Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd

Judgment 1HIS HONOUR: Background 2In its 468km journey from the Western slopes of the Liverpool Range to the mouth of the Tasman Sea at Newcastle, the Hunter River flows past Hexham which is located at the junction of the Pacific Highway to Brisbane and the New England Highway. For many travellers, Hexham is known for 'the Oak', a large milk bar and take-away food complex established by the Hunter Valley Diary Co-operative and the nearby Hexham Bridge which traverses the Hunter River. 3In the 19th Century, the river was crossed at Hexham by punt. A steam punt followed which over time became inadequate with increasing motor traffic. The construction of a bridge was delayed by World War II but in December 1952, the Hexham Bridge was opened. 4The Hexham Bridge (the bridge) is a lift span opening bridge. The bridge has six main steel truss spans that consist of two tower spans, one lift span and three normal spans. The approach consists of three steel girder spans at the Northern end: Fok report PTB1 pp 39-102. The opening span (the lift span) provided a 100ft vertical clearance over high water. The weight of the lift span is balanced by two concrete weights suspended on wire ropes which pass over four sheaves located at the top of the towers. The lift span is operated by an electronic motor located in the machinery house: Karmalsky report ex DDDD p 2. 5The bridge has two lanes. When the bridge was opened, one lane was used for southbound traffic and the other for vehicles travelling north. This soon became inadequate and a concrete bridge just upstream of the bridge was opened in August 1987. Since that time, the bridge has carried only southbound traffic, with the concrete bridge carrying northbound traffic. A helpful diagram of the bridge is found in exhibit N. The Hexham Bridge 6The Pacific Highway, which crosses the bridge, was classified as "State Highway 10" pursuant to the Roads Act 1993 (NSW): NSW Government Gazette No 39, 7 February 2003. The definition of "Road" in the dictionary to the Roads Act includes a "bridge". 7On 15 April 2003, Gregory Luck (the second defendant), was driving a prime mover that was towing a low loader on which was an excavator in a southerly direction over the bridge. The excavator arm struck the bridge spans causing extensive damage. Barrie Toepfer Earthmoving and Land Management Pty Ltd (the first defendant) was the owner of the prime mover and low loader. Mr Luck had been employed by the first defendant for in excess of five years. 8There was a sign on the northern end of the bridge that indicated Low Clearance 4.8m (PTB1 p 188). Rule 102 of the Australian Road Rules was as follows: "102 Clearance and low clearance signs (1) A driver must not drive past a clearance sign, or a low clearance sign, if the driver's vehicle, or any vehicle connected to it, is higher than the height (in metres) indicated by the sign. Offence provision Note. Driver's vehicle is defined in the dictionary. (2) In this rule: vehicle includes any load carried by the vehicle." 9When measurements were taken on 23 April 2003, the clearance at the northern end of the truss was 5.58m at the kerb and 5.52m at the road centreline: Report of Truck Impact Damage (PTB1 p 141). On either side of the lift span, there are girders with a clearance of 5.38m at the kerb and 5.32m at the road centreline. 10The Roads and Traffic Authority of New South Wales (now known as Roads and Maritime Services) (the plaintiff, but conveniently referred to as the RTA) and the State of New South Wales (conveniently referred to as the State) were represented by Mr Glissan QC and Mr Manion. Barrie Toepfer Earthmoving and Land Management Pty Ltd (conveniently referred to as Barrie Toepfer Earthmoving) was not legally represented, however, Barrie Toepfer, a director of the company, was granted leave to appear on its behalf. Gregory Luck has never been served with the statement of claim and the plaintiff did not pursue its claim against him. CGU Insurance Ltd is the first cross-defendant, Vero Insurance Ltd is the second cross-defendant, and NTI Ltd is the third cross-defendant. The cross-defendants will collectively be referred to as "the insurers" throughout this judgment. Mr Deakin QC and Mr Stockley represented the insurers. 11With the agreement of the parties, the proceedings were conducted on the understanding that I would determine the issues of liability and damage caused to the bridge by the accident. Questions as to the quantum of damages are to be referred to a referee under r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW). 12At Mr Toepfer's request, his presence was excused during the evidence as to damage, and submissions: T191-192; T529 L9-26; T1533 L15-18. The first defendant's interest on the issue of damages was protected by Mr Deakin. Mr Glissan made submissions on the insurance question. 13Before proceeding further, it is convenient to provide an overview of the proceedings. The overview is not intended to embrace all of the submissions of the parties. As the pleadings are of some length, they will be summarised. The RTA's claim against Barrie Toepfer Earthmoving 14By a further amended statement of claim filed on 5 June 2012, the RTA claims that on 15 April 2003 Mr Luck was driving a prime mover and low loader (conveniently referred to as the truck) that was carrying an excavator southbound on the Pacific Highway at Hexham. Barrie Toepfer Earthmoving was the owner of the truck and excavator. The RTA claims that at the time the truck was driven onto the bridge, the excavator projected beyond the vertical clearance available on the bridge and the excavator or some part of the truck or its load struck the overhead structural members of the bridge causing damage. The plaintiff pleads that by virtue of s 102(1) Roads Act, Mr Luck is liable for the repair costs and by virtue of s 102(2), Mr Luck and Barrie Toepfer Earthmoving are jointly and severally liable for the repairs to the bridge as a debt. The plaintiff claims $12,761,054.22 for repair works, $136,195.00 for professional assistance in assessing and managing the repair works and other costs that have been adjudged to have been incurred in making good the bridge, interest, and costs. 15In a further amended defence filed on 18 October 2010, Barrie Toepfer Earthmoving admits that Mr Luck was driving the truck and it was carrying an excavator. However, Barrie Toepfer Earthmoving says that the legal owner of the excavator was the National Australia Bank Ltd and it was the hirer and user of the excavator pursuant to a lease purchase agreement that was entered into on or about 7 August 2002. Barrie Toepfer Earthmoving pleads that it does not know what part, if any, of the excavator came into contact with the bridge, and if it did, it does not admit that it caused damage to the overhead structural members of the bridge or any damage at all. Further, Barrie Toepfer Earthmoving denies that the plaintiff incurred costs for which it is jointly and severally liable. Barrie Toepfer Earthmoving does not admit that any repairs to the bridge were carried out as a consequence of any damage or otherwise caused or are attributable to it. Barrie Toepfer Earthmoving denies that the plaintiff is entitled to relief. 16The RTA's claim is founded on s 102(1) Roads Act, which provides: "(1) A person who causes damage to a public road, or to any road work on a public road ... is liable to pay to the appropriate roads authority the cost incurred by that authority in making good the damage." 17There is no dispute that the RTA was the appropriate roads authority (ex A). The RTA sues Barrie Toepfer Earthmoving as the owner of the vehicle and does not rely upon any vicarious liability of Barrie Toepfer Earthmoving for the actions of Mr Luck. The RTA's case is that a statutory liability is imposed upon Barrie Toepfer Earthmoving directly, as owner, where the damage is caused by its motor vehicle. Mr Glissan submitted that "the question is not whether the damage was caused by the driver" (PWS p 5 par 18). 18Although the question of ownership of the excavator appears to have been placed in issue in Barrie Toepfer Earthmoving's further amended defence, Mr Toepfer's evidence was that Barrie Toepfer Earthmoving had owned the excavator for two years prior to April 2003 (T216 L19-22). I find that the owner of the truck and excavator on 15 April 2003 was Barrie Toepfer Earthmoving. 19Section 102(2) Roads Act provides: "(2) If damage referred to in this section is caused by a motor vehicle... the owner and the driver of the motor vehicle... are jointly and severally liable for the damage." 20Mr Glissan submitted that fault is not an element of the cause of action under s 102 Roads Act. Whilst acknowledging that he could not bind Barrie Toepfer Earthmoving, Mr Deakin agreed that s 102 is not concerned with fault or negligence. 21As Mr Toepfer did not make any submissions, no arguments were advanced before me on this issue on behalf of Barrie Toepfer Earthmoving. However, the first defendant was represented by senior counsel in interlocutory proceedings when the issue was well ventilated. In Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving and Land Management Pty Ltd [2010] NSWSC 1063, McCallum J carefully considered the authorities relevant to a claim under s 102. Her Honour concluded at [40]: "I do not think that the authorities relied upon by Mr Neil derogate from the principle in Engel that the provision there under consideration did not require proof of culpability or liability in accordance with common law principles." 22In my opinion, it is well established that negligence or culpability is not a necessary ingredient for a claim under s 102. In Commissioner for Main Roads v Engel 80 WN (NSW) 137, Jacobs J when considering s 40 Main Roads Act 1924-1954 (NSW) (a section equivalent to s 102) observed at 140: "I think that sub-s (3) is directed to the situation where the damage is caused by the use of the vehicle in circumstances where the driver may not be properly described as causing the damage or injury... I am not here referring in any way to culpability or responsibility." 23Jacobs J applied Kensington Borough Council v Waters [1960] 1 QB 361 where Edmund Davies LJ said at 367 in respect of s 181(3) of the London Government Act 1939 [a similarly worded statute]: "the subsection... without importing blame or penalty provides a simple remedy for the recovery of the cost of damage done to property vested in the local authority. It renders liable the person whose person or property actually, accidentally or carelessly damages such property..." 24It follows that s 102 does not depend upon any concept of tort or breach of contract. As Mr Glissan submitted, s 102 establishes a strict liability in the interest of the RTA, unrelated to fault or liability in tort. 25The evidence establishes on the balance of probabilities that the boom of the excavator struck several of the bridge's transverse beams. The real issues in dispute between the RTA and Barrie Toepfer Earthmoving concern causation, the ambit of s 102 and the quantum of damage. The Cross-Claim against the Insurers 26During the hearing all parties agreed that the insurance policy in force at the time of the accident was the Commercial Motor Vehicle Policy (ex CD8)(T526 L25-50, T527 L1-50, T528 L1). 27By an amended cross-claim, Barrie Toepfer Earthmoving claims that the insurers have wrongly denied that they are liable to indemnify Barrie Toepfer Earthmoving under the contract of insurance. In their amended defence to the amended cross-claim, the insurers deny liability on what was claimed to be Barrie Toepfer Earthmoving's failure to comply with the reasonable care and precaution condition (condition 3) and the breach of exclusion clause 7(i) of the policy. 28Section 2 of the policy relevantly provides: "We will pay any amount up to a liability limit of $25,000,000 in total for any number of claims arising out of one event, which you are held legally responsible to pay as a result of an accident, for damages in respect of: ... (B) Damage to property of Another Person if caused (1) by You using your Motor Vehicle;" 29The terms "You" and "Your" are defined in the Definition section of the Policy to mean: "the Client (or any of them) named on the Schedule" 30The term "Another Person" is relevantly defined to mean: "Under Section 2 of this policy, the term "Another Person" means an individual or number of individuals other than; ... Where you are a firm or corporation, a person who is a director, partner or employee acting as same." 31In the 'Policy Schedule', the "Client" is stated to be "Barrie Toepfer Earthmoving and Land", however, in "Policy Comments" (Schedule 2) there is the notation that the insured's name should read as "Barrie Toepfer Earthmoving and Land Management Pty Ltd." 32The prime mover and trailer are included in the Policy Schedule. 33The exclusion clause relied upon by the insurers is found at pages 6 and 9 of the policy under the heading "Exclusions". The policy relevantly provides: "We will not pay for: ... (7) Loss or damage or liability caused by: (i) Recklessness by You or any person acting on Your part or by reckless failure to comply with any statutory obligations and by-laws or regulations imposed by any public authority, for the safety or Motor vehicle/s and, for the carriage of goods and merchandise." 34The reasonable care and precaution condition is contained under the broad heading Conditions commencing at page 10 of the policy. The relevant condition is as follows: "Conditions We may refuse to pay a claim, or may reduce the amount payable under a claim to the extent that Your breach of any condition of this policy causes or contributes to loss, damage or liability or prejudices Our interest or rights, in respect of that claim: ... 3. Reasonable Care You and any person acting on Your behalf must exercise reasonable care and precautions to prevent loss or damage to the Motor Vehicle, and comply with all statutory obligations and by-laws or regulations imposed by any public authority, for the safety of the Motor Vehicle/s and, for the carriage of goods and merchandise." 35The insurers claim that Mr Luck acting on Barrie Toepfer Earthmoving's behalf was reckless in breach of exclusion 7(i) of the policy. Furthermore, that Barrie Toepfer Earthmoving in breach of condition 3 of the policy has failed to establish that Mr Luck acting on behalf of Barrie Toepfer Earthmoving exercised reasonable care and precautions to prevent loss or damage to the motor vehicle (including its load) and that Mr Luck had complied with all statutory obligations, by-laws or regulations imposed for the safety of motor vehicles and for the carriage of goods and merchandise. It is the insurers' case that: (a) The vehicle was in breach of Road Transport (Vehicle Registration) Regulation 1998 No 341 cl 56 Sch 4.76 prohibiting the use of any vehicle on a road or road related area exceeding 4.3m; and (b) The vehicle was driven past a clearance sign contrary to rule 102 of the Australian Road Rules with a vehicle that was higher than the height of 4.8m indicated by the low clearance sign on the Northern approach to the bridge. 36Barrie Toepfer Earthmoving denies that Mr Luck was reckless. Mr Glissan also argued that Mr Luck was not acting on behalf of Barrie Toepfer Earthmoving and did not fall within exclusion clause 7(i) or condition 3 of the policy. Mr Glissan submitted that Road Rule 102 was not a regulation "for the safety of motor vehicles and for the carriage of goods and merchandise." Barrie Toepfer Earthmoving's cross-claims against the RTA and the State of NSW 37By an amended second and third cross-claim against the RTA and the State filed on 22 October 2010, Barrie Toepfer Earthmoving pleads that on 15 April 2003, Mr Luck was directed by way of electronic signage to take the vehicle into a heavy vehicle checking station on the Pacific Highway at Twelve Mile Creek (the weigh station). At the RTA facility, after making a visual inspection, an RTA officer orally directed Mr Luck and his co-driver to reconfigure the position of the excavator on the vehicle. They moved the excavator to a position marked on the C-channel on the side of the vehicle which was confirmed by the RTA officer with spray paint. The bucket of the excavator was repositioned onto the gooseneck of the vehicle. Further, or in the alternative, the RTA officer gave directions in circumstances where the RTA and the State had delegated to the RTA officer a task that the RTA performed and the RTA officer was at all material times acting in service of the RTA and the State. Barrie Toepfer Earthmoving claims that during and after the process of reconfiguration, the RTA officer appeared to check the height of the excavator. The checking of the height and the directions provided constituted express and or implied representations that the height of the excavator was safe for travel. These representations were false and negligent. The RTA officer failed to warn Mr Luck and his co-driver of the hazard created by the reconfiguration. The RTA officer was at all material times subject to the general directions and control of the RTA and or the State and purported to act within the scope of authority conferred on him by the cross-defendants and the Roads Act. 38Barrie Toepfer Earthmoving further pleads that if it is, for any reason, held liable under s 102 Roads Act then the RTA and the State owed it a statutory duty to inter alia promote traffic safety, give safe directions to road users and ensure that directions would not create a hazard to the safety of Mr Luck and his co-driver, road infrastructure, the public or Barrie Toepfer Earthmoving. Additionally or alternatively, the cross-defendants owed Barrie Toepfer Earthmoving a common law duty of care which they have breached. 39In defences to the amended second and third cross-claims the RTA and the State deny that the RTA officer directed Mr Luck and his co-driver to reconfigure the excavator, that the RTA officer checked the height and provided express or implied representations and or advice that was false or negligent. The cross-defendants further deny that the RTA officer was acting in the service of, or as a representative for, the RTA and the State. They deny that the RTA officer knew or ought to have known where the truck was heading and that the manner in which he directed Mr Luck and his co-driver would be an actual or potential hazard to the road infrastructure. The cross-defendants deny the existence of any statutory duty or common law duty of care and that it breached a statutory or common law duty. The State relies on s 234 Roads Act which provides the State with absolute exemption for liability for any matters arising out of the action alleged. Further, the RTA rely on ss 43 and 46 of the Civil Liability Act 2002 (NSW) to say that they have not committed a breach of statutory duty. 40In short, Barrie Toepfer Earthmoving's claim is that, but for the alteration to the load at the direction of Mr O'Neil, an RTA officer stationed at the weigh station, the collision between the load and the bridge would not have occurred. 41Although the Limitation Act 1969 (NSW) was pleaded in the defence to the cross-claim, Mr Glissan informed the court that it was not relied upon by the RTA and the State. Some matters of evidence on liability 42The principal witnesses on liability were Gregory Wyborn and Steven O'Neil. Mr Luck did not give evidence during the proceedings but statements that he made to police and to an insurance investigator were tendered. The following is a summary of some of the evidence on liability. 43Senior Constable David Collier's affidavit is exhibit C. On 15 April 2003, Senior Constable Collier received a call on the police radio of an accident on the Hexham Bridge southbound. He attended the bridge and observed a low loader bearing vehicle registration XZF 992 with an excavator on the back stopped on the southern side of the bridge. He observed that every cross member on the bridge had been struck by some object causing varying degrees of damage. The driver, Gregory Luck, was accompanied by one passenger, Gregory Wyborn. Mr Luck said words to the effect of "[w]hen we crossed the bridge the truck was shuddering as we hit each member. I pulled up as soon as I could". An investigation was subsequently undertaken which included the preparation of a police event report dated 27 July 2003, and interviews with Mr Wyborn (see ex C par 14) and Mr O'Neil, an RTA officer (PTB7 pp 2070-2079, ex C par 10-14). He agreed that the transcript of the interview with Mr O'Neil (PTB7 pp 2070-2079) was accurate. 44Brian Condon's affidavit is exhibit D. The statement he made to police is exhibit PTB7 1892-1893. At about 3.50pm on 15 April 2003, Mr Condon, working as a truck driver for Mozzy Waste, was driving southbound at 60 km/h approaching the bridge. As he approached the bridge, he moved from the left hand lane to the right hand lane. Ahead of him was a truck towing an excavator on a low loader (ex D par 5). There was a 4.8m height sign directly above where the slope and the bridge meet (T48 L44-50, T49 L1). He was changing lanes when he "saw a traffic sign falling from the bridge onto the roadway in front of [him]" which he then ran over (PTB7 p 1892 par 4; see also T50 L11-15). He thought that the truck with the excavator hit the sign. He stopped but the truck continued going over the bridge and as it did he saw "the arm of the excavator strike the overhead crossbeams of the bridge as the truck passed over the bridge" and "saw sparks come off the bridge and the boom as they came into contact. [He] saw dust and debris falling down onto the road...[he] saw the engine bay doors on the excavator come open" (ex D par 6; PTB7 p 1892 par 4-5; see also T50 L17-48 and T51 L17-20). He was not sure if he saw the left engine bay door come open but he was sure that the right one had. He saw the driver pulling over to the left hand side and he saw him "slam the excavator bay door of the excavator shut" (PTB7 p 1893 par 7, T51 L8-15). He did not hear any noise (T50 L50, T51 L1-6) and did not notice if the truck and excavator were bouncing up and down (T51 L22-28). 45In cross-examination by Mr Deakin, Mr Condon said that it was a directional sign that came down. He said the excavator cab was shaking "pretty severely" (T52 L23-25). He did not at any stage see the vehicle slow down as it progressed across the bridge, but it stopped on the southern side. He said that the vehicle had started in the right lane but had turned left to change lanes. He observed "damage to some of the cross-members, they were bent and the grey paint had been taken off them. [He] could see red paint underneath the grey" (PTB7 p 1893 par 6). 46Ian Hardiman's affidavit is exhibit E. On 15 April 2003, Mr Hardiman was driving southbound on the Pacific Highway at Hexham and about to cross the bridge (ex E par 3). Ahead of him was a truck with a flat bed semi with an excavator. The arm of the excavator was bent up in an upside-down "V shape" (ex E par 5). He estimated that they were both travelling at 60km/h. He recalled seeing "the apex of the bent excavator arm hit the crossbeams" hard (ex E pars 8, 11). He could see the crossbeams suffered damage and saw "grey paint had been flaked off where the arm hit the crossbeams" (ex E par 11). He called the RTA and reported the incident (ex E par 12). 47In cross-examination, Mr Hardiman said he only saw "paint coming off" (T54 L45-48). He did not see the sign fall onto the roadway (T55 L26-27). Further, he did not remember, even though it was still daylight, seeing any sparks being generated by the excavator as it struck the beams (T55 L29-31, T56 L5-16). 48Neil Carter's affidavit is exhibit F. Mr Carter was a police officer who spoke to Mr Luck on 17 April 2003 and the entries in his notebook of this conversation are exhibit PTB1 131-137. Mr Luck signed the police officer's notebook at the conclusion of the entries. 49According to the entries in the notebook, Mr Luck agreed that he was the driver of the vehicle (PTB1 p 131). He described the excavator as 2.6m wide, which is 100 mm over the legal limit. He was not sure of its loaded height but said the boom was always the highest point (PTB1 p 134). This was the second time he had carted the excavator, his fifth time towing the low loader, and his fourth or fifth time driving the prime mover (PTB1 pp 134-135). The police officer recorded that Mr Luck said he had been to the RTA weigh station, just before he got to the bridge. He said that the RTA had weighed the front, middle and rear axles and told him that he was not overweight overall but was overweight on the rear axle of the trailer. He was told to pull up just past the weighbridge. He told the police officer that the RTA measured the wheelbase of the whole truck and trailer. The notes record the following (PTB1 p 136): "The RTA made me move the bucket and boom forward so the bucket was at the front at the trailer at the highest point at the trailer. The RTA then told me to put paint marks on the trailer where the machine was to go, so we would know for next time. I thought that this made the boom higher than it was before, but I didn't think that it would be any problem." 50The police officer recorded that Mr Luck said that he was travelling at about 55km/h, a little less than the traffic was moving, and about 100m before the bridge he moved into the right hand lane ready to make a right hand turn (PTB1 pp 131-132). He guessed that it would take a prime mover with that load that was travelling at 55km/h, 100m to stop (PTB1 p 135). As he proceeded onto the flat part of the bridge he started to hear a clicking noise. Mr Luck asked the excavator driver named Greg (Mr Wyborn), "What's that?" to which he did not receive a reply (PTB1 p 132). The noise was getting louder so he put his left hand flasher on and started to change lanes and started to brake (PTB1 p 132). He said to Greg "I think that we are hitting the top" (PTB1 p 132). By the time he stopped he was all the way over to the left hand side (PTB1 p 132). He got out of the truck and he could not see anything wrong with the excavator or the bridge (PTB1 p 132). A woman in a car pulled up next to him and said, "You've demolished the bridge" (PTB1 p 132). He drove the truck around the corner and parked in a side street near a service station (PTB1 p 133). He noticed that the flashlight from the lamp at the rear of the vehicle was missing (PTB1 p 133). He thought that the lady meant that the flashing light had been demolished (PTB1 p 133). He said if he was hitting the bridge "he had no knowledge that he was or thought it would hit the bridge" (PTB1 p 135). 