RTA, Welling, Telstra v Comerford

[1999] NSWSC 643

CITATION:	RTA, Welling, Telstra v Comerford [1999] NSWSC 643
CURRENT JURISDICTION:	Common Law Division Construction List
FILE NUMBER(S):	55034/98; 55035/98; 55036/98
HEARING DATE(S):	30 March 1999
JUDGMENT DATE:	30 March 1999
PARTIES :	55034/98 - Roads and Traffic Authority of New South Wales v William Kevin Comerford and 3 ors 55035/98 - Gerhardus Hendrikus Welling and 1 ors v William Kevin Comerford and 4 ors 55036/98 - Telstra Corporation Limited (Formerly Australian Telecommunications Corporation) v W K Comerford and 3 Ors
JUDGMENT OF:	Einstein J

COUNSEL :	M.G. Rudge SC for Roads and Traffic Authority of New South Wales J.J. Graves SC and M.R. Pesman for Messrs Comerford G. Curtis (Solicitor) for Telstra Corporation Limited Mr G.H. Welling appearing in person
SOLICITORS:	I.V. Knight (State Crown Solicitor) for Roads and Traffic Authority of New South Wales John F. Griffin for Messrs Comerford I.V. Knight (State Crown Solicitor) for Telstra Corporation Limited Carroll & O'Dea for Mr Welling
CATCHWORDS:	Administrative Law - Referees Report - Discretion to adopt
ACTS CITED:	State Roads Act 1986
CASES CITED:	Foxman Holdings Pty Limited v NMBE Pty Limited (1995) 38 NSWLR 615 Super Pty Limited v S J P Constructions Australia Pty Limited (1992) 29 NSWLR 549 White Constructions (NT) Pty Limited v Commonwealth of Australia (1997) BCL 193
DECISION:	Defendants to bring in Short Minutes.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION - CONSTRUCTION DIVISION

EINSTEIN J

Sydney Tuesday 30 March 1999 - ex tempore
Revised 1 July 1999

55034/98 - ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES v WILLIAM KEVIN COMERFORD AND 3 ORS
55035/98 - GERHARDUS HENDRIKUS WELLING AND 1 ORS v WILLIAM KEVIN COMERFORD AND 4 ORS
55036/98 - TELSTRA COMMUNICATION LIMITED (FORMERLY AUSTRALIAN TELECOMMUNICATIONS CORPORATION) v W K COMERFORD AND 3 ORS

