RTA v Comerford; Welling v Comerford

[2001] NSWSC 1044

CITATION:	RTA v Comerford; Welling v Comerford [2001] NSWSC 1044
CURRENT JURISDICTION:	Equity Division Construction List
FILE NUMBER(S):	SC 55034/98 55035/98
HEARING DATE(S):	18.7.01, 27.7.01, 10.8.01, 17.8.01
JUDGMENT DATE:	20 November 2001
PARTIES :	55034/98 Roads & Traffic Authority v William Kevin Comerford & Ors 55035/98 Gerhardus Hendrikus Welling & Anor v William Kevin Comerford & Ors
JUDGMENT OF:	Hunter J

COUNSEL :	RTA: M G Rudge SC & D A C Robertson Comerford parties: S Y Reuben Wellings: M L Williams SC
SOLICITORS:	RTA: I V Knight Crown Solicitor Comerford parties: Cordato Partners Wellings: Carroll & O'Dea
CATCHWORDS:	Practice & procedure - adoption of report pursuant to Pt 72 r 13 - fresh point raised after hearing of reference and before adoption of report - fresh point raised to rely on High Court restatement of applicable principles after reference - nature of discretion under Pt 72 r13 - inherent jurisdiction to permit amendment and to re-open - discretion distinguished from nature of discretion to permit raising of a fresh point on appeal - party estopped from pursuing cause of action by consenting to formulation of questions for Pt 72 references and by participating in references - adoption of report save for ultimate finding of liability - leave to amend to raise fresh point.
CASES CITED:	Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Walter Construction v Walker Corporation (2001) NSWSC 283 Foxman Holdings Pty Ltd -v- NMBE Pty Ltd (1994) 38 NSWLR 615 Leighton Contractors Pty Ltd -v- C E Heath Underwriting Services & Others; Leighton Contractors Pty Ltd v Kinhill Engineers (1995) 8 ANZ Insurances Cases 61-231 at 75,533 Brodie v Singleton Shire Council (2001) 180 ALR 145 Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418
DECISION:	In terms of par 143.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CONSTRUCTION LIST

HUNTER J

TUESDAY 20 NOVEMBER 2001

55034/98 ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES -V- WILLIAM KEVIN COMERFORD & ORS

55035/98 GERHARDUS HENDRIKUS WELLING & ANOR -V- WILLIAM KEVIN COMERFORD & ORS

Reasons for Judgment

1 These proceedings have reached the stage where the Court is required again to consider the adoption of a referee’s report made pursuant to Pt 72 of the Supreme Court Rules.

2 The manner in which such an exercise should be carried out may be extracted from the judgment of Gleeson CJ in Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549, as observed by me in Walter Construction v Walker Corporation (2001) NSWSC 283 as follows:

“(a) The hearing of a reference should not be equated with a hearing at first instance in this Court. So much may be extracted from (i) the fact that a referee may be appointed by reason of his or her technical expertise - not necessarily in legal matters, and (ii) from the provisions of Pt 72 r 8 which includes the following terms:

“ 8 (1) Where the court makes an order under rule 2, the Court may give directions with respect to the conduct of proceedings under the reference.
(2)Subject to any direction under subrule (1)-
(a) the referee may conduct the proceedings under the reference in such manner as the referee thinks fit;
(b) the referee, in conducting proceedings under the reference, is not bound by rules of evidence but may inform himself or herself in relation to any matter in such manner as the referee thinks fit…”
(b) It is untenable to construe the power of the Court under r 13 as falling within the umbrella of a proposition that “all litigants are entitled to have a judge decide all issues of fact and law that arise in any litigation” ( Super at 558). The procedure that r 13 “establishes is not that of an appeal from a referee to a judge…the concept of “a re-hearing” which is itself ambiguous, at best provides an imperfect analogy”( Super at 558).
(c) R 13 does not require a judge to “reconsider and determine afresh all issues, whether of fact or law which [a] party desires to contest before the judge ( Super at 562)… it would be a radical departure from the history of the [Pt 72] rules to treat them as giving a dissatisfied party an automatic right to a hearing de novo ( Super at 563)….What is involved in an application under Pt 72 r 13 is not an appeal, whether by way of a hearing de novo, or a more limited re -hearing” ( Super at 563).
(d) “In so far as the subject matter of dissatisfaction with a referee’s report is a question of law, or the application of legal standards to established facts, then a proper exercise of discretion would require a judge to consider and determine that matter afresh” ( Super at 563).
(e) If the “…referee’s report reveals some error of principle, some absence or excess of jurisdiction, or some patent misapprehension of the evidence, that would ordinarily be a reason for rejecting it … So also would perversity or manifest unreasonableness” ( Super at 563-564).
(f) In the case of findings of fact by the referee, where there is evidence to support such findings and the court is satisfied that those issues have been carefully considered by the referee it will not normally engage in a re-examination of the referee’s findin gs ( Super at 563, agreeing with the observations of the trial judge and of Cole J in Chloride Batteries Australia Ltd -v- Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60).”

3 The nature of the Court’s discretion was considered by Mahoney JA in Super as follows:

“What is required by the obligation to allow a party, for example, to be heard in support of or in opposition to a proposed course under Pt 72 must be determined according to the nature of the issue and the circumstances of the case. In determining what is so required, the court is, in my opinion, entitled to take into account the extent to which the party’s case has been presented to and dealt with by the referee. The extent to which, for example, matters dealt with in detail before the referee should be permitted to be dealt with at length before the judge is to be determined by the exercise of a discretionary judgment by the judge. The right to be heard does not involve the right to be heard twice. I am conscious that, in order that the judge may exercise a discretionary judgment of this kind, it may be necessary that the parties have the opportunity to refer to the relevant issues of fact and law and the evidence relevant to them. But the extent to which it is necessary for this to be done depends upon the circumstances of the case and the judgment of the judge. The judge has, I think, a broad discretion and may determine what is necessary to enable him to conclude that he has a sufficient understanding of the matters in question and when the argument has been sufficiently presented.”
(at 566-567).

4 See also Foxman Holdings Pty Ltd -v- NMBE Pty Ltd (1994) 38 NSWLR 615 at 620-621 and Leighton Contractors Pty Ltd -v- C E Heath Underwriting Services & Others; Leighton Contractors Pty Ltd -v- Kinhill Engineers (1995) 8 ANZ Insurances Cases ¶61-231 at ¶75,533.

5 The proceedings arise out of the collapse of the Wellington bridge on the Mitchell Highway, a public road under the control of the Roads and Traffic Authority of New South Wales (the RTA).

6 The law relating to the tortious liability of such an authority is authoritatively stated in the joint judgment of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 180 ALR 145 at 189 as follows:

“Authorities having statutory powers to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users)… where the state of the roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care, an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.
The perception of the response by the authority calls for … a consideration of various matters; in particular the magnitude of the risk, and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances….
In dealing with particular cases and in determining factual issues respecting breach of duty, it may be convenient to differentiate between the design and construction of a road way, between subsequent works on it and between courses of inspection to ascertain its soundness. These matters are not mutually exclusive and sometimes may overlap.”

7 The application of that law to the facts of this case has been curtailed by the form of the pleadings in these proceedings and by the manner in which the issues were confined in the hearing under Pt 72.