51He did not report the matter to police because he could not see any damage and he thought that if he did report the incident it would be to an RTA member. 52In a statement provided to the insurer, Mr Luck recounted (ex L): "The officer in charge said that the excavator in which we were carrying was overweight on the back axle and to pull off the weight bridge, to the right, unchain the machine and move it forward and that the bucket be put on the turn table of the float. They then said to reverse the truck back onto the weight bridge. We did so to their requests and we were still overweight on the rear axle. We did this three times until he said that the machine was right to weigh and I did confirm with them three times if they were sure that is where the machine has to be and was told 'Yes that is where the machine has to be and mark it with paint.' We continued on to Hexham at approximately 5 kilometres an hour less than the speed limit and onto the bridge. When some distance onto it, could hear a ticking noise. I looked over at the operator and said 'What's that?' The noise got louder in a short time, with one larger jolt the truck some short distance from the exit." 53Steven O'Neil's affidavit is exhibit G. In October 1993, Mr O'Neil began working for the RTA as an Inspector Vehicle Regulations Level 3 and has continued to be employed as an inspector. He has 13 years experience as an RTA inspector (T108 L35-37). His job entails "the enforcement of all regulatory authority duties such as licensing, registration, log books (work diaries), fatigue, mass and maintenance, speed limiting devices, overloading etc" (ex G par 2). In his oral evidence, he agreed that it is an important part of his responsibility as an RTA inspector to address questions of height as vehicles in excess of legal heights give rise to safety aspects as far as members of the public are concerned (T153 L23-24, T154 L4-7). He was working at Twelve Mile Creek Station from when it opened right through to the date of the accident (T109 L22-24). 54This weigh station has a screening lane which is a lane that exits the highway to the left and which every vehicle with a gross vehicle mass (GVM) of 8 tonnes or more is required to enter (ex G par 5, T122 L33-41). A vehicle entering the screening lane will first pass between two posts containing a laser, which is a height sensor set at 4.6m (ex G par 6, T123 L41-54). 55Mr O'Neil explained that anything above 4.3m to 4.6m is over height or works into a different category of vehicle (T87 L20-23, T97 L1-3). The standard height for a standard vehicle is 4.3m (T87 L26-27). It is possible to obtain a permit for a greater height (T87 L36-38). The limit was now 5m, however in April 2003 it was 4.8m (T87 L40-41, T88 L6-8). A vehicle with a permit would be recognised by the over height gauge (T87 L43-46). The gauge does not indicate a height. It only indicates in red that the vehicle has exceeded a height of 4.6m (T123 L47-50). The light did not turn red in respect of this vehicle (T124 L5-7, L47-50, T125 L1). At the time, the "height gauge was unreliable and often not working" (ex G par 8, T123 L34-39). There was no height gauge on the exit from the inspection station (ex G par 9). After the height sensor device there is the heavy vehicle check station hangar which contains a weight measuring sensor plate that detects individual axle weights and axle spacing. Vehicles with an anomaly are redirected to the weighbridge (ex G par 10). 56His shift was from 8am to 4pm. He had already closed the weigh station when a bus missed the turn-in to the screening lane so he opened it to permit the bus to come back around and enter. The bus re-entered with the Barrie Toepfer Earthmoving vehicle immediately behind it (ex G pars 3-4). The truck and trailer with loaded excavator was considerably higher than the bus (T113 L5-7). There was a bucket attached to the excavator's jib arm facing the front of the trailer (ex G par 16). The trailer had a step down deck below the gooseneck (T111 L33-35). 57Mr O'Neil stated that the truck with the trailer and excavator, driven by Mr Luck, had been directed to the inspection station because the rear axles weighed 18.8 tonnes which exceeded the permissible weight of 16.5 tonnes (ex G pars 12-13, 20). After the weighing, he measured the length of the vehicle wheel to wheel, axle to axle with a tape measure (T131 L38-50, T132 L1, L14-19). 58He told Mr Luck that he was going to have to issue him with a weight breach (see PTB1 pp 103, 103A, 138). A weight breach is distinct from a direction which is outlined in s 231 Roads Act (as at April 2003). Section 231 provides an officer with the ability to issue a direction if a vehicle's mass or axle loading exceeds 10 per cent (T91 L34-43). Mr O'Neil could not point to anything that affected the way he exercised discretion over 10 per cent (T92 L12-15). He was not sure whether the 20 per cent tolerance was customised with procedure for weighing a vehicle (T92 L26-28). However, in cross-examination, it was adduced that there was a policy in writing (book form) when he first joined the RTA that was in relation to the 20 per cent overweight policy (T95 L19-33, T96 L4-42). 59Mr O'Neil knew the driver was from Tasmania and knew from what he was told that the driver had little familiarity with the bridge (T132 L21-30). Mr Luck said, "[t]his is one of the first times [he had] carried this excavator." He also asked if he could move it onto the low loader for future reference because he did not have a clue where the excavator should be. Mr O'Neil said, "[w]e don't normally allow this..." and "[w]e do not do adjustments of loads...You knock yourself out and do whatever you want to do" (ex G par 21). He denied that he directed Mr Luck or his passenger to move the excavator. According to Mr O'Neil the direction was not provided because the weights recorded were "well within the twenty per cent tolerance" (ex G par 37). 60Mr O'Neil stated that whilst he was in the "pie hut", Mr Luck and his passenger proceeded to unchain the excavator and then the passenger got into the excavator and moved it, during which time Mr Luck was talking and making gestures to him. He later described the operator moving the excavator on the low loader, moving the bucket, but he did not see the boom being raised (ex G pars 29, 31). The rear axle of the low loader was still on the scales. He estimated that the excavator was moved forward 6 to 8 inches (ex G par 22, T137 L45-46). The weight breach noted "readjusted load to continue" (PTB1 p 103, ex G par 36, T137 L32-40). Mr Luck had recorded the reposition attempts on the back of the weight breach (ex PTB1 103-103A, T87 L7-17, L30-36). The weights listed on PTB1 p 138 are different to those written on the back of breach report (ex PTB1 103-103A). Mr O'Neil said that Mr Luck made two attempts at the readjustment but the report is the accurate reflection of weights after it left the station (T144 L42-50, T145 L1-19, L33-42). The numbers on the back of the breach report were to help Mr Luck. 61He went out and gave Mr Luck liquid paper and said "if you want to mark it, that's where you should put the mark because the axle weight is 'spot on' on the back end now" (ex G par 24). He denied that he spray painted the trailer. He did not take notice as to whether or not they marked the gunner rail of the truck with the liquid paper (ex G par 25). He denied that he told Mr Luck to move off the weigh bridge and to take off the chains (T155 L10-14) and that he could move the excavator to take weight off the axles (T155 L16-18). 62He knew the bridge travelling southbound had marked a 4.8m maximum height with a small margin of leeway (T110 L8-17). When the rig left it did not appear over-height to him (ex G pars 28-29, 31). Neither the driver nor his passenger suggested the vehicle was over-height (ex G par 35). His concern had been to ensure that all axle weights were correct and at no stage did the height of the boom "come into the equation" in his mind (ex G par 30). He stated that the movement of the machine took place whilst he was inside the pie hut doing the breach. He did not see the boom being raised and it did not appear to him when he looked at it that it had been noticeably raised or was over-height when it left the station. He accepted that the excavator may have been marginally over width, but that was not something that was specifically addressed on the day (T163 L39-43). 63Mr O'Neil agreed that there was no measuring stick available at Twelve Mile Creek Station on 15 April 2003 (T115 L2-4, T186 L30-45). He said that: "RTA vehicles are fitted fully equipped with all the height stick, tape measure" but "the station did not have a height measuring stick" (T116 L1-10). He stated that it is very difficult to assess the height of some vehicles. A height stick is provided, as part of the usual equipment in each RTA inspector's utility. His RTA ute was being serviced at that time, and the replacement vehicle supplied was not one equipped with the usual equipment. There was no height stick provided as part of the Inspection Station equipment at that time (ex G par 33). 64During cross-examination, Mr Deakin questioned Mr O'Neil on photographs (ex PTB1 163-167) of the truck and excavator that had been taken by Wayne Murray, the supervisor for the Mt White Heavy Vehicle Checking Station on 28 April 2003. Mr O'Neil agreed that photograph (PTB1 p 163) accurately depicted the approximate position of the excavator on the low loader when it entered the weigh station. In that photograph the bucket of the excavator is located immediately behind the gooseneck on the top of the turntable. When shown photograph PTB1 p 166, Mr O'Neil said that the excavator depicted in that photograph was not exactly in accordance with the appearance of the excavator at the time it left the weigh station. He explained (T118 L25-30): "...where the vertical angle to the front would be showing say 20 degrees, and where the inspector has got the height stick, the bucket or the jib would have been back 20 degrees back the opposite way, like on a pendulum..." Mr O'Neil marked on the photograph (ex J) what he had described. 65He agreed that Mr Murray's reconstruction of height in pre-adjustment closely accorded with his evidence of about 4.3m (T166 L12-15). He agreed that if the height was 5.45m after the load had been adjusted then he should have been aware of it (T171 L16-18), and it would have been a serious error on his part to permit the vehicle to depart from the weigh station. 66I will further refer to Mr O'Neil's evidence in my assessment of the evidence. 67Mr Murray did not give evidence during the proceedings as he was living in the Philippines. No request was made for his evidence to be given by video-link. A statement made by Mr Murray on 30 April 2003 was tendered in the insurers' case (ex CD7). Mr Murray records that the height of the truck and excavator when loaded prior to adjustment at the weigh station was 4.350m with a width of 2.600m. When the excavator was re-positioned to where it was loaded when it left the weigh station, Mr Murray recorded the height as being 5.45m with a width of 2.600m. Mr Murray noted that when weighed at the weigh station, an additional "bucket" was loaded on the trailer deck. 68Barrie Toepfer's affidavit is exhibit D1. Mr Toepfer gave evidence that Barrie Toepfer Earthmoving was his first company and it was established in 1994 (T198 L12-14, ex D1 par 2). The business is mainly "earthmoving, land management, and advice on land use, power line maintenance, and local heavy vehicle transport around the Newcastle and NSW Central Coast areas" (ex D1 par 3) 69Some of the equipment, including the excavator, had to be floated. To the best of his knowledge, he had owned the excavator for two years (T216 L19-22, ex D1 par 15). 70The company's depot was at Wyee, 40 to 50 kilometres from the bridge (T214 L13-15). He agreed, that there were other ways of getting to the depot other than by crossing the bridge. He said that Mr Luck could have gone back through Williamtown and Sandgate. This would have taken an additional 45-50 minutes (T214 L23-41). 71Mr Luck worked for him for well over 5 years, he was a driver on the water cart for "perhaps, four of those years", and a driver for a semi-trailer for "intermediate or short shifts, for 12 months" (T213 L34-45, ex D1 par 14). To Mr Toepfer's knowledge, Mr Luck had not driven that combination north of the Hunter River on any prior occasion (T204 L14-16). He agreed in cross-examination that Mr Luck was an experienced driver (T213 L47-50). 72He said that his employees told him "that they asked to shift the machine. And [the employees] had questions as to whether it was correct but said, clearly, that they took the advice of the officer in charge" (T215 L18-20). Mr Toepfer agreed that a reconfiguration could have been adopted which would have given rise to no height or weight problems (T215 L43-50, T216 L6) and that such a reconfiguration would have been achieved by just moving the excavator forward on the float as this would have taken the weight off the rear axle (T216 L10-17). 73Mr Toepfer gave evidence that four RTA inspectors arrived the morning after the accident with portable scales (T204 L28-48, T218 L3-6, ex D1 par 32). Upon arrival, he was asked "is this the truck and machine that was involved in the accident?" to which he replied, "that's the only one I've got" (T205 L3-8). He also said that the truck and machine were in the same condition that it was in when it came back (T205 L14-16). Mr Toepfer thought they weighed it first, then reconfigured it and weighed it again (T205 L18-19). Height measurements were taken before and after the reconfiguration by the surveyors who "measured right to the last millimetre" (T206 L29-34). At the time of the initial measurements, the bucket was up on the gooseneck (T207 L16-18). To reconfigure it, it was moved forwards (T205 L32-33) and "the boom was just tucked down instead of being left up and the machine moved if [he] rightly remembered about 150 mils on the float" (T205 L26-28). 74Mr Toepfer's inspection of the truck and excavator "did not reveal any damage" except for the broken light (ex D1 par 33). According to Mr Toepfer, there were no marks on the float prior to the RTA officer saying to him that "[he'll] put some spray paint on here for you so as there can be no errors...in the future" (T206 L14-17, T218 L41-43). He also said he was told, "if you use these [marks], you won't have any more trouble overloading" (T219 L1). He did not see any of the small white paint marks that Mr O'Neil referred to in his evidence (T219 L3-11). However, he said it was possible the marks were there (T219 L13-14). When asked for his observations of damage to the excavator, he said that he could see a distinct scratch on the lug (T212 L28-32). There was also a broken flashing light on the excavator. 75Gregory Wyborn's affidavit is exhibit CD6. Annexed to his affidavit are a transcript of his interview with police on 7 May 2003, a copy of a statement made by him to police on 11 June 2003 and a copy of a statement made by him to a loss assessor on 30 April 2003. 76During the police interview, Mr Wyborn said (ex CD6 p 6): "We had to pull into the checking station as, you know, we've got to do it. So we pulled in there. We found out that we were two tonne over. And the guy in the weigh bridge said he would move the machine around so it was correct weight so we spent probably half an hour, three-quarters of an hour doing that, sort of jostling it backwards and forwards...we found the position for the right weight. He said leave it there which was with the boom over the gooseneck, which is about face to what what we usually do and ah, well consequently that put the boom up higher. I asked the truck driver as we were pulling out should we move that and he said no the RTA guy said this is where we've got to have it and so we just went back home. We approached the Hexham bridge and I said to him mainly, part joke 'I hope we're under 4.8 metres' - because there was a sign there. He said 'Me too'. And we continued across the bridge. Probably would have been a quarter of the way over and we started - I heard a - what would you say (laughs) - a contact noise and as we kept going it just got louder and louder until we stopped over the other side..." 77Mr Wyborn agreed in the interview that in his mind, he knew that the load was contacting. He described physically moving in the cabin. Mr Wyborn said that he did not think that after heavy contact started with the bridge, the truck could have safely stopped more quickly. 78In his statement to police (ex CD6 annexure C p 2), Mr Wyborn stated inter alia: "The RTA inspector said to the driver 'If you move the machine around I will re-check the weight to make sure it is right'. I started to move the machine, the inspector then said 'Put the boom on top of the gooseneck and move the machine as far back as you can towards the ramps.' The inspector checked the weight a couple of times. On about the third time the inspector said 'Ok everything is alright you are right to leave.' As we pulled out of the station I said to the driver 'Mate are we going to stop and change the machine back to where it was originally because it is too high' The driver said 'No, that is the position the RTA inspector has directed us to load it.' As we approached the bridge at Hexham I said to the driver 'I hope we are less than 4.8 high'. The driver said 'Me too'. When we entered the bridge I heard some noise but it was not a loud noise, however as we continued our journey by the time we reached halfway the noises got louder and I began to be thrown around the cabin a bit. We reached the end of the bridge and stopped, we got out of the truck to assess the situation, I was surprised at the small amount of damage sustained by the boom of the excavator." (Italics as in the statement) 79During his oral evidence, Mr Wyborn said he recognised the photograph (PTB1 p 163) as the prime mover, low loader and excavator and agreed that the position within the photo was the position prior to it being adjusted within the RTA station (T241 L14-21) 80He said that he played a role in altering the excavator, in that "[he] moved it from backwards to forwards until [they] got the correct weight and it was weighed off and [they] were told to go" (T242 L1-7). He said the truck driver was dealing with the RTA officer and the driver was telling him to go backwards and forwards (T242 L9-29). He could not really remember where the RTA officer was whilst he was moving the excavator, however, he did remember that "he was outside of his office at one stage" but could not provide further clarification (T242 L22-29). He said that he "couldn't say for sure how many times but it did take more than one turn to do it" (T242 L44-47). "[He] didn't hear anything from the RTA guy because... [he] was going through the truck driver and [the truck driver] said it was right and we were ready to go" (T243 L1-2, ex CD6 annexure B p 3). It was his understanding that the RTA officer had suggested that the vehicle be moved (T243 L15-17). Under cross-examination by Mr Toepfer, Mr Wyborn gave evidence that "[Mr Luck] was taking instructions from the RTA officer all the way through" (T250 L34-39). 81Mr Wyborn said that he was possibly 50m away when he first saw the 4.8m height sign. As soon as he saw that, he made the off the cuff remark "I hope we make it under there" (T35-37). He did not think that they were going to hit the bridge. Height had never been an issue with them so neither of them thought of it. They had just been to the RTA who told them to go. 82Mr Wyborn agreed that his recollection was better at the time he made his statements which he had intended to be truthful (T256 L1-11; see also T256 L35-42). 83Mr Wyborn said "[t]he way [they] had it loaded coming into the RTA, the stick, the boom, was at the front with it curled underneath and that sort of lowers your boom so height is not really a - an issue" (T243 L19-24). After the adjustment had occurred, he recalled that it appeared as it does in exhibit J, "[t]he stick is up higher, [the] boom is up higher" (T244 L25-35). He said the suggestion that the effect of moving the excavator was to in fact lower the height of the boom was wrong (T244 L37-40). He said the purpose of turning the excavator around would have lowered the boom and reduced the overall height and, if permitted to do so by the RTA inspector he would have done so (T256 L48-50, T257 L1-10). He was concerned that the adjusted excavator "looked too high". 84In his oral evidence, he said that when they went on to the bridge they were doing the "speed limit" (T251 L34-35). He agreed that as they got on the bridge they were in the right hand lane and there was a noise consistent with the truck striking more than one overhead structure (T246 L23-33; see also T251 L24-29, T252 L14-17). He said, "the further [they] got towards the ends, the lights, the louder the noise" (T249 L1-6; ex CD6 annexure D). He agreed that even though they originally intended to get across the bridge in the right lane, the driver moved towards the left lane and slowed down (T252 L14-20). He did not see the excavator actually hitting the beams or any sparks coming off from the excavator's boom (T247 L43-50, T248 L1-2). Further, even after they had crossed the bridge he wasn't sure that they had hit the top of the bridge (T254 L3-5). 85He remembered, "there was a lady that...said, 'You have left crap all over the bridge'" (T248 L7-8; ex CD6 annexure B p 5, annexure C p 3). He went back halfway up the bridge and "all [he] could find was a flashing light on the - on the ground. That was all. [He] couldn't see anything above... [he] wasn't looking for that much damage. It was just the light that was broken" (T248 L4-10; ex CD6 annexure B p 5, annexure C p 3). The broken flashing light "used to sit on a... bit of pipe near the ramps at the back" (T248 L14-17). The surveyor's report 86A report from Evans and Smith (ex CD9) was admitted into evidence without objection. The surveyors measured the height of the rig in its usual configuration prior to the reconfiguration at the weigh station and the height of the rig after that reconfiguration. In its usual travelling configuration, the high point of the load was the hose connector of the excavator. This was 4.49m above the road surface. 87The layout of the rig was then altered into the position as allegedly instructed by the RTA officer. This involved lifting the bucket and driving the excavator forward on the trailer and setting the bucket down on a higher part of the trailer. Gregory Smith, the author of the report states (ex CD9 p 4): "It was apparent that in this configuration the high point of the rig was now substantially higher and in a different position relative to the rig. The high point now was ... where the hydraulic arm was attached to the outer boom of the excavator." 88A mark near the top of the boom was confirmed as being the impact point of the boom with the bridge. 89The high point of the boom in its reconfiguration was 5.46m above the road surface. The height of the impact point was 5.22m above the road surface. Argument as to the events at the Weigh Station 90In submissions, the RTA recognised that a contest on the facts exists. Mr O'Neil stated that Mr Luck shifted the load while he did no more than to allow Mr Luck to do so whilst the vehicle was on the scales and to provide him with a bottle of liquid paper to mark upon the gunwhale of the truck the proper position of the axle centres. The RTA referred to Mr O'Neil's evidence that he did not notice any difference in the height of the excavator boom after the adjustment, and his attention was neither drawn nor directed to it. The RTA submitted that a later reconstruction and height measurement was possibly flawed as the bucket fitted was different, "but that reconstruction suggests that a significant difference in the height existed between the original position and the shifted position" (PWS p 116, par 303). The RTA put to the court "[w]hether this was enough to be noticed by the naked eye from ground level is inconclusive on the evidence" (PWS 116 par 303). 91The insurers submitted that the evidence overwhelmingly supported the vehicle being in excess of 5m high when it left the weigh station and in excess of 4.3m high before it entered the weigh station. The insurers argued that it would have been obvious to Mr O'Neil that the height of the load had been increased by the re-configuration of the load and he should not have permitted it to drive on the road. The insurers contended that although there was no direction from Mr O'Neil in the exercise of any power at the weigh station, he clearly permitted the reconfiguration of the load and at the least assisted the driver and the excavator operator to a significant extent. Some findings of fact 92When assessing the honesty and reliability of witnesses, I take into account that they were required to give evidence of events that occurred some nine years before they entered the witness box. Furthermore, I give less weight to the statements made by Mr Luck to police and the insurance investigator, as unlike Mr O'Neil and Mr Wyborn, he did not give evidence, and his account of events was not subject to cross-examination. 