New South Wales Supreme Court 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 RTA: M G Rudge SC & D A C Robertson COUNSEL : Comerford parties: S Y Reuben Wellings: M L Williams SC RTA: I V Knight Crown Solicitor SOLICITORS : 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. Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Walter Construction v Walker Corporation (2001) NSWSC 283 CASES CITED : 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. The Case Against RTA It if (sic) is to be held that the Sutton v. Gundowda line of authority applies to the present situation (contrary to point reserved by Heydon JA) it is noted that in Maloney v. Commissioner for Railways (1978 52 ALJR 292, 294), Jacobs J said there are very exceptional cases where the interests of justice may require a new trial on an issue of fact not litigated at the trail (see also Water Board v. Moustakas 1988 180 CLR 491, 498). It is submitted that the ultimate question is whether the interests of justice require that the Plaintiffs be permitted to run the Brodie point against the RTA (see Multicon Engineering Pty Limited v. Federal Airports Corporation 2000 47 NSWLR 631, 645 per Mason P). It is submitted that the Plaintiffs should not be prejudiced by a failure to take a formal point to the effect that the nonfeasance immunity did not apply. The immunity had its origins in Russell v. Men of Devon, decided in 1788 (100 ER 359) and had been part of the law of Australia since at least Buckle v. Bayswater Road Board was decided in 1937. Despite occasional misgivings by Trial Judges and intermediate Courts of Appeal, it could not be said that the Plaintiffs should have foreseen that the High Court would abolish the immunity in the near future." 21 It will be necessary to return to the Wellings' case against the Comerford parties. 22 The position adopted by the Comerford parties was stated by Mr Reuben of counsel as follows: "1. By a judgment of 31 May 2001 the High Court in Brodie v Singleton Shire Council; & Ganthous v Hawkesbury City Council [2001] HCA 29 revisited the exclusionary rule in relation to nonfeasance for highway authorities and held that there was a liability in negligence. 2. In the present proceedings the case was conducted before the referees Messrs Brownie and Verge on the basis of the law as it was prior to the High Court judgment in Brodie, such that if it was not good enough for the bridge to have fallen into disrepair or that its condition was such that it may have materially contributed to the collapse of the bridge in the circumstances as found by referee Verge in his first report of 14 December 1998. 3. The matters disclosed by Exhibit D41, the RTA's maintenance file, were such that it was shown that the bridge had a history of movement and distress requiring repairs for many years (Judgment Hunter J; 15 March 2000 p4/12). The referees concluded that an engineering investigation of the bridge structure if carried out in 1998 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 (Judgment Hunter J; 15 March 2000 p8/19). It was the opinion of the referees that the Wellington bridge which carried traffic was in a dangerous condition which was capable of disclosure by engineering investigation in respect of which nothing was done by the RTA to investigate the condition, to alleviate that condition nor to warn the public of the danger (Judgment Hunter J; 17 May 2001 p14/7). 4. The trial of the issues should now proceed on the law as now expounded by the High Court in Brodie. … 8. The appropriate course is for your Honour as the Trial Judge to make directions for the reception of evidence in order for there to be a determination of the liability of the RTA based on negligence principles as expounded in Brodie. 9. Alternatively, it is submitted that if the course referred to in paragraph 8 is not followed because of the Court of Appeal decision of 8 December 2000, then the interest of justice demands that the trial not be concluded pending determination of the Comerfords' Application for Special Leave to Appeal to the High Court from the Court of Appeal judgment." 23 Submissions by Mr M G Rudge SC on behalf of the RTA included the following: "7. As the judgments of the majority in Brodie make clear the ordinary principles applicable to the raising of new points on appeal apply in the circumstances arising by reason of the High Court decision in Brodie as much as in any other circumstances. 8. In both Brodie and Ghantous v Hawkesbury City Council, which was heard and determined at the same time, the plaintiffs had made clear at or prior to the trial that they relied on the proposition that "the doctrine of non-feasance is no longer good law". The respective defendants had led no evidence to rebut any inferences of negligence arising from the plaintiff's cases. The Court found that there was no negligence on the part of the defendant in Ghantous and therefore did not need to consider the appropriate course in light of the determination that no doctrine of immunity applied to the defendant. 9. However in Brodie Gaudron, McHugh and Gummow JJ (at paras 180-181) and Kirby J at (para 240) found that it was not necessary to return to the matter for retrial. The plaintiff had fairly raised the issue and the defendants had chosen not to respond. The parties were held to their conduct at trial. 10. For the same reasons and consistently with the judgment of the Court of Appeal in this case the Comerford and Welling parties ought not to be permitted to seek to reargue the case in a manner inconsistent with the way it was conducted before the referees. 11. An examination of the reasons for judgment in the High Court in Brodie demonstrates that there are a number of areas where evidence would be necessary to establish actionable negligence on the part of the RTA and where evidence might have been led to counter such allegations." 24 In my view, the first step in resolving those issues is to examine the second report in the light of the submissions made as to its adoption in order to determine whether the report should be adopted in whole or in part. If it be the case that the second report should not be adopted, then that would, I think, widen the area within which any discretion may be exercised in dealing with the above submissions of the parties. 25 On the original hearing of the application for adoption of the second report the following was admitted into evidence: the reports of the referees under the first and second reference: a statement of William Stewart Walker (Mr W. Walker), a bridge support officer with the RTA who had been engaged in maintenance of the Wellington bridge for many years and in which he described the configuration of the bridge and the nature of repairs carried out by the RTA in July 1988: a plan and section view of the bridge. 26 The ultimate conclusions of the referees in the second report as to the allegation of negligence by the RTA in carrying out repairs limited to the injection of a rigid compound, Megapoxy, into cracks in the supporting piers of the bridge were as follows: "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. If the cracks were sealed with a rigid epoxy the stiffness of the piers would be restored to their original value in the uncracked state. However, this condition probably would be temporary only because any later movement would most likely cause the cracks to reappear adjacent to the repairs. Having considered the partly conflicting expert evidence of Messrs Kell and Wedgwood 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 the temperature expansion of the deck. Therefore we accept the submission of Mr Rudge counsel for the RTA that the evidence does not establish that filling the cracks in the piers was related to or caused the collapse." 27 As to the allegation that the RTA had acted negligently in inserting a compound, Set 45, into the rotation joints over piers 6 and 8, the referees were of the following opinion: "Dr Roper gave evidence about the properties of Set 45 the rapid hardening mortar. This material is a mixture of sand and magnesium phosphate cement, which unlike normal portland cement is shrinkage compensated so that its volume should remain fairly constant after initial set has occurred. Dr Roper's opinion is that this material would swell during hydration and induce stress in the deck. Mr Wedgwood disputed this claim on the grounds that any stress would be relieved when the temporary timber board was removed. We prefer the evidence of Mr Wedgwood on this point. 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." 28 There is no apparent illogicality in the reasoning of the referees which led to those conclusions nor any apparent misconception of the evidence as outlined in the second report. 29 It was submitted on behalf of the Comerford parties that each of those conclusions was "unsatisfactory" in that they were inconsistent with the evidence, or involved a misconception of the relevant question of causation, or was unsupported by evidence. 