JUDGMENT
1 HIS HONOUR: These proceedings relate to the collapse on 6 January 1989 of a bridge over the Macquarie River at Wellington. There are before the Court three notices of motion. The first is a notice of motion brought in proceedings 55034 of 1998. In those proceedings the Roads and Traffic Authority of New South Wales is the plaintiff. Messrs W L H Comerford, K B Comerford and William K Comerford trading as Yuringo Pastoral Co are the first to fourth defendants inclusive. The first to fourth defendants are also cross-claimants, and the Roads and Traffic Authority is a cross-defendant.
2 The notice of motion is brought by W L H Comerford, K B Comerford, W K Comerford trading as Yuringo Pastoral Co. It seeks an order that the report of Mr G C Verge dated 14 December 1998 be adopted, save for the passage on p 5 of the report commencing with the words "repairs made from time to time" through to the words "under controlled conditions". The motion also seeks orders with respect to costs.
3 Motions in precisely the same form save in respect of the costs orders sought have been filed in proceedings 55036 of 1998 by Mr W. K. Comerford, and in proceedings 55035 of 1998 by J L H Comerford, K B Comerford, and W K Comerford trading as Yuringo Pastoral Co.
4 In proceedings 55036 of 1998 Telstra Corporation Limited is the plaintiff. Mr W K Comerford is the first defendant. The Roads and Traffic Authority of New South Wales is the second defendant. Mr W K Comerford is also a cross-claimant in those proceedings, and the Roads and Traffic Authority of New South Wales is the cross-defendant.
5 In the third set of proceedings 55035 of 1998 Mr G H Welling and W B Welling are the first and second plaintiffs. W K Comerford is first defendant. J L H Comerford, K B Comerford and W K Comerford trading as Yuringo Pastoral Co are respectively the second, third and fourth defendants and cross-claimants. The fifth defendant and cross-claimant is the Roads and Traffic Authority of New South Wales.
6 The proceedings arise following the making of an order that pursuant to Pt 72 r 2(1) of the rules of court in each proceeding:
"The question of the cause(s) 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."
7 It is necessary to briefly outline the position in respect of the three sets of proceedings. The outline is not intended to summarise the pleadings but to give an overview of the pleadings.
8 In proceedings 55034 of 1998 the plaintiff, being the owner of a bridge, claims damages following the alleged destruction of the bridge by the defendants or by reason of actions of the defendants. The plaintiff alleges that the first defendant W K Comerford, in attempting to transport an excavator across the bridge, caused the dipstick of the excavator to collide with the portal truss of the bridge, thus causing the bridge to collapse. The plaintiff alleges that the first defendant Mr W K Comerford is liable in negligence, having loaded the excavator in such a way as to exceed the bridge clearance. In the same proceedings the plaintiff alleges that the second, third and fourth defendants as employers of the first defendant are vicariously liable for his negligence. Alternatively the plaintiff claims a statutory right to recovery under s 68 of the State Roads Act 1986.
9 In proceedings 55035 of 1998, the plaintiffs were the owners of the excavator and other equipment being transported by the low loader alleged to have been driven by the first defendant under contract with the second to fourth defendants. Whilst in transit the allegation is that the goods were damaged following the collapse of the bridge. The plaintiffs claim damages from the first to fourth defendants in negligence and/or for breach of contract for loss incurred following collapse of the bridge. Alternatively the plaintiffs claim damages from the fifth defendant in negligence and/or public nuisance.
10 The first, second, third and fourth defendants repeat their defence and cross-claim in proceedings 55034 of 1998.
11 In the final set of proceedings Telstra is the plaintiff and it claims damages in negligence following damage caused, or said to have been caused, by the first defendant to Telstra's cable situated near the bridge. Telstra alleges that the first defendant Mr W K Comerford damaged the cable pursuant to the collision of the low loader with the bridge. Further or in the alternative the plaintiffs claim damages from the third defendant being the RTA in negligence.
THE NOTICES OF MOTION
12 The hearing of the notices of motion today follows directions given in that regard on the basis that at the commencement of the hearing the notices of motion would be filed, notification of the notices of motion apparently having been given to the relevant material parties. In those circumstances, without effective objection, the notices of motion were filed at the commencement of the hearing and an order was made that the motions be heard instanter.
13 Written submissions pursuant to earlier directions have been provided to the Court by the parties who by their legal representatives have appeared today, namely by the Comerfords and by the Roads and Traffic Authority. Appearances for the Comerfords are Mr Graves of Senior Counsel and Mr Pesman. Appearances on behalf of the Roads and Traffic Authority have been today Mr M Rudge of Senior Counsel. Mr G H Welling has appeared in person.
14 Following the submissions taken before the luncheon adjournment, the Court indicated that an ex tempore judgment would be delivered at 2pm. At 2pm Mr Curtis solicitor appearing for Telstra was in court, but he indicated that he had no objection to the orders being made in the notices of motion in so far as the whole report being adopted was concerned and did not wish to address any further submissions to the Court in relation to the matter. Mr Welling being invited to do so, had no submissions to advance in relation to the matters the subject of the notice of motion, but indicated a desire that the whole proceedings be expedited so that his suit can be determined as speedily as possible. He is in the somewhat invidious position of having sued both the Comerfords and the Roads and Traffic Authority, assuming that one or other may be liable and having as yet no result in the proceedings.
15 It is convenient then to commence with describing the structure of the referee's report. The referee's report is a report which is in twelve sections. The sections are divided as follows. Section 1, ‘Introduction’; Section 2, ‘Procedure’; Section 3, ‘Principal issues in dispute’; Section 4, ‘Legal principles’; Section 5, ‘The bridge’; Section 6, ‘Sequence of events in the collapse’; Section 7, ‘Witnesses’ accounts’; 7.1, ‘Loading the excavator’; 7.2, ‘On the road to Wellington’; 7.3, ‘The accident scene’; 7.4, ‘Generally’; 8, ‘Damage to the principal elements’; 8.1, ‘Point of impact, the entry portal truss and top of the dipstick’; 8.2, ‘The hydraulic cylinder and ram’; 8.3, ‘The low loader deck, beavertail and loading ramp (tailgate)’; 8.4, ‘The underside of the loading ramps and low loader triaxle’; 8.5, ‘The king pin and turntable’; 8.5, ‘The bridge deck and bottom chord’; Section 9, ‘Reconciling the damage with the parties' contentions’; 9.1, ‘The impact zone at the top of the dipstick and the entry portal’; 9.2, ‘The dent in the tailgate and its match with the bucket’; 9.3, ‘The underside of the loading ramp and the rear of the low loader’; 9.4, ‘The leading edge of the second slab and its being upside down on the top of the first and third slabs’; Section 10, ‘Analyses of slab buckling’; Section 11, ‘Statistical probability’; Section 12, ‘Summary and conclusion’.
16 The referee, a structural engineer, commenced section 3 in the following terms:
‘Although the parties agree on many details of the collapse, there is a fundamental disagreement on the direct cause of the impact between the excavator and the bridge.