93One of the matters that requires earnest consideration in assessing Mr O'Neil's credit, was his remarkable reluctance to accept that the adjustment of the excavator at the weigh station had increased the height of the load and that this would be a matter of concern. Mr O'Neil's testimony on this topic in cross-examination by Mr Deakin included the following (T127 L4-22): "Q. So, you knew, when that vehicle entered your weigh station, that its maximum height, fixed by regulation, was 4.3 metres? A. That's correct. Q. And if this vehicle was over 4.3 metres when it entered your station, you should have been aware of it, shouldn't you? A. That's correct. Q. You agree with this, do you not, that the effect of having the load adjusted was to raise the height of the excavator boom? A. That is false. Q. Do you not agree that the obvious effect of moving this load forward, and putting the bucket up on top of the gooseneck, was to increase the height of the excavator boom? A. That is false. Q. You do not accept that at all? A. No." And further (T127 L30-49, T128 L1-11): "Q. Well, I am asking you, if the effect of moving the bucket up onto the gooseneck was to increase the height of that vehicle, you should have noticed, shouldn't you? A. No, not at all. Q. Even if it was a metre increase in height? A. No. Q. You don't think you should have noticed that? A. No. Q. You don't accept that an increase of height of a metre or more is something that you should have noticed in the course of your duties as an inspector? A. That's exactly right. Q. And even if the consequence of that increase in height was to put it close to 4.5 metres or more, it still was not anything that you needed to be concerned about, Mr O'Neil? A. That's correct. Q. And what if the increase in height resulted in a height of about 5.45 metres? A. I can't make a comment on that. Q. I want you to assume that that was the effect of the load being adjusted, that it was increased in height to 5.45 metres; was that anything that you would have been concerned about? A. No. Q. Not at all? A. No." And further (T129 L 24-42): "Q. But your assessment of it was that it was about 4.3? A. Yes. Q. And you witnessed the adjustment of the load? A. I did. Q. And you signed off on the adjustment of the load on the breach report? A. Yes. Q. And I want to put it to you again, that the obvious effect of moving the bucket up from the deck of the trailer, up onto the gooseneck, was to increase the height of the boom on the excavator; do you agree with that or not? A. I didn't have any input into that. Q. I will come back to that. But do you agree it had that effect, Mr O'Neil? A. As you said before, my observation was that the arms is up high, it was lengthened out, tucked under, which would have made it lower. Q. You don't agree that it had the effect of increasing the height? A. No, it didn't." 94To my mind Mr O'Neil's answer that an increase in height to 5.45m was not a matter that would have concerned him was extraordinary and undermined his credibility. He had been employed with the RTA for some nine years as a vehicle inspector and it was an important part of his responsibilities to address the question of height. Ultimately, Mr O'Neil acknowledged that an increase in height to 5.45m would cause him concern when he said (T130 L10-19): "Q. I'm asking you a different question. I'm asking you if the effect of this load being adjusted was to increase the height of the boom from 4.3 metres, or thereabouts, to 5.45 metres, or thereabouts, do you say to his Honour that would not have been of any concern to you? A. The way you put that, yes. But that was not the fact. Q. Because if it was an increase of that order, you should never have allowed this vehicle to leave the station, should you? A. That's correct." 95Before venturing further, it is necessary to consider the RTA's submission that the later height measurement was possibly flawed as the bucket fitted to the excavator was different. It appears that the RTA was referring to Mr Murray's notation in his inspection report (ex CD7) to an additional "bucket" being loaded on the trailer deck when the truck and excavator were weighed at the station. There is no suggestion, however, that the survey (ex CD9) undertaken by Mr Smith was inaccurate. There is barely a difference in the measurements undertaken by Mr Murray and Mr Smith as to the highest point of the load after the excavator had been reconfigured. Mr Murray was an RTA employee, being the Field Manager of the West Gosford Vehicle Regulation Unit and I have no doubt that he did his best to obtain accurate measurements. In any event, I propose to accept the heights above the road surface determined by Mr Smith as he had the assistance of Mr Luck and Mr Wyborn and there is no reference in the report to a difference in the bucket. 96Accordingly, I find on the balance of probabilities that the height of the load when it entered the weigh station was 4.49m and upon departing was 5.46m. After the reconfiguration at the weigh station, the high point of the rig had been increased by almost a metre. As Mr Smith states (ex CD7 p 4): "The layout of the rig was then altered into the position as allegedly instructed by the RTA officer. This involved lifting the bucket and driving the excavator forward on the trailer and settling the bucket down on a higher point of the trailer...It was apparent that in this configuration the high point of the rig was now substantially higher and in a different position relative to the rig. The high point now was ... where the hydraulic arm was attached to the outer boom of the excavator." (italics added) 97The reconfiguration of the load had substantially increased the high point of the rig. Both Mr Luck and Mr Wyborn noticed that the boom of the excavator was higher than before. It is apparent from Mr Smith's report that the increase in height by the placement of the bucket on the higher part of the trailer was obvious. Mr O'Neil was aware that the bucket had been moved to the higher part of the trailer: see in particular sketch B in Weight Breach Report dated 22 April 2003 (PTB1 p 138). I find that the change in configuration was so substantial that the increase in height was sufficient to be noticed from ground level and a measuring stick was not required. 98I conclude on the balance of probabilities that the increase in height should have been noticed by Mr O'Neil and the truck should not have been allowed to leave the weigh station with the excavator in that configuration. 99Another troubling aspect of Mr O'Neil's evidence was that he had no input into the adjustment of the load, but the Breach Report (PTB1 p 103) bears Mr O'Neil's notation "Re adjusted Load to continue". 100In written submissions the RTA acknowledged the difficulty that this created (PWS p 115): "Complicating matters, and on the face of it supporting Luck's contentions, Mr O'Neill (sic) made a notation on the breach report that the load was 'readjusted-journey (sic) to continue.'" 101Mr O'Neil provided two reasons for the notation. At paragraph 38 of his affidavit (ex G), Mr O'Neil stated that he wrote the comment "because he thought it proper to record on the breach report that the load had been readjusted before the vehicle continued the journey." In his oral evidence, Mr O'Neil's explanation for the notation was as follows (T137 L37-40): "'The readjusted load to continue' was because the driver stated to me he just started with Mr Toepfer and he did not have a clue where the load was, so that was one reason why it was readjusted." 102I find it difficult to understand how Mr O'Neil had no input into the positioning of the load if "[Mr Luck] did not have a clue where the load was." 103It is apposite to note that in the report (PTB1 p 138) Mr O'Neil states: "I said: Whilst I'm completing the weight breach form, if you wish to re-position the load to get it correct for your future positional reference, you and your offsider may do so." 104In other words, it was his suggestion that the load be repositioned whereas in his affidavit (ex G par 21), it was Mr Luck who asked his permission to move the load. I do not accept Mr O'Neil's evidence that he allowed the excavator to be moved at Mr Luck's request. However, I accept Mr O'Neil's evidence that the RTA's policy in force at the time required him to direct the adjustment of the load for weight infringement only if the load was 20 per cent or more above the legal maximum. I find that he did not give a direction requiring Mr Luck to adjust the load pursuant to s 231(1)(b) Roads Act. 105Overall I found Mr O'Neil to be an unimpressive witness. 106There are inconsistencies between the statement made by Mr Wyborn to police dated 11 June 2003 (ex CD6 annexure C) and his oral evidence. For instance, in the police statement (ex CD6 annexure C p 2), Mr Wyborn recounted what was said by the RTA inspector to the truck driver but in his oral testimony, he stated that "[he] didn't hear anything from the RTA guy because [he] was going through the truck driver..." (T243 L1-2). This evidence is consistent with the answers Mr Wyborn gave during the police interview on 7 May 2003 (ex CD6 annexure B p 6) that it was Mr Luck who was talking to the RTA inspector and he heard none of the conversation clearly. Nevertheless, there is a common theme in Mr Wyborn's evidence that Mr Luck was speaking to the RTA inspector during the time the excavator was being moved. Mr Wyborn's evidence supports the statements made by Mr Luck that the Officer in Charge was involved in the reconfiguration of the excavator. I found Mr Wyborn overall to be a genuine witness who was doing his best to recall what occurred on 15 April 2003. 107I am satisfied on the balance of probabilities of the following further facts: (i) At approximately 3pm on 15 April 2003, the truck was directed into the weigh station as the weight over one of the axles was detected as exceeding the maximum permissible weight. (ii) The layout of the excavator on the trailer when the truck entered the weigh station was that shown in the photograph at the bottom of p 3 of Mr Smith's report (ex CD9). The bucket of the excavator was set down below the higher part of the trailer. The high point of the rig was the hose connector which was 4.49m above the road surface. In this configuration, the truck and its load were below the permissible height on the bridge and would have crossed the bridge without incident. (iii) The maximum permissible vehicle height on New South Wales roads was 4.3m without a special permit. The maximum permissible height with a special permit was 4.8m. (iv) The screening lane upon which the truck entered the weigh station contained a height sensor set at 4.6m. At the time the height sensor was unreliable and often not working. (v) There was no height sensor on the exit from the weigh station. (vi) When the truck entered the weigh station, Mr O'Neil had been in the process of closing the weigh station. His shift finished at 4pm. (vii) Mr O'Neil weighed the truck, trailer and its load over the scales. The rear axles (which were tandem axles) weighed 18.8 tonnes. The maximum permissible weight on the rear axles was 16.5 tonnes. (viii) Mr O'Neil issued a weight breach form that was signed by Mr Luck. (ix) Whilst the vehicle was on the scales, the excavator was moved around so that the load was no longer overweight on any of the axles. This was done at the suggestion of Mr O'Neil who assisted Mr Luck and Mr Wyborn with the re-configuration of the load, during which the bucket of the excavator was placed on the high part of the trailer. In this position, the weight on the rear axles was reduced to 16.40 tonnes, but the weight on the second axle was increased from 6.90 tonnes to 9.00 tonnes. There was a slight increase in the weight on the first axle from 5.0 tonnes to 5.30 tonnes. Mr O'Neil confirmed that the axle weights conformed with the permitted weights. (x) The reconfiguration of the load had increased its height to 5.46m. Accordingly, the height of the load exceeded the maximum permissible height for vehicles with or without a special permit. Was Mr O'Neil negligent? 108During cross-examination by Mr Deakin, Mr O'Neil gave the following evidence (T153 L22-39, T154 L5-34): "Q. You agree that height was one of the things that you were required to address, wasn't it, in the performance of your work as an RTA inspector? A. If it was brought to my attention, yes. Q. Don't worry about whether it was brought to your attention or not, you were required in the course of your work as an RTA inspector to pay attention to the heights of vehicles, weren't you? A. I'm well aware of that, yes. Q. And it was an important part of your responsibilities as an RTA inspector to address the question of height, wasn't it? A. Yes. Q. Because if vehicles are in excess of the legal height for the applicable vehicle, firstly, that constitutes a breach of the regulations? A. It does, yes. Q. If vehicles are permitted to be driven on the highways of New South Wales in excess of legal heights, it can give rise to safety aspects, as far as members of the public is concerned? A. I'm well aware of that. Q. And you were aware of it in 2003? A. Yes. Q. One of the matters that can cause concern is over height vehicles can strike objects over the highway? A. That's correct. Q. Trees, branches and other overhanging items such as that? A. Yes. Q. Low slung high electricity wires? A. Yes. Q. And structures like underpasses and bridges? A. That's correct. Q. And the risk of high vehicles striking those sorts of objects involves a very real risk of things falling onto the highway? A. Yes. Q. Branches, masonry and even metal objects? A. Yes, insecure loads. Q. And items being dislodged from the vehicle also falling on to the highways? A. Very true." 109And at T128 L12-35: "Q. Mr O'Neil, you knew, from what the driver told you, that he was heading to Wyee? A. I asked for a place of origin and place of destination, yes. Q. The answer to my question is, yes? A. Yes. Q. And you knew that to get to Wyee, this truck had to travel south on the Pacific Highway across the Hexham Bridge? A. Among other routes, yes. Q. What do you suggest is the normal route to get from the Twelve Mile weigh station to Wyee? A. Pacific Highway, Hexham Bridge. Q. Thank you. Assuming that this driver drove in the usual way that you expected, you knew full well that he was going to have to cross the Hexham Bridge? A. That's correct. Q. And you knew that the height of the Hexham Bridge as marked was 4.8 metres? A. That's correct." 110Mr O'Neil was an authorised officer of the RTA (T305 L33). As an RTA inspector, he was vested with "a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care": Brodie v Singleton Shire Council [2001] 206 CLR 512 per Gaudron, McHugh and Gummow JJ p 559 at [102]. Mr O'Neil had a duty to ensure the safety of drivers and vehicles using NSW roads. He was obliged to make sure that vehicles of a height between 4.3m and 4.8m did not travel on the State's roads without a special permit and vehicles of a height in excess of 4.8m did not travel on the State's roads at all. 111Mr O'Neil was aware of the obvious risk to safety that a vehicle with a height in excess of 4.8m posed. Moreover, he knew of the likelihood that Mr Luck would, during the journey to Wyee, drive the truck across the Hexham bridge and the bridge had a Low Clearance height of 4.8m. 112Breach of duty of care is governed by s 5B Civil Liability Act. There was a foreseeable risk of harm that Mr O'Neil ought to have known, the risk of harm was not insignificant and a reasonable person in Mr O'Neil's position would not have permitted Mr Luck to continue his journey without the height being reduced. At the very least, Mr O'Neil should have warned Mr Luck and Mr Wyborn of the risk that the height of the load created. The "likely seriousness of the harm" was undoubtedly grave and the "burden of taking precautions to avoid the risk of harm" was not significant: s 5B(2)(b)-(c) Civil Liability Act. Mr O'Neil breached his duty of care to the first defendant. Was Mr Luck reckless? 113It is convenient to deal with the issues of recklessness and the asserted breach by Barrie Toepfer Earthmoving of the reasonable care and precautions condition of the policy, as the insurers' contentions are founded upon Mr Luck's conduct after he drove from the weigh station. Argument 114The insurers submitted that Mr Luck had the benefit of three warnings from Mr Wyborn which drew his attention to concern about the height of the vehicle. It was contended that by the time he reached the maximum height sign (if not before) Mr Luck was made aware that the load was higher than the maximum height available on the bridge. Having struck the first braces, he undoubtedly knew that the load was higher than the bridge and the impacts were continuing to occur. The insurers submitted that Mr Luck continued to drive across the bridge notwithstanding the increasingly severe impacts which were occurring between his load and the structure of the bridge and he failed to stop or slow down to avoid or lessen the impact damage. 115The insurers argued that there were numerous places where the vehicle could have been pulled over safely to readjust the load well before approaching the bridge and even on the bridge's approach. Further, as Mr Toepfer and Mr O'Neil confirmed, an alternative route avoiding the low height problems on the bridge could have been employed. The insurers contended at the very least, Mr Luck should have stopped to check the height or proceed cautiously towards the first part of the bridge in order to satisfy himself that the height would not interfere with the bridge. 116The insurers submitted that even if all of those acts were not reckless, proceeding at 65-70km/h onto the bridge without checking to see whether it could be safely crossed "was clearly reckless especially in circumstances where Mr Luck himself confirms what Mr Wyborn stated in his evidence that it was obvious the beams were being struck with increasing noise volume and jumping around of the vehicle as it proceeded across the Bridge" (IWS p 17 par 55). 117Another contention was that it was Barrie Toepfer Earthmoving who bore the onus of proving that the reasonable care and precautions condition was complied with. The insurers submitted that Mr Luck through a lack of concern, deliberately adopted a course of action which he realised exposed him to the risk of someone being injured by the recognised danger. The insurers argued that Mr Luck's conduct in entering the bridge with an illegally high vehicle and proceeding across the bridge in the knowledge that the structural members above his truck were being severely impacted failed to satisfy the reasonable precautions test and satisfied the standard of recklessness. 118The RTA submitted that Mr Luck's conduct was not reckless as "recklessness" has been understood at law. It was inarguably negligent, but the insurer has failed to demonstrate that Mr Luck's state of mind contained the necessary elements to establish recklessness. The RTA pointed out that recklessness requires an advertence to the risk and a conscious decision to disregard the risk. 119The RTA contended that on the facts of the case, Mr Luck would have been unlikely to have had actual knowledge that a danger existed and known the actual height of the reconfigured load, and nor had it been physically measured. It was put to me that Mr Wyborn's evidence in chief might suggest that a question was raised in Mr Wyborn's mind, but there was nothing to suggest in his testimony that he warned Mr Luck about his suspicion as to height. Whilst Mr Wyborn's statement to the police does record that at one point he said words to the effect that it is too high, this was not referred to in his oral testimony which in other respects displayed a good recollection. The RTA submitted that it was likely that Mr Luck was pre-occupied with the axle weights and it was not until they were already on the "approach ramp" [i.e. span 7] to the bridge at the "4.8 metre" height sign that Mr Wyborn first mentioned the height. 120The RTA argued that there was no evidence that Mr Luck adverted to the risk and there could be no finding of recklessness on Mr Wyborn's evidence. The jocular exchange as they entered the bridge, it was submitted, "ought not to be interpreted as a serious warning of the risk, and in any event as Wyborn says it was said in a 'joking' manner, and the insurer [could] not establish that Mr Luck ought to have taken it seriously, or had sufficient time to assess it and react" (PWS par 244). The RTA contended that the proper inference is that Mr Luck did not advert to the danger, as even Mr Wyborn admitted that whilst crossing the bridge, he was unsure about the cause of the impact, at least initially. 121The RTA submitted the evidence disclosed that there was other traffic on the bridge and the inference is that it would be unsafe to stop in the circumstances. It was contended that the evidence falls short of that required to establish reckless advertence as demanded by the case law governing England and NSW. Further, "the evidence fails, critically, to disclose that Mr Luck knew that the excavator was too high to pass the bridge" (PWS par 250). 122Another submission was that clause 7(i) (recklessness) of the policy was an exclusion clause and the onus of proof rests upon the insurers to establish on the balance of probabilities that all of the matters necessary to activate the exclusion are proved. Legal principle 123Clause 7(i) of the policy is found under the heading "Exclusions". Upon a proper construction of the policy it is an exclusionary clause and the onus lies on the insurers to prove, on the balance of probabilities, a breach of the clause. On the other hand, the condition of reasonable care (condition 3) is a condition precedent to indemnity and the onus lies on Barrie Toepfer Earthmoving to bring itself within that condition: Kodak (Australasia) Pty Ltd v Retail Traders Mutual Indemnity Insurance Association (1942) 42 SR (NSW) 231 at 237; Legal and General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390. 124Although the reasonable care provision appears to import an objective test of reasonableness, the test of the existence of risk is determined by the perception of the insured. This is so because conditions such as condition 3 must be reconciled with the contractual purpose of the insurance policy. McHugh JA (as his Honour then was) said in Eather at 405: "It is well settled that in policies indemnifying an insured against liability to third persons those words have to be read down to give effect to the commercial purpose of the contract which is to indemnify the insured against liability for his personal negligence." 125And at 407: "In my opinion, the words, 'you are to take all reasonable precautions to avoid or minimise injury, loss or damage' mean that the insured must be concerned to protect the property from loss or damage and must take such steps to protect the property as he thinks are reasonable having regard to dangers which he recognises. The onus of proving compliance with the condition is on the insured." 126The test is subjective and recognition of the risk by the insured is essential: Plasteel Windows Australia Pty Ltd v Sun Alliance (1989) 5 ANZ Ins Cas 60-918 per Cole J at 75, 885. 127In Fraser v B N Furman (Productions) Ltd [1967] 1 WLR 898 at 906; [1967] 3 ALL ER 57 at 61, Diplock LJ gave a restricted interpretation to a condition which read: "The insured shall take reasonable precautions to prevent accidents and disease." His Lordship said: "...what, in my judgment is reasonable as between the insured and the insurer, without being repugnant to the commercial purpose of the contract, is that the insured, where he does recognise danger should not deliberately court it by taking measures which he himself knows are inadequate to avert it. In other words, it is not enough that the employer's omission to take any particular precautions to avoid accidents should be negligent, it must be at least reckless, that is to say, made with actual recognition by himself that a danger exists, and not caring whether or not it is averted." 128In Allison Insurance Co Ltd v Body Corporate Strata Plan No 4303 [1983] 2 VR 339, McGarvie J in applying Diplock LJ's judgment said at 345: "The test is whether the insured deliberately courts the danger by refraining from taking any measures or taking measures which he knows to be inadequate to avert it. The word 'deliberately' indicates intentional, considered action or inaction. The verb 'court' suggests action or inaction which invites the danger of accident. The test requires more than a recognition of the danger and failure to take any measures known to be adequate to avert it. It requires that this be due to a deliberate decision to court the danger." 129McGarvie J expressed the view at 345-6 that "there is no place in relevant principle of construction for either the word 'reckless' or the concept of recklessness." His Honour was not dealing with an exclusionary recklessness clause but with the approach to be taken to the proper construction of a reasonableness condition. In any event, in Vero Insurance Limited v Power Technologies Pty Ltd [2007] NSWCA 226, Beazley JA noted at [55]: "McGarvie J's reference to there being no place for the notion of recklessness in the construction of the condition, is a reference to 'recklessness' as that word was used in the criminal sense." 130Her Honour (Harrison and Campbell JJA agreeing) said at [63]-[64]: "Before leaving this particular topic however, it is important to emphasise that in order for the appellant to have the benefit of Condition 4, a finding of actual knowledge of the danger is necessary. Otherwise, the prerequisite for the operation of the exclusion, that with actual knowledge of the danger, the insured failed to take adequate measures or knowing that a danger existed, did not care whether the danger was averted, does not exist. That this is so is also apparent from the decision of this Court in Legal & General Insurance Australia Ltd v Eather and the decision of Cole J in Plasteel Windows Australia v Sun Alliance Insurance. In Legal & General Insurance Australia Ltd v Eather the Court was concerned with a policy of insurance which contained a requirement that the insured 'take all reasonable precautions to avoid or minimise injury, loss or damage'. Glass JA at 403 said that: 'The insured person will not be in breach if he shows either that he did not recognise that a danger existed or that perceiving its existence he took some action to avoid it and was not indifferent to whether the danger was averted or not: Fraser v B N Furman (Productions) Ltd'" (Emphasis added) Further findings of fact 131I have previously found that the increase in height of the load after the reconfiguration at the weigh station was so substantial that the increase in height should have been noticed by Mr O'Neil: see [97] - [98] above. Mr Luck acknowledged in the passage in the police notes quoted at [49] above that he thought that by moving the bucket and boom forward that "this made the boom higher than it was before but [he] didn't think that it would be any problem". However, the height of the load was not measured. 