8 The background facts have been conveniently stated in the judgment of Heydon JA in an appeal from an interlocutory order [2000] NSWCA 360, which for ease of reference is set out below:

“3. On 6 January 1989 a road bridge forming part of the Mitchell Highway over the Macquarie River at Wellington collapsed. It was the property of the Roads and Traffic Authority of New South Wales (“the RTA”). The matter has been outstanding for so long that no further time should be taken by reserving judgment given that the case is one in which I have formed a firm view.

4. The bridge collapsed when an excavator owned by Gerhardus Hendrikus Welling (“Mr Welling”) carried on a vehicle, namely a low loader, driven by William Kevin Comerford and owned by W K Comerford, K B Comerford and J L H Comerford (“the Comerford parties”) came into contact with the superstructure of the bridge.

5. In proceedings 55034 of 1998 (formerly 13584 of 1993) the RTA sued the Comerford parties for the damage to the bridge and the Comerford parties cross-claimed against the RTA for the damage to their vehicle.

6. In proceedings 55035 of 1998 (formerly 21036 of 1994) Mr Welling sued the Comerford parties and alternatively the RTA for the damage to his excavator.

7. On 3 September 1998 the primary judge made the following order (Grey 2D-2F):
"That pursuant to Pt72 r2(1) of the Rules of Court, in each proceeding the question of the cause of the collapse of the Wellington Bridge on 6 January 1989 to be referred to Geoffrey Verge, consulting engineer, to inquire and report to the Court on that question.”
8. On 14 December 1998 Mr Verge provided his report. It concluded (Grey 33P):
“On the balance of probabilities the collapse of the bridge was caused by a buckling failure of the bridge deck in accordance with the contentions of the defendant.”

By “defendant” he meant the Comerford parties.

9. In reaching his conclusion, Mr Verge was rejecting the RTA's theory of the collapse and upholding the theory advanced by the Comerford parties. The RTA's theory was that the excavator being carried across the bridge in the low loader had its arm in too high a position, that it struck the upright of the bridge, and that that caused the collapse. The contention of the Comerford parties, in the simplest terms, was as follows. The bridge included a number of unrestrained concrete slabs sitting on cross girders. Over the years, the embankments had moved and the bridge itself had moved. This generated compressive forces which caused adjoining concrete slabs to buckle and pop upwards at the moment when the low loader was coming across the bridge. This pushed the low loader up, and the arm of the elevator struck the bridge. This process was described as a “toggle buckle”.
10. By way of background, the bridge was described thus by the referee (Grey 10R-11N):
“The bridge was built in 1920 and has two main steel truss spans of approximately 37 m each and 11 concrete approach spans of about 9 m each (five at the Wellington end and six at the Dubbo end). The deck is about 12 m above normal water level, however, this level varies being controlled by Burrendong Dam some 15 km upstream.
The bridge is typical of structures of that time and has some features that differ from current practice for medium span road bridges.


The steel trusses have members of latticed built up sections and the overhead bracing comprises angle truss members. The entry panel of each truss has an inclined angle truss brace rigidly connected to the diagonals to form a portal frame.

The concrete deck of each truss comprises 10 separate slabs each 6.3 m wide and 3.7 m long. The slabs are supported by steel beams but not tied to them with shear connectors except at the end of the first and last slab where the slab edge is enclosed in a steel channel riveted to the cross beam.

The concrete approach spans are connected rigidly to their supporting piers by reinforcement so that movement of the deck arising from temperature changes, concrete shrinkage or traffic forces requires the piers to bend or the deck to crack.

According to the RTA maintenance file Ex D41, the bridge has a history of movement and distress requiring repairs for many years.

The piers and abutments supported on timber piles had settled and rotated towards the river.

The movement joints and gaps at the steel spans had closed so that the deck slabs were compressed.

The abutments and wingwalls had cracked and some piers flexed and cracked.

Some approach span beams and headstocks had cracked and moved to act as expansion joints.”

11. The referee's findings on buckling were as follows (Grey 27S-27Y):


“The bridge deck is unusual in that each main span comprises ten slabs 200 mm thick, 6.3 m wide and 3.7 m long and unconstrained except at the ends of the span where the slab edge is enclosed by a steel channel. There seems little doubt that the slabs were subjected to high compressive forces during hot weather when the slabs expanded against the bridge abutments.

Under this condition the slabs act as a series of plates subject to an in plane compressive force and also a bending moment arising from the eccentricity of this force with respect to the centroid of the cross section. Some eccentricity of the force is inevitable in practice and the eccentricity has an important effect on the critical buckling load of a slab. (In theory if there were no eccentricity the slab would not buckle; it would fail by crushing of the concrete.)”
12. On 30 March 1999 Einstein J adopted the report in each set of proceedings. The parties thereafter moved their attention away from any deficiencies in the conduct of the Comerford parties and towards the RTA's role in relation to the bridge.”

9 In these reasons I have endeavoured to adopt the terminology of Heydon JA’s judgment.

10 In matter no. 55034/98 (the RTA proceedings) the Comerford parties brought a cross claim against the RTA in negligence and for public nuisance, the particulars of which were identical and were as follows:

“ PARTICULARS
The public nuisance occurred by reason of the cross defendant:-
(i) failing to adequately investigate the sub soil conditions below the bridge piers;
(ii) failing to design and construct adequate pier foundations;
(iii) failing to design and construct adequate connections between the pier headstocks and the concrete road surface;
(iv) constructing the concrete road surface of the bridge approaches with inadequate expansion gaps;
(v) failing to design and construct adequate primary and secondary restraint between the superstructure of the span and the substructure;
(vi) constructing inadequate rocker bearings;
(vii) failing to adequately retain the upper rocker bearing to the bridge deck lower chord;
(viii) failing to re-fasten the upper rocker bearing to the lower chord after the retaining bolts severed;
(ix) failing to maintain the expansion gaps at each end of each span of the bridge;
(x) constructing the concrete sections of the bridge piers and decking with inferior concrete consisting of uncrushed gravel with inadequate bonding;
(xi) constructing the concrete sections of the bridge using inadequate steel reinforcing;
(xii) constructing the piers of the bridge with inadequate bonding between each concrete section of the pier;
(xiii) designing and constructing the centre pier of the bridge to withstand inadequate flood loading;
(xiv) repairing cracks in the concrete piers of the bridge by injecting a plastic substance to allow the concrete to move to absorb thermal expansion and contractions;
(xv) cutting away sections of the steel plate of the bridge steel span to allow further thermal expansion and contractions;
(xvi) allowing for insufficient expansion and contraction in the bridge deck, the steel spans and the concrete deck approaches;
(xvii) not restraining the concrete deck to the steel stringers of the span; and
(xviii) maintaining a bridge on a public highway which is not adequate for loads legally operating on the highway.”

11 It will be noted that no reliance was placed upon a failure to investigate the condition of the bridge, nor any failure to warn users of the bridge of any risk associated with its use, nor any failure to restrict use of the bridge by reason of any such risk.

