s16 Motor Accidents Act 1988).

82 The arguments of Mr Walker have some real attraction. However, it cannot be said that the amendment is obviously futile. It is at least arguable. Although the stationary of the Department of Main Roads was used, the person who signed the document gave, as his address, the RTA. He arguably was witnessing the document for that Authority. Mr Capelo, in the Defence filed in action number 20200/01, admitted the contract. If, as I have in mind, the RTA have leave to amend the cross claim, rather than the actions proceeding together, the Amended Defence may raise the issues which have been argued before me. The use that can then be made of the admission in the Defence filed in proceedings number 20200/01 will no doubt be the subject of debate.

83 These issues are not likely to add substantially to the time taken at the trial. They really depend upon legal argument. It is convenient that they be dealt with by the trial Judge at the same time, so that there is a final determination of all issues at the one time.

Orders.

84 The orders I make, therefore, are as follows:

1. The Notice of Motion by Mr Capelo for summary dismissal of the cross claim by the RTA is dismissed.

2. Mr Capelo should pay the costs of the RTA in respect of that Motion.

3. The Motion by the RTA to amend the cross claim to add a count in contract is allowed.

4. The RTA should, thereafter, within 28 days of the amendment having been made, and no later than 56 days from the date of this judgment, discontinue the proceedings 20200/01, paying the costs of Mr Capelo to be agreed or taxed.

5. The costs of the Motion for amendment of the cross claim should be costs in the cause.

*****

Last Modified: 08/12/2004