132I am satisfied on the balance of probabilities that Mr Luck was aware prior to departing from the weigh station that the height of the load had been substantially increased but he was not aware of its precise height. 133On the topic of the height of the load, Mr Wyborn's evidence included the following (T244 L45-50, T245 L1-14): "Q. As you were driving out of the station, do you remember saying something to the driver about the height of the excavator? A. Mmm, correct. Q. What did you say to him? A. To the words to the effect of [sic], 'Um, do you think we should move this?' Q. Why did you say that to him? A. Because of the height. Q. What was your concern about the height of the excavator in its adjusted position? A. Just that it looked too high. Q. And did you say anything to that effect to the driver? A. Yes, that. Q. As you proceeded in a southerly direction or I should ask you, did Mr Luck say anything in response to you having pointed that out to him? A. Yes, he said, 'That's the way the RTA wanted it.' 134In the passage of Mr Wyborn's statement made to police that I have quoted at [78] above, Mr Wyborn said to Mr Luck as they were pulling out of the weigh station: "'Mate are we going to stop and change the machine back to where it was originally because it is too high.' The driver said 'No, that is the position the RTA inspector has directed us to load it.'" 135Mr Wyborn made this statement on 11 June 2003. In his oral evidence, he agreed that his recollection was better at the time he made his statements. 136Mr Glissan drew my attention to the following in Mr Murray's statement (ex CD7): "Chris said to me the machine operator said to Greg the driver 'don't you think it is a bit high' I then asked Greg the driver to clarify this statement, Greg said 'Chris is wrong he had better get his facts right.'" 137As I have previously stated, I found Mr Wyborn overall to be a genuine witness and I give little weight to Mr Luck's denial of such a conversation to Mr Murray. 138I am satisfied on the balance of probabilities that Mr Wyborn expressed his concern about the increased height of the load to Mr Luck for the first time when they were departing from the weigh station. 139Unsurprisingly, there were differences in the estimates of the speed of the truck when it entered onto the bridge. Mr Luck told Mr Carter that he was travelling "at about 55kph". Mr Hardiman estimated that the truck was travelling about 60km/h. Mr Wyborn in his statement to the police said the truck "was probably doing 65-70Ks" (see ex CD6 annexure C p 2). In cross-examination, he referred to the truck doing "the speed limit" (T251 L35). 140I am further satisfied on the balance of probabilities of the following: (i) Whilst proceeding in a southerly direction, Mr Wyborn observed that the shadows of the excavator looked something like a long neck dinosaur. He asked Mr Luck "[Are] you sure you don't want to turn this around?" Mr Luck replied: "Nup, that is the way the RTA have told us to do it". This conversation took place about halfway between the weigh station and the bridge (T245 L30-49). (ii) As they approached the bridge, there was a sign that indicated Low Clearance 4.8m: see [8] above. Having seen the sign when he was about 50m away from it, Mr Wyborn said to Mr Luck "I hope we are under 4.8 Lucky" to which Mr Luck replied "Me too". The evidence does not precisely disclose how far back from the bridge the sign was erected but Mr Wyborn agreed that the sign was directly above the ramp that goes up to the bridge (T253 L1-2). A useful photograph of the sign is found in ex CD17 p 6 photograph 4. The sign was some distance away from span 7, the first span of the bridge for vehicles travelling south. Mr Luck had ample opportunity to stop and check that the height of the load did not exceed 4.8m (iii) Mr Luck did not slow down but drove onto the bridge at a speed of about 60 kilometres per hour. The boom of the excavator struck the transverse brace connecting the right hand and left hand upper chords on span 7 and continued to strike the transverse braces as it travelled across the bridge. The truck was travelling in the right hand lane (the fast lane) until it passed the drive house where it moved towards the left hand lane (the slow lane). Mr Luck stopped the truck near the end of the bridge. (iv) The clearance at the northern end of the truss of the bridge was 5.58m at the kerb and 5.52m at the road centreline (see [9] above). 141The insurers invited me to find that by the time Mr Luck reached the low clearance sign (if not before) he was aware that the load was higher than the maximum height available on the bridge, but I decline to do so. Although Mr Luck was aware that the height of the load had been substantially increased, I am not satisfied that he was aware that its height was actually more than 4.8m. 142The RTA's contention that the exchange between Mr Wyborn and Mr Luck as they entered the bridge could not be interpreted as a serious warning of the risk was founded on Mr Wyborn's statement to police (ex CD6 annexure C p 2; see also [76] above) that he said to Mr Luck mainly, part joke "I hope we're under 4.8m" and his evidence in cross-examination by Mr Glissan (T253 L10-29): "Q. And as you told Constable Collier, was it Constable Collier you spoke to. You said to him part joking 'I hope we're only 4.8'? A. Like I said it was an off the cuff thing. I didn't for one minute, neither of us. Q. Thought you were going to hit the bridge? A. No. I mean height has never been an issue with us so neither of us thought of it. Q. You just didn't think of it? A. We'd just been down to the RTA and they told us to go. Q. I'll come back to that in a minute. While you were at the RTA there was no talk about height, there was no discussion about it? A. No. Q. Didn't come into it? A. No. Q. Didn't come into your mind as the operator? A. It never has because it's never been an issue." 143Whilst Mr Wyborn may have expressed himself with some jocosity and there had been no discussion about height at the weigh station, this was the third occasion that Mr Wyborn had expressed his concern about the height of the load to Mr Luck. Although Mr Luck may not have thought there was a problem with height when the load was reconfigured, he was obliged as the driver of the vehicle to ensure that the load was not over height. He could not dismiss Mr Wyborn's concern because he believed that the reconfiguration had been directed by Mr O'Neil. Moreover, it is plain that Mr Whyborn had drawn his attention to the height of 4.8m on the Low Clearance sign. I am satisfied on the balance of probabilities that at that time both men recognised that there was a risk that the load might exceed that height. 144The insurers are not required to prove that Mr Luck actually knew that the load would hit the bridge. Rather that he had actual knowledge of the danger: Vero Insurance Limited at [63]-[64]. 145I find that Mr Luck actually knew as the truck approached the low clearance sign that there was a danger that the height of the load was in excess of 4.8m and might strike the bridge. With that actual knowledge, he failed to take any measures to avert the danger but proceeded onto the bridge without slowing down. I conclude that Mr Luck made a deliberate decision to court the danger that the load would strike the bridge. I find that Mr Luck was reckless. 146One of the insurers' contentions is that Mr Luck ought to have stopped the truck after it struck the first overhead beam. In oral submissions, Mr Glissan argued that the truck could not have stopped immediately. Mr Glissan referred to the scale on the bridge plan (PTB1 p 1) from which it could be estimated that the length of the bridge was 200m and to Mr Luck's account that it would normally take the truck with that load 100m to stop. Mr Glissan argued: "By the time you take into account the articulation of the vehicle, the fact that the boom was well behind, the fact that he was in a closed cab, the fact that the truck was travelling as it was and the distance it takes to stop the vehicle, there's no evidence of any recklessness or indeed negligence coupled with the fact that Mr Wyborn said they were surrounded by vehicles at the time, vehicles going past them and it would have been dangerous to stop" (T1734 L35-40). 147Turning to the RTA's submission that it would have been unsafe for the truck to stop on the bridge as there was other traffic, Mr Wyborn accepted that Mr Luck could have stopped if he wanted to, but was mindful of other traffic on the bridge. Mr Luck told Senior Constable Collier that he pulled up as soon as he could (see [43] above). However, Mr Condon who was driving a truck for Mozzy Waste was able to stop after he ran over what he thought was a traffic sign. I am not persuaded that it was dangerous for Mr Luck to have stopped the truck at an earlier time. In any event, there were many opportunities for the truck to have been pulled over and the load to have been readjusted before it entered onto the bridge. 148As has been recounted at [50] above, Mr Luck told the police officer that he guessed it would take a prime mover with that load that was travelling at 55km/h, 100m to stop. As he proceeded onto the flat part of the bridge he started to hear a clicking noise. He asked Mr Wyborn "What's that?" to which he did not receive a reply. The noise was getting louder so he put his left hand flasher on and started to brake. He said to Mr Wyborn "I think we are hitting the top." By the time he stopped he was all the way over to the left hand side. 149When speaking to the insurance investigator he said "When some distance onto [the bridge] he could hear a ticking noise" (see [52] above). 150In his oral evidence, Mr Wyborn recounted hearing a clicking noise consistent with the truck striking overhead structures but could not recall "whether it was the first one or not but as [they] got on there, there was a click" (T246 L25-26). He described the cabin "jumping up and down" and becoming increasingly more noticeable "towards the end of the bridge" by which he meant more than halfway. The further the truck got onto the bridge, the more the noise of things being hit increased. In re-examination by Mr Deakin, he explained he was not happy with Mr Luck "as [he] thought he would have put the brakes on" (T257 L15-16). 151Mr Wyborn's testimony sits comfortably with Mr Condon's evidence. Mr Condon's recollection includes sparks coming off the bridge and the boom as they came into contact and the engine bay doors of the excavator opening. 152The boom of the excavator first struck the transverse overhead beam on span 7. The truck was being driven at about 60km/h. I am satisfied on the balance of probabilities that the clicking noise heard by Mr Wyborn was the contact between the boom and span 7. Before proceeding onto the bridge, Mr Luck was aware of the danger that the height of the load was in excess of the low clearance height. The damage to the transverse overhead beams of the bridge as the truck continued its journey was extensive. I do not accept his account to the insurance investigator that he was some distance onto the bridge before he heard a "ticking noise". At the very least, he should have applied the brakes of the truck at an earlier stage than he did. I am satisfied that Mr Luck's conduct in entering upon the bridge and continuing in the manner that he did was reckless. Further argument 153The RTA submitted that even if Mr Luck is found to be reckless, this alone would not be sufficient to entitle the insurers to properly refuse indemnity. For such a refusal to be successful, the recklessness must fall within the terms of the policy and the general law. The RTA pointed out that the policy requires the recklessness be by "You" or by a person "acting on Your part." The RTA contended that there was no evidence that Barrie Toepfer Earthmoving was reckless and the insurers must rely upon an extension of the obligation by the term in clause 7(i) of the policy "on Your part", and where it appears later in the clause "on Your behalf". 154The RTA argued that the term "on Your part" means, or ought to be limited in meaning to persons acting for the insured in a representative capacity, for instance an agent, who can properly be regarded as exercising the mind of the company. Mr Luck was neither an agent nor a representative of the company but an employee. The RTA submitted that it would be contrary to the commercial intent of the policy to construe the term "on Your part" to include employees of Barrie Toepfer Earthmoving as the commercial purpose of the policy was to insure the owner, Barrie Toepfer Earthmoving, against inter alia legal liability caused by the machines insured, which as a matter of logic could only be operated by the officers or servants of Barrie Toepfer Earthmoving. 155A further argument was that the natural meaning of the phrase "on Your part" suggests a representative relationship, not a subservient one. It was submitted that only the insured, or someone standing in his shoes such as an agent or assignee, is capable of forming the requisite advertence to constitute recklessness. 156It was further submitted that the ejusdem generis rule applies to the construction of policies of insurance, and that application of that rule leads to a construction that the words "on Your part" are limited to persons acting in a truly representative capacity. An employee, it was said, does not act "for" or "on behalf of" his employer and an employer's vicarious liability rests on a different basis. 157The insurers submitted that the use of the words "on the part of (sic)" in the policy wording distinguishes it from other authorities, which have dealt with the circumstances in which an insured is rendered liable for the acts of its servants and agents (IWS par 34.1). As these words do not appear in clause 7(i) and condition 3, it seems to me that the insurers intended to refer to the phrase "on Your part". In any event, the insurer submitted that more recent developments in the law have expanded the liability of employers for the acts of servants and agents of an organisation to render it liable for their acts and omissions. The insurers argued that Barrie Toepfer Earthmoving is vicariously liable for the acts of Mr Luck. 158It was contended that "the wording of the exclusion, which specifically refers to someone acting on the 'part' of the defendant, is satisfied in the factual circumstances of this case" (IWS par 40). The insurers put to me that the board of directors did not drive the company trucks, that Barrie Toepfer Earthmoving had necessarily delegated to Mr Luck a "full discretion in how the truck was driven and managed." The insurers pointed out that as their obligation to pay any amount up to a liability limit of $25,000,000.00 for damages as a result of an accident is only available if the damage to property is caused by the insured using the vehicle (see policy clause 2(B)(1) at [28] above), the argument advanced by the RTA would result in there being no indemnity available under the policy because, the vehicle was not being used by the insured at the relevant time. 159The insurers contended that the only sensible construction that can be applied to the wording of the policy is that the use of the motor vehicle by the insured was effected through Mr Luck. In oral submissions, my attention was drawn by Mr Deakin to VACC Insurance Ltd v BP Australia Ltd [1999] NSWCA 427 in which the Court of Appeal considered a special condition in an insurance policy. A petrol bowser at a service station operated by Geselle Investments Pty Ltd (Geselle) malfunctioned and sprayed petrol resulting in burns to a customer. Geselle was insured by VACC. 160The special condition provided: "[Geselle] shall take all reasonable precautions to prevent bodily injury...and shall take reasonable measures to maintain all premises ...appliances and plant in a sound condition." 161A question arose whether the manager of the service station represented the company for determining whether there was a breach of the special condition. Fitzgerald JA (Meagher JA agreeing) said at [37]: "In the first place, the approach is flawed. While only a breach by Geselle of special condition 3 of the material portion of the policy would entitle VACC to refuse indemnity, it does not follow that Mr Pike did not represent Geselle for the purpose of determining whether such a breach occurred. In Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Lord Reid said [1972] AC 153, 171: 'Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of [directors] may delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby [put] such a delegate in their place so that within the scope of the delegation he can act as the company.' Lord Reid's statement was applied by the High Court in Hamilton v Whitehead (1989) 166 CLR 131, 137. Further, in Krakowski v Eurolynx Properties Ltd (1995) 130 ACRT Brennan, Deane, Gaudron, McHugh JJ said 130 ACRT 16 that '[a] division of function among officers of a corporation... does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.'" 162Mr Deakin submitted that Barrie Toepfer Earthmoving delegated to Mr Luck the task of transporting the load which necessarily left to the driver the discretion about matters such as loading the vehicle and its height and weight. Mr Deakin contended that on these matters Mr Luck had the ability to act independently of instructions and he was acting within the scope of the delegation in driving the truck. Mr Deakin referred to Mr Toepfer's evidence that if a driver had a concern about the height of the truck and not wanting to cross the bridge, he could have chosen to return through Williamtown (T214 L26-30). 163In reply, Mr Glissan argued that Mr Deakin's reliance on VACC Insurance Ltd should be rejected. He pointed out that if it was accepted "it is like suggesting that every driver for Lindsay Fox driving a Linfox truck is capable by a single act of binding that company in relation to its insurance" (T1734 L45-48). Consideration 164The insurers do not suggest that Barrie Toepfer Earthmoving was in the circumstances of the case reckless in any way. In 2003, the company had three directors and between fifteen to twenty employees being office staff, mechanical staff and five or six drivers. 165Mr Toepfer detailed in his affidavit (ex D1) the steps that he had taken to ensure that all drivers engaged by the company were "careful, cautious and professional at all times" (ex D1 par 6). Mr Luck had been employed by Barrie Toepfer Earthmoving for over 5 years and had the necessary skills to drive the truck. There was no dispute, however, that Barrie Toepfer Earthmoving would be vicariously liable for Mr Luck's recklessness, but it does not necessarily follow that the insurers were entitled to refuse indemnity under the policy because of the employee's reckless conduct. 166Where an insurance policy contains a condition, which requires the assured to take all reasonable steps to prevent loss, it has been held that knowledge on the part of the employee that he was acting carelessly (or recklessly) was not knowledge by the employer of the employee's carelessness: Kodak (Australasia) Pty Ltd. 167The English Court of Appeal in Woolfall & Rimmer Ltd v Moyle [1942] KB 66 considered that the concept of vicarious liability was irrelevant between insurer and assured. The court held that where the assured had exercised reasonable care in appointing a competent person as a supervisor he had taken all reasonable precautions within the terms of the policy condition and the fact that the supervisor was negligent was irrelevant. 168A convenient summary of the principles that apply in cases of vicarious liability is provided in Sutton Insurance Law in Australia, 3rd Ed, 1999 LBC Information Services at [10.33]: "It is well established that a condition requiring the assured to take all reasonable precautions to prevent bodily injury, or to see that all laws are duly observed or to exercise reasonable care that only competent employees are employed, and similar clauses, apply only to the personal acts of the assured. Hence, failure by an employee to act in accordance with the condition, even if the employer is vicariously liable therefore, is not a breach of the condition on the assured's part, for he or she does not undertake that everybody whom the assured employs will take reasonable precautions." 169However, in the present case, the question remains whether Mr Luck's recklessness falls within clause 7(i) of the policy as recklessness "by You or any person acting on Your part" and would also constitute a breach of condition 3 page 10 which obliges "any person acting on Your behalf" to exercise reasonable care and precautions to prevent loss or damage to the motor vehicle. The terms "You" and "Your" are defined in the policy to mean "the client...named on the Schedule" which is stated to be "Barrie Toepfer Earthmoving and Land." The RTA contends that the construction of these terms do not extend to employees, but are to be confined to persons acting for the insured in a representative capacity. 170The basic principle of construction of insurance policies is that they should be construed in accordance with sound commercial principles and good business sense and its provisions given a fair and sensible application. As was said by Gleeson CJ in McCann v Switzerland Insurance Australia Ltd [2000] HCA 650 at [22]: "A policy of insurance, even one required by statute, is a commercial contract and should be given a businesslike interpretation. Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure." 171The Barrie Toepfer Earthmoving business included earthmoving and heavy vehicle transport around the Newcastle and NSW Central Coast. Drivers and equipment operators were employed to operate the company's vehicles. The commercial object of the policy was to insure Barrie Toepfer Earthmoving against liability for bodily injury or damage to property arising from the use of the vehicles described in the policy schedule. 172The vehicles described in the policy schedule include dozers, excavators, prime movers, tractors and trailers, all of which would be driven by drivers employed by the company. There is no evidence that Barrie Toepfer Earthmoving engaged agents, acting in a representative capacity to use these vehicles. 173However, s 2(B)(1) of the policy confines indemnity for property damage to damage if caused: "(1) by You using Your Motor Vehicle." 174Section 2(B)(1) construed literally, restricts insurance cover to the company and does not extend to damage caused by an employee's use of a Barrie Toepfer Earthmoving vehicle. The insurers for that reason alone would be entitled to refuse to indemnify Barrie Toepfer Earthmoving for damage to the bridge caused by Mr Luck. In my opinion, a fair and sensible construction, having regard to the context, purpose and object of the policy would not limit the insurers' liability in this way. The insurers sensibly did not submit that it did. In my view, s 2(B)(1) embraces the use of vehicles described in the policy by company employees in the course of their employment. 175In order to give effect to the commercial object of the policy, a similar construction is to be given to the words "by You or any person acting on Your part" in clause 7(1). A fair and sensible construction of the words used does not limit them to directors, agents or representatives of the company, but includes employees. As the commercial purpose of the policy is to indemnify Barrie Toepfer Earthmoving against liability for the negligence of its employees when using the company's vehicles, it is reasonable to expect that an employee's recklessness would not be covered by the policy. 176Accordingly, the insurers are entitled to refuse indemnity as Mr Luck's recklessness falls within clause 7(1). 177For the same reasons, condition 3 page 10 extends to the acts of employees. Mere negligence would not suffice to constitute a breach of the condition, but recklessness would: Fraser v BN Furman (Productions) Ltd. As Mr Luck was reckless, Barrie Toepfer Earthmoving has not discharged its onus of bringing itself within the condition. 178It is unnecessary to consider Mr Deakin's submissions that are founded on VACC Insurance Ltd. 179Barrie Toepfer Earthmoving's cross-claim against the insurers fails. The Cross-Claims against RTA and the State 180The core of Barry Toepfer Earthmoving's cross-claim is the assertion that the RTA through Mr O'Neil as employee or authorised officer acted in breach of duties at statute and common law in directing the reconfiguration of the load and this increased the height of the vehicle to a point where the collision with the bridge occurred. It is asserted that but for this interference the load would have passed safely under the bridge. 