12 In matter no. 55035/98 (the Wellings proceedings) Mr Welling and his wife, Wilhelmine Gerhardus Welling (the Wellings) proceed in negligence against the RTA, particulars of which were as follows:

“(a) Failing to adequately investigate the sub-soil conditions below the bridge piers.
(b) Failing to design and construct adequate pier foundations.
(c) Failing to design and construct adequate connections between the pier head stocks and the concrete road surface.
(d) Constructing the concrete road surface of the bridge approaches with inadequate expansion gaps.
(e) Failing to design and construct adequate primary and secondary restraint between the superstructure of the bridge span and substructure.
(f) Constructing inadequate rocker bearings.
(g) Failing to adequately retain the upper rocker bearing to the bridge deck lower chord.
(h) Failing to re-fasten the upper rocker bearing to the lower chord after the retaining bolts severed.
(i) Failing to maintain the expansion gaps at each span of the bridge.
(j) Constructing the concrete sections of the bridge piers and decking with inferior concrete consisting of uncrushed gravel with inadequate bonding.
(k) Constructing the concrete sections of the bridge using inadequate steel reinforcing.
(l) Constructing the piers of the bridge with inadequate bonding between each concrete section of the pier.
(m) Allowing for insufficient expansion and contraction in the bridge deck, the steel spans and concrete deck approaches.
(n) Not restraining the concrete deck to the steel stringers of the span.
(o) Failing to repair or maintain a bridge on a public highway such that it was not adequate for loads legally operating on the highway.”

13 As in the case of the Comerford parties’ cross claim against the RTA, the Wellings did not plead any failure to investigate, any failure to warn users of risk associated with its use, nor any failure to restrict use of the bridge by reason of any such risk.

14 The conduct of the second reference was outlined in the judgment of Heydon JA, in the appeal earlier referred to, as follows:

“14 Counsel for the Comerford parties, in his opening address to the referees on 14 July 1999, said (Grey 54V-55Q):

“The Comerfords, in either negligence or public nuisance, need to establish an act of misfeasance by the RTA as a highway authority. As you probably are both well aware, it is not good enough for this bridge to have fallen into disrepair and that condition to have materially contributed to the collapse as found by Referee Verge. Something must have been done by the RTA to have caused or materially contributed to the state of affairs that led to the collapse, as found by you, Mr Referee Verge.

To establish public nuisance the RTA needs to establish all that it is required to establish to get up on its negligence claim. So we will concentrate on the negligence cause of action.

We do not pursue the breach of statutory duty cause of action so that you will be invited to find the RTA liable, at the suit of the Comerfords, by reason of the RTA's negligence, by reason of an act of misfeasance. Now, what was that act?
It will be the Comerfords' contention, or it is the Comerfords' contention, that repairs effected to the bridge materially exacerbated problems within the bridge, particularly materially exacerbated problems of [in plane] compression forces in the concrete deck slab [in plane], which deck slab Referee Verge found, by reason of those [in plane] compression forces, to have acted in a particular way and to have led to the collapse of the bridge.

The burden of the Comerfords' position is that the repairs to cracks in the bridge, and the placement of product in the expansion joints of the bridge, exacerbated the [in plane] compression forces and materially contributed to the collapse by the so-called toggle buckle.

It is, if you like, in that positive way, by those positive acts, rather than mere omissions that the Comerfords will seek to establish the act of misfeasance in the Roads and Traffic Authority.”
15 The Comerfords were thus relying on two acts of misfeasance. The first was that the RTA, in carrying out routine repairs, had injected a rigid epoxy as opposed to a flexible epoxy in certain cracks which had opened up over the years in the piers of the bridge. The second act of misfeasance was carrying out work to certain rotation joints in the bridge. There were gaps in the bridge which over the years had closed because of movements back and forth. Both gaps - the rotation joints - had cover plates over them and the traffic passing over the cover plates had caused them to pop up and down. That led to spalling of the concrete below. The RTA, as part of its regular maintenance, removed the cover plates and refilled them, using only epoxy material, and replaced the cover plates.
16 Counsel for Mr Welling did not disagree with the issues as propounded by counsel for the Comerford parties. The issues as presented in opening did not change during the hearing of the reference. The referees summarised them as being (Grey 47K-47L):

“(a) injection of Megapoxy into cracks (in the piers); and
(b) inserting Set 45 into the gaps in the deck over piers 6 and 8.”

17 On 30 September 1999 the referees reported that the RTA was not liable to the Comerford parties and Mr Welling.”

15 I think there is some utility in extracting from Heydon JA’s reasons the circumstances giving rise to that appeal and the effect of the Court of Appeal’s decision. That may be drawn from the following extracts:

“20 On 15 March 2000 the primary judge made the orders against which this appeal is brought, and in a reserved judgment stated his reasons for that course. After setting out the background, he referred to the two acts of negligence relied on against the RTA. He said (Red 21 line 11-23 line 40):
“In relation to the first alleged act of negligence, the referees noted the following:
‘The experts agree and we concur that cracks in the piers would reduce their stiffness and increase their flexibility thus more readily accommodating the movements. [The Authority's engineer] proposed that the cracks should be sealed with a flexible epoxy to maintain the status quo; in the event the pier cracks were sealed with a rigid epoxy.

If the cracks were sealed with a flexible material this would permit the cracks to move so that the flexibility of the cracked piers would not alter in any significant way.

... we are of the view that sealing the pier cracks with rigid epoxy probably had only a marginal and temporary effect on the behaviour of the bridge. The fundamental defects in the original design and construction of the bridge led to the excessive compression of the bridge deck and its ultimate failure. Any change to the flexural rigidity of the piers arising from sealing the cracks was not significant compared with the movement of the Wellington end abutment, the closing of the gaps and temperature expansion of the deck.’
Dealing with the second alleged act of negligence, the referees concluded that both the rotation joints and the expansion joint had ceased to operate as a result of them being ‘practically closed’. The Authority's repair work was described by the referees as follows:

‘Apparently the steel cover plates to the rotation joints had worked loose under the traffic and the edge of the concrete had broken away to form an irregular space at the top of the concrete slab. The joints were repaired by the following procedure:

remove the steel cover plates;

insert a temporary timber spacer at the top of the joint and against the steel protection angle at the end of the steel span;

provide a temporary filler to close the bottom of the gap between the slabs;

fill the space with Set 45 a rapid setting mortar;

remove the timber spacer and insert a compressible seal in the space at the top of the joint; and
replace the steel cover plate and fix to the steel span with chemical anchors.

Clearly this work was intended to cure problems arising from the loose cover plates, the spalling of concrete at the edge of the concrete approach spans and the ingress of deleterious matter into the joints. It did not attempt to address the long-term problems in the design and construction of the bridge.’
The referees reached the following conclusion:
‘Considering all the evidence regarding the repair of the rotation joints, we are not able to determine the precise effect of this work on the likely behaviour of the joint if it were subject to in-plane compressive forces. However, on the balance of probabilities we consider that this repair work is unlikely to have appreciably altered the performance of the bridge deck compared with its condition prior to the work.’

As a result of the way in which the second reference was conducted, the referees did not address any responsibility of the Authority in performing repair work on expansion and rotation joints which was ineffective in restoring the function for which those joints were designed and which aided serviceability of the bridge deck for traffic. The significance of that omission, in my view, is reflected in the following opinion of the referees in the second report:

‘The expert evidence of Dr Ivering and Mr Kell is conflicting in part on the issue of foreseeability. Dr Ivering's opinion is that a structural analysis as suggested by Mr Kell if carried out prior to 1988, was not warranted and in any event would not have predicted a buckling failure. And further that no reasonably competent bridge engineer could have foreseen that the bridge would suffer the catastrophic collapse as found in the previous reference.

Mr Kell's opinion is that an investigation should have been undertaken to assess the condition of the abutments and the probable compressive force induced in the deck. And that if this disclosed a force in excess of any value for which the bridge may have been designed, the unrestrained deck slabs should have been examined to check their susceptibility to buckling failure.