The RTA (including Welling and Telstra) contends that the height of the excavator on the low loader exceeded the clearance height of the bridge. Thus the highest part of the excavator being the top of the dipstick hit the overhead bracing, became entangled with it and brought the bridge down.
Comerford contends that the excavator was loaded such that there was sufficient clearance between its highest part the top of the dipstick of the excavator and the overhead bracing stump. But the bridge deck failed by buckling so that a concrete slab rose up under the low loader causing it to rotate and lift the dipstick so that its top hit the overhead bracing became entangled and thus brought the bridge down.’

17 From time to time the referee refers to these submissions as ‘the plaintiff's submissions’, or ‘scenario’, and ‘the defendants' submissions’, or ‘scenario’.
18 In referring to ‘the plaintiff’, generally in the course of this judgment, I am to be taken as referring to the Roads and Traffic Authority, and in referring to ‘the defendants’ generally in this judgment, I am to be taken as referring to the Comerfords.
19 The plaintiff has essentially advanced, as I have understood Mr Rudge of Senior Counsel, three alternative submissions. The effect of the first submission is to focus on the referee's dealing with the condition of the bridge, concluding with the section to which I have already referred, beginning:
‘According to the RTA maintenance file, Exhibit D4(1), the bridge has a history of movement and distress requiring repairs for many years...’
20 The plaintiff then draws attention to the fact that the referee, having detailed the number of stress features continued using the words which I have referred to:
‘Repairs made from time to time appear to have been sufficient to provide a reasonable level of serviceability under regular heavy traffic. Also the bridge safely carried the occasional abnormal load of some 250 tonnes, albeit under controlled conditions.’
21 The plaintiff, by Mr Rudge, asserts that beyond the positive finding by the referee that the plaintiff effected repairs on the bridge, the referee made no other finding with respect to the condition of the bridge, neither that it was poorly constructed or poorly maintained. As such the plaintiff submits that the referee made no finding of any act or omission by the plaintiff causative of the defendants' loss or of that sustained by Welling and Telstra in the associated matters. In the result, if the plaintiff's first submission be accepted, and if the report is adopted in its entirety, the appropriate orders on the plaintiff's submissions are that the claim, the cross-claim and the associated claims be dismissed.
22 The plaintiff's second submission, which was not the subject of written submissions but was the subject of submissions advanced from the bar table, was that because of the findings in s 5 of the report, which it was said, negatived the defendants' case as presented to the referee, it was not open to the referee to find, what is referred to by Mr Rudge as the toggle/buckle scenario, as having occurred. In the result, on the plaintiff's second submissions as I understood those submissions, the whole of the report should be rejected.
23 I interpolate that the ‘toggle/buckle’ scenario to which Mr Rudge referred and to which Mr Graves has also referred, is a reference to the theory that the leading edge of the second slab from the Dubbo end of the span "popped up" after the prime-mover passed over it and just prior to the first wheels of the tri-axle reaching the joint between the first and second slabs.
24 The plaintiff's second submission as I understood Mr Rudge today, may be expressed as follows.