181By its defence to the cross-claim the RTA in short denies that Mr O'Neil directed the reconfiguration of the load, denies that Mr O'Neil was its employee or authorised officer or that it is vicariously liable for his conduct; that the statutory duties alleged exist; that it owed a duty of care to road users of the kind alleged at common law; that it is protected from suit by the operation of [the now repealed] s 234 Roads Act and that in any event no action lies consequent upon the provisions of the Civil Liability Act. 182The RTA submitted that Mr O'Neil was not its servant. It was said that the RTA was constituted by the Transport Administration Act 1988 (NSW)(TA Act) and by s 46(3) of the TA Act, the RTA was precluded from employing any staff. The RTA pointed out that a note to the section as it stood in 2003 was to the effect that staff may be employed under Chapter 1A of the Public Sector Employment and Management Act 2003 (NSW)(PSEM Act) to enable the RTA to exercise its functions and Mr O'Neil was appointed as an employee of the Crown under the PSEM Act. 183The RTA submitted that [the now repealed] s 234 Roads Act which was in force when the bridge was damaged, continued so as to protect the Crown, whether as the State of NSW or in the guise of an authority such as the RTA. Section 234 Roads Act was in the following terms: "Neither the Crown nor any other person is liable to the driver of a vehicle or to any other person for any loss or damage arising from the exercise or purported exercise in good faith of a power conferred by this division." 184The RTA contended that Mr O'Neil was engaged in the actual exercise of powers conferred under that Division of the Roads Act, viz Pt 14 Division 2 "Enforcement of Excess Weight Limits." The RTA contended that pursuant to s 231, Mr O'Neil was empowered to give directions to a driver in relation to his load. Section 231 was as follows: "Vehicles exceeding maximum weight limits (1) If it is established that a vehicle (together with its load, if any) has a weight of more than 10 per cent above the maximum permitted by the regulations in respect of that class of vehicle, an authorised officer may give a direction: (a) prohibiting the person in charge of the vehicle from driving the vehicle on public road until the vehicle's weight no longer exceeds the maximum so permitted, or (b) requiring the person in charge of the vehicle to remove or adjust the whole or any part of the vehicle's load, or (c) prohibiting the person in charge of the vehicle from depositing any part of the vehicle's load in or on any specified place, or (d) requiring the person in charge of the vehicle, subject to any specified conditions, to drive the vehicle from its present location to some other location (being a location situated not more than 20 kilometres or such other distance as is reasonable in the circumstances from its present location) for the purpose of removing the vehicle from a public road. (2) A direction under this section may specify the manner in which, and the period within which, the direction must be complied with. (3) A person must not, without reasonable excuse, fail to comply with a direction under this section. Maximum penalty: 30 penalty units." 185The RTA pointed out that the load over the rear axles over the truck exceeded the maximum permissible by more than 10 per cent but less than 20 per cent. As to the question of good faith, the RTA submitted that all that is required to satisfy the test of "good faith" is an honest attempt to exercise power in accordance with that which the statute requires and the most that could be said was that Mr O'Neil was imprudent or careless, but was acting in good faith. 186The insurers argued that by operation of s 49(2) Road Transport (General) Act 1999 (NSW), a liability that would apart from s 49(1) attach to Mr O'Neil because of an act or omission performed by him honestly and in good faith in the course of his duties, attaches instead to the RTA by the operation of s 49(2)(b). Alternatively, vicarious liability attaches to the State of NSW as Mr O'Neil's employer, by operation of the PSEM Act and s 8 Law Reform (Vicarious Liability) Act 1983 (NSW). 187It was submitted that the terms of s 49 are a clear indication by Parliament than an authorised officer such as Mr O'Neil can be found to have incurred a civil liability as a result of an act or omission on his part and Parliament clearly intended that whilst he should have no personal responsibility for such acts or omissions, the RTA or the State or both are liable for Mr O'Neil's failures. 188The insurers argued that it is reasonable to conclude that either the RTA or the State or both are liable for Mr O'Neil's failures. The insurers contended that to the extent to which it may be thought that the terms of s 234 Roads Act could be held inconsistent with the liability referred in s 49 Road Transport (General) Act, s 6 of the latter Act makes it clear that the Roads Transport (General) Act prevails over other legislation such as s 234. 189A further argument was that s 234 can only have application in respect of "the exercise or purported exercise ...of a power conferred by This Division" (italics added). The insurers submitted that Part 14 Division 2 of the Act (within which s 234 is contained) is concerned only with enforcement of excess weight limits and other load requirements. The insurers contended that Part 14 Division 2 does not address height requirements and nothing done by Mr O'Neil in relation to the height of the vehicle was an exercise or purported exercise of any statutory power. 190As to the RTA's contention that s 234 Roads Act continued after its repeal to protect the Crown, the insurers submitted that when the RTA was dissolved by statute and a new statutory entity was brought into existence by the Transport Legislation Amendment Act 2011 (NSW) commencing on 28 October 2011, there was no immunity or defence available "to the plaintiff or its successor the present plaintiff" (IWS p 28). The insurers contended that if Parliament had intended s 234 Roads Act to be available to the RTA in answer to the allegations of civil liability raised against it, it was extraordinary that there are no reported cases where s 234 has been successfully invoked by the plaintiff in any of the cases against it since the introduction of the legislation in 1993. Consideration 191The insurers did not dispute that Mr O'Neil was an employee of the Crown and not the RTA. In Toepfer McCallum J said at [53]: "It is clear enough in those circumstances that the person who gave Mr Luck the direction under s 231 was not an employee of the RTA. It appears to be incontrovertible that he was employed in the service of the Crown and the Crown is vicariously liable for any tort committed by him in the course of such service (leaving aside the issue whether he is exempt from liability by the operation of s 234 of the Roads Act)." 192I agree with her Honour's reasons at [50]-[53] and find that Mr O'Neil was employed in the service of the Crown. 193In view of my findings of negligence on the part of Mr O'Neil and recklessness on the part of Mr Luck, it is necessary before embarking upon the competing arguments of the parties to consider the question of causation. It is Barry Toepher Earthmoving's case that but for the negligence of Mr O'Neil, the damage to the bridge would not have occurred. 194Section 5D Civil Liability Act sets out the principles governing the determination of causation. Relevantly, s 5D provides: "(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation'), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability'). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party." 195The 'but for' test determines the question of factual causation in s 5D(1): Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420. As was said by the majority (French CJ, Gummow, Heydon, Crennan and Bell JJ) in Strong v Woolworths Ltd [2012] HCA 5 at [18]: "The determination of factual causation under s 5D(1)(a) is a statutory statement of the 'but for' test of causation: the plaintiff would not have suffered the particular harm but for the defendant's negligence." 196In the present case, Mr Luck's recklessness occurred subsequent to Mr O'Neil's breach of duty of care. The question that arises is whether Mr O'Neil's negligence was a necessary condition of the damage to the bridge. Barry Toepher Earthmoving bears the onus of establishing that it was. Although Mr Luck's recklessness occurred after the negligence of Mr O'Neil and was proximate to the damage, it does not necessarily follow that factual causation in these circumstances cannot be established. In Strong v Woolworths, the majority said at [20]: "Under the statute, factual causation requires proof that the defendant's negligence was a necessary condition of the occurrence of the particular harm. A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant's negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a). In such a case, the defendant's conduct may be described as contributing to the occurrence of the harm. 197Mr O'Neil's negligence was to allow the truck with its over height load to return to the road and his failure to warn Mr Luck and Mr Wyborn of the risk that the height of the load created. But for Mr O'Neil's negligence the truck with its over height load would not have returned to the Pacific Highway. However, this was not a situation where Mr Luck proceeded to cross the bridge oblivious to the danger. By the time that Mr Luck approached the low clearance sign, he knew that there was a real risk that the height of the load was in excess of 4.8m and might strike the bridge. Armed with that knowledge he made a conscious and reckless decision to proceed. He could have stopped and checked whether the height of the load could pass under the transverse beams of the bridge but chose not to do so. The collision between the load and the bridge did not occur but for the alteration to the load and Mr O'Neil's negligence. It occurred because of Mr Luck's recklessness and would not have occurred but for that reason. Mr Luck assumed the risk of the load striking the bridge. 198I am not persuaded on the balance of probabilities that Mr O'Neil's negligence was a necessary condition of the damage to the bridge. The chain of causation was broken. Consequently, the cross-claim cannot succeed. 199Should my analysis of causation be incorrect, s 234 Roads Act operates, in my opinion, to protect the Crown whether as the State of NSW, the Roads and Maritime Services or the RTA. Although s 234 Roads Act was repealed on 30 September 2005, s 30 Interpretation Act 1987 (NSW) has the effect of maintaining the operation of the section in the circumstances of the present proceedings. Relevantly, s 30 provides: "30(1) The amendment or repeal of an Act or statutory rule does not: ... (b) affect the previous operation of the Act or statutory rule or anything duly suffered, done or commenced under the Act or statutory rule or, (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule..." 200Accordingly, I do not agree with the insurers' contention that the dissolution of the RTA and the inception of the Roads and Maritime Services resulted in the loss of protection to the Crown provided by s 234 Roads Act. 201Furthermore, I do not consider that there is any substance in the insurers' argument that the section does not apply as Part 14 Division 2 within which s 234 falls does not concern matters of height. In dealing with the overweight vehicle, Mr O'Neil was exercising the powers conferred upon him under s 231 Roads Act. The reconfiguration of the load was undertaken by Mr Luck and Mr Wyborn at Mr O'Neil's suggestion to ensure that the axle weights conformed with those permitted. 202The insurers submitted that although it was not put to Mr O'Neil that he did not act in good faith, his actions were so unreasonable as not to be an exercise of good faith. I reject that submission. The evidence in this case does not permit a finding that Mr O'Neil was not acting in good faith. He made an honest attempt to deal with the overload but was imprudent in failing to observe the increase in height. 203In Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105, the High Court considered s 46 Fire Brigades Act 1909-1956, which relevantly provided that "the board, the chief officer or an officer of the board, exercising any powers conferred by this Act or the by-laws, shall not be liable for any damage caused in the bona fide exercise of such powers." In separate judgments, McTiernan J said at 113: "In my view it cannot be said categorically that wherever there is negligence there cannot be good faith in the exercise by the Board or their servants of the powers conferred by the Act." 204Taylor J concluded at 124-125: "As already pointed out the section is, at least, primarily concerned with affording protection in case of damage resulting from acts done in the exercise of powers conferred by the Act. But in the case of such acts no question of liability could arise in the absence of negligence. If, therefore, the section is to have any operation in such cases it must be taken to extend to damage resulting from the negligent performance of such acts." 205Windeyer J said at 128: "where the section applies, it protects the person it refers to from liability for damage resulting from acts which are done in good faith and directly in the exercise of a power that the statute conferred and whether they are done skilfully or negligently." 206In my opinion, s 234 protects the RTA and the State from liability, because even though Mr O'Neil acted negligently, his acts were done in good faith. 207As to the insurers' argument of inconsistency, s 49 Road Transport (General) Act relevantly provides: "Indemnity from personal liability for honest and good faith carrying out of duties (1) An individual does not incur civil liability for an act or omission done honestly and in good faith in the course of his or her duties under the road transport legislation. (2) A liability that would, apart from subsection (1) attach to an individual because of an act or omission done honestly and in good faith in the course of his or her duties attaches instead: ... (b) if it is an act or omission of a person acting for the Authority to the Authority." (italics added) 208The material words of s 6 Road Transport (General) Act are as follows: "General relationship with other laws (1) Other Acts and laws not affected except as provided by this section Nothing in the road transport legislation: (a) affects any of the provision of any other Act or any statutory rule, or takes away any powers vested in any person or body by any other Act or statutory rule, except as provided by this section, or (b) affects any liability of any person at common law except to the extent that the road transport legislation provides otherwise expressly or by necessary intendment. (2) This Act generally prevails over other legislation in cases of inconsistency However (Subject to subsection (3)): (a) an Act that forms part of the road transport legislation prevails over any other Act or statutory rule to the extent of any inconsistency..." 209I do not consider that there is inconsistency between s 234 Roads Act and s 49 Road Transport (General) Act. The focus of s 49(2) is upon liability that would apart from s 49(1) attach to an individual. Protection from individual liability for the exercise of powers conferred under Pt 14 Div 2 Roads Act is not dependent upon s 49(1) Road Transport (General) Act. There is no liability that would, "apart from s 49(1) attach to an individual" as liability neither attaches to an individual, nor the Crown, because of the operation of s 234 Roads Act when an individual has exercised a power in good faith under Pt 14 Div 2 Roads Act. I would reject the insurers' argument. 210It is unnecessary to consider the RTA's argument as to whether any action lies upon the provisions of the Civil Liability Act. However, it is apposite to observe that the protection under s 234 Roads Act is preserved by s 3A Civil Liability Act. Section 3A relevantly provides: "Provisions relating to operation of Act (1) A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law. ..." 211Barrie Toepher Earthmoving's cross-claim against the RTA and the State fails. General argument as to Damages 212The RTA's analysis of s 102 Roads Act involved four elements "the cost" - "incurred" - "in making good" - "the damage". 213The RTA contended that "the cost" is not the same as damages and means "cost actually expended". The RTA submitted that in the present case cost, in the sense of monies actually paid out, is a ready measure available to the court in assessing the amount which the RTA seeks to recoup. The RTA however acknowledged that s 102 limits the costs to be met by the defendant to the 'cost of making good the damage.' 214The RTA submitted that the meaning of the term 'making good' was wider than that expressed in Gagner Pty Ltd t/a Indochine Cafe v Canturi Corporation [2009] NSWCA 413 at [105]-[106]: "What counts as making good the damage, for the purpose of assessing damages for torts, needs to be understood bearing in mind what the purpose is for which one is asking what counts as 'making good'. That purpose is ascertaining what the work is that is necessary to undo the consequences of the tort having been committed. ... The cost of making good is merely one way of putting a dollar figure on the damage that the plaintiff has suffered, for the purpose of carrying through the compensatory principle." 215The RTA contended 'the cost of making good' includes all indirect and consequential damage which is causally related to the collision and principles of damages and reasonableness have no part to play in the constitution or application of s 102. It was argued that the "cost incurred in" means "actually paid". 216The RTA contended that s 247 Roads Act means that the sum is recoverable according to the principles applicable to recovery of debts which necessarily displaces the concepts of the law of damages, because an action in debt is not an action for damages. The court's attention was drawn to The Stonedale No 1 [1954] p 338, C.A; [1954] 2 All ER 170 at p 179 where Singleton J said that s 32 Manchester Ship Canal Act 1936 gave the canal company "a right to recover, not damages, but expenses incurred in performing their duty or obligation to keep navigation open." The RTA submitted that it is a matter of debt that arises from a statutory liability to indemnify the authority against the cost it incurred "in making good the damage." The RTA argued it was not open to the defendant to challenge the reasonableness of the sum expended or the methodology of repair, or the sum, once the fact of expenditure was established. However, the defendant could challenge causation and seek an account of the sum expended. 217The RTA argued that ss 102 and 247 together create a statutory debt against the defendant to pay the cost incurred in making good the damage. The RTA put to me that "conceptually, cost incurred" is wider than "expense", as a cost incurred might include something foregone but not the subject of an expenditure, or a cost incurred, not an expenditure incurred in "making good the damage." 218Another submission was that damage to be compensable under s 102 does not have to be foreseeable. 219The insurers agreed that foreseeability of damage has no part to play in the present proceedings. The insurers rejected the RTA's contention that it is not open to the defendant to challenge the reasonableness of any of the sums expended or the methodology of repairs once that expenditure is established by evidence. 220Another argument was that s 102 does not create a debt. The insurers argued that the RTA's submission "conflates the enforcement mechanism that is set out in section 247 of the Act, with the cause of action that gives rise to the strict or absolute liability that is contained in section 102" (T1653 L17-22). 221The insurers contended that s 102 entitles the RTA to the recovery of the unliquidated sum representing the cost of making good such damage as is caused and could not be equated with a liquidated sum or a debt, particularly in circumstances where strict liability is imposed. The insurers submitted that the RTA, having chosen not to pursue a remedy in negligence, "should be limited to the strict entitlements arising from s 102 and nothing more" (T1653 L50). 222The insurers contended that the starting point was "what was the damage caused to the bridge by the truck?" (T1654 L19-20). The insurers submitted that if a particular item in dispute had been damaged by the truck, the next question was "what allowance should be made in making good that damaged item?" (T1654 L50). The insurers argued that nothing that is consequential, incidental or ancillary to anything that was not damaged properly falls within the statutory entitlement that the plaintiff has, whatever may have been recoverable if the action had been in tort. 223The primary submission for the insurers was that if an item was not damaged, whatever was spent on investigating it or inspecting it, falls outside s 102. The insurers emphasised that the damage was confined to the damage to the bridge and not to the RTA's damage. Consideration 224Before embarking upon a consideration of the competing arguments, it is convenient to recall the terms of ss 102(1) and 247 Roads Act. Section 102(1) is as follows: "Liability for damage to public road (1) A person who causes damage to a public road, or to any road work on a public road ... is liable to pay to the appropriate roads authority the cost incurred by that authority in making good the damage." Section 247 provides: "Recovery of debts Any money that is owed to a roads authority under this Act may be recovered by the roads authority, as a debt, in a court of competent jurisdiction." 225In my view, s 102(1) Roads Act mandates the payment by Barrie Toepfer Earthmoving of the cost incurred by the RTA in making good the damage caused by Mr Luck to the bridge. The RTA bears the onus of establishing the damage to the bridge that Mr Luck caused and the cost of making good that damage on the balance of probabilities. 226Section 247 Roads Act enables the RTA to recover as a debt the cost incurred by that authority in making good the damage caused by Mr Luck to the bridge. 227I agree that the 'cost incurred' is not appropriately described as damages or more precisely as 'statutory damages' and questions of foreseeability are not applicable. 228Nevertheless, it seems to me that the fact s 247 enables the 'cost incurred' to be recovered as a debt does not mean that the action is governed by the principles applicable to recovery of debts. The argument advanced by the insurers that the RTA's submission on this issue represents a confluence between the enforcement mechanism in s 247 and the cause of action in s 102 is, in my opinion, well founded. 229The word 'damage' in actions for tort has been considered to have a different meaning to 'injury'. In Sigmar Coachair Group Pty Ltd v Bock Australia Pty Ltd [2009] NSWSC 684, Hall J said at [124]: "The word 'damage' is used to encompass the disadvantage or detriment suffered by the plaintiff as a result of the tortious act or omission of the plaintiff and has a much wider meaning than 'injury': Darrell Lea Chocolate Shops Pty Ltd v Spanish Polish Shipping Co Inc (The 'Katowice II') (1990) 25 NSWLR 568 at 576. This includes any compensable damage caused by the tort, including economic loss: Flaherty v Girgis (1985) 4 NSWLR 248; Brix-Neilsen v Oceaneering Australia Pty Ltd [1982] 2 NSWLR 173; Challenor v Douglas [1983] 2 NSWLR 405; Colloseum Investment Holdings Pty Ltd v Vanguard Logistics Services Pty Ltd [2005] NSWSC 803 at [41]. 230I do not think that the word 'damage' where it appears in s 102(1) would have a narrower meaning than in an action for tort as the intent of that section is to enable the roads authority to recover the cost incurred in making good the disadvantage or detriment caused to a public road without proof of negligence or fault. It follows that I do not agree with the insurers' argument that if an item was not damaged, whatever was spent on investigating it or inspecting it necessarily falls outside s 102. For example, the disadvantage or detriment caused to the bridge may require in the interests of public safety, for parts of the bridge that did not suffer obvious damage to be inspected or investigated. 231However, I do not accept the RTA's submission that the meaning of 'making good' is wider than that expressed by Campbell JA in Gagner. The purpose identified by his Honour at [105] as "ascertaining what the work is that is necessary to undo the consequences of the tort having been committed" fits neatly with the concept of making good the disadvantage or detriment caused to the bridge by Mr Luck. 232Moreover, I do not agree that "costs incurred in" means "actually paid" and the principles of reasonableness have no part to play in the application of s 102. The concept of 'making good' in s 102 does not necessarily permit the RTA to recover the cost incurred in carrying out improvements to the bridge. As was said by Campbell JA in Gagner at [110]: "To the extent that, by effecting the refit, the Respondent obtained more than a rectification of the damage caused by the flood, the compensatory principle requires that it must itself bear the cost of obtaining that extra." 233Closely allied to that consideration is the principle that the work necessary to put a claimant's property in the pre-damage condition must not only be necessary for that purpose but "it must be a reasonable course to adopt" to do that work: Murphy v Brown 1985 1 NSWLR 131 at 133. There is nothing in s 102 that suggests that the RTA can act unreasonably. Such an interpretation would be outside the purpose of the section which enables the RTA to make good the detriment or disadvantage. Pre-existing damage to the bridge 234Much of the evidence of damage in the case was concerned with earlier damage to the bridge. The insurers submitted that the claim by the RTA should be limited to making good the damage to the bridge caused by Mr Luck. The insurers argued that to the extent the bridge was defective prior to Mr Luck's collision with the bridge, the defendant was not liable for remedying the defective state of the bridge. The court's attention was particularly drawn to Performance Cars v Abraham [1961] EWCA Civ 3; [1962] 1 QB 33. 