30 In the application of the Comerford parties to reopen their case on the grounds of fresh evidence, the evidence of the hearing on the second reference was admitted into evidence. It has been agreed that in disposing of this current application the Court may have regard to the evidence adduced on that earlier application. I have found it necessary to examine that evidence with some care in light of this submission of 'unsatisfactory' findings of the referee. 31 For a case that has dragged on for years, the hearing of the second reference was remarkably brief: consisting of one day hearing the evidence and a short sitting of less than an hour after 4.15pm on a second day to hear submissions. 32 Mr W Walker gave evidence of the repair work carried out on the rotation joints above piers 6 and 8 in July 1988 which included the improbable technique of using a chain saw to remove 19mm thin jointing timber to leave a gap between the Set 45 used in the repair and the adjacent chord of the bridge. 33 He was not questioned about the megapoxy repair of the cracking in the piers in 1985. 34 Mr L Walker, who was a supervisor for the RTA, gave similar evidence to that of his brother. Except for one question by the legal representative for the Wellings, he was not cross examined. Most of the questioning was carried out by the referees. 35 Mr Kell, gave evidence in the Comerford parties' case. On the design of the bridge he gave the following evidence: "Thus, all the thermal expansion/contraction in the superstructure was designed to be taken up at the central pier 7 where roller bearings were provided to the trusses and a 3 inch gap provided between the ends of the deck. Karol (Ref 1) concluded that this design provision would been adequate, and I am of the same view, except that the concept did require the piers other than pier 7 to bend, and this would predictably lead to cracking in the piers. Otherwise the deck would have to crack." 36 He offered the following opinion on the deterioration of the bridge: "It is apparent from these bridge records that there were significant movements generated within the Wellington embankment, almost from the time of construction; that joints had closed before 1946; that the amount of movement to close the 3 gaps in the deck was 180 mm (7 inches) plus any shrinkage of the deck; that the deck from that time would have acted in compression as a prop between abutments and as such would have been subjected to forces from earth pressure on the abutment plus restraint to thermal expansion and traffic. That is, at least as early as 1946, the bridge was not functioning as designed. This was certainly the case and was clear to Karol in 1976." 37 Consistent with those views he extracted the following from the 1976 finding of the RTA's senior bridge examiner: "- "The (3 inch) expansion gap over pier 7 does not exist any more". - There was "instability of foundations on Wellington end of the bridge". The subsidence at pier 4 was indicated by Karol as 120 mm for instance. - The piers had deflected as the result of this instability; the bridge superstructure had moved to close the gaps. - The piers were substantially cracked at headstocks and in the shafts and that "these cracks make the piers much more flexible than would be their elastic flexibility". - Karol notes "any rigid repair of these cracks will result in their renewal or in opening of new cracks", and "creating of a new expansion joint… can make the situation worse", - The bridge deck was acting as a prop between abutments and that this resulted in a compressive forces (sic) in the deck was recognised. The magnitude of the force was not identified however." 38 Mr Kell observed that there was no evidence that the RTA took any steps to ascertain the extent of the undesigned for forces operating on the bridge deck. 39 In summary, the conclusions reached by Mr Kell were as follows: "The situation which was generally identified by Mr Karol in 1976 and which was or should have been evident to an experienced bridge engineer from or even prior to that time on the basis of the Maintenance File (Ref 1) was as follows: - the bridge was performing very differently from the design intent. - the deck joints were jammed and the deck was therefore subjected to a substantial compressive force (particularly in hot weather) for which it was not designed; - the Wellington bank was unstable and had slipped and scoured and moved; - the Wellington abutment and pier foundations had moved down the slope, and the abutments and piers are substantially cracked as a result of these movements and thermal effects on the deck in its forced reconfiguration; - the piers being basically unreinforced through the joints are not capable of sustaining the bending effects without cracking; - the bridge has a number of design features which would not be accepted currently or in 1976, under any circumstances, notably: - deck slab of only 100 mm thickness, with straight transverse joints at close (3.7 m) centres; - the deck slab was not tied to the steel supports throughout the length; - the piers were lightly reinforced with dry joints creating virtually discrete blocks; and yet are tall (P6, P7, P8) and subjected to major flood forces; - the bridge was narrow for two lanes and the main trusses were dependent on top chord bracing. -Concrete was cracked; bearings were "frozen"; bolts had sheared off; piers had settled. Engineer Karol identified most of these problems and made recommendations in his 1976 report. In the circumstances, I believe that the reasonable and proper process following Mr Karol's report would have been to conduct a thorough investigation and design analysis, taking account of the then known faults and particular design features in the bridge, and that this would have resulted in the identification of the need for substantial remediation." 40 Mr Kell's conclusion was that "the management and maintenance of the bridge was not an appropriate standard prior to the collapse". That was based on his assessment as follows: "7. The question I have been asked to address is whether the management and maintenance of the Wellington Bridge was carried out to an appropriate standard. I take management in this context to cover such aspects as the design function, recording and assessment of condition over time and the overall stability of the bridge, this being more comprehensive than simple maintenance. I refer to the extensive problems experienced at the bridge as discussed in 6. above. I am of the opinion that the conditions as reported by senior bridge engineer Karol in 1976, together with other reports in the Maintenance File, combined with features of the original design which were known to be not acceptable in 1976, should have alerted the RTA that a fully comprehensive investigation, including structural analysis was necessary. I further believe that such an analysis would in all probability have identified the need for substantial remediation. I therefore conclude that the management and maintenance of the bridge was not of an appropriate standard prior to the collapse." 41 Given the instructions to Mr Kell it is easy to see why he did not specifically address the two acts of negligence upon which the Comerford parties and the Wellings relied in the reference. 42 Raymond John Wedgwood, a bridge engineer with the RTA gave evidence in the RTA case. So far as it concerned the RTA's 1985 repair of pier cracking, Mr Wedgwood expressed the following view: "9. The sealing of the cracks in the piers with flexible epoxy is reasonable and common practice where the sealing is to provide protection to reinforcement and is not meant to provide a structural repair. The superstructure and piers were in a stable condition and thus it was not necessary to achieve extra strength, only sealing." 43 I observe that the point of the Comerford parties' case on the effect of this repair work appeared to have been lost on Mr Wedgwood. The matter complained of was the sealing of the pier cracks which, it was said, robbed the piers of their inherited function of compensating for loss of the expansion joint above pier 7. 44 Mr Kell's response to Mr Wedgwood's evidence was also wide of the mark. Mr Kell's response was as follows: "9. Mr Wedgwood opines that sealing of the cracks in the piers with a flexible epoxy was acceptable. This was suggested by Karol on the basis that it would allow the cracked pier sections to act as hinges. I make two points: - This may be acceptable in conventionally reinforced pier, but these piers were basically unreinforced, and crack/hinges were not acceptable in my opinion; - the cracks were subsequently injection grouted with rigid megapoxy anyway." 45 Pars 16 and 17 of Mr Wedgwood's report upon the effect of movement of the bridge's abutments and piers was as follows: "16. The movements of abutments and piers and the closure of the expansion joint at Pier 7 indicate that the bridge was acting as a prop between abutments, and not as originally designed. This phenomenon can occur for older bridges as a result of movements of abutment fills. 