This apparently prudent approach advocated by Mr Kell may have been coloured by hindsight. Nevertheless we concur with his view that similar buckling failures have occurred in slabs on ground and that the construction of the Wellington bridge deck is unusual in that the concrete slabs are not restrained by the supporting steel beams. We do not accept the inference from Dr Ivering's comment that because there was no visible distortion of the concrete slabs, a structural analysis was not warranted. Unfortunately a buckling type failure is especially dangerous : (a) it may be difficult to predict and (b) if it occurs it does so often without any warning.

An engineering investigation of the bridge structure if carried out in 1988, probably would have disclosed a large compressive force in the deck and the vulnerability of the unrestrained concrete slabs to a buckling or pop-up failure . Although a structural analysis of the slabs probably would not have been conclusive it should have raised the possible risk of a deck failure. If a deck slab were to pop up this would pose some danger to a vehicle traversing the bridge at that time. But it would require a highly imaginative and risk averse engineer to predict the possibility of a catastrophic collapse such as occurred.’

[emphasis added]
In my view, those opinions of the referees call for consideration of a negligence issue which was not addressed in the second report. I raised these concerns with the parties by re-listing the matter on 11 February 2000 and invited further submissions from the parties which were head on 8 March 2000. In light of those submissions I have decided that, in determining whether the second report should be adopted, varied or rejected, Comerford and Welling should be afforded the opportunity of having a wider issue of negligence considered than that addressed by the referees. The wider issue of negligence is of the kind examined in Hill v The Commissioner for Main Roads (1989) Aust. Torts Reports ¶80-260; (1989) 68 LGRA 173; and McDonogh v The Commonwealth (1985) 73 ALR 148; (1985) 9 FCR 360.”
…
23 The orders of the primary judge appear to contemplate that further evidence will be called before him, not the surviving referee. He thus appears to have acted under Pt72 r13. That rule appears to give the primary judge power to do what he did. The RTA conceded that he had power to do what he did, but argued that his discretion had wholly miscarried.
The “third issue”

24 It was not clear at the outset whether the issue on which further evidence is to be called is an issue which has been pleaded. Mr M G Rudge SC, who appeared with Mr D A C Robertson for the appellant, could not assist the court on this topic, because, understandably, he was not clear precisely what the third issue is. The orders do not define it, and limit the new evidence only “to the issue of the Authority's alleged negligence”. The reasons for judgment use only general language. If the issue has been pleaded, it should have been identified by reference to the pleadings. If it has not been pleaded, an amendment should have been formulated, sought and considered. Mr N A Cotman SC, who appeared with Mr M Pesman for the first respondents, in effect conceded that the issue had not been pleaded, because he indicated a desire for an opportunity to formulate the point in writing.

…
The arguments considered
29 In my opinion the appeal should be allowed for the following reasons.
30 First, it is impossible to understand from either the orders or the reasons for judgment what the point is on which further evidence is to be called.
31 Secondly, it is no answer to that difficulty to say, as Mr Cotman did, that the matter could be worked out in the course of directions hearings before the primary judge. Parts of 10 December 1999, 11 February 2000 and 8 March 2000 have already been devoted to that enterprise without success. It was not unreasonable for the appellant to seek relief from this Court before further costs were expended below.
32 Thirdly, even if the issues are as Mr Cotman would have them, and even if the issues do not involve questions of non-feasance only (and para11 of the document Mr Cotman handed up in oral address suggests that they do) the case is one in which the non-RTA parties elected to run the reference in a particular way. They were represented by experienced and capable solicitors and counsel. They made concessions before it, recorded at the start of the second report. They opened on a relatively narrow basis. The “third issue” which they seek to raise, if Mr Cotman's explanations about it are correct, is a matter which rests on extremely technical questions. It is an abuse of process to seek to agitate the third issue at this stage of so ancient a case when so much care has been taken by the Commercial List judges and by the referees to decide the facts identified as being in issue.
33 I would add to the appellant's citation of Super Pty Ltd v SJP Formwork (Aust) Pty Ltd two other citations. In Foxman Holdings Pty Ltd v NMBE Pty Ltd (1994) 38 NSWLR 615 at 621 Cole J also places weight on the importance of adhering to a referee's report when all parties had a full opportunity to put all relevant matters before the referee. Secondly, I refer to Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631. The appellant took the court to a passage in the middle of p646. The general observations of Mason P at that point (with whom Gleeson CJ and Priestley JA concurred) are strongly adverse to the respondents' stance. The circumstances are not completely analogous, since there the new point was raised on appeal, not before the judge at the time for consideration of adoption of the report. But the case suggests that at least as a matter of discretion, it would be unsound to permit one party to propound, after two references, a point it had either never taken before or had abandoned before. In the particular complex circumstances of this case, to permit the non-RTA interests to take advantage of the orders of 15 March 2000 would be to permit an abuse of process.
34 In all the circumstances the primary judge's exercise of the discretion has miscarried.”

16 Following that decision the Comerford parties brought an application which was the subject of my decision of 17 May 2001. The Wellings took no part in that application.

17 The nature of the application and my reasons for dismissing it on 17 May 2001 are set out below for ease of reference:

“3 Following upon that decision of the Court of Appeal the Comerford parties have made a further application which, in substance, is an application for leave to adduce fresh evidence. No formal notice of motion was given.

The form that the application took was as follows:


“1. That pursuant to Part 72 Rule 13 (1) (c) that the report of Messrs Brownie QC and Verge dated 30 September 1999 be remitted to the Honourable J Brownie QC as the surviving Referee for further consideration by the Referee in the light of the matters expressed in the supplementary report of Richard A Kell dated 8 November 2000 and for consideration of the further items of reference referred to in paragraphs 2 and 3 below.

2. Whether there was a foreseeable risk of injury resulting in bridge collapse which could have been prevented by reasonable care on the part of the RTA in conducting maintenance in the light of the known risks.

3. Whether the remediation work which was conducted to the bridge deck surface in July 1998 either exacerbated the known defects in the bridge or amounted to a failure to remedy the known defects in the bridge, which caused or materially contributed to the bridge collapse.

4. That the Court defer the adoption of the said Referees’ report of 30 September 1999 until such time as the Referee reports on the matters referred for further report.”

5 In addition the Comerford parties sought to amend their cross claim to allege the following


“22. The Defendants as Cross Claimants wish to allege as part of their Cross Claim for negligence (paragraph 12 of the Cross Claim)

1. The Cross Defendant at all material times since 1976

(a) Knew of horizontal compressive forces operating upon the condition of the bridge.

(b) Knew that existing cracks in the structure acted as “expansion joints”.

(c) Knew or ought to have known that any rigid repair of cracks would result in their renewal or in opening or new cracks in the weakest point in the structure.

(d) Knew that temperature movements in the bridge were accommodated within existing cracks and deck joints between spans.

(e) Knew that the bridge required regular expert observation.

2. During the patching of the bridge joint in July 1998, the RTA failed to have regard to the horizontal compressive forces operating on the bridge deck and failed to prevent a foreseeable risk of injury that the compressive forces on the bridge deck would cause the untied slabs to pop up.

3. The patching of the bridge failed to remedy a foreseeable risk which the Cross Defendant knew or ought to have known was certain to reappear at some stage in the future with predictable hazardous consequences which could have been prevented by reasonable care on the part of the RTA.”


6 I think that application is bound to fail as it invites the Court to ignore the determination of the Court of Appeal which held that the exercise of my discretion under Pt 72 r 13 of the Supreme Court Rules in permitting the Comerford parties to revisit the negligence issue against the RTA miscarried.