235The RTA's case is that the bridge had suffered earlier damage at unknown times, but long before Mr Luck's collision. The RTA argued that prior to the collision, the bridge was fully functioning and had been approved after testing to safely carry 62.5 tonne B-Double vehicles in each lane. The towers and lift spans operated safely and were not in need of repair. The RTA contended that the "eggshell skull rule" applies with full force to property and to the present action and the defendant must take the bridge as it found it. 236Another submission was that the fact some portions of the bridge had suffered some earlier damage and were accordingly more vulnerable to injury is no answer to the statutory entitlement vested in the RTA by s 102. 237The RTA criticised the insurers' reliance on Performance Cars. The RTA contended that this case had no application to the action under s 102. The RTA submitted that s 102 confers a statutory right to recover the cost of making good damage caused by the defendant, the elements of recovery being limited to an enquiry as to the damage caused by the defendant and the cost incurred in its repair, or making good. The RTA argued that pre-existing damage not caused by the defendant, although overlapping the new damage, is not a relevant matter for the court to consider. 238The RTA was critical of Lord Evershed's judgment in Performance Cars and referred to the following footnote in McGregor on Damages 17th ed (Sweet and Maxwell, London 2003) at [32-010]: "Lord Evershed MR said... that he thought the defendant derived assistance from The Haversham Grange [1905] P. 307, CA, and Carslogie S.S Co v Royal Norwegian Government [1952] A.C 292, but it is submitted that the principles applied in these cases, dealing with claims for expenses of docking and loss of user profit where other repairs had been effected concurrently, have no direct application where, as in Performance Cars v Abraham, it is the liability for the cost of repair itself, forming the basic measure of damages, which may be attributable to another tortfeasor." 239The RTA submitted that properly read, Performance Cars concerned damages, not damage and not causation. However, the RTA further submitted (PWS par 116): "In contrast the approach of Lord Evershed MR to the case was one of causation. He decided that the necessity for respray was not the result of the defendant's wrongdoing, as that need already existed. The vehicle was in a condition which already required that it should be resprayed." 240The RTA argued that where the damage is identical or coextensive then there is no right to recover for the later injury if no additional damage is occasioned. Where, however, further damage is caused then the right to recover that additional injury remains. The RTA sought to distinguish Performance Cars as in the present case there is additional damage amounting to extra loss and submitted that the earlier unrepaired damage cannot reduce the liability of the defendant under the Act. The court's attention was drawn to Carslogie SS Co v Royal Norwegian Government [1952] AC 292. Consideration 241In view of the RTA's criticism of the decision of the English Court of Appeal in Performance Cars, it is necessary to consider the case in some detail. 242In Performance Cars, the facts were that the defendant damaged the front wing of the plaintiff's Rolls Royce and to make good the damage, it was necessary to respray the whole lower part of the vehicle at a cost of £75. Prior to the accident with the defendant, the Rolls Royce had, in another collision, suffered damage to the rear wing that had not been made good. This damage also necessitated a similar respray. The plaintiff sued the person responsible for the previous damage and recovered judgment for £75, the cost of the respray. That judgment was unsatisfied and the plaintiff claimed damages, including the cost of a respray, from the defendant who caused the second collision. The county court judge held that the defendant was liable for the cost of the respray. The English Court of Appeal upheld the defendant's appeal from that decision. Lord Evershed MR said at p 39: "I have in the end felt compelled to the conclusion that the necessity for respraying was not the result of the defendant's wrongdoing because that necessity already existed." 243And at p 40: "In my judgment in the present case the defendant should be taken to have injured a motor-car that was already in certain respects (that is, in respect of the need for respraying) injured; with the result that to the extent of that need or wrongdoing the damage claimed did not flow from the defendant's wrongdoing." 244In McGregor on Damages the learned author states at p 1035: "Performance Cars v Abraham shows that the cost of repair is not, however, recoverable if the work which will repair the defendant's damage is required to repair other damages to the chattel already existing before the defendant's tort." 245Performance Cars Ltd has been cited in Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd [1975] HCA 23; 132 CLR 323 by Barwick CJ. In that case, a workman sued his employer for damages for personal injury suffered by him in the course of his employment and alleged to have been caused by the defendant's negligence. The defendant sought contribution from a former employer of the plaintiff on the ground that while in the earlier employment the plaintiff had suffered injury due to the negligence of that employer of a like kind to that for which he now sued. Barwick CJ said at 327: "If such a possibility or probability of further deterioration became a reality by virtue of the subsequent tort, the amount of compensation payable for that subsequent injury may be lessened because of the deteriorated condition of the worker already present at the time of the receipt of the further injury. But it would rest upon the subsequent tortfeasor to establish the pre-existing condition for which he was not responsible - see Watts v Rake and Purkess v Crittenden. Performance Cars Ltd v Abraham is illustrative of such a situation. The subsequent tortfeasor is not in any sense liable for the injury which the first tortfeasor caused or for its consequences, though if he is unable in point of proof to establish the pre-existing disability of the injured person the damages he may be required to pay will not be diminished by reason of the pre-existing condition of the injured person." 246More recently, Performance Cars Ltd was cited by Meagher JA (Barrett JA and Sackville AJA agreeing) in Cambridge v Anastasopoulos [2012] NSWCA 405. The case concerned a motorboat that had suffered damage on three separate occasions. The first being some scraping damage to the hull, the second, significant water damage to its engines, and the third when the motorboat and trailer became dislodged from the towbar and careered through a barbed wire fence sustaining substantial damage. The primary judge assessed the water damage at $24,681. Meagher JA said at [49]: "The primary judge assessed that damage at $24,681. It must be taken into account when assessing the liability resulting from the February 2009 accident and the damages reduced accordingly: see Performance Cars Ltd v Abraham; Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd [1975] HCA 23; 132 CLR 323 at 327, 330. In his argument in relation to apportionment Mr Liascos contended that because the motorboat and trailer were substantially damaged in the accident, with the result that they only had a salvage value, the damage which had already occurred was not to be taken into account when assessing the liability of the tortfeasors responsible for that accident. That argument is inconsistent with principle, and these authorities, and must be rejected." 247It appears that it is accepted that Lord Evershed's judgment is authority for the principle that a defendant's liability may be reduced for pre-existing damage. The principle is not restricted to pre-existing damage of the same kind. The onus of proof of establishing pre-existing damage is on the defendant on the balance of probabilities. 248I do not think that this principle conflicts with the eggshell skull rule which has been held to apply to property: McColl v Dionisatos [2002] NSWSC 276 per Young CJ in EQ at [28]. The present case does not concern increased damage because of inadequate construction or unexpected sensitivity of the bridge. 249In Carslogie, the House of Lords removed the distinction between a defendant's liability for dock expenses where apportionment might be allowed and a defendant's liability for loss of use and profits, where no apportionment was permitted: McGregor on Damages par 32-027. In my view, the principles in that case are of no assistance in determining the defendant's liability for pre-existing damage. 250I do not agree with the RTA's submission that pre-existing damage is not a relevant matter to consider. 251A further argument that the RTA advanced was founded on a line of cases that commence in the RTA's written submissions (PWS p 57-81) with Harbutt's Plasticine Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447; [1970] 1 All ER 225; [1970] 1 Lloyd's Ref 14. In that case, the plaintiffs' factory had been destroyed by fire due to the defendant's tort. They were not allowed to replace it with a similar building, and had to build a two storey building to comply with local building regulations. The building was rebuilt with new materials. The English Court of Appeal held that the plaintiff was entitled to the actual cost of replacement and was not limited to the difference in value of the old before and after the fire. 252Denning LJ said at 468: "The destruction of a building is different from the destruction of a chattel. If a second-hand car is destroyed, the owner only gets its value; because he can go into the market and get another second-hand car to replace it. He cannot charge the other party with the cost of replacing it with a new car. But when this mill was destroyed, the plasticine company had no choice. They were bound to replace it as soon as they could, not only to keep their business going, but also to mitigate the loss of profit (for which they would be able to charge the defendants). They replaced it in the only possible way, without adding any extras. I think they should be allowed the cost of replacement. True it is that they got new for old; but I do not think the wrongdoer can diminish the claim on that account. If they had added extra accommodation or made extra improvements, they would have to give credit. But that is not this case." 253The RTA contended that it is entitled to recover against the defendant the whole of the cost of making good the damage incurred without deduction for betterment or deduction calculated by reference to the incidental repair of prior damage. The insurers submitted that Harbutt's Plasticine is inapplicable as the circumstances of that case are completely different. The insurers argued that even if Harbutt's Plasticine is accepted, the defendant must nevertheless be given credit for any benefits that derived to the plaintiff's benefit as a result of the new construction. 254There has been consideration in this State as to whether the decision in Harbutt's Plasticine could sit with the House of Lord's judgment in British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673. 255In British Westinghouse, a contract case, the question arose as to the measure of damages where deficient turbines were delivered and, after using them for some years and sustaining losses as a result, the plaintiff replaced them with turbines superior in design and capacity to the original machines. The House of Lords held that the purchase of the machines was a reasonable and prudent course and that it mitigated or prevented the continuance of the loss, but it was also found that the purchase of the machines was to the pecuniary advantage of the plaintiff. 256Viscount Haldane with whom all their Lordships agreed, said at p 689: "I think the principle which applies here is that which makes it right for the jury or arbitrator to look at what actually happened and to balance loss and gain. The transaction was not res inter alios acta, but one in which the person whose contract was broken took a reasonable and prudent course quite naturally arising out of the circumstances in which he was placed by the breach." 257The House of Lords concluded that the assessment of contractual damages should take into account that the purchase of the new machines was to the pecuniary advantage of the plaintiff because of the superior efficiency and economy of the replacement turbines over those liable to be supplied under the terms of the original contract. In other words, the plaintiff's loss may be diminished by the gain to the plaintiff. 258In Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 the question was whether the fact that the plaintiffs had purchased a new tractor and a new mower to replace old equipment destroyed by fire and became better off, should be taken into account in measuring damages. The plaintiffs had been required to replace this machinery urgently to avoid crop losses and comparable second-hand machinery was not available. Moffit P and Hutley JA considered that it should be. Hutley JA determined that Harbutt's Plasticine could not stand with the judgment of the House of Lords in British Westinghouse. In a dissenting judgment, Samuels JA held that the duty to mitigate and the need for a replacement taken together made it reasonable for the plaintiffs to purchase new machinery and that in these circumstances they were entitled to recover as damages the whole of the cost of the new machinery without any deduction for the advantage obtained by acquiring new machinery. 259The decision in Hoad was considered by the Court of Appeal in Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313. In that case, the defendant laid down a new area of pavement that was to have a life expectancy of approximately 20 years. The pavement collapsed after approximately four years use. Sheller JA (with whom Meagher JA and Giles JA agreed on this issue) said at [47] that he did not agree with Hutley JA's proposition that the decision in Harbutt's Plasticine could not stand with British Westinghouse. His Honour pointed out that the facts were different. The factory owner had no choice but to build the factory which he did whereas in British Westinghouse, the plaintiff chose to purchase a superior version of the turbines. His Honour said at [49] that British Westinghouse was not relevant as the plaintiff had no reasonable choice but to replace the defective pavement with new pavement. Sheller JA (Giles JA agreeing) held that in these circumstances the cost of replacement or repair, provided it is not extravagant, is recoverable as damages without any reduction for the four years use of the pavement. 260In Gagner, Campbell JA considered at [115]-[125] Hoad and Hyder Consulting and agreed with Sheller JA that Harbutt's Plasticine was not inconsistent with British Westinghouse. 261The RTA submitted that as in Hyder, there was only one choice available which was to replace old with new. There was no question of the bridge being sold, or of it not continuing to be used. The RTA contended that it had a duty and an obligation to repair the bridge and to do so expeditiously. Technology had moved on from the date of the bridge's construction. The RTA submitted that there is nothing in the evidence which suggests that the repairs have extended the life span of the bridge nor was any pecuniary advantage demonstrated. The RTA argued that it follows the plaintiff is entitled to recover against the defendant the whole cost of making good the damage incurred without deduction for betterment or deduction calculated by reference to the incidental repair or prior damage. 262As Moffit P observed in Hoad at 94, "the assessment of damage is a question of fact in each case." Unlike the present case, none of the cases cited concerned pre-existing damage that had been occasioned through no fault of a defendant. Furthermore, there was no suggestion in those cases that the pre-existing damage was marked for repair prior to the particular defendant's tortious act. In the present case, recommendations were made in the Parvez-Shah report for repair work to be undertaken and for damaged top chord braces to be replaced. 263In Hoad, Moffit P said at 94: "To replace the destroyed building, capital had to be laid out to erect a like building in the only way it could be, namely with new materials. The plaintiffs were not in the business of buying and selling factories. They needed the replacement factory for indefinite use. There was no question of it being sold. Prior to its destruction there was no contemplation of reconstructing it in the foreseeable future. The facts in the present case are quite different. Farm equipment deteriorates rapidly, and it is either written off or is replaced at short intervals. Planned replacement at short intervals was in fact the business practice of the plaintiffs. If this practice would have continued, then the consequence of the fire was merely to accelerate the inevitable capital expense of acquiring a new tractor and mower. If, as the plaintiffs claimed, but for the fire they would not have purchased another tractor or mower, because they were giving up the farm in eighteen months, presumably meaning they would not then need such equipment, then the total consequence of the fire, ie their total acts of mitigation to avoid crop losses over the eighteen months of farming, would be that capital expense was incurred, which would not otherwise have been incurred, in purchasing the new equipment and that, on resale after eighteen months, substantially less than the capital outlaid would be recovered. The loss of resale value of new equipment in that time would be greater than of old equipment. The entire practice, intention and ensuing events are connected with the loss, or with the connected acts of mitigation and are not res inter alios acta. Damages for the loss must have regard to all of such facts and hence bring to account any gain so connected with the acts of mitigation." (italics added) 264In Halsbury's Laws of Australia, Volume 9, the following appears in the discussion of damages for the destruction of goods at [135-1090]: "The plaintiff must credit the defendant for the fact that the plaintiff now receives new goods in place of old (that is, for betterment) (Hoad v Scone Motors Pty Limited (1977) 1 NSWLR 88) except where the plaintiff would never have replaced the chattel in question (Harbutt's Plasticine Limited v Wayne Tank and Pump Co Limited [1970] 1 QB 447)" (italics added). 265In the discussion of damages for injury to property, the following passage concerns "Betterment" [135-1165]: "Where cost of reinstatement is the appropriate measure of damages, plaintiffs must give credit for betterment where the property increases in value after reinstatement, except where reinstatement involves plaintiffs in making an investment they would never had made at all (Harbutt's)" (italics added). 266In the present case, Mr Luck's accident accelerated the inevitable capital expense of carrying out the repair and replacement work that was identified in the Parvez-Shah report. 267The RTA is entitled to recover the cost that it incurred in making good the damage caused by Mr Luck to the bridge. Barry Toepfer Earthmoving bears the onus of establishing the existence of pre-existing damage to the bridge and the extent of that damage i.e. damage to the bridge that Mr Luck did not cause. The cost that Barry Toepfer Earthmoving will be liable to pay is to be diminished by reason of the pre-existing damage that is proved. Pre-existing damage to the bridge - Further argument 268The insurers submitted that although some of the RTA's witnesses contended that there was no particular priority to any of the work required to the bridge that pre-dated the accident, the objective evidence was to the contrary. The insurers pointed particularly to the evidence of Mr Manchanayake and the working brief (ex ZZ annex O), the Fok and related Parvez Shah reports, the Gooley list of works and the Admiralty Enterprises Pty Ltd (Admiralty) report as supporting the submission "that there was work required to the bridge as a matter of priority at the date of the accident and, in all likelihood, even if the accident had not occurred, would have been required to be carried out in the near future" (IWS par 157). 269The court was invited to accept the evidence of Mr Parry-Williams that the recommendations included in both the Parvez Shah report and the brief of works prepared by Mr Manchanayake would have been carried out. The insurers submitted that Mr Parry-Williams "agreed with the obvious proposition that the totality of the work involved after the accident involved the repair of what appeared to be recent damage but also involved the repair of damage which had been there before the accident and involved an upgrade or improvement of the Bridge." (IWS par 173). 270The RTA accepted that at the time of the accident there was an amount of damage to the bridge which antedated the collision. The RTA observed that the bridge had been subject to regular maintenance and periodic inspection that included the years immediately prior to the collision. The RTA pointed to the detailed (level 3) inspection carried out by Henry Fok and others, at the direction of Mr Manchanayake which confirmed the general state of the structure. 271The RTA contended that there is little evidence that the old damage was severe or capable of compromising the bridge's functioning. The RTA referred to the evidence of Mr Fok, the Fok / Shah reports, as well as the evidence of Mr Selway, Mr Manchanayake and Mr Kennedy. 272It was the RTA's primary submission that "prior to the collision the bridge was, on any view, in sound working order with some minor damage requiring repair but not interfering with its structural integrity or operation" (PWS par 418). The RTA further contended that the transverse beams were mostly in need only of 'minor' repairs and it was only after Mr Luck's accident that the position changed. The RTA argued that the evidence was that the new damage was more serious and severe. Evidence concerning pre-existing damage to the bridge 273Prior to Mr Luck's accident, the bridge was inspected at regular intervals. These inspections were called "level 2" inspections which involved visual examinations of the bridge. A "level 3" inspection required a detailed structural inspection of the bridge's superstructure. 274Henry Fok, an RTA bridge project engineer, gave evidence that he was a member of a team of RTA officers who carried out a "level 3" inspection of the bridge in September 2002. Mr Fok's affidavit is exhibit M. 275Following the inspection, a "level 3" draft inspection report was prepared by Mr Fok in conjunction with Parvez Shah and provided to Mr Manchanayake, the RTA bridge maintenance planner, Newcastle Region. The draft report dated 25 October 2002 is exhibit PTB1 39-102. 276A second report, which was prepared by Parvez Shah (ex PTB1 175-181), included static test health monitoring and was sent to Mr Manchanayake. Mr Parvez Shah, Mr Fok and Peter Ton concluded that "overall the bridge was in good to fair condition except [for a] few damaged members" (PTB1 p 176). The major findings from the structural inspection were summarised in Table 1. These findings include the following: Span 2 - Struss (a)minor impact damage end post and 2nd verticals on the upstream side. (b)Partially corroded rivet at the top chord. (c)the deck slab good with few cracks. Recommended action be taken to: arrest further corrosion; and regular maintenance. Span 3 - Struss Tower span (a)major impact damage the 2nd verticals and diagonals from the South on the downstream side as well as two top chords(Uo-UI). (b)minor damage recorded 2nd diagonal from the North on the downstream side and one cross brace. (c)corrosions at the tower connections and tower floor near the top. (d)bottom chord connection suffered heavy corrosion. (e)the deck slab - good with a few cracks. Recommended that action be taken to: repair the major damage members of tower spans; arrest further corrosion; regular maintenance; and bottom chord required urgent attention. Span 4 - Lift Truss span (a)nine top chord braces damaged and two are major; (b)heavily corroded bolts at connections; (c)one hold down bolt at joint at LO (u/s) at pier 4 corroded. (d)the deck slab fair with concrete spalling. Recommended that action be taken to: Replace damaged top chord braces; Replace the corroded bolts; and Arrest further corrosion. Span 5 - Struss Tower span (a)major impact damage recorded the 1st verticals and 2nd diagonals from the North on the downstream side, two top chords (Uo-UI) and one cross brace. (b)minor damage - one verticals, three diagonals, two top chord braces. (c)corrosions at tower connections and tower floor near top. (d)bottom chord connection suffered heavy corrosion. (e)deck slab - good with few cracks. Recommended that action be taken to: repair the major damage members of tower spans; arrest further corrosions; and regular maintenance. Span 6 - Struss span (a)End post downstream from south significantly damaged. (b)Nine top chord braces damaged. (c)partially corroded rivets at top chord connections. (d)Footway girders downstream side - 20 per cent section loss at top flange due to corrosion. (e)deck slab fair with some spalling. Recommended that action be taken to: repair end post Southern end on the downstream side; replace the top chord braces; arrest further corrosion; and it was also noted that joint U2 requires remedial action urgently. Span 7 - Struss (a)five top chord braces damaged. (b)partially corroded rivets at top chord connections. (c)the deck slab - fair with some spalling. Recommended that action be taken to: replace the top chord braces; arrest further corrosion; and repair spalling. 277The Parvez Shah report specifically recommended that B Doubles 62.5t be allowed to continue travelling over the bridge and that the damaged members of the truss spans / tower spans be repaired / replaced to the bridge's original condition as soon as possible. 