17. The propping force is carried through the superstructure as an in-plane compressive force. For the Wellington bridge it is more likely that this force would have been taken through the steel members of the truss rather than through the concrete deck. In addition, the attachment of a new guardrail in 1984 had the additional benefit of ensuring a strong connection between the concrete deck slabs and the supporting steelwork which would have substantially increased the resistance of the concrete deck slabs to separation from the steelwork eg by a sudden buckle collapse of the deck." 46 Mr Kell in part, disagreed with those views as appears from the following: "16. Agreed, but the fact that this type of movement does occur does not make it right or acceptable. It was reason for proper analysis in my opinion. 17. The propping force was taken through the concrete deck. Refer Karol and David (Ref. 2.)" 47 Mr Wedgwood's evidence as to the condition of the bridge and the reasonableness of the conduct of the RTA was as follows: "18. The survey measurements of deflection and tilting indicate that the bridge movements had stabilised and that there was no danger of a sudden collapse. 19. In view of the apparent stability of the bridge in resisting longitudinal forces, it is considered that leaving the bridge in its current configuration and monitoring movements was a responsible engineering decision." 48 Mr Kell took issue in the following way: "18. For the reasons stated above, I cannot accept that the situation had stabilised and that there was no danger of a sudden collapse. 19. Refer my comments under 7. Conclusions." 49 The conclusions of Mr Kell are quoted earlier in these reasons. 50 In my view it was open to the referees on the evidence outlined above to find "that the evidence [did] not establish that filling the cracks in the piers was related to or caused the collapse …" of the bridge. 51 In reaching that opinion the referees considered the partly conflicting evidence of Messrs Kell and Wedgwood "…and thought that the repair of the cracks" probably had only a "marginal and temporary effect on the behaviour of the bridge [and that] 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." 52 I do not read that expression of the comparative effect of those last mentioned factors with the effect of sealing the piers as evidencing a mis-direction by the referees in addressing the issue of causation. The condition of the bridge was dynamic in that it was subjected to changing forces. The repair work had preceded the collapse by some three years. The referees considered the effect of the repair work to be "marginal and temporary". In those circumstances it was open to the referees to find that such an effect was insignificant in the context of the major forces operating on the bridge as a result of the movements of its abutments, exacerbated by the loss of its expansion joint and movement associated with temperature fluctuations. 53 It was submitted on behalf of the Comerford parties that the "1985 work combined with the 1988 work may have been both [a] necessary and sufficient…" cause of the failure. 54 That was a submission which, I think, involved some confusion in the nature of the repair work carried out on the bridge decking in 1988 in the vicinity of the joints at piers 6 and 8. 55 The submissions on behalf of the Comerford parties treated those joints as expansion joints. They were not. The evidence is clear that they were rotation joints which had ceased to perform their design function as a result of closure of the joints. 56 It was further submitted that the opinions of the referees contained an "assumption… that the repair work to the piers had in fact failed and that further cracking had occurred between 1985 and 1989". It was submitted that there was no evidence to support such a finding. 57 Rather than an assumption, the referees expressed the opinion that the restoring of the piers to their "uncracked state…probably would be temporary only because any later movement would most likely cause the cracks to reappear adjacent to the repairs." 58 Having regard to the dynamics of the bridge, such a conclusion could have been readily reached by the referees, particularly, when one of them was expert in the engineering field and the other a highly experienced lawyer in construction law. 59 One of the difficulties confronting the Comerford parties and the Wellings in challenging the conclusion of the referees on the effect of the 1988 repair work is that there is an onus point embedded in the opinion of the referees, which submissions on behalf of the Comerford parties failed to address. 60 The referees' conclusion was that after considering all the evidence they were "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." To put that opinion into context, the "key question" which the referees addressed was whether the 1988 repair work altered "the configuration of the joint and performance of the bridge in such a way that the deck would be likely to be compressed (by subsequent movement arising from the unstable abutment or temperature change) to an extent appreciably greater than would have been the case if the work had not been done." 61 On this issue the referees were confronted with the evidence of Mr Wedgwood and that of Harold Roper, the expert called in the Comerford parties' case. Dr Roper was a highly qualified consulting engineer whose firm specialised "in the area of materials for construction, in particular concrete". Dr Roper was a Master of Engineering Sciences from the University of Sydney with a doctorate from the University of Witwatersrand. Mr Wedgwood also held a Masters degree in Engineering Science. His professional career embraced design and maintenance of bridges as an employee of the RTA, and before that, with the Department of Main Roads, familiarly known as the DMR. 62 Dr Roper was subjected to a very limited cross examination of the reliability of certain core samples taken from the bridge. Mr Wedgwood was briefly cross examined on the behaviour of Set 45, the compound used in the 1988 repair work. 63 It is apparent that the evaluation of the evidence in chief of those witnesses, which was in the form of report, was left entirely to the referees without the benefit of any significant challenge in cross examination to their respective qualifications, or their opinion evidence as to the effect of the 1988 repair work. 64 The opinion evidence of Mr Wedgwood on the effect of the 1988 repair work was as follows: "12. The repairs to the deck carried out in July 1988 were to replace the concrete which supported the cover plates at the rotation joints between Span 6 and Span 7 at Pier 6 and between Span 8 and Span 9 at Pier 8. This concrete was on the approach span deck (Span 6 and 9), with the cover plate being attached to the steel truss spans (Spans 7 and 8). 13. Notwithstanding the terminology used in Pages 100 and 101 of Document D41, these joints are "rotation" joints (ie they allow for rotation of the superstructure only) and are not "expansion" joints, as described. The expansion joint, which was at Pier 7, allows for longitudinal movement of the superstructure. 14. As further confirmation, the bearings at Pier 6 and 8 only allow for rotation, consisting of a hinge plate rotating over a rigid bar. The bearings at Pier 7 consist of steel rollers, which were designed to allow for longitudinal movement. 15. The use of Set 45 concrete to replace the damaged concrete under the cover plates could not have contributed to reducing the capacity for longitudinal movement because no longitudinal movement occurred at the joints at Pier 6 and 8." 65 In cross examination Mr Wedgwood expanded on those views as follows: "[GRAVES] Q. The SET 45 product used as part of that repair, is that a product that will flow? It is a liquid or of such a consistency that it will flow? A. I believe it is a water-type product so that it doesn't flow readily. It is a similar consistency to concrete when it sets. Q. But nevertheless it has some capacity? A. Some capacity to flow, sorry, but it is used particularly because of its quick setting properties to sort out traffic, to get back on decks. Q. It having some capacity to flow, that is the SET 45, might result, do you agree, in a situation where looking at the work we are looking at here, gaps in and around where it has been applied get filled up with the product? A. In the normal use of it I wouldn't think so. Q. Have you used it yourself? A. No Q. Where Mr Walker was using it, there were gaps present for at least a couple of reasons, weren't there? Firstly, the presence of the rivets? A. Yes. Q. And secondly, this 19mm timber or styrene section that was being used; is that right? A. It was a 19mm timber section used which was then cut out and replaced with what was referred to as the come and go, which is a form of movable jointing. The styrene was used under the SET 45 to form the underside. … MR GRAVES: Q. Yes. It was something like if the SET 45 did flow and fill the gaps, then at that point the joint would become rigid? A. Not the way that joint is configured. It may flow down the edges of the polystyrene but I don't see there would be enough volume for it to fill the joint." (T63:30-T64:06… T 64:30-T64:36) 66 Dr Roper's view of the use of Set 45 was expressed in the following terms: "1. The joints would have been rendered inoperative. 