7 While the application is without merit, it is not difficult to understand why the Comerford parties have been unwilling to accept the second report. It was the opinion of the referees that the Wellington bridge, which carried the traffic of the Mitchell Highway in New South Wales, was in a dangerous condition which was capable of disclosure by engineering investigation and in respect of which nothing was done by the RTA to alleviate that condition, nor to warn the public of the danger.

8 It is also clear from the findings of the referees that the RTA undertook repairs of damage occasioned to the piers and the road surface of the bridge in the vicinity of two rotation joints which had the effect of maintaining the trafficability of the bridge deck whilst the bridge was in that dangerous condition. The repairs to the rotation joints were of a kind which, of necessity, required the closure or progressive closure of the highway traffic lanes and their reopening to traffic, without warning of the dangerous condition of the bridge. The photographs in evidence of the subject repairs underway make that plain.

9 The application for leave to adduce fresh evidence is equally without merit. The evidence sought to be adduced is that of Richard Albert Kell who was chairman of a firm of consulting engineers, Cardno MBK Pty Ltd, and who had given evidence on behalf of the Comerford parties in the second reference. The evidence, the subject of this application, is contained in his report of 8 November 2000 relating to an inspection of sections of the bridge carried out by him on 28 and 29 October 2000. The relevant portions of his report are as follows:



“9 . Inspection of the Steelwork

I inspected some steelwork stored in the yard of Hydraulic & Tractor Service Pty Ltd on 28-29 October. There are 4 sections each being one half of the length of an end cross girder of the original bridge truss span. This steelwork can be identified because it is assembled from rolled sections by rivetting and corresponds with the original design drawings. One pair of girder sections corresponds with the centre (P7) joint and the other with the P6/P8 joints.

On the P6/P8 sections, I could observe the bituminous jointing still adhering to the top of the steel angle under the cover plate for much of the length. The jointing is about 55 x 20mm, located where described by the Walkers, down to the top of the rivets (Fig 1). Where the whole piece of jointing is intact there is cementitious material pressed into the outer side and bottom edge.

Below the jointing small pieces of cementitious material are adhering to the steel in a number of places including around rivet heads, and there is a bloom over much of the steel angle surface which appears to be cementitious in nature. This could be verified. I note that it is not almost 12 years since the collapse.

The appended photos illustrate the condition.

…

Inspection of material in the Dubbo yard reveals the bitumen jointing strip, 19mm thick and about 55mm deep down to the top of the rivet heads, still adhering to the steel. Furthermore, there is extensive embedment of cementitious material on the outer face and bottom edge of the jointing, suggesting that Set 45 was poured against the jointing strip. The Walkers may be able to explain this.
Inspection of the material in the Dubbo yard reveals cementitious material attached to the steel below the jointing strip even after 10 years in the open. Refer photos bound with this Report. This indicates that the Set 45 was poured against the steel to more or less fill the complete gap with hard material below the jointing strip - refer Figure 1. It can be concluded that the sealing of the gap was toward the bottom of the steel angles.”

10 The significance of those things observed by Mr Kell was set out in … his 8 November 2000 report as follows:


“11. In any event, the jointing strip was in place from July 1998. Bitumen impregnated fibre jointing is stiff, and could not be compressed more that about 10% of its thickness, i.e 2mm, without very high pressure. That is, it can be considered virtually rigid, beyond 2 to 3 mm compression and would transmit the full forces arising from thermal expansion or abutment movement.

In my experience, bituminous impregnated fibreboard is totally unsuited as an expansion joint filler. To call it “give and take” is misleading - as a joint filler it neither gives not takes. It is used commonly in footpaths and domestic driveways to create joints which accommodate shrinkage, but not in bridge decks.

…

12. Conclusions

The Set 45 repair work as carried out by RTA in July 1998 did create a solid block between the ends of the deck at Piers P6 and P8 and changed the situation in respect to the behaviour of the deck.

Either the Set 45 bridged the gap below the bituminous jointing, as visual evidence suggests, or the jointing itself would have been virtually rigid for the order of deck movements involved.

…
The Set 45 repairs at piers P6 and P8, incorporating a 19mm gap filled with virtually rigid material where there was originally a 52mm gap may have given support to the cover plates, but was inappropriate as far as the deck was concerned and represented a change from the design and existing condition. It was not a proper engineering solution and exacerbated the conditions which resulted in the failure in my opinion. I am not aware of the origin of any engineering instruction to which the Walkers were responding when they did this work.”


11 The basis upon which the evidence is said to constitute fresh evidence is set out in the affidavits of William Comerford and Kenneth Comerford each sworn 2 March 2001. Their evidence comes down to the following. In June 1999, the month before the hearing of the second reference, Kenneth Comerford attended at the Shire council yard at Wellington to inspect the bridge pieces that had been stored there and to take photographs. On inspection, he was informed that the steel sections, which he particularly wished to inspect, were not available and he could not be informed where they might be located. He had previously inspected those pieces some years before in the RTA yard. The RTA yard had been cleared in 1998. William Comerford had inspected the shire tip at Wellington after that to see if he could locate the steel pieces, but was unsuccessful. The missing pieces of the bridge included those elements which had formed the rotation joints.

12 On the hearing of the second reference on 14 July 1999, the Comerford parties ascertained during the taking of evidence from the bridge contractors who had undertaken repairs of the bridge, prior to its collapse, that the missing pieces were located at what was know as the Tomingley yard.

13 The evidence in chief of those two witnesses was principally contained in witness statements, unsigned copies of which had been served on the Comerford parties on 11 June 1999, except that in the case of the statement of William Walker the second page had been omitted accidentally. Neither statement referred to the storing of the missing pieces of the bridge at Tomingley.

14 The hearing on the second reference occupied just two days. On 14 July the evidence was taken and on 23 July submissions were received from the parties. The witnesses called on behalf of the Comerford parties included Mr Kell who was present at the reference when the bridge contractors give evidence of the nature of the repairs carried out on the bridge in the winter preceding its collapse. The referees relied upon their evidence for the findings as to the nature of the repairs carried out on the bridge, as set out earlier in these reasons.

15 Counsel for the Comerford parties obtained a short adjournment to consider their position after the full statement of evidence of William Walker had been tendered. After that adjournment the hearing proceeded. No further adjournment was sought to enable an inspection of the bridge pieces which were located at the Tomingley yard.

16 It is not disputed that, prior to the first reference hearing, the salvaged pieces of the bridge had been available for inspection. After hearing the evidence of the bridge contractors at the second reference hearing, the Comerford parties visited the Tomingley yard, inspected the sections of the bridge which formed the rotation joint and removed a sample of the “compressible” bituminous material which, according to the evidence of the bridge contractors, had been inserted into the joint following the removal of the edging board after the Set 45 had been poured and set.

17 It is not clear when the inspection of the bridge elements was carried out by the Comerford parties at Tomingley. According to their evidence they visited the Tomingley yard on “the weekend following the second reference”. Their affidavits read as though it was the weekend of 17 and 18 July 1999 following the taking of evidence at “the hearing on 14 July”. Neither affidavit makes reference to the second day of the reference which was a short hearing on 23 July 1999 when submissions were received by the referees. If the inspection occurred after that hearing, then it occurred on the weekend of 24 and 25 July. The report of the referees was not submitted to the Court until 30 September 1999.