278When Mr Fok was asked during his oral testimony, where he placed the corrosion on the bridge that he had observed on a scale from one (very good) to 10 (very bad), Mr Fok nominated "one or two" (T332 L35). He did not agree that the earlier impact damage was "extensive", but said that some members were damaged by impact. He was taken individually to some of the photographs (PTB1 pp 46-54) and agreed consistently with the reports that there were photographs of cross-braces, verticals and diagonals for which repair or replacement had been recommended. He identified in the sketches (PTB1 pp 57-62) areas of damage in the individual spans. He agreed that impact damage was marked by an "X" on the sketches, that all the cross-braces on span 7 showed impact damage as did all of the horizontal and some of the cross-braces on span 6. As to span 5, Mr Fok agreed that three out of the six braces were damaged. Photographs 32 and 33 (PTB1 p 52) showed damage to span 5 braces. Mr Fok acknowledged that photograph 38 showed significant impact damage to the cross-brace on span 7 below the low clearance sign. He had recommended that the cross-brace be replaced. 279When considering span 3, Mr Fok did not disagree that the two top chord members UO, UI were seriously damaged by impact. Mr Fok explained: "...a top chord member is classified primary significant one. It means if that top chord fail, the bridge might collapse. A brace is classified 3. If one of the braces fail, the bridge will not fail." 280Mr Fok agreed that he had recommended that the top chord braces on spans 4, 6 and 7 be replaced. He said that when he inspected the bridge on 16 April 2003, he did not remember seeing any repair work to the items mentioned in his report. 281Mr Parvez Shah gave evidence that to the best of his knowledge nothing had been done before Mr Luck's accident about the recommendations in his report. Mr Parvez Shah's affidavit is exhibit O. 282Mr Manchanayake's affidavits are exhibits Z and ZZ. In his oral evidence, Mr Manchanayake stated that in the level 3 inspection, "there was no recommendation...for the bridge not to be left as operational to the general public" (T489 L22-25). In cross-examination, he said that the level 3 inspection was urgent as it was the only way to establish that the capacity of the bridge was adequate. He did not agree that the damage to the bridge he observed was part of the decision to request the level 3 inspection. 283Mr Manchanayake could not recall whether he had received the level 3 report prior to Mr Luck's accident. He acknowledged that he relied on the structural engineer's advice. He noted Mr Shah's description of two of the top chord members on span 4 being major. Mr Manchanayake agreed that although one damaged brace may not be of structural significance, when all of them are damaged, it did have structural significance. When his attention was drawn to five of the top chord braces in span 7 being damaged and was asked to assume that there was a recommendation that they be replaced, Mr Manchanayake acknowledged that he would have arranged to have that work carried out. 284Mr Deakin drew Mr Manchanayake's attention to the RTA memorandum entitled Hexham Bridge - Lift Span Warp (PTB5 pp 1295-1297) and agreed that the warping had been "a long standing problem after accidents, some time back" (T531 L35). He said that shimming is part of normal maintenance, that you have to keep balancing the spans because they sit on two different piers. Mr Manchanayake accepted that there was looseness in the counterweight ropes and if the shimming was done properly, there should not have been a problem with the ropes. He said that the ropes were old and had not been inspected for a long time. 285Mr Manchanayake was aware of an accident involving the counterweights before April 2003 that occurred during a bridge lift. He agreed that damage had not been remedied before Mr Luck's accident. He believed that this damage had subsequently been rectified. 286Mr Manchanayake said that he could not recall any damage to the side of the bridge being caused by the Toepfer truck. When taken by Mr Deakin to photographs 3-3, 3-4, 3-5 and 3-7 in the Halliburton report (PTB2 pp 383-403), he agreed that the "older damage" in those photographs appeared to be more severe than the "recent damage". These are photographs of the transverse beams and top chord bracing on spans 5 and 6. Mr Manchanayake believed that in spans 6 and 7 the braces had been replaced since Mr Luck's accident in accordance with Mr Shah's recommendations. 287During cross-examination, Mr Manchanayake was shown an undated and unsigned report from Worley Parsons ('Worley') entitled Hexham Bridge - Lift Span Warp (ex CD11). He said that he may have seen it, but could not recall the report being sent to his attention. The report recites that Worley was requested to investigate the torsional warp on the bridge lift span and report on the structural, operational and maintenance implications of leaving the warp in place. Worley was also asked to recommend a method to remove or reduce the warp to an acceptable level from an operational and maintenance perspective. 288Worley had been engaged by the RTA prior to 15 April 2003 to provide miscellaneous work on the bridge. 289The report includes the following: "The lift span on the Hexham bridge has a torsional warp caused by a distortion of the South western vertical truss panel due to a shortening of the diagonal in that panel. This shortening which came about during the replacement of the diagonal has the effect of raising the South western corner of the span approximately 40mm relative to the plane of the remainder of the lift span deck. ... It has been reported that this uneven load distribution has in the past caused problems with the tension in the up haul and down haul ropes and with the corner lifting to cause pounding when trucks drive it down onto its bearing. ... The problems associated with the warp in the past were very directly the result of the counterweight tensions not being in balance with the dead load reactions for the deformed shape. This resulted in the South western corner tending to lift off its bearing when in the down position with the subsequent traffic pounding which caused damage to the concrete deck at the deck / substructure interface and damage to the bearing. Also the South western corner tended to ride up when the span was being lifted with consequent problems with the up haul and down haul ropes." 290The author of the report estimated the cost of repairing the warp to be $15,000 for design, $60,000 for the actual repair as well as the cost of rebalancing the counterweights. However, the report concluded that "there are no compelling structural, operational or maintenance reasons to repair the warp as the current counterweight balance should achieve the same outcome." 291Admiralty was engaged by the RTA to inspect the bridge. Admiralty's inspection report dated 1 July 2002 is exhibit CD10. 292In a covering letter, Daniel Blanch the Managing Director of Admiralty states that the "report contains items which... require attention as a matter of priority." Mr Blanch states that Admiralty have "in no way conducted a full condition assessment of the... bridge" and recommends that further inspections be conducted to "contribute towards restoring [the bridge] to a safe condition." 293Amongst some 28 issues identified, the Admiralty report includes the following: North and south counterweights. The report identifies corrosion, including "heavy corrosion at point of entry to concrete." The report recommends that accessible loose spalling should be "immediately stabilize[d]", that access should be provided for professional engineers to conduct an inspection and that the counterweights should be repaired or replaced as per the engineer's report. The report notes that there was the potential for the counterweight in full or parts to collapse and fall into traffic. Lift span Up-haul rope adjustment studs and termination swage. The report identifies that the anchor / adjusting bolts are subject to heavy corrosion, requiring immediate attention. The report recommends that the studs be immediately replaced and that an inspection of the termination swage be conducted. Structural truss chord members (damaged by high vehicles). The report identifies that steel members were bent and corroded affecting the structural integrity of the bridge, requiring attention within 2 years. The report recommends that the full length of the structural steel member be removed and a replacement beam welded in place to Australian standards. Lift span support pedestal south west corner. The report identifies that the pedestal had sunk into the concrete column / pier due to misalignment and impact loading from the lift span, requiring immediate attention. The report recommends that the concrete column be restored, the pedestal be replaced and aligned to support the corner of the lift span. Lift span support pedestal south east corner. The report identifies that the pedestal had sunk into the concrete column / pier due to misalignment and impact loading from the lift span, requiring attention within 2 years. The report recommends that the concrete column be restored, the pedestal be replaced and aligned to support the corner of the lift span. Lift span buffer system. The report notes that the pneumatic buffer system had been made redundant and not replaced with an alternative, requiring attention within 3 years. Furthermore this had contributed to the deterioration of the lift span support pedestal and recommends that dampers of a current design be installed. Control room roof sheeting. The report identifies that the control room roof sheeting was subject to full penetration corrosion, requiring attention within the next year. The report recommends that the sheeting be removed and replaced as required. Counterweight rope sheave south west side inner bearing. The report identifies that the bearing had turned in the support housing and had sheered off at the lubrication point, requiring attention within the next year. The report recommends that an engineer design a repair or replacement of the top sheave bearings. Steel wire ropes. The report identifies that the internal condition of the swage termination was unknown, requiring attention within the next year. The report recommends that an engineer provide and report and conduct repairs as necessary. Bridge support bearings. The report identifies that the bridge support bearings had seized and were not operational, requiring attention within the next year. The report recommends that the bearings be repaired and/or replaced. Control room machinery. The report identifies that there was oil leaking through the floor dripping on to passing traffic, requiring attention within the next year. The report recommends that the oil sumps be repaired. Control room flooring. The report identifies that there was suspected rot and cracking apparent in the timber flooring and joists, requiring attention within the next 2 years. The report recommends that the flooring be removed, inspected and replaced as necessary. 294Joseph Krsul was the RTA asset manager who was responsible for roads and bridges on the state road network in the Hunter region. Mr Krusl's affidavit is exhibit W W. During cross-examination by Mr Deakin on the Admiralty report, Mr Krusl said that he forwarded it to Mr Manchanayake "for action in terms of reviewing the inspection" (T851 L10-14). He thought he had discussed the report with Mr Manchanayake but was not 100 per cent sure. Mr Krusl said that what the contractor wrote about repairs to the bridge needed to be reviewed and he relied on Mr Manchanayake to do that. An independent review was required as to what was needed and was to be prioritised. There were 700 bridges in the region. Mr Krusl's evidence on the topic of the Admiralty report included the following (T853 L35-46): "Q. What was the level of your conclusions about the work that was needed at this time in July 2002? Was it only maintenance work or did it go beyond maintenance works to include matters such as those developed within the Admiralty inspection report? A. We don't know fully. There was a list beginning we didn't know fully because somebody has to investigate this. Admiralty had put a list of things that need to be done, sure, they didn't know the priorities and obviously we hadn't done any investigation, so that is why the project manager is involved to actually determine that scope of work in the first place, but I know from my point of view it was, the WHS, the OHS WorkCover thing that we had to get done and there was minor maintenance that we had to get done under the contract." 295Mr Deakin cross-examined Mr Krusl on various emails in exhibit 18. Mr Krusl said that he expected a brief to be prepared in July 2002 by Mr Manchanayake for work and investigation to be carried out on the bridge. He was not aware of any substantial work required on the bridge other than the WorkCover notices and routine maintenance. 296Mr Krusl accepted that after Mr Shah had been engaged to carry out a level 3 inspection, he was provided by Mr Manchanayake with his brief for work on the bridge. 297In his affidavit (ex ZZ) Mr Manchanayake recounts that Admiralty was the bridge's operation contractor. Their duties were to maintain the electrical and mechanical systems that operated the lift span of the southbound bridge. He was concerned that the schedule setting out a list of work or investigations in the Admiralty report was an attempt by Admiralty "to increase the volume of its work and extend its contract in making these criticisms of the bridge" (ex ZZ par 23). He asked Parvez Shah to commission the level 3 inspection of the bridge and produced a "Project Brief" to be provided to Project Management Services in case all of the Admiralty criticisms were borne out by his investigations. The Project Brief was not a set of instructions to perform work but provided a general consideration of the possible scope of works. 298The Project Brief records, inter alia, that RTA Project Services would be engaged to manage specific repair works including the repair of "damage to various locations of the steel truss spans due to accidents". The stated objective of the project was to "rehabilitate / upgrade the structural components and mechanisms of the bridge to improve reliability and safety, leading to [a] reduction in long term maintenance expenditure." 299Vincent Gooley, a contract engineer, was provided with the Project Brief in late 2002. Mr Gooley's affidavits are exhibits JJJ and KKK. He conducted a detailed inspection and assessment of the bridge and of its operating condition. He also had regard to the draft Parvaz Shah report. Mr Gooley prepared a 33 point task list dated 29 November 2002, a copy of which is annexure C to exhibit KKK. The list was prepared in order of urgency or priority. Mr Gooley was aware "of the twist in the lift span, and some of the tasks (1, 4, 11 and 12) addressed the twist" (ex JJJ par 5). Without further detailing Mr Gooley's task list, it is apposite to note that the "inspect report repair/replace counterweights" and "inspect, report and replace counterweight rope attachments" are items 27 and 28 respectively. Structural steelwork repairs as per Henry Fok's report are item 29. 300Mr Gooley prepared an estimate of costing for some of this work (ex KKK annexure D, ex CD21). The total estimated costing was $1,147,000. The estimate relevantly included the following: Control Room Roof Sheeting $15,000 Control Room Floor $2,000 Adjust Rope Take-Ups and Align Bridge Deck $6,000 Lift Span Guide Rollers $1,000 South West Sheave Bearing $1,000 South West Lift Span Support Pedestal $2,000 South East Lift Span Support Pedestal $2,000 Structural Steelwork Repairs (Henry Fok) $510,000 301Mr Gooley recounted that at no time before Mr Luck's accident was any of the work in his estimate of costing performed or the subject of tender or contract. Mr Gooley was of the opinion that the bridge was operating normally prior to Mr Luck's accident. He was of the view as the project engineer that there were no significant safety concerns requiring urgent or immediate repair. To his knowledge there were no plans to undertake the repairs referred to in his 33 point plan. 302In cross-examination by Mr Deakin as to the damage to the top chord bracing in span 7, Mr Gooley's evidence included the following (T1062 L16-44): "Q. And in relation to span 7, could I then invite you to turn to page 88 in the exhibit in front of you? Apologies. Page 90 in the exhibit in front of you. Do you see there reference to impact damage at the slow lane to what Mr Fok has described as 'the top chord bracing'? A. Yes. Q. And he nominates the beams, six of them, the same as the sketch, that were damaged by impact in the slow lane, doesn't he? A. Yes. Q. So whatever your understanding of the meaning of those words, Mr Fok, you agree, has described those overhead beams on which he recorded damage in the slow lane as being 'top chord bracing', hasn't he? A. Yes. Q. And do you see on that page that I am asking you to read from, page 90, that the expression of opinion by Mr Fok, which he has also reproduced in his report, is that: 'The structural significance of one damaged bracing is not high but the combined effect of several damaged bracing would be critical in providing stability to the truss span.' Do you see that? A. I do, and he is correct. Q. So it made it urgent, didn't it, for this work to be addressed? A. Yes." 303Mr Gooley referred in his affidavit to the repairs identified in the Fok report as not being a priority. In cross-examination by Mr Deakin, Mr Gooley agreed that the repairs needed to be carried out and were a high priority. The damage to the top cord bracing identified at p 90 of the Fok report, Mr Gooley agreed had to be addressed urgently (T1062 L43-45). 304Mr Deakin drew Mr Gooley's attention to various documents in exhibit CD18 (formerly MFI 31) including Tab 45 which is a memorandum concerning the up haul rope adjustment measurements taken on 16 January 2003. On this topic, Mr Gooley gave the following evidence (T1070 L35-50): "Q. Do you agree that the attempts that this document refers to in relation to adjusting the uphaul ropes to try to remedy that defect that was found in the span, did not seem to have any effect? A. That's correct. Q. So there was a deeper seated problem, wasn't there? A. Yes. Q. Well before the accident in April, 2003? A. Yes. Q. And it was not addressed at that time, but it was inevitably going to need to be addressed in the near future, wasn't it? A. Yes." 305In further cross-examination, Mr Gooley agreed that in his email to Mr Manchanayake (ex CD18 Tab 50), he was being critical that work on the bridge was not being done. 306The condition of the counterweight ropes was the subject of a report from Bullivants Pty Ltd (Bullivants) to Mr Gooley. In an email from Hans Tiller an engineering development manager from Bullivants entitled Hexham Bridge - Counter weight Ropes (ex CD18 Tab 51, ex LLL), Mr Tiller states: "Vince, Now that the election is over and won, perhaps the steps outlined in the attached can be implemented." 307The Bullivants report entitled Proposal of actions required to ensure continuing safe operation of counterweight ropes on Hexham Bridge in Newcastle is attached to that email. In the report, Mr Tiller notes "there is some concern regarding the actual condition of the ropes. This report attempts to identify actions designed to ensure that operational safety of the bridge is not impinged." Mr Tiller recommended that a visual inspection of the ropes would be able to give a good indication of their general condition. His recommendations included that after an initial inspection, a more comprehensive inspection be undertaken to take particular note of any possible internal rope deterioration and a risk assessment of retaining the existing ropes in service without any further work be then prepared. Mr Tiller noted that a possible result of this risk assessment was "to recommend that one of the ropes be removed from service to enable a full internal and external inspection as well as destructive tests to be carried out" (ex CD18 Tab 51 p 2). 308During cross-examination by Mr Deakin on the counterweight ropes, Mr Gooley's evidence included the following (T1079 L45-50, T1080 L1-42): "Q. Could you just remind me, Mr Gooley, in your affidavit you have stated, as I recall it, that there was no indication that the ropes needed replacement prior to this accident. Do you remember stating that? A. Yes, I think I said that, yes. Q. Is that an error? A. No. That's correct. Q. Which is correct, what is recorded in the minutes or what A. I understood from my own point of view as an engineer that the ropes were well past their useby date and, therefore, needed to be changed out, but I had no approval from anyone in RTA to even advance that. Q. No, but the point being it was your opinion that they were well past their useby date? A. Yes, and my expert, a man named Hans Tiller. Q. And who was Mr Keller from A. Tiller, TILL-ER. Q. He agreed with you-- A. Bullivants. He's a world expert. He sits on the Australian Standards on ropes. Q. He agreed with you as well that they needed replacement? A. He suggested the ropes were way past their useby date. Q. Thank you. And even before Mr Tiller was involved from Bullivants, you had another report saying the same thing, did you not, as at November 2002? A. Yes. Q. Do you remember if that was a Kenshaw report or was it something A. No, I don't. Q. You don't remember, but it was a report that said these are past their use by date and need replacement, to the best of your recollection? A. To the best of my recollection, yes. Q. Did you recall hearing or reading reference to concrete cancer in the counterweights as well? A. Well, whether I read it or not, it was there. Very aware of it. Q. And did that also lead you to concluded that not only the ropes were well past their useby date, but the counterweights themselves also? A. Yes. Q. And needed replacement? A. Yes." 309Mr Gooley said that there were no plans to replace the ropes but in his opinion they needed replacement. 310John Selway, a bridge support officer, gave evidence that from his recollection the bridge had sustained minor impact damage prior to Mr Luck's accident. In 2002, he was supervising the maintenance work on the bridge with the contract being carried out by Admiralty. Mr Selway's affidavits are exhibits SSS and TTT. His recollection was that the horizontal members of the bridge above the roadway were in fairly good condition. He was not aware of the level 3 inspection carried out by Mr Shah and Mr Fok. In cross-examination by Mr Deakin, he accepted that in November 2002, a problem in relation to a seized counterweight sheave truncheon bearing had come to his attention. His evidence on this topic included the following (T1159 L36-50): "Q. That was a serious problem at the time? A. It was a serious problem but it was monitored and it was a managed problem. Q. Do you recall it also coming to your attention that it was determined that there were no temporary measures that could be carried out to correct that situation; it needed a much bigger job carried out? A. That is correct. Q. And a structural engineer was to be engaged with a view of designing a suitable lifting frame to enable the counterweight sheave to be lifted sufficiently to remove the bearings and number the extent of the damage? A. That's correct." 311Mr Deakin referred Mr Selway to an email sent by Kevin Strange to Mr Manchanayake on 6 November 2000 which included (ex CD18 Tab 1): "The main concern is that in operating the lift span in its present state will cause damage to the trunnion (shaft) of the counterweight sheave. There is also the question of the condition of the other seven bearings, which should also be inspected. It may be an opportune time for the RTA to also consider replacing the counterweight ropes. These ropes are as original ie 50 years old, and their structural integrity is unknown, which presents a major risk to the users of the Bridge." 312Mr Selway said that Mr Strange was a certified engineer. He recalled that they were looking at a frame that could be manufactured to support the counterweights at their raised position and replace the ropes at that time. Mr Selway agreed that once the work of devising the frame had been completed, he expected that the work of replacing the counterweight ropes and the sheave bearings would go ahead. Mr Selway acknowledged all of this well and truly pre-dated 2003. Evidence concerning the damage to the bridge caused by Mr Luck 313I have previously summarised the eyewitness accounts provided by Mr Condon and Mr Hardiman (see [44]-[47] above). Both witnesses described the arm of the excavator striking the overhead crossbeams. Mr Wyborn agreed that as the truck drove onto the bridge, there was a noise consistent with the truck striking more than one overhead structure. He recalled that a lady said to him "you have left crap all over the bridge". 314The first close inspection of the bridge after the accident was conducted by Paul Ford who was employed by the RTA as the Bridge Surveillance Officer. Mr Ford's affidavits are exhibits HH and JJ. During the period from February 2002 to 15 April 2003, he attended the bridge at least once a month and had last visited the bridge in March. It was Mr Ford's evidence that prior to the accident, the bridge was functioning for traffic and as a lift span opening bridge. He recounted that he was "generally familiar with the existing structural damage to the bridge" (ex HH par 8) but stated there were no major problems with its operation. He said that the lift span was fully operational. 