1. The plaintiff accepts that the question of legal liability in respect of the subject events was not before the referee.
2. The plaintiff submits that nevertheless all technical and factual issues relevant to the cause of the bridge's collapse were before the referee. These are said to have necessarily included the legal and factual issues contended for by the Comerfords.
3. The plaintiff then submits that the referee was required to decide as a matter of fact whether the pleaded allegations in relation to the state of the bridge, its design and maintenance were made out. The submission as I have understood it is that the condition of the bridge, its design and its maintenance were central to matters the referee had to decide.
4. The submission is that the defendants' case before the referee was that the toggle/buckle movement resulted from a combination of:
(a) defective design, and/or
(b) poor maintenance.
5. The plaintiff submits that the burden of the referee's decision was to negative the defendants' case, in other words to in substance find that the toggle/buckle movement did not result from a combination of defective design and poor maintenance.
6. The plaintiff submits that the referee:
(a) did not find defective design.
(b) did find that maintenance was sufficient to provide a reasonable level of serviceability.
7. The plaintiff then submits that the ultimate finding of the referee that the cause of the collapse was the toggle/buckle, is inconsistent with the matters referred to in the immediately preceding paragraph above, and that no reason was given by the referee for this suggested inconsistency.
8. The plaintiff then submits that by adopting the toggle/buckle scenario, the referee has forgotten that he had already decided in a fashion which removes the only substratum upon which to base such a finding, namely that there had been no defective design or poor maintenance.
9. Hence the plaintiff's submission that the referee was tasked with bringing down findings of fact which were capable of providing the foundation for the ultimate determination of legal liability in the proceedings.

25 In my judgment those submissions are without substance. They fail at threshold in misconstruing the terms of reference. The terms did not refer to the referee the question of determining the issue as to whether any act or omission of RTA constituted negligence as pleaded, or constituted a breach of a statutory duty.
26 No evidence was adduced before the Court to the effect that the submissions of the defendant before the referee were or were confined in the manner suggested in the plaintiff's submission. The submissions before the referee which appear to have been included as annexures to the report do not assist.
27 A close reading of the report makes clear it seems to me, that the referee did not treat with the detailed particulars of negligence and/or breach of statutory duty given in the pleadings. It is inappropriate presently to now repeat the pleadings in the proceedings. Suffice it to say that the material affirmative and in some cases defensive pleadings, descend, as one might expect, to a great deal of particular detail in the particulars as to the negligence or breaches of statutory duty relied upon. One matter which was the subject of submissions by Mr Rudge after the Court raised it with him, concerns for example the cross-claim in proceedings 55034 of 1998. In para 11 of that cross-claim the cross-claimants, that is to say the Comerfords trading as Yuringo Pastoral Co, plead that damage was caused by the Roads and Traffic Authority's public nuisance by rendering the highway dangerous for users thereof. The very first particular in a line of some eighteen particulars reads as follows:
"The public nuisance occurred by reason of the cross-defendant...failing to adequately investigate the subsoil conditions below the bridge piers."
28 No reference appears to have been made anywhere in the report to the subsoil conditions below the bridge piers, let alone to whether or not, and if so in what circumstances owners of bridges such as the RTA routinely investigate subsoil conditions below bridge piers, or ought in the circumstances of this bridge, have been alerted to the need, if need there in fact was, to so investigate.
29 As I understood Mr Rudge, the plaintiff accepts that what the referee did was to find a proximate cause for the collapse of the bridge.
30 To my mind the referee in para 5 of the report to which so much attention was addressed in submissions in writing and from the bar table dealt with two topics. The first is the topic of repairs from time to time made to the bridge. This was a question of fact. In the referee's opinion based on the evidence, these appear to have been sufficient to provide a reasonable level of serviceability under regular heavy truck traffic. Secondly dealt with was the topic of abnormal loads. As a matter of fact, the finding was that the bridge safely carried the occasional abnormal load of some 250 tonnes, albeit under controlled conditions.
31 In the result to my mind the second bracket of submissions of the plaintiff's are without substance and require to be rejected.
32 The third submissions by the plaintiff, as I have understood them, are that the report should not be adopted, save for the whole of Section 5. This is because, it is submitted, that the referee did not place appropriate weight on a number of evidentiary matters, including the lay, engineering or the statistical evidence presented by the plaintiff. The plaintiff here asserts that rather than reach a view on balance, the referee based his conclusions solely on the physical evidence of damage to the low loader. The plaintiff asserts that the Court should not adopt the report as it "could not have the required degree of comfortable satisfaction that the right conclusion had been reached" - plaintiff's written submissions para 31.
33 Here again to my mind the plaintiff's submissions are one without substance. I deal in some detail with the content of the submission.
34 In support of the submission the plaintiff contends that the referee did not place appropriate weight on a number of evidentiary matters before him, as I have said, including the lay, engineering or statistical evidence presented by the plaintiff. The plaintiff then asserts that rather than reach a view on balance, the referee based his conclusions solely on the physical evidence of damage to the low loader.
35 A close reading of the report however indicates that while the referee may have been persuaded by the physical evidence of damage to the low loader, he did not fail to consider all the evidentiary matters before him.
36 The referee treated with the evidence adduced in the following four categories:
(a) Lay witnesses or non-technical evidence.