18 It was not until some time prior to October 2000 that Mr Kell was requested to carry out further inspection of the bridge elements at Tomingley. I think the evidence of the inspection by Mr Kell is such that, if accepted, would establish that the evidence given by the bridge contractors was wrong: that no edging board had ever been inserted or removed from the rotation joints under repair and that the bituminous material described as “give and take” material was comparatively rigid with compressibility of about 2mm: further, that it had been put in place before the pouring of the Set 45 by adhering it to the face of the steel angle plate and that the Set 45 was then poured into the void. If that was the sequence of repair, the findings of the referees concerning the effect of expansion of the Set 45 during hydration would be wrong also.

19 I place little or no reliance on the fact that the steel or metal pieces which could not be located in June 1999 had been available for inspection several years before. The effect of the repair work carried out on the bridge prior to the hearing of the first reference was not the focal point of the issues on that reference.

20 The issue there was whether the height of the low loader with the excavator was too high, causing it to collide with the portal truss of the bridge, or whether there had been a “rotation of the bridge deck slab under the low loader that lifted” it so that it came in contact with the truss. It was the latter that the referee found to be the effective cause of the collapse of the bridge. It was only on the hearing of the second reference that the nature and effect of the repairs carried out on the bridge became a central issue.

21 However, when the evidence of the bridge contractors at the second reference disclosed that the missing pieces of the bridge could be located at the Tomingley yard, it was always open to the Comerford parties to seek an adjournment to permit an inspection of those bridge elements, or to seek leave to reopen their case before the referees after their inspection at Tomingley. That was not done and I think for that reason alone it could not be said that the evidence now sought to be adduced was not available to the Comerford parties at the time of the second reference. The referees did not report to the Court until 30 September 1999. At the latest, the inspection by the Comerfords had taken place on the weekend of 24 and 25 July.

22 Senior counsel for the RTA has submitted that the application of the Comerford parties is to be approached on the same basis as an application to adduce fresh evidence after verdict and that the principles to be applied are those considered in Commonwealth Bank of Australia -v- Quade (1991) 178 CLR 134. Senior counsel informed me that research has not disclosed any authority directly in point governing the exercise of the discretion on an application to adduce fresh evidence in proceedings before verdict and after report of a referee under Pt 72 of the Supreme Court Rules.

23 The analogy is not complete in my view. At this point, there are no findings binding upon the parties in the form of the second report and there is no judgment of the Court disposing of the proceedings.

…

26 If it was necessary to express a view I would prefer to express the exercise of the discretion as one which depends upon the Court’s assessment of what will best serve the interests of justice “either particularly in relation to the parties or generally in relation to the administration of justice”. In the exercise of that discretion the Court will have regard to “general considerations relating to the administration of justice”, any lack of diligence on the part of the applicant and the likely effect of the fresh evidence, if leave is granted: to borrow phrases, used in a different context, in Quade at 142. In this case, which commenced in 1993, the imperative of securing finality to judicial process is especially applicable.

27 For the reasons that follow, nothing turns on the correctness of that approach.

28 The general rule relating to the setting aside of a verdict on the grounds of fresh evidence was identified in Quade as follows:
“The general rule identifying the circumstances in which an appellate court is justified in setting aside a verdict merely on the grounds of fresh evidence was identified by Dixon J. in Orr v. Holmes (1948) 76 CLR 632 in a passage which is quoted in the judgment of Burchett J. in the present case. Subsequently, in Greater Wollongong Corporation v. Cowan (1955)93 CLR 435, Dixon C.J. repeated the substance of those comments in a judgment in which the other members of the Court (Williams, Webb, Kitto and Taylor JJ.) concurred. In the later case, his Honour said ibid., at p 444:

"If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial."

The words "rarely, if ever" in the above passage leave open the possibility of exceptional circumstances justifying a departure from the general rule even in the class of case to which the general rule is directed. It is not, however, necessary to pursue that aspect of the matter for the purposes of the present case . Nor is it necessary to consider whether the somewhat obscure qualification expressed by Dixon C.J. in the words "or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary" represents other than an illusory relaxation of the primary test (i.e. "reasonably clear that ... an opposite result would have been produced").

(at 139-140)

29 The joint judgment of the Court in Quade had the following to say about cases of surprise or fault of the successful party leading to the failure to adduce the fresh evidence at trial:


“As the above quotation makes plain, the general rule formulated by Dixon C.J. is directed to the ordinary case where all that is involved is that relevant fresh evidence has come to the notice of the unsuccessful party after the trial. It is not directed to the case where the trial itself has miscarried "through misdirection, misreception of evidence, wrongful rejection of evidence or other error" or to a case of "surprise, malpractice or fraud". Such cases cannot properly be seen as mere cases of "fresh evidence". Nor can a case where the material constituting the fresh evidence was unknown to the unsuccessful party by reason of misconduct on the part of the successful party, such as an admitted failure to comply with the requirements of the trial court's order for discovery of documents. True it is that a case of failure by a party to comply fully with such an order can be distinguished from one in which the trial has miscarried by reason of error or fault on the part of the tribunal itself or a case where the verdict can be seen to have been procured by fraud or perjury. On the other hand, a case of failure to comply with a discovery order could, particularly where the failure was deliberate or remains unexplained, come within the category of "cases of malpractice", and be a stronger case than the category of "cases of surprise", which were both expressly exempted from the above statement of what we have referred to as the "general" rule.”

(at 140-141)



30 If the evidence of Mr Kell was accepted it would establish that the repair work was not carried out in the manner evidenced by the bridge contractors and that the effect of the work performed in the six months prior to the buckling of the bridge deck resulted in a rigid deck with longitudinal movement of no more than 2 mm. It may not be a particularly difficult step to find, on that evidence, that the winter repair work contributed to the buckling of the deck surface in mid summer whilst under the pressure of the Comerfords’ low loader. (emphasis added)

31 There is no suggestion in this case that the surprise of the Comerford parties in learning of the storing of bridge elements at the Tomingley yard was the result of any conduct of the RTA. No enquiry appears to have been made of it by the Comerford parties prior to the second reference to ascertain the location of bridge elements which had been stored by the RTA. There is nothing to suggest that the RTA had any obligation to disclose to the Comerford parties the existence of bridge sections at the Tomingley yard.

32 Clearly, the discovery during the hearing of 14 July 1999, that the missing bridge sections were to be found at Tomingley came as a surprise to the Comerford parties. It is not disputed that they desired to inspect and photograph those elements prior to the hearing of the second reference, presumably for the benefit of experts.

33 It has not been explained why they failed to seek an adjournment on 14 July to permit an inspection at Tomingley, or why, following their inspection and the taking of a sample of the “give and take” material used in the repair of the rotation joints, they did not seek to reopen their case before the referees reported to the Court.

34 Whether the “general rule” governing applications for leave to adduce fresh evidence after verdict applies, or whether the more flexible approach which I favour is the correct one, is of no particular consequence. On either basis this application, in my view, must fail.

35 Accordingly , the application to adduce fresh evidence is rejected.”

18 That result obtained, notwithstanding my view that the evidence of the bridge contractors before the referees was almost certainly wrong. It had been their evidence that a 55mm by 20mm thick bituminous impregnated fibreboard jointing which was placed in the rotation joint when carrying out the 1988 repair was removed by use of a chainsaw.