2. The lack of freedom of movement at joint plans would have significantly increased stresses due to thermal and mechanical deformations in the deck. 3. The overall rigidity of the deck would have been increased without augmentation of the strength or modulus of the concrete members per se. 4. The deck would have been subject to stress induced by the swelling of the magnesium phosphate cement during hydration, and such stress would not necessarily been dissipated prior to the failure of the structure." 67 His overall opinion was as follows: " 8. Conclusions The departure from the engineered repair solutions, and the use of materials which reduced or eliminated essential movements within the joints and cracks, adversely influenced the serviceability conditions of the bridge." 68 A second report by Dr Roper was concerned with the technical analysis of core samples taken from the bridge. 69 The referees summarised the evidence of the experts as follows: "Dr Roper gave evidence about the properties of Set 45 the rapid hardening mortar. This material is a mixture of sand and magnesium phosphate cement, which unlike normal portland cement is shrinkage compensated so that its volume should remain fairly constant after initial set has occurred. Dr Roper's opinion is that this material would swell during hydration and induce stress in the deck. Mr Wedgwood disputed this claim on the grounds that any stress would be relieved when the temporary timber board was removed. We prefer the evidence of Mr Wedgwood on this point." 70 It may have been desirable to give reasons for that preference for the evidence of Mr Wedgwood. However, earlier in the second report the referees had set out the steps taken by Messrs W Walker and L Walker in carrying out the 1988 repair work which included the following: "… 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…" (emphasis added) 71 In those circumstances it is not a particularly challenging exercise in understanding the reasoning of the referees. In my view it was open to the referees to express the opinion that: "on the balance of probabilities [the 1988] repair work [was] unlikely to have appreciably altered the performance of the bridge deck compared with its condition prior to the work." 72 The referee found that the evidence did not establish that the repair work on the piers was "related to or caused the collapse" of the bridge. Accordingly, that conclusion and the antecedent findings of the referees are to be adopted and I so order. 73 It was submitted on behalf of the Comerford parties and the Wellings that, if those findings are to be adopted, the adoption of the report should exclude the ultimate conclusions that the RTA was not liable to the Comerford parties in the RTA proceedings nor liable to the Wellings in the Wellings' proceedings. 74 It was further submitted on behalf of the Wellings that, if the report is adopted in its entirety, the action by the Wellings against the Comerford parties "should be set down for hearing." 75 In my view, any claim by the Wellings against the Comerford parties has been extinguished, or is one that the Wellings are estopped from pursuing. 76 In the first reference the Court ordered that the referee report on "the question of the cause(s) of the collapse of the Wellington Bridge on 6 January 1989." That order was made, so far as is relevant, in both the RTA proceedings and the Wellings' proceedings. 77 On the first reference the referee reported that, at the initial conference with all parties, he was informed by the solicitor acting for the Wellings that they "did not intend to participate in the reference." 78 However, it is clear from the first report that the Wellings continued to participate in the hearing with Mr Welling giving evidence before the referee. The referee noted that the respective positions taken by the parties on the cause of the collapse of the bridge was as follows: " 3. Principal issues in dispute Although the paries agree on many details of the collapse, there is a fundamental disagreement on the direct cause of the impact between the excavator on 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. 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. A key issue of disputed fact is the position of the excavator on the low loader and the orientation of the boom and the dipstick of the excavator. In essence whether the dipstick was in a near vertical position as contended by the RTA or extended in a flat position as contended by Comerford. It is common ground that the vertical position would cause a collision whereas the extended flat position should have adequate clearance." 79 In the proceedings before Einstein J on the adoption of the report Mr Welling appeared in person. In relation to the conflicting lay evidence before the referee Einstein J made the following findings: "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." 80 References in those reasons "to the plaintiff" and to "the defendants" are references, respectively, to the RTA and the Comerford parties. Einstein J came to the conclusion that the "proper exercise of the discretion [was] to adopt the whole of the… report… in full." However, in so finding his Honour made "plain that the adoption of the whole report [was] to be regarded as totally without prejudice to the entitlement of any party in the proceedings …to use in the further hearing of the proceedings the report in whatever fashion such party is advised." 81 The report of the referee which Einstein J adopted concluded with the opinion that : "…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." 82 The reference to "the defendant" was intended to be a reference to the Comerford parties. 83 On 21 May 1999 Einstein J made orders by consent referring the questions which are the subject of the second report. Counsel for the Comerford parties mentioned the matter on behalf of the Wellings and informed the Court of their consent to making of the orders. 84 In my view, if the Wellings wished to litigate any question of causation which attributed the collapse of the bridge to the conduct of the Comerford parties, or to conduct for which they were responsible, it was incumbent on them to raise that issue in the first reference. 85 The only issue of that nature raised in the first reference was to the effect that the low loader was loaded with the dipstick on the excavator raised at a height which would not permit the low loader to cross the bridge without the dipstick crashing into the bridge's portal truss. 86 That was the clear effect of Mr Welling's evidence which the referee was unable to accept. 87 For those reasons, I am of the view that it is no longer open to the Wellings to raise any further case of causation of the damage suffered by their excavator as being attributable to the Comerford parties. 88 Even if that view is incorrect and the Wellings sought to take advantage of the 'without prejudice' aspect of Einstein J's reasons for judgment of 30 March 1999, it was incumbent upon them, in my view, to litigate any case of liability for such damage, as against the Comerford parties, in the second reference. Instead, they consented to a course which limited the question of liability to the conduct of the RTA. 89 In those circumstances, in my view, it is not open to the Wellings to raise, now, a case against the Comerford parties for compensatory damages for the loss of their excavator in the collapse of the Wellington bridge. 90 For those reasons, there should be judgment for the Comerford parties in the Wellings' proceedings and I so order. 91 Independently of those submissions, the Wellings support the Comerford parties in opposing the full adoption of the second report. 92 In brief, it was submitted on their behalf that they "do not seek a new trial [and] seek only to have the matter determined in accordance with the law now established by the High Court." 