(b) Physical evidence of the structural damage and its interpretation.
(c) Engineering analysis of possible failure models.
(d) The probability of certain events occurring, based on statistical assessment [report p 3].
Treatment by the Referee of the Lay Evidence

37 At pp 6 to 10 of the report the referee gave detailed consideration to lay evidence given by Mr Comerford, Mr Welling, Mr Marks and Messrs Blain and Cather.
38 Clearly there is conflict between the accounts of principal witnesses for the parties in relation to the loading of the excavator. On the one hand, Mr Comerford asserts that he loaded the excavator onto the truck in such a way that the dip stick would have been at a height which would enable it to pass safely under the Wellington bridge. On the other hand, Mr Welling gave evidence for the plaintiff. His evidence was to the effect that the excavator was loaded into a position which the experts agreed would have placed the dip stick in a position of collision with the lower chord of the portal's truss. Mr Marks also gave evidence for the plaintiff. His evidence was to the effect that the dip stick was in an upright position, which would have brought it into collision with the bridge.
39 After reviewing the lay evidence the referee concluded:
"I have reviewed all the lay evidence and conclude that it is far from conclusive as to which scenario should be supported." [Report p 10]

"The non-technical evidence discussed in s 7 covers the witnesses' accounts of the loading of the excavator, its transportation to Wellington and the scene of the accident. I find this evidence inconclusive and not sufficient to decide the issues in contention ." [Report p 25]

40 It is then said to have been manifestly unreasonable for the referee not to have come to a finding as to the testimony of particularly an independent third party.
41 While I accept the respective parties' submissions that the referee did not expressly prefer one account over the other, I reject the assertion by the plaintiff that the "referee made no attempt to resolve these conflicts" [plaintiff's submissions para 19], and that "his error is to fail to come back to the evidence, reach a view concerning the conflict it contains, give the result weight and then place that on the appropriate side of the scale" [plaintiff's submissions para 20]. Ultimately the referee at report p 27 accepts the defendants' scenario as providing a coherent explanation of all the evidence. The referee it seems to me clearly weighed all the evidence and came down in favour of the defendants' submissions.
42 As opposed to the plaintiff's submissions in this regard, the effect of the referee's conclusion was that the lay evidence was unsatisfactory and not capable of assisting him in his decision [see para 10 of the defendants' submissions]. In any event, had the referee made an express finding on the lay evidence, it is highly questionable whether that finding could have assisted the plaintiff. The referee made a number of comments adverse to the credibility of Mr Welling, the principal lay witness for the plaintiff, and highlighted the inconsistencies in Mr Marks' evidence.
Treatment by the Referee of the Physical Evidence
43 The referee clearly attached considerable weight to the physical evidence. His report reads inter alia:
"Given the uncertainty of the lay evidence, it becomes necessary to examine the damage carefully." [Report p 10]
44 The referee does however note that:
"One should bear in mind that some damage may have been pre-existing or caused by salvage operations after the accident." [Report p 11]
45 To my mind all that the quoted passage to which I have referred from p 10 of the report suggests is that in the referee's view, the physical evidence had to be examined with care. This is not to accept the plaintiff's submission that the report should be viewed as showing that notwithstanding the referee's caution with respect to the physical damage, he is shown to have elevated that material into the sole determinant of the case.
46 Following discussion with the experts, who appear to have spent considerable time examining the damaged parts of the bridge, excavator and low loader trying to reconcile their respective explanations for the accident, the referee concluded that four items of physical damage were critical [report p 26].
47 The plaintiff submits that of the four elements identified "one is definitely neutral, another is possibly neutral, and two may favour, but not necessarily so, the defendant" [plaintiff's submissions para 24].
48 I accept the defendants' submission that this summary is incorrect. The referee's conclusions in relation to each item were in fact as follows:
(a) In relation to the damage to the portal truss and dipstick:

"I conclude that either scenario could explain the damage to the portal truss and dipstick." [Report p 7.10]
To my mind this conclusion can fairly be said to be neutral.
(b) In relation to the dent in the tailgate:
"However, the defendants' position with the bucket against the tailgate is more likely to fit the damage..." [Report p 18]
To my mind this conclusion favours the defendant.
(c) In relation to the underside of the loading ramp and the rear of the low loader:
"The defendants' scenario provides the more likely explanation..." [Report p 19]
To my mind this conclusion appears to favour the defendant.
(d) In relation to the second slab:
"Subject to the analysis of slab buckling, I conclude that the defendants' scenario is the more likely explanation of the damage to the second slab and its being upside down." [Report p 21]