19 The consequences of that decision in relation to the remaining issues in the RTA proceedings and the Wellings proceedings were addressed in my reasons of 17 May 2001 as follows:

“36 There remains the question whether the report should be adopted. I have heard the submissions of the parties, including Mr Welling’s, prior to the RTA’s successful appeal to the Court of Appeal. Those submissions are adhered to by the RTA and subject to the matters I have addressed earlier in these reasons they are relied upon by the Comerford parties.

37 Mr Welling has not been represented on the application by the Comerford parties to adduce fresh evidence and to amend their cross claim and I think it will be necessary to give Mr Welling the opportunity of being heard, before proceeding to a determination of the question whether the second report should be adopted.

38 If the report is to be adopted it may not dispose of the claim brought by Mr Welling against the Comerford parties and it will be necessary to take submissions on that aspect before proceeding to any final determination.

39 Accordingly I direct that the matter be listed for directions on 18 May 2001.”

20 On 31 May 2001, the High Court’s judgment in Brodie was handed down. The Wellings’ position in relation to that decision was stated by Mr M L Williams SC as follows:

“ The Case Against Comerford
The Comerford Submissions dated 30 May 2001 assert, in short, that because the first reference found in favour of Comerford (ie.against the proposition that the load was being carried too high) then no other case is available. It is said (in Paragraph 12 of the Submissions) that there was no negligent breach of contract. But that is not the point. The pleading against Comerford alleges breach of a contract of carriage, and it is self evident that the contract was not carrier out, because the excavator was not delivered to the agreed destination. Even if Welling is bound by the finding in favour of Comerford at the first reference (which is disputed) that only deals with part of the negligence case that is pleaded against Comerford, leaving open at least the particulars in Paragraph 10(d) to (i) and the breach of contract case.

A. In that I haven’t done an investigation and analysis myself, I accept the finding of the Referee in the previous hearing, that on the method of – on the mode of failure but, as I have not done any analysis myself, I can’t be certain as to the result that would arise from such an investigation and analysis.
Q. And putting yourself back into the position in 1976, faced with the information that was available to you in 1976, you would have been of the same view, would you not, namely, that there was no- certainly (sic) that there would have been identified as a result of what you suggest be undertaken any need to do anything?
A. That there was no – certainly was not, in my view, a reason not to undertake the investigation an analysis. I can’t be certain because I don’t know what the foundation or geotechnical conditions are. I believe that the evidence of movement and some basic calculations would indicate quite a high force in the deck and that, in my view, warranted an investigation and analysis.
Q. You have read Dr Davids’ report?
A. I have, yes.
Q. I am correct in understanding, am I not, that there is no reference within his report to any occurrence of toggle buckling with respect to any previous bridge?
A. I can’t recall any reference. It is a lengthy report, as you know, and I have read it once.
Q. And certainly, so far as your knowledge and experience is concerned, you are aware that there has never been a reported instance of a toggle buckling failure anywhere in the world in the way found by Mr Verge in this Reference?
A. My experience with this toggle or snap-up buckling has been in relation to paving slabs laid over base slabs which were post tensioned. The base slab was post tensioned. I’m personally not aware of an instance of buckling of this form in a bridge deck. I would note that it’s unusual to have a bridge deck, that is, where the concrete is not fixed to the supporting components. In fact, the current codes wouldn’t permit it.
Q. Yes. But of course you would agree that the fact that the deck slabs in this case were not fixed to the supporting steelwork was a question of design which had been undertaken sometime before this bridge was built?
A. Yes. And it was evident from the drawings, I presume, that this was the case.
Q. And again, there seems to have been no consideration given by the RTA to do anything to alter that design by way of affixing the slabs to the steel frame?
A. No. Not as far as I’m aware. They all came off at the collapse.

Q. Just to return to this question of the occurrence, on 6 January 1989, your experience of some kind of buckling failure, I think you have told me, is not in relation to any bridge?
A. Of this nature, of this toggle buckling failure is not in relation to a bridge, no.

Q. And you have never heard of it anywhere?
A. No, I haven’t.
Q. And you would agree with me, wouldn’t you, that in order for the phenomena to have occurred, as found by Mr Verge, it required a large number of random factors to come together at one time, absent which it simply would not have occurred?
A. Well, your term “random factors” is a large number of random factors is – I don’t quite agree with. There were relatively few factors. They were events that do occur. The abutments move forward. The embankment in all probability moved over a period of time. The expansion joints closed. The deck went into compression as a result. Because of the nature of its construction it failed. So that is a relatively few number of factors.
Q. Can I suggest some others to you and see if you agree with me. The number of slabs in the deck is a factor?
A. The length of the slabs has some influence.
Q. The degree, weight and frequency of traffic is a factor?
A. This may have been a peripheral factor in leading to some wear of the concrete at the edges, but otherwise the large compression force, and the movement of the abutments forward, and the large compression force, were independent of traffic.
Q. The temperature at the time of the occurrence is certainly an important factor?
A. Yes, that is what I referred to, that the compression force was a major factor.
Q. The trajectory of the dip stick of the vehicle which is catapulted into the truss, the trajectory is critical?
A. Well, the nature of the vehicle that would happen to be there, and its configuration at the time the failure took place is critical, yes.
Q. And the speed of the truck is critical?
A. Perhaps not so critical.
Q. But a factor?
A. The speed might have had a minor factor.
Q. And you read in Mr David’s report, didn’t you, the experiments which he carried out in forming his model of the speed which the truck had to be travelling at in order for the occurrence to occur, and there were a number of speeds around a certain speed which I have just forgotten?
A. Yes.
Q. Which meant that it would have missed and there was one, I think only, and correct me if I am wrong, one speed at which it was going to hit?
A. Yes, I do recall that in his report, a reference as to speed.
Q. And you agree with me that the ability to calculate forces in a slab is extremely variable?
A. The ability to calculate the forces would require – would be the band in which one can assess the force would be improved by further investigation than was done. For instance, a specialist investigation of earth pressures and geotechnical factors.
Q. Yes.
A. The other aspect is to develop the force, the elastic modulus of the concrete at the time, and that is variable.
Q. And all of these factors had to come together on 6 January 1989 in order for the occurrences, as found by Mr Verge, to have in fact occurred?
A. Yes.
Q. And standing back in 1976 with the information that was then available on all of those matters that we have just discussed would have needed to be considered by any person considering some work on the bridge?
A. Putting aside the matter of the accident, some form of failure of the deck, or the risk of it, could have been identified without it necessarily taking that to a conclusion that this would cause an accident that would cause the bridge to come down.
Q. Yes.
A. It would lead to a conclusion that the deck, the nature of which it was designed and constructed, was not appropriate given the forces imposed on it.

Q. And that really is, at the end of the day, the critical factor, isn’t it, that the design of the deck in your view was not sufficient to cope with the forces placed upon it?
A. Yes.”

(T38:51-T43:24)

133 It may be noted the last question and answer is one of the two references given by counsel on behalf of the RTA, after search of the transcript, that represented a question that would not have been put if the Comerford and Welling parties were now permitted to put their case on a wider basis, in particular, by alleging negligent failure to repair. However, it will be further noted that the question and answer was not directed at the issue, that the condition of the bridge should have been known to the RTA by proper investigation and that the RTA should have been altered to the need for such an investigation. It was concerned with the ineffectual nature of the subject repairs in the context of the faulty design of the bridge, for which the RTA was not responsible. The same comment applies to the question at page 45 of the transcript, quoted earlier in these reasons.

134 Those questions related to issues which have been determined in favour of the RTA by the adoption of the second report, save as to the ultimate finding as to liability.