93 The submissions of the RTA on this question, which were outlined earlier in these reasons, were supplemented by submissions presented after the hearing of 27 July 2001 as a result of the following exchange between the bench and senior counsel for the RTA: "HIS HONOUR: What if the referees had found that the repair work proposed by the RTA actually made this condition worse. RUDGE: If they found it did? HIS HONOUR: But it was a condition your client neither knew of nor ought to have known of, what should the referee have found by way of liability? RUDGE: Against me? HIS HONOUR: For doing a repair of which you had no knowledge or shouldn't have known of, on what basis could any liability have been found against your client in those circumstances. That is why I say it is integral to the issues before the referee that your client knew of or ought to have known of its condition, otherwise it's an idle exercise of talking about making the condition worse. RUDGE: As your Honour says, if they did not know, well, I mean, it was never investigated, the question of knowledge was never investigated. HIS HONOUR: I am looking at the same issues and it may well be if it was never addressed that admission (sic) lies at your door because as I say, and I will not say it again, there is no point in the plaintiff's case, when I say there is no point in the plaintiff's case the Comerfords' case against your client, it seems to me unless it could be fairly said your client knew of this condition or ought to have known of it and if -- RUDGE: Can I say that is a defect in the Comerfords' case, not mine. If, as your Honour put to me, in order to succeed the Comerfords have to prove not only that what I did made the pre-existing condition worse but also it was something I knew about, that was something they had to prove and they didn't. It was not part of their case that we did know about the dangerous condition. HIS HONOUR: Mr Rudge, there was no submission ever put to the referee on behalf of your client that the plaintiffs must fail in any event because they had failed to adduce any evidence of your client's knowledge or evidence that your client ought to have known of this condition of the bridge. RUDGE: I do recollect saying something about that. I am not sure whether it was something I said in the Court of Appeal or something I said to the referee, I just cannot recollect. Would your Honour give me a couple of minutes to consider that? … HIS HONOUR: Mr Rudge, do you want to come back to that matter? RUDGE: I have a very clear recollection that at some stage either before the first reference, the second reference, or in submissions I said something about there was no case made that we knew or ought to have know. I just can't remember where -- HIS HONOUR: I will give you the opportunity of identifying that if it is not already in the evidence before me. There was a reference to the other parties (sic), you are at liberty to present a submission identifying it and I will include it in the evidence." (T11:09-T12:01…T13:46-T14:01) 94 On 9 August senior counsel made the following application: "At the conclusion of argument in this matter, His Honour granted leave to file a short Written Submission in relation to matters which I believed had been put to the referees. Having read the transcript, I am unable to find reference to the matter I averted to and accordingly, do not wish to file a submission in that regard. However, as a result of my review of the transcript, I have discovered some questions put my me during cross-examination before the referees which clearly would not have been put, had the case not been confined in the way that it was. These matters would go directly to the question of prejudice which His Honour asked me about during the course of address." 95 Those submissions referred to passages in the transcript at T43:20-34 and T45:38-58 of the cross examination of Mr Kell which represented "two occasions where Mr Rudge asked questions of Mr Kell which clearly would not have been asked if the case put by the Comerford and Welling parties had not been limited in the way it was." 96 The relevant passages are as follows: "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. … Q. So in summary, any problem if you're correct on this, any problem with the closure of the expansion gap would not be by the creation of the RTA of the expansion gap, but rather by its failure to take any action with respect to the abutments? A. The creation of the gap would have – it increased the problem in that there would be further movement in the bridge, in the piers specifically. And then it would – then there was a – beyond that, a failure to deal with the movement, or the generating of the factor of the movement which was the abutments. Q. But it's failure to deal with the abutments which is the real root of the problems in your view. A. The source of the problem is the abutments moving and jamming. To introduce more gaps into the bridge would only increase the amount of movement." (T43:20-T43:24 …T45:38-T45:58) 97 I addressed that matter in the following way at the commencement of the hearing of 17 August 2001: "HIS HONOUR: The reason I have asked you to address the written submissions is that I wanted to be clear on the nature of the prejudice that is referred to in the written submissions. Is the RTA's problem or submission that there should not be in any circumstance, and particularly having regard to the decision of the Court of Appeal in this matter, any relitigation of the effect of the repair work carried out by the RTA and in particular there should not be any re-examining of that issue, for example, to show that the RTA should have done more or done things differently in relation to that repair work? Is that the gravamen of the submissions that have been made? ROBERTSON: In the circumstances that exist, your Honour, there is nothing that would permit your Honour to adopt that course. HIS HONOUR: I think, with respect, I will accept that because I think the Court of Appeal has made it very clear to me that certainly in the circumstances that existed at the time of the appeal that your opponents should not be permitted to, as it were, relitigate the matters before the referees. Any view that I would take of the report by the referees, I think, would have to be consistent with what the Court of Appeal has decided and I think that would preclude me, for example, from acceding to a situation in which the nature of the repair work carried out was to be re-examined so as to establish that other repair work should have been done in order to meet what I have described as a dangerous condition of the bridge. What I tried on the last occasion to expose in my thinking during submissions by Mr Rudge, was that there must have been a relevant issue before the referees as to whether or not the condition of the bridge was one which the RTA either should have known or did know, because absent that knowledge or imputed knowledge, it was an arid exercise to examine whether the repair work exacerbated that condition or not. It was in that context that I really invited further submissions in the light of Mr Rudge's expressed desire to revisit the transcript before the referees. But these further submissions, I think, are only directed to a concern that the Comerfords and Wellings should not be permitted to revisit the issue of the nature of the repairs and that is something with which I have some sympathy: particularly having regard to the way I have been directed to approach the matter. However, there still needs to be looked at, I think, whether there is an issue that the Comerfords and Wellings should be able to raise, namely, that accepting all of the findings of the referees as to the effect of the repairs, it was incumbent upon the RTA to give some reasonable warning of the condition of the bridge." (T1:23 -T2:22) 98 In further written submissions in relation to the subject cross examination, counsel for the RTA put the position as follows: "As is apparent from the transcript, the RTA's case was conducted before the referees on the basis that the RTA only had to counter the allegation that the repairs performed by the RTA materially contributed to the accident. The questions asked by Mr Rudge in the passages identified seek Mr Kell's agreement with propositions which were quite inconsistent with (and arguably fatal to) the case maintained by the Comerford and Welling parties at the hearing, but which would be adverse to the RTA if those parties were now permitted to put their case on a wider basis, in particular by alleging negligent failure to repair." 99 I have no difficulty in accepting that submission. I think it is beyond argument that the Comerford parties and the Wellings should not be permitted to "put their case on a wider basis, in particular, by alleging negligent failure to repair". 100 The submission on behalf of the RTA is really the product of the way in which the Comerford parties and the Wellings have approached the effect of Brodie. 101 In the case of the Wellings it was submitted that the Wellings' proceedings should be "determined in accordance with the law now established by the High Court." The same proposition was advanced on behalf of the Comerford parties. 102 In my view, the door was closed by the Court of Appeal on such an approach, insofar as it represented a re-litigation of issues before the referees. The only avenue that could be arguably open to those parties to explore is the question whether, given the findings of the referees in the second report, other than the ultimate finding as to liability, the RTA should have given any warning of the dangerous condition of the bridge or imposed some conditions as to its use consistent with that consideration. 