49 It is somewhat difficult to be certain as to how to categorise this conclusion considering the referee's treatment of the slab buckling analysis. However it is arguable that this conclusion favours the defendant.
Treatment by the Referee of the Engineering Analysis
50 The referee deals with this matter from pp 21 to 24 of his report. His conclusion at p 24 is:
"Having reviewed the competing arguments of the experts for each scenario I have some difficulty in reconciling the calculated forces and mathematical models with the physical action at the slab joints. I conclude that the mathematical process relies heavily on the assumed properties of the concrete and the geometry. These are highly variable and consequently the end results are not sufficiently reliable to decide the issue."
51 The plaintiff submits that the engineering analysis of possible failure modes occupied the bulk of the hearing and the bulk of the experts' reports. The plaintiff's submission is that the plaintiff's experts contended that the defendants' scenario was scientifically impossible and that the defendants contended that within some parameters it was possible.
52 Paragraphs 26 through to 28 of the plaintiff's submissions are in the following terms:
’26. It was this matter which occupied the bulk of the hearing and the bulk of the expert reports. The plaintiff’s experts contended that the defendant’s scenario was scientifically impossible, and the defendant’s contended that within some parameters it was possible.

27. The referee deals with this matter in section 10 of his report commencing on page 21. His conclusion in the final paragraph of the section on page 24 is:
“Having reviewed the competing arguments of the experts for each scenario, I have some difficulty in reconciling the calculated forces and mathematical models with the physical action of the slab joints. I conclude that the mathematical process relies heavily on the assumed properties of the concrete and the geometry. These are highly variable and consequently, the end results are not sufficiently reliable to decide the issue” .
As with the lay evidence, the referee treats this material in isolation.
28. He returns to the question in his section 13 summary on page 26 and finds:
“The conclusion from these analyses is that a buckling failure is unpredictable and neither of the competing scenarios can be ruled out”.
If neither scenario can be ruled out there must be an implicit acceptance by the referee of the possibility of the plaintiff’s scenario, yet no recognition of this is given.’