135 It is plain beyond argument that there was a live issue before the referees as to the foreseeability of buckling of the concrete slabs forming the decking of the Wellington bridge: whether the RTA should have been alerted to the need for an investigation and whether such an investigation would have revealed the forces operating on the concrete slabs and the possibility of those slabs spontaneously buckling.

136 The findings of the referees in the second report, as adopted, are unequivocal, namely:

(a) A structural analysis of the bridge was warranted – in this regard, Dr Ivering’s views were not accepted.

(b) An engineering analysis of the bridge structure, if carried out in 1988, probably would have disclosed a large compressive force in the deck – expressly adopting the opinion of Dr Kell, impliedly rejecting the opinion evidence of Dr Ivering and Mr Wedgwood (the last mentioned being of the view that the compressive forces were taken by the steel elements and guard-rail rather than the concrete slabs).

(c) Such a disclosure, probably, would have revealed the vulnerability of the “unrestrained concrete slabs to a buckling or pop-up failure ….with a possible risk of deck failure ”.

(d) Such a phenomenon would “ pose some danger to a vehicle traversing the bridge at that time ”.

(e) A buckling failure of this kind “is especially dangerous ”.

137 As noted earlier in these reasons, during hearing of the application for adoption of the second report, I made it clear that, in my view, there had to be an issue before the referees that the RTA, either knew, or should have known of this condition of the bridge, otherwise the case presented on behalf of the Comerford parties and the Wellings was completely meaningless. What did it matter if the condition of the bridge was exacerbated by the two acts of repair relied upon by those parties, if the condition was one unknown to the RTA and not one of which it should have known?

138 The examination of the evidence and the findings of the referees make if plain that those were live issues before the referees, with opposing views presented by experts for the respective protagonists and an issue on which the opinion of the expert called in the case of the Comerford parties was challenged by cross examination.

139 It is clear that such an issue has been conclusively resolved by the findings of the referees upon their adoption by this Court. Nor can the RTA be heard to say that the issue would have been addressed in a different way in the light of Brodie’s case. The issue was an essential ingredient in the case against the RTA in the second reference and the RTA accepted the challenge and lost.

140 With those findings, in my view, there is a compelling case that the Comerford parties and the Wellings should be permitted to raise an issue, before judgment, based upon the observations in the joint judgment in Brodie, whether the RTA was negligent in failing to warn users of the Mitchell Highway of the dangerous condition of the bridge or in failing to impose restrictions as to use, for example, as to the speed at which vehicles should be permitted to use this portion of the Highway.

141 Particularly is that so, in my view, when one has regard to the evidence before me and before the referees, the effect of which is referred to in my judgment of 17 May 2001 and which is repeated for ease of reference:

“8 It is also clear from the findings of the referees that the RTA undertook repairs of damage occasioned to the piers and the road surface of the bridge in the vicinity of two rotation joints which had the effect of maintaining the trafficability of the bridge deck whilst the bridge was in that dangerous condition. The repairs to the rotation joints were of a kind which, of necessity, required the closure or progressive closure of the highway traffic lanes and their reopening to traffic, without warning of the dangerous condition of the bridge. The photographs in evidence of the subject repairs underway make that plain.”

142 Taking into account the factors which I identified earlier in these reasons as pertinent to the exercise of discretion under Pt 72 r 13 and the inherent jurisdiction of the Court to permit amendment or to permit a party to re-open a case, I think the following considerations work upon the proper exercise of the Court’s discretion:

(a) I have observed that there is a compelling case to consider an issue as to any obligation of the RTA, to warn or to limit use of the bridge: compelling, because of the serious nature of the condition of the bridge, of which, on the evidence before the referees and in their findings, as adopted, the RTA should have known and should have been aware of its dangerous potential. To close traffic lanes in the highway while bridge decking work is carried out, presumably, to improve trafficability, as the evidence before the referees clearly disclosed: to re-open the bridge lanes in that dangerous condition clearly, in my view, raises serious questions as to any obligation of the RTA to warn users of the highway of its dangerous condition or to restrict its use.

(b) To permit such a case to be opened does not require a re-litigation of the findings in the second report as adopted in these reasons.

(c) If such a case is successfully prosecuted on behalf of the Comerford parties and the Wellings there will be no real prejudice to the RTA, not capable of being compensated by an appropriate order as to costs.

(d) The interest of the judicial system in the finality of litigation is unlikely to be further offended by permitting a case of failure to warn to be litigated, having regard to the history of this matter. In any event, I think the interests of justice will be far better served by paying attention to the demands of the Comerford parties and of the Wellings to be treated fairly and to be permitted to litigate a case opened to them by Brodie . The injustice to them of not being permitted to do so, in my view, is completely unacceptable.

(e) The Comerford parties and the Wellings could not reasonably be expected to have raised the failure to warn issue before the referees except as a formal position to protect themselves on appeal. This is not an appeal and there is no basis for refusing to consider the fresh point, now that is raised during the hearing, simply because of their failure to raise it before the decision in Brodie was handed down. Suttor does not govern the position.

(f) The statement of the law in Brodie at a stage after the making of the second report and prior to judgment in these proceedings is, in my view, a special circumstance, particularly in view of the application of the principles of liability, as pronounced in Brodie, to the findings in the second report, as adopted.

(g) A failure to warn case, or restrict use of the bridge, in my view, does not fall, within the particulars as presently pleaded on behalf of the Comerford parties and the Wellings, neither of whom has particularised in their applications the case they would seek to litigate, other than to have the law as stated in Brodie applied to the circumstances of this case, unfettered by the findings of the referees. As earlier stated, I am satisfied that such a course should not be permitted and that all parties should be bound by the findings of the second report as adopted in these reasons, save for the ultimate opinion on liability.

However, I am satisfied that an application for leave to amend in a more limited fashion to re-open a case of failure to warn should be favourably entertained by the Court.

Given my views that the findings of the referees in the second report, as adopted, should not be interfered with, any application for leave to amend to raise a case of failure to warn or restrict use of the bridge must be limited to particulars as found by the referees as summarised in par 136 of these reasons, and having regard to the nature of the repairs as summarised in par 141, the nature and effect of which was common ground in the proceedings before me.

(h) It is apparent that the granting of such leave will require the leading of further evidence. In my view, that is no sufficient reason for refusing to permit an amendment to raise a failure to warn case or failure to restrict use of the bridge in the exercise of the Court’s inherent power and to permit the re-opening of the case against the RTA.

Conditions as to costs of permitting such an amendment may be dealt with on the making of orders granting leave to amend.

143 Accordingly, I order that:

1. The report of the Hon Mr J E H Brownie QC and Mr G C Verge of 30 September 1999, be adopted, save for so much as commences with the words “We consider therefore” to the end of the report on page 8 of the report.

2. In proceedings 55035 of 1998, as against the Comerford parties, the summons is dismissed with costs.

3. The cross claimants in proceedings 55034 of 1998 and the plaintiffs in proceedings no 55035 of 1998 are to bring in short minutes of order, including any orders sought for leave to amend, in accordance with these reasons. Such minutes are to include orders for costs in relation to the application for adoption of the report and for leave to so amend and are to be served on the Roads and Traffic Authority of New South Wales by 5pm, 21 November 2001.

4. The Authority is to serve any short minutes by way of reply by 5pm 22 November 2001.

5. The proceedings are to be relisted for 9.30am 23 November 2001 for the making of further orders.

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Last Modified: 11/28/2001