103 Such an enquiry, in my view, is not to be approached by the necessary application of the principles governing the raising of a fresh point on appeal as discussed in Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418. I think that is made clear from the observations of Gleeson CJ in Super as to the nature of a hearing under a Pt 72 reference and of the function of a court in considering the adoption of a report made pursuant to such a reference. 104 In particular, the proceedings on the adoption of a report are not to be equated with an appeal: nor is the court requested to "reconsider and redetermine all issues". It is not a hearing de novo. As a corollary, the hearing of a reference should not be equated with a hearing at first instance. 105 That may be contrasted with the underlying considerations which operate to limit the circumstances in which a fresh point may be taken on appeal, as appears from the following observations in the joint judgment in Suttor: "Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. In Connecticut Fire Insurance Co. v. Kavanagh, Lord Watson, delivering the judgment of the Privy Council, said, "When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plead cannot be disposed of without deciding nice questions of fact, in considering which the court of ultimate review is placed in a much less advantageous position than the courts below." The present is not a case in which we were able to say that we have before us all the facts bearing on this belated defence as completely as would have been the case had it been raised in the court below. The decision whether or not to refuse specific performance in the exercise of the discretion is one peculiarly for the trial judge and his Honour should have been given an opportunity of exercising his discretion before being told that the appeal had been allowed upon a point he had not opportunity of considering (Sutherland v. Thomson). In Grey v. Manitoba and North Western Railway Co. of Canada, Lord Hobhouse, delivering the judgment of the Privy Council, made the following appropriate remarks: "The questions now raised ought to have been raised on the pleadings and evidence so that they might be properly thrashed out in the courts below. As the matter stands they have not been touched by the courts below… they (their Lordships) confine themselves to deciding the issues which the court below were invited by the plaintiffs to decide. … It is obvious that effect could not be given to the defence without deciding nice questions of fact, and it is by no means clear that, if the defence had been raised in the court below, further relevant evidence might not have been tendered. In these circumstances, we are of opinion that it is now too late to raise the defence." (at 438-9) 106 In Suttor the defendant failed in his defence that he was induced to enter into the subject transaction by a fraudulent representation as to his likely exposure to taxation on the proceeds of sale of livestock involved in that transaction. However, it was open to find on the trial judge's findings that the alleged representor had been guilty of sharp practice and it was in respect of that matter that the 'fresh point' arose on appeal as appears from the following: "But the appellant also contends that on his Honour's findings the plaintiff was at least guilty of sharp practice by its agent McManamey when he failed to reveal Walter's opinion to the defendant, that specific performance is a discretionary remedy, that in all the circumstances it would be inequitable and oppressive specifically to enforce the contract against the defendant and that the plaintiff should be left to its remedy if any at law. … The difficulty is that this defence is now raised for the first time on the hearing of this appeal. It does not even form one of the grounds of appeal. It is true that it would not naturally occur to the defendant to raise the defence before his Honour delivered judgment, because it is grounded on his Honour's findings that Walter told McManamey that 2,000 would be quite inadequate to indemnify the defendant against income tax on the sale of the sheep and that McManamey suppressed this from the defendant. But it was open to the defendant to ask his Honour to restore the suit to the list and hear argument upon the effect of these findings and if necessary to re-open the case and hear further evidence." (at 437-8) 107 That contrast by the court in Suttor of the circumstances operating before appeal with circumstances on appeal in relation to a 'fresh point' underlines, in my view, the difficulty of applying to this case the principle espoused in Suttor concerning the raising of a fresh point on appeal. 108 I think the correct approach to the exercise of the discretion is to entertain the raising of a fresh point on a hearing under Pt 72 r 13, on the basis that the discretion is unfettered. Relevant considerations will include the following: (a) whether permitting the fresh point to be raised would, not might, result in the re-litigation of issues either before the referee, or the Court considering the report. (b) whether the conduct of the reference on behalf of the party against whom the point is sought to be taken would have been significantly different if the issue had been raised on the reference. (c) whether the point should have been taken on the reference hearing. (d) whether any prejudice to the party against whom the point is to be taken may be met by an appropriate order as to costs. (e) whether the rejection of the fresh point would result in manifest injustice to the party seeking to raise the issue. (f) whether the court is of the view that the taking of the fresh point should not come as a surprise to the party against whom it is sought to be taken. (g) whether the effect of permitting the point to be taken would offend against the principle enforcing finality in litigation. (h) whether there are any special circumstances surrounding the subject litigation. (i) whether the fresh point raises an issue that falls within the pleaded issues. (j) The nature of the exercise of the inherent jurisdiction of the court to permit amendment or to re-open a case before judgment. 109 As a preliminary observation, the interests of justice in seeking finality to litigation is, itself, underpinned by considerations of justice as between the parties. While the limited resources of the judicial system require that unreasonable strains upon it be avoided by parties in protracted litigation, cases such as this are not the ones which create havoc with the court lists. That distinction is shared by cases involving litigants in person and major commercial disputes where the incidence of costs of litigation is not the determining factor in limiting the time the parties spend in Court, both prior to, and during the principal hearing. 110 In this case, the demands upon the system have not been extraordinary, notwithstanding the many years that have passed since the institution of the proceedings. 111 This Court must accept some responsibility in the fact that the proceedings have taken so long to determine. My decision, albeit by consent, ordering the first reference was seen, ironically, as a measure which would clear the air on liability, propagate fertile grounds for settlement amongst the parties and, presumably in some cases, their insurers. The result of the first reference was not conducive to that form of resolution as the history of the proceedings has shown. 112 While it is in the interests of the administration of justice that finality be brought to this litigation it is not without significance to note that the parties who have protracted the final stages of the proceedings are the personal litigants: the ones who are likely to suffer most from the delay in bringing the proceedings to an end. 113 While some of the stances taken by those litigants have been without merit, it would be an unsound conclusion to regard their persistence in seeking, what they perceive to be, justice as misguided. The RTA is entitled to see an end to these proceedings, but, in my view, not at the expense of depriving the Comerford parties or the Wellings of any entitlement they may have to raise legitimate issues. 114 Whatever decision I make in these proceedings, an appeal is highly likely. It would be fanciful to see judgment in these proceedings at first instance as the end of the proceedings. 115 As it happens, the course I have chosen will enable the Court of Appeal to finally dispose of the matters without the necessity of referring them back to a judge at first instance. 