53 I reject the concluding proposition put in the plaintiff's said submissions. I do not accept upon a reading of the report, that it is correct to say that if neither scenario can be ruled out there must be an implicit acceptance by the referee of the possibility of the plaintiff's scenario, yet no recognition of this is given.
Treatment of Statistical Assessment
54 Here the plaintiff points out that the referee deals with the matter in s 11 of his report commencing on p 24. The plaintiff points out that the referee concludes that whilst the combination of events necessary to give rise to the defendants' scenario is "one in several million" this does not rule out the occurrence of the event. The plaintiff points out that in reaching his conclusion, the referee however treats this matter as being of no consequence stating:
"The statistical assessment advanced by the plaintiff is an interesting mathematical exercise that shows a very low probability of occurrence for the postulated toggle/buckling (the defendants' scenario). However, in practical terms this is not unusual for accidents involving collisions and engineering structures. Fortunately these are rare events and as such would have a low probability."
55 The plaintiffs then submit that one chance in several million is not ‘a low probability’ as the referee, so the plaintiff submits, seemed to think. The plaintiffs' submission is that it is almost an impossibility, a factor which should weigh, the plaintiffs submit, very heavily in their favour upon a proper assessment of all of the evidence.
56 It is then submitted by the plaintiff that adoption of the report would be unsafe. The plaintiff's submission is that the Court could not have the required degree of comfortable satisfaction that the right conclusion has been reached.
57 The defendants' responsive submission in relation to the question of statistical assessment is one which seems to me to be of substance. The defendants here point out that the question is not what was the absolute probability of the defendants' scenario, which is admitted to be low, but rather it is a question of relative probability. The defendants submit, and I accept that as the referee pointed out at report p 26.2, bridge collapses are rare and therefore inherently unlikely. A bridge collapse having occurred, the submission is that the referee was required to determine a more probable cause. The submission is that the mere fact of the improbability of the defendants' scenario does not invalidate the referee’s conclusion. I accept that submission.
58 There is a further matter which the plaintiffs, after closing their submissions elected to put forward in terms of tendering material. The material which was then tendered without objection will be marked exhibit P1, and comprises pp 380 through to 383 of the transcript of the hearing before the referee of November 6, 1998.
59 This is a matter which the plaintiffs have dealt with in their written submissions at para 25. Paragraph 25 reads:
"Furthermore, in deciding that item 1 is neutral, the referee has ignored the agreement of the experts (Transcript 381.47-57) that the defendants' scenario could only work by arbitrarily lowering the speed of the truck from its speed of forty kilometres per hour (as established by the evidence) to thirty kilometres per hour. If the referee had acknowledged this fact, item 1 should have been placed on the plaintiff's side of the scale."
60 The defendants submit that the extent of the referee's task was to decide between two competing scenarios and that no alternative was advanced. In that circumstance the defendants' submission is that it does not assist the plaintiff to assert that a matter was "possibly neutral", where a finding that a matter was more likely to favour the defendants supports a conclusion that the defendants' scenario was more likely than that of the plaintiff's.
61 The defendants then submit that the impact speed was one of a substantial number of variables and refer to exhibit P1 at p 382.14 to .19 where the referee asks the question of Dr Saleh:
"You are saying it is a sensitive calculation. There are a large number of variables that can be input into the calculation from which you can get a host of results, some of which will produce the desired result which fits the known facts. ..."
62 I accept the defendants' submission that the fact that one of those variables may have been incorrect (although the defendants do not accept that that is the case), does not invalidate a finding that the damage is explained by either scenario.
63 Here again as I have understood the submissions put forward by Mr Rudge of Senior Counsel the suggested failure by the referee in relation to this issue of speed and experts' agreement constitutes a manifest error, such that the Court could not and should not be satisfied, let alone "comfortably satisfied", that the right conclusion has been reached.
64 I did not understand there to be a contest as to the principles which inform the exercise by the Court of its undoubted discretion in the matter of adopting or rejecting or otherwise ordering in relation to a report of a reference following a Pt 72 reference.
65 The principles which inform the Court's discretion whether and to what extent to adopt, vary or reject a referee's report are set out in Super Pty Limited v S J P Constructions Australia Pty Limited (1992) 29 NSWLR 549.
66 The Court's discretion to adopt, vary or reject a referee's report is not constrained in the same way that challenges to arbitral awards are constrained. As Super makes plain, grounds for rejecting a report may include an error of principle, a patent misapprehension of the evidence or perversity or manifest unreasonableness in fact finding.
67 Gleeson CJ with whom Mahoney and Clarke JA agreed, considered at 563 to 564, that it was undesirable to attempt to constrain the exercise of the Court's discretion in respect of a referee's report. Gleeson CJ made plain that a court will not ordinarily interfere with any findings of fact by a referee where the referee has based his or her finding upon a choice as to which evidence is to be accepted. In this respect Gleeson CJ agreed with the following observations:
"As a broad proposition, depending upon the circumstances of each case, the Court will not reconsider disputed questions of fact where there is factual material sufficient to entitle the referee to reach the conclusions he did, particularly where the disputed questions are in a technical area where the referee enjoys an appropriate expertise. [SPJ Formwork Aust Pty Limited v Leda Constructions Pty Limited (unreported Supreme Court of New South Wales 19 May 1992 Giles J)].
68 Giles J had continued by citing Cole J in White Constructions (NT) Pty Limited v Commonwealth of Australia (1997) BCL 193:
‘In circumstances where the Court, having closely scrutinised the referee's report, has a comfortable feeling of satisfaction that the factual issues have been properly explored and considered, in my view the Court should adopt the referee's report on findings of fact.’

[29 NSWLR 549 at 553 to 554]