116 In my view, the decision in Brodie represents a special circumstance, coming as it has before judgment and at a time when the Court under Pt 72 r 13, either of its own motion, or, as in this case, on the application of the parties is empowered to: "…decide any matter on the evidence taken before the reference, with or without additional evidence..." and is empowered to give " such judgment or make such order as the Court thinks fit." 117 It does not follow that the proceedings should be looked at afresh on all issues, as implicit in the submissions on behalf of the Comerford parties and the Wellings. I am satisfied that there is no warrant for the re-litigation of the issues before the referees on the second reference, leaving aside the ultimate question of liability. 118 I am satisfied that Brodie does not justify revisiting those issues, for example, to throw open the adequacy of the repairs undertaken by the RTA, or to raise an issue that other repairs than those performed should have been carried out: in particular, that repairs should have been executed which addressed the seat of the problems which beset the Wellington bridge. 119 In my view, the Court should approach the application of the personal litigants on the basis that the second report, except as to the ultimate finding of liability, is adopted and to examine the position of the litigants in the context of those findings by which the parties are so bound. 120 The findings of the first report as adopted by Einstein J included the following: "10. Analysis of slab buckling The phenomenom of buckling of lateral instability is well known in structural engineering. It can occur in slender compression members, plates and shells when a very small increase in lateral load causes a large increase in deflection and sudden collapse of the member. The possibility of such a collapse is clearly undesirable so in practice compression members are designed and built to avoid buckling. Nevertheless buckling failures have occurred in slender structures usually caused by unexpected events. And in roads and concrete slabs on ground "blow ups" similar to the buckle postulated in this case are not unusual if thermal expansion is not controlled by means such as compressible joints. There are two sides to the buckling equation – the force required to cause a buckling failure and the source of that force. The bridge deck is unusual in that each main span comprises ten slabs 200mm thick, 6.3 m wide and 3.7 m long and unconstrained except at the ends of the span where the slap edge is enclosed by a steel channel. Thus there are nine joints where the plain concrete faces about. There seems little doubt that the slabs were subjected to high compressive forces during hot weather when the slabs expanded against the bridge abutments." 121 The referees' conclusion, as adopted by Einstein J, was that 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 Comerford parties". 122 Findings in the second report, which I have adopted, included significant findings relating to the issue of foreseeability. 123 The relevant evidence is to be found in that of Dr Kell, Mr Wedgwood and Dr John Ivering. The referees preferred the opinion evidence of Dr Kell. The assumptions upon which Dr Kell gave his evidence included the correctness of the finding of causation in the first report and the following: " 4. The Report of Mr E Karol An inspection of the bridge was made by RTA (DMR) engineer, E Karol, together with other RTA (DMR) staff on 8th to 10th March 1976. Karol's report of his inspection is included in Ref 1 as pages 28 to 47. This report is noteworthy because Karol was a senior bridge engineer from RTA Head Office, and he not only provides the most comprehensive set of measurements and observations, but also postulates on the causes and circumstances then pertaining in a well reasoned way. He also recommends on what he believed should be done. The key points from Mr Karol's report are: - "The (3 inch) expansion gap over pier 7 does not exist any more." - There was "instability of foundations on Wellington end of the bridge". The subsidence at pier 4 was indicated by Karol as 120mm for instance. - The piers had deflected as the result of this instability; the bridge superstructure had moved to close the gaps. - The piers were substantially cracked at headstocks and in the shafts and that "these cracks made the piers much more flexible than would be their elastic flexibility." - Karol notes "any rigid repair of these cracks will result in their renewal or in opening of new cracks", and "creating of a new expansion joint ….. can make the situation worse". - The bridge deck was acting as a prop between abutments and that this resulted in a compressive (sic) forces in the deck was recognised. The magnitude of the force was not identified however. Karol in his Conclusion appears to recommend a long term solution involving an investigation of the foundation conditions on the Wellington side, the design of "adequate anchorage" that side, and strengthening of the deck over piers. He then proceeds to recommend a more immediate solution ("at this stage") which would preserve the existing state. I believe that what was not recognised was the potentially less stable structure which had been created by embankment instability and the substantial movement and major cracking which had occurred and the basic changes in the way the bridge acted. It would seem that no regard was paid to the particular features and weaknesses (in terms of 1976 knowledge) of the design. There is no evidence of any effort at quantifying the force in the deck or any other effects. 5. Repairs The Maintenance File records repairs which were recommended and carried out. It is not necessarily a comprehensive list, since I am instructed that the DMR Maintenance File was lost. Cracks were filled form time to time. This indicates that cracks progressively developed. Truss steel was cut away to accommodate movements. Bolts which had sheared off were replaced. Cover plates and end angles in the deck were replaced as they lifted or as concrete spalled. The "at this stage" repairs recommended by Karol were reported to have been carried out, but I am instructed that some cracks were subsequently injected with rigid "megapoxy" against the advice Karol gave in his report. No effort was made to address the instability in the Wellington side foundations reported by Karol. It would appear from the report by Walker that the pier 6 and 8 joints were filled with a hard material in winter 1998, that is, 6 months before the collapse." 124 In respect of those matters Dr Kell made the following observations and offered the following opinions: " 6. Comments The situation which was generally identified by Mr Karol in 1976 and which was or should have been evident to an experienced bridge engineer from or even prior to that time on the basis of the Maintenance File (Ref 1) was as follows: - The bridge was performing very differently from the design intent; - the deck joints were jammed and the deck was therefore subjected to a substantial compressive force (particularly in hot weather) for which it was not designed; - the Wellington bank was unstable and had slipped and scoured and moved; - the Wellington abutment and pier foundations had moved down the slope, and the abutments and piers are substantially cracked as a result of these movements and thermal effects on the deck in its forced reconfiguration; - the piers being basically unreinforced through the joints are not capable of sustaining the bending effects without cracking; - the bridge has a number of design features which would not be accepted currently or in 1976, under any circumstances, notably: - deck slab of only 100 mm thickness, with straight transverse joints at close (3.7 m) centres; - the deck slab was not tied to the steel supports throughout the length; - the piers were lightly reinforced with dry joints creating virtually discrete blocks; and yet are tall (P6, P7, P8) and subjected to major flood forces; - the bridge was narrow for two lanes and the main trusses were dependent on top chord bracing. - Concrete was cracked; bearings were "frozen"; bolts had sheared off; piers had settled. Engineer Karol identified most of these problems and made recommendations in his 1976 report. In the circumstances, I believe that the reasonable and proper process following Mr Karol's report would have been to conduct a thorough investigation and design analysis, taking account of the then known faults and particular design features in the bridge, and that this would have resulted in the identification of the need for substantial remediation. … 7. Conclusion … I refer to the extensive problems experienced at the bridge as discussed in 6. above. I am of the opinion that the conditions as reported by the senior bridge engineer Karol in 1976, together with other reports in the Maintenance File, combined with features of the original design which were known to be not acceptable in 1976, should have alerted the RTA that a fully comprehensive investigation, including structural analysis was necessary. I further believe that such an analysis would in all probability have identified the need for substantial remediation." 125 Dr Ivering was a senior lecturer in the design of bridges, reinforced and pre-stressed concrete structures for nearly thirty years, in addition to acting as a consulting engineer. 126 It was his opinion that there was "nothing recorded in the [RTA's] maintenance file that would indicate the possibility of bridge collapse due to structural defects." Apart from anything else, that question, in my view, bordered on the irrelevant. The real question was the foreseeability of damage occurring as a result of spontaneous buckling of a ten tonne concrete slab on the deck of the Wellington bridge forming part of the state's Mitchell Highway. 127 Dr Ivering, whose opinions were not accepted by the referees, expressed the following views: "5. I am further of the opinion that the carrying out of a "structural analysis" prior to 1988/89 as suggested by Mr Kell was not warranted. My reasons for this opinion are as follows: (a) There was no visible distortion to the concrete slab panels. (b) No code of practice to guide an engineer in the estimation of the buckling resistance of disjointed slab panels presently exists, and no such code existed between 1976 and 1989. (c) E. Karol recommended filling larger cracks with flexible epoxy and to keep regular observation of the bridge. In my opinion, the approach taken by Mr. Karol and the approach taken by the Main Roads Dept. to manage and monitor the movements of the bridge over a period of time was reasonable. 6. Even if a full structural analysis of the bridge had been carried out in 1976, in my opinion such an analysis would not have identified circumstances from which it could have been concluded that the bridge would suffer a collapse in the manner found by Mr. Verge for the following reasons: (a) The concept of "toggle buckling" was not known either in reported cases of bridge collapse or in theoretical publications. (b) The concept of "toggle buckling" was advanced specifically to explain the collapse of the Wellington Bridge after the fact. (c) The methodology advanced in Report RP-1 (exhibit "D19" before Mr. Verge) is not supported by a reliable numerical procedure. On page 37, Section 7.3, paragraph 1, of the report it is stated: "The numerical simulation was based on measured quantities where known, otherwise the quantities were assumed. Consequently, the results of the numerical simulation are at best indicative…" Even before the collapse, certain parameters would need to have been assumed to set up the mathematical model with the likelihood of a wide variation of results. Carrying out such an analysis would simply not have been contemplated by an engineer between 1976 and 1989 having regard to the data which was available. 7. Having regard to the findings of bridge engineer E. Karol in 1976 and also taking account of the steps taken by way of maintenance by the RTA from that date until 1989 when the collapse occurred, I am of the opinion that no reasonably competent bridge engineer could have foreseen that the bridge would suffer the catastrophic collapse found to have occurred by Mr. Verge." 128 He concluded "…that the collapse mechanism of the Wellington Bridge found by… [the first referee] could not have been predicted by a reasonably competent bridge engineer at any time between 1976 and 1989." 129 Again, I think Dr Ivering was missing the point. I would have thought that, given the well known condition of buckling failure, the concept of serious damage occurring to person and property, both of users such as the Comerford parties with their low-loader, and to the bridge itself, as a result of buckling of a ten tonne concrete slab without warning during transit by such a user, was not a particularly difficult concept to envisage. 130 The referees in the second report addressed this divergence of views between the experts as follows: " " 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 referenc e. 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 not 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 teenager to predict the possibility of a catastrophic collapse such as occurred." (emphasis added) 131 Although not referred to by the referees in this context, the report of Mr Wedgwood (Exh P5 before the referees) also took issue with the opinions of Dr Kell on this subject. Mr Wedgwood's views included the following: "5… I do not agree with Mr. Kell that the information available in 1976 should have alerted the RTA that: "… a fully comprehensive investigation, including structural analysis, was necessary". 6. In my view the condition of the approach span decks and the main span trusses and deck did not indicate any distress from longitudinal compressive forces. In my view, monitoring of the bridge (which was carried out) was an adequate and appropriate response. 7. Even if an analysis of the compressive forces generated within the super structure had been undertaken it is doubtful, having regard to the assumptions required that a conclusive result would have been obtained. 8. In my opinion, a reasonably competent engineer viewing the information available between 1976 and 1989 would not have predicted the collapse of the bridge as found by Mr. Verge." 132 Dr Kell was cross examined by senior counsel on behalf of the RTA on his opinion that the condition of the bridge "should have alerted the RTA that a fully comprehensive investigation including structural analysis was necessary [and that] such an analysis would, in all probability, have identified the need for substantial remediation." It is clear from that cross examination that the RTA challenged Dr Kell's opinion on that subject. The relevant cross examination was as follows: "Q. That is an opinion you still hold. A. Yes. Q. Can you tell me when it is, in your opinion, the RTA ought to have carried out this investigation including structural analysis? A. Well, I believe following the comprehensive report by Mr Carroll, in which he referred to instability in the Wellington embankment and the movements in the bridge which are comprehensively reported by him. Q. So just to be clear about it your view is, having regard to all of the material you have looked at, that the RTA's failure was to undertake the analysis and investigation which you say ought to have been undertaken in 1976? A. Yes. In all, following Mr Carroll's report. That investigation would include geotechnical investigation of the soils that were generating the movements. Q. And it is your evidence that simply that analysis and investigation, which you believe ought to have been carried out, was simply not undertaken by the RTA? A. Yes. That's from the information that I have from the file. Q. Yes. What they did, in effect, was to continue to monitor the position? A. Yes. Again from the file. Q. And that was in accordance with one of the alternative recommendations made by Mr Carroll? A Yes. Q. And, in effect, what do you say is they just did nothing? A. I don't say they did nothing. They monitored the situation and that's reported in the file but what I'm saying is that they didn't undertake an investigation of the soils, the soil conditions and foundation conditions which were generating the movement, and then make an estimate, at least from the file. There is no indication that they made an estimate of the forces involved, the forces in the deck – Mr Carroll having indicated that his view was that it was jammed, so that is the type of investigation and analysis that I believe would have been appropriate. Q. Right. Would the investigation and analysis that you considered would have been appropriate include carrying out numerical analyses of slab buckling phenomena? A. Well now, what I have indicated – what I believe should have happened is an order of magnitude of force in the deck should have been established by the investigation and analysis and then the deck examined for what it was. It was a series of short slabs, not connected, independent slabs just simply bearing against each other at the edge and not connected to the steelwork and I believe that would have given rise without the need for analysis, such as Dr Davids carried out, would have given rise to some concern as to how that deck would behave under the forces involved if, indeed, the initial investigation established that the force was high. Q. I see. In your conclusion section, the section I have taken you to already, in the final sentence of the third paragraph you say: I further believe that such an analysis would in all probability have identified the need for substantial remediation. Am I correct in understanding that sentence as indicating to the Referees that there was no, certainly (sic) in your view, based upon the information that you have, that there would have been identified a need to do anything? 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. *********** Last Modified: 11/28/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.