69 In Super, Mahoney JA continued at p 567, where his Honour held that the Court in exercising its discretion with respect to the referee's report, is entitled to take into account the nature of the issue, the circumstances of the case and the "extent to which the parties' case has been presented to and dealt with by the referee". At 567 Mahoney JA said inter alia:
"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." [Emphasis added]
70 In Foxman Holdings Pty Limited v NMBE Pty Limited (1995) 38 NSWLR 615, Cole J in referring to Super stated:
"By ‘patent misapprehension of the evidence’ I understand the Chief Justice to be referring to a lack of understanding of the evidence as distinct from the according to particular aspects of the evidence different weights. The reference to "perversity or manifest unreasonableness in fact finding" I understand to relate to the exceptional case where it can be clearly demonstrated that no reasonable tribunal could have reached the decision achieved. It is true that may involve a consideration of the evidence. However it is dealing with a state of evidence regarding material facts different to and more unreliable than a state of evidence said to be "unsafe and unsatisfactory to support such findings of fact". It was not said here that there was no material upon which the referee could have made the findings of fact which he made".
71 Applying those principles to the exercise of the discretion presently required in relation to the notices of motion before the Court, I have no doubt but that the proper exercise of the discretion is to adopt the whole of the subject referee's report and to do so in full. To my mind it is particularly important to take into account the fact that the issues of fact were referred to the referee as a structural engineer by reason of the complexity of the technical matters to be taken into account and considered. One only needs to glance through the report to appreciate the necessity for a referee, himself trained in a relevant discipline, to be able to (a) understand, and (b) apply, those principles germane to determining the question of the causes of the collapse of the bridge on 6 January 1989.
72 It is impossible for the Court on an application for approval in whole or in part of a report, to treat with a situation which arises when there is tendered a small section only of a transcript dealing with a complex issue involving one of a large number of variables that can be apparently input into a calculation from which one can achieve a number of results. The Court cannot determine on that material alone, that the report is one which exposes manifest error, or otherwise within the ambit of the Court's plain discretion, is such as to require a description of a patent misapprehension of the evidence of perversity or manifest unreasonableness in fact finding.
73 Where an application is made for the adoption in whole or in part of a report and a party seeks to have the whole of the report rejected, on bases not apparent from the face of the report but which require the Court to investigate at whatever appropriate level the material upon which the referee determined and reported, it is necessary very often for detailed evidence to be placed before the Court as to the events which took place before the referee. There is no short cut it seems to me, and in the circumstances of the current notice of motion, to my mind none of the plaintiff's submissions, have been made good. The plaintiff's first bracket of submissions amounted to a claim that if the report be adopted in its entirety it was appropriate for the claims and cross-claims to be dismissed. I am disposed to adopt the whole of the report for the reasons given above. That is not to say that the adoption of the report results or results necessarily in the dismissal by the Court of the claims and cross-claims. I return to this topic below.
74 The second bracket of the plaintiff's submissions to which I have referred, would result in a rejection of these whole of the report. For reasons already set out, those submissions are not accepted. The third bracket of the plaintiff's submissions advanced in the written submissions were that the only section of the report which should be adopted were Pt 5 of the report. Here again the plaintiffs have not made good that bracket of submissions.
75 The position which obtained when the hearing commenced was that the notices of motion to which I have referred sought the adoption, save for the passage on p 5 of the report commencing with the words "reports made from time to time" through to the words "under controlled conditions". In submissions in reply Mr Graves of Senior Counsel made plain as I understood it, that the defendants did not ultimately press for the excision from the report to be adopted of those words, following the submissions by Mr Rudge. In those circumstances I do not understand that the defendant presses for reasons for judgment in relation to why the defendants' notice of motion order one is not to be made in those terms, but the whole of the report is to be adopted.
76 It is finally necessary to deal with a matter which Mr Graves sought to reserve his position in relation to. In submissions Mr Graves, at the same time as indicating that the defendants did not wish to address any submissions in relation to the adoption by the Court of the whole of the report, sought to submit that it was to be made clear that the defendants saw the adoption of the whole of the report as giving some support to the defendants' submission that the defendants would ultimately succeed on liability. In some debate with Mr Graves the Court indicated that it was entirely inappropriate for the Court in this judgment to in any fashion treat with the use, if any, which either the defendants or the plaintiff might seek to make in the ongoing proceedings of sections of the report or of the section of the report in s 5 to which so much attention had been given.
77 In the result to my mind the way forward is for the Court simply to make plain, as I do, that the adoption of the whole of the report is to be regarded as totally without prejudice to the entitlement of any party in the proceedings to date to use in the further hearing of the proceedings, before whichever judge or judicial officer or referee the proceedings may be referred, the report in whatever fashion such party is advised. I do not see it as the Court's role today to categorise any portion of the referee's report as assisting, not assisting or as being neutral as it were, with respect to the respective contentions of the parties to the respective proceedings as to liability or no liability. In those circumstances it seems to me to be inappropriate to do more than to note that the adoption of the report is without prejudice to the rights of any party in the future conduct of these proceedings to rely as they are advised or seek to submit upon sections of the report in support of their case or cases, or in opposition to case/cases brought against their respective clients.
78 In those circumstances the Court directs that the defendants bring in short minutes of order at an appropriate time to reflect the adoption of the report in whole.
79 I reserve costs generally on the notices of motion for the time being.

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Last Modified: 07/05/1999