315On the day after the accident, Mr Ford visually inspected the bridge. The fresh damage was readily identifiable as it had cracked and lifted the paint on the transverse steel beams exposing the underneath red lead primer. Mr Ford assessed the new damage to be extensive. The damage to the bridge that he observed was as follows (ex HH par 12): "(a) damage to the transverse overhead beams, some of which were bent and twisted and out of shape. (b) severe damage to the northern tower of the lift span. (c) damage to the steel beams located under the Northern Tower. These beams connect one side of the Bridge to the other and support the tower that lifts the section of the road surface, which rises when the lift span is in operation. It also supports the counterweights. (d) The main beam under the drive house was sheared almost to the top. The main beams under the Northern and Southern towers sit a few inches lower than most of the approach beams and the beams under the Northern tower looked very badly bent. One beam was twisted and sliced through ... I then entered the drive house and observed significant damage. The fire extinguishers, which are normally fixed to the inside wall of the drive house had become dislodged and had discharged. (e) The bell housing, which is part of the cast engine block of the engine which drives the winches, was cracked. The floor to which the bell housing is fixed had been raised ..." 316Mr Ford photographed the damage that he saw during his inspection. These photographs are included in PTB1 pp 188-274. During his oral evidence, Mr Ford marked the "continual line" along the cross-members that revealed the red lead primer with a green highlighter on photograph PTB1 p 188. The old damage was marked by Mr Ford in orange. 317Mr Deakin informed the court that the insurers would not be contesting that the continual line came from the damage caused by the truck (T604 L19). 318I do not propose to mention all of Mr Ford's evidence when he was taken by Mr Manion to the photographs, but will refer to parts of it. Mr Ford testified that the horizontal member depicted in photograph PTB1 p 191 was not damaged prior to the accident and "definitely didn't have the bend in it" (T606 L24). He said that photograph PTB1 p 193 was span 7 on which could be seen new damage being "the ripple in the bottom [flange] where it was raised up". Mr Ford compared the new damage to the pre-existing damage. The new damage was pushed up and rotated upwards. Mr Ford's evidence on this topic included the following (T607 L31-38): "Q. In relation to the old damage where that had occurred in the lefthand lane, how would you describe that? Was that pushed up or pulled down? A. No, it was rotated down. So the [flange] was it was a different impact where it actually rotated the [flange] down where the new damage was opposite. It was basically lifting or rotating it upwards rather than down as opposed to the old damage." 319Mr Ford's evidence of new damage included other damage to the transverse beams, drive house, lift span locking pins, damage to the overhead transverse beams in the lift span, and damage to various overhead transverse chord braces. When taken to photograph PTB1 p 214 which depicted the lift span locking mechanism, Mr Ford's evidence was as follows (T613 L34-49): "Q. What was the damage you observed to the locking pin mechanism in that location, to the 15 April incident? A. I can see from the photograph it is rotated down. It has normally not a female socket that it is retained in there is large solid piece of steel, probably 100 millimetres in diameter, and that would lock into the female socket, and that held the bridge down. So, it is disengaged from the female. On the other side, and you can't see it, was a connecting rod that went right through to the drive house. There was severe damage, and that rod was broken that connected to that locking mechanism on the end of that portal frame area. Q. What was the condition of that, prior to 15 April? A. It was in sound operating position. Q. Deformed or twisted? A. No, deformation or twists." 320In cross-examination by Mr Deakin on the span 7 beams, Mr Ford accepted that if the first of the span 7 beams was required to be replaced before the accident, then the same work was required after the accident and primarily it involved the same cost. He accepted that if rectification work, including the removal of other braces and transverse beams was required before the accident, there would be no additional cost in carrying out that work after the accident. 321Mr Ford agreed that a number of diagonal braces had sustained old damage and he had been unable to identify any new damage to those diagonals following the accident. He said that a lot of the diagonals had been replaced. 322Although Mr Ford gave evidence in chief that the transverse beam in the lift span was in normal working condition, straight and true without severe defects before the accident, he appears to have been mistaken. In cross-examination, he agreed that there was pre-existing damage. He accepted that the old damage was almost in the identical area to the new damage he had pointed out as being from the truck. 323Mr Ford was not aware of the recommendation by Mr Shah that the damaged top chord braces on span 4 be replaced. He agreed that if it were recommended that those beams be removed, it would have been necessary for the structures above those beams to be removed as well. 324On 16 April 2003, Henry Fok, Steve Hoolihan, Shaun Hinks, Deve Manchanayake, Joe Krsul and Rodney Oats inspected the bridge. Mr Oates' affidavit is exhibit RR. Mr Oates is a civil engineer who was the manager of RTA Bridge Rehabilitation Projects. He had around 30 years experience with steel truss bridges. Mr Oates observed damage to the following parts of the bridge (ex RR par 15): "Beams and top chord bracings were twisted, bent, or sheared and much of the overhead structure had been damaged as a result of the impact. Specifically I observed damage to the following parts of the Bridge: a. A sheared main portal beam under the northern counterweight tower; b. A twisted and badly deformed lift span portal beam at northern end of lift span; c. A twisted and badly deformed northernmost beam under the machinery room floor. The lift span floor beams were severely impacted and the paint was cracked, flaking, and the red undercoat was exposed; d. A bent main portal beam under the southern counterweight tower; e. Impact damage to each and every transverse beam, varying in degrees. f. The top chord cross bracing going through the Bridge had been twisted and bent; and g. I also observed that the locking pins between the lift span and the counterweights were deformed, broken and not operational. h. Damage to the machinery room was such that the floor of the Machinery House was distorted causing misalignment or destructions of machinery components." 325Mr Oates was "very concerned about the stability of the northern tower as the main portal beam above the deck had been sheared through its bottom flange and the whole of the web, leaving only a bent top flange intact" (ex RR par 15). He formed the view that the strength of the portal frame was seriously compromised and emergency repairs were required to secure the bridge against a possible catastrophic failure. 326Emergency repairs which included welding a 6IOUB101 beam over the damaged northern counterweight tower's main portal beam were undertaken on the night of 16 April 2003. The bridge was closed from 7.30am to 7.00pm so that the beam could be welded into place and other emergency repairs completed. 327Further emergency repairs were carried out on 29 April 2003 to the portal beam on the southern lift span tower. Additional repairs to lock down the lift span were also undertaken as a matter of public safety and to safeguard the bridge from sustaining further damage from passing traffic. 328Mr Oates explained in exhibit RR par 14 that he could clearly identify recent damage as "the paint was cracked, flaking and the red undercoat was exposed". The damage, he said, was obviously fresh. In this regard, Mr Oates' evidence is consistent with Mr Ford's testimony. Furthermore, Mr Condon saw "red paint underneath the grey" and Mr Hardiman recounted that he saw that grey paint had been flaked off where the excavator arm hit the crossbeams. 329In cross-examination by Mr Deakin, Mr Oates agreed that he did not specifically try to identify new damage from old damage. His evidence included the following (T783 L37-50, T784 L1-10): "Q. Can I ask you specifically what impact damage at all you are now able to recall to the transverse beams to the south of the lift span? A. To the south of the lift span, okay. Q. What can you recall about damage to the transverse beams to the south of the lift span? A. The main portal beam just south of the lift span was bent, severely bent and the locking device was not in operation. Q. I can tell you, Mr Oates, there is no dispute about that. Beyond that beam to the south, what can you recall now about impact damage to transverse beams, if anything? A. There was I can only talk generally, in that because the damage, when it was done, because of the red oxide undercoat or red lead undercoat on the bridge, it is fairly obvious what is recent damage. It is very bright. Q. Well, you came to a conclusion about how recent it may have because of red oxide paint? A. That's correct. Q. It may be months old or are you qualified to give evidence about what matters can be relied upon because of red oxide damage, red oxide exposure? A. Red oxide exposure is fairly obvious, very obvious." 330Mr Oates said he was not aware that before the accident a structural engineer retained by the RTA had identified an urgent need for repairs to be carried out because of the structural threat to the bridge. He was concerned with the structural integrity of the U101 beam but was unaware that it had suffered a severe impact before Mr Luck's accident leading to the recommendation by Mr Fok that the beam be replaced. 331At the time of the accident, Vincent Gooley was working for the RTA as a consulting project engineer. He had been engaged to improve the reliability of the Swansea and Hexham bridges. Mr Gooley had inspected the bridge on several occasions prior to the accident. He was aware that the bridge had some unrepaired damage but said that the bridge was functioning properly. Mr Gooley inspected the bridge on or around 23 April 2003. He recalled looking at "fresh damage" to the bridge as distinct from the old damage. 332In a report dated 24 April 2003 (PTB1 pp 141-143), Mr Gooley drew a distinction between the old damage and the damage caused by Mr Luck. He stated (PTB1 p 141): "We note that the bridge structure suffered impact damage some years ago. This damage was apparently caused by a too-high load striking the horizontal members across and between the top chords of the trusses. This damage is typically distortion and partial rotation of the bottom flange of the RSJ beams. It appears to extend from the Northern end in the slow lane almost to the drive house where, we can guess that the driver became aware and stopped his truck." 333As to the new damage, Mr Gooley stated (PTB1 p 142): "This new damage is more severe. It appears that the truck was in the fast lane until it passed the drive house, where it then veered towards the road centre line. The damage extends along the full length of the bridge, and is most severe at the lift span. Whereas this previous damage appears to have been caused by something catching the bottom flange of the RSJs and rotating them down and around, this new damage is of the structural members being pushed upwards, possibly by the up-sloping boom of the excavator. Commencing at the Northern end in the fast lane, the damage is apparent on every cross-beam of the fixed truss spans. It is, however, not as severe... We can guess that these beams flexed upwards allowing the excavator boom to pass underneath. Then they sprung back into place. However, these beams now have no compressive nor torsional strength. They cannot be repaired. That is, they can only be replaced... The damage becomes worse at the lift span. At the major cross-beam at the lift-span Northern end, this 24 inch deep RSJ beam is constrained from rotation by the locking pin and socket. So this beam has been ripped through the bottom flange, then up through the web, leaving only the top flange still intact ... The locking pin shaft and socket system has been destroyed." 334Mr Gooley noted that as the truck passed the southern end of the lift span, it caught the main beam and distorted it more than 300mm horizontally and 15 to 20 degrees out of vertical. He stated that the locking pin and socket system could not now be engaged. Mr Gooley reported that the truck then continued travelling south through the bridge, veering towards the centre of the road. 335During cross-examination by Mr Deakin, Mr Gooley's observations in the report were not challenged. 336In his affidavit, Mr Gooley stated that the main damage included the following (ex JJJ par 12): "a. Structural damage: Every overhead member from the northern end to the southern end of the bridge had been damaged to some extent. There were 34 of these. You could see where the excavator arm had hit them, starting in the right hand lane and moving towards the left on the southern side of the Bridge. There was a tear all the way through the web of the main portal beam of the northern counterweight tower, from the bottom flange through the web up to the top flange. This was a massive beam. The damage was generally more severe on the approach spans, that is towards the northern end, however it extended the whole way across the Bridge. The most severe damage was in the vicinity of the lift span, where some of the overhead beams were deeper and sat lower. The damage ranged from severe to moderate damage on each of the cross members, generally becoming less severe towards the southern end. The lift span itself had been physically moved, and was no longer securely located in its proper position by its original fixing mechanism, which had been severely damaged as a result of a sheer force caused by upward movement of the lift span. b. Mechanical damage: The drivehouse was located onto the top of beams which had been struck directly and forced upwards by the impacts. It was plain that a great deal of force had been applied, because a fire extinguisher, which had been affixed to the wall, had been ejected through the fibro ceiling of the drivehouse, and subsequently discharged. This fact indicated to me that at some point the drivehouse had risen and dropped a significant distance, with force and speed. The contents of the lift span drivehouse, ordinarily kept in an orderly manner, had been thrown up on the air and separated out, and were all over the place. Some of the mechanical components - such as the motor, shafts, gears etc had been deformed, moved out of alignment, or broken. These were very sturdy components, securely affixed to the structure. Some of the couplings were out of alignment, and mechanical components had been broken for example the bellhousing of the tractor engine of the drivehouse was smashed and the starter motor broken off. The mechanical components controlling the lift span were inoperable, as was the lift span itself. The locating pins which held it locked in position were badly damaged, with the result that it was not secured in position. Prior to the 15 April 2003, everything had been functioning well. c. Other damage: The drivehouse was a timber-framed structure with a galvanized iron roof and cladding. After the impact, the frame was distorted and the cladding was coming off in places, and in other places had completely come off the frame. The floor which supported the winch, motor, and drive mechanism was distorted, with the distortion extending to the drive mechanism itself, which was no longer in alignment or usable. I was cognizant of the prospect that cast iron sheaves and their axles and bearings at the top of the counterweight towers would have sustained shock loadings, as would the wire ropes, the spliced terminals, and the mild steel rope support brackets embedded into the tops of the counterweights. The counterweights were already in a distressed condition. The counterweights were no longer both hanging level. One at least was no longer level. The wire ropes which had in 2002 been adjusted for equalization of tension, and rechecked by Kenshaw Electrical Pty Ltd ('Kenshaw') just weeks before the accident, were no longer in equal tension and some of the ropes were lying slack... The counterweights were a considerable height up in the air, positioned directly above the traffic, supported only by wire ropes affixed to 5/16" mild steel angle brackets. They were quite capable of destroying the Bridge should they fall. d. Unknown damage: The road surface lay upon a fabricated platform of steel beams (the deck) located on concrete piers embedded into the river bed. The rest of the Bridge was built upon the deck, forming essentially a number of box sections or spans. The entire weight of the steel structure, road surface and traffic was supported on bearings which were located on the tops of the piers, the capitals. I could not be certain of the possible extent of any damage to the deck, bearings or piers until investigations were undertaken." 337When cross-examined about damage to the southern transverse braces, Mr Gooley denied that there was a real possibility that another truck may have done it. In further cross-examination about pre-accident damage, Mr Gooley agreed that the warping of the span was a deep seated problem well before the accident and inevitably required addressing in the near future (T1070 L36-50). 338Mr Gooley was not cross-examined as to his assessment of the damage to the drive house caused by Mr Luck. It was his opinion that the drive house had risen and dropped a significant distance, with force and speed and the frame and floor was distorted. 339Mr Gooley's opinion as to the damage to the drive house was supported by Craig Kennedy in the report prepared by Kenshaw Electrical (ex PTB2 339-359). Mr Kennedy reported (PTB2 p 351) that "the impact of the excavator boom caused structural members to distort and damaged the control room house and flooring." He noted that the excavator boom raised the control room middle section causing the tractor motor to distort from alignment by approximately 34mm. The tractor motor casting and starter motor had been broken from the impact. 340Mr Kennedy reported that the first major point of impact was the north main structural support beam on the lift span. He considered that due to the force of the impact both socket and bearing brackets on the north and south towers were damaged beyond repair. Mr Kennedy observed that the governor over speed centrifugal switch had been moved from alignment and the main limit switch and cable located at the southern end of the bridge span had been damaged. 341Mr Kennedy noted that the up haul / down haul ropes had been adjusted four weeks previously by Kenshaw Electrical and at that time, tension was equal on all ropes. However, after the accident the rope tensions were not equal "indicating twisting of the spans" (PTB2 p 355). 342Mr Kennedy's observations were not challenged in cross-examination. 343Mr Gooley's description of the passage of the truck across the bridge was supported by Dr Sid French, who inspected the bridge on 7 May 2003. Dr French holds a doctorate in structural engineering and is a structural engineer with extensive experience in bridge engineering. Based on the inspection, Dr French produced the Worley Hexham Bridge Truck Damage Initial Investigation Report (PTB2 pp 321-338). Dr French summarised the damage caused by Mr Luck as follows: "2.1 Low Loader / Excavator Impact of 14 or 15 April 2003 It has been concluded that the damage was caused by a low loader carrying a large excavator, with its boom above the legal gauge. The detailed description of the passage of the vehicle given by Mr Gooley appears to closely match the observed damage, and so will not be repeated here. The damage may be summarised as: 2.1.1 Major Transverse Members There are seven transverse members that are some 240 mm deeper (504 mm) than the typical cross members (260 mm). Their bottom flanges are 200 mm lower than the typical members, and have a clearance above the deck of 5380 mm at the kerb and approx 5320 on centreline. These members occur either side of the fixed/lift gap, with three under the lift machinery room. All seven have been badly damaged, with one suffering a severed bottom flange and web torn up close to the top flange. The remainder are badly distorted with major distortions of the bottom flange and buckled webs. In all instances the impact has also caused local distortions of these members at their end connection to the top chord of the bridge trusses. In one instance at least there is also distortion of the bridge truss. 2.1.2 Normal Transverse Members The transverse members for the remainder of the bridge are 260 mm deep members with flanges of 200 mm by 8 mm. Every one of these members has been impacted by the event. Damage to these members typically involves upward distortion of the leading edge of the bottom flange, horizontal displacement of the top and bottom flange, and torsional displacement due to the bottom flange being displaced more than the top. This combination would seriously reduce the compression capacity of these members. The last eight transverse beams suffered less impact effect than the more northerly ones, presumably due to the excavator having been impacted into a lower stance on the loader. These members have locally distorted bottom flanges but no visible permanent member displacements. 2.1.3 Secondary Members The excavator arm does not appear to have impacted any diagonal braces in upper plane of the approach spans. However, in the area under the machinery house there is evidence of both primary impacts and secondary damage due to transfer of high forces causing buckling of secondary members, failure of rivets etc. The lower parts of the machinery house itself have been damaged by applied displacements that have split timbers, pulled nailed joints open and generally misaligned the detailing of the building. The impact energy has also caused extensive damage to the machinery above, including misalignments. Secondary damage also occurred at the approach/lift span interface where the pins which hold the lift span in alignment have been failed along with various associated mechanical components." 344Dr French was aware that the bridge had been "the subject of numerous impact damage events" (PTB2 p 325). Whilst considering that the damage caused by Mr Luck was "undoubtedly the most severe of the visible events", Dr French considered that the "others have also been very significant, causing significant reductions to member strength". Dr French summarised the previous impact events in the slow lane as follows: "2.2 Previous Impact Events In Slow Lane A previous high load impact event has caused damage to the three northern trusses, and minor damage to the lift span. In this instance the obstruction has behaved differently in that it has caught the leading edges of the transverse members and dragged them down and forward instead of wedging them upward as described above. The bottom northern flange outstand of the entry transverse member has been torn to the web, and this member appears to have been displaced horizontally and torsionally by this event. The impacting obstruction also appears to have sprung upward between the transverse members sufficiently to impact some of the diagonal braces. Seventeen transverse members have been damaged to varying extents and ten diagonals bent and/or distorted. The severity of the damage reduces along the bridge, and the heavier transverse members are scratched rather than damaged. In other events a variety of impacts have occurred to the main truss members. At least one of these is of sufficient severity to warrant consideration for correction in the near future." 345During cross-examination by Mr Deakin, Dr French was asked (T824 L30-44): "Q. Were you ever asked to address the horizontal structures and the damage to the horizontal structures above the roadway? A. Not to my recollection. Q. I want you to assume that two witnesses, called on behalf of the RTA, have agreed with the proposition that this accident in April of 2003 did not cause any of the damage that you observed to those vertical structures; do you agree with that statement, or could I ask you this: Is there anything that you can point to, to contradict that evidence that I'd like you to assume two witnesses have given? A. To the best of my recollection, the incident we are discussing caused damage to the overhead members, including out at the ends of those, but not extending down into the vertical members." 346Rob Parry-Williams who was the senior project manager for maintenance delivery tasks on the bridge in 2002 agreed in cross-examination that the works specified in Mr Manchanayake's "brief of works" dated 1 July 2002 (ex AA) would, subject to budgetary and other priorities, have been carried out. Mr Parry-Williams acknowledged that part of the repair work carried out after the accident involved, in all likelihood, damage that had been there before the accident. He accepted that part of the work involved an upgrade or improvement to extend the life of the bridge. Mr Parry-Williams' affidavit is exhibit YY. 347In his affidavit (ex W W) Mr Krusl stated that the damage caused by Mr Luck was extensive and the repairs would involve significant cost. The main task was to repair the damage to the bridge and to make the opening span of the bridge functional. Mr Krusl recounted that as the project progressed "some opportunities for repairs of old damage and for maintenance were also undertaken and some preventative work was also done" (ex W W par 10). In cross-examination Mr Krsul gave the following evidence (T877 L2-11, L23-37): "Q. And a lot of the work, I want you to agree, that was required and carried out to the bridge after the accident, was rehabilitation work and repair work of problems that had existed with the bridge before the accident, do you agree with that? A. I wouldn't say a lot of the work. Q. It was a significant component of the work, was it not? A. No, just looking at the amount, I guess, of the work, it was in our opinion it was probably more half/half. Q. You took the opportunity to upgrade the bridge, didn't you? A. In certain aspects, yes. Q. And to install a number of features on the bridge that were not there at all before the accident, correct? A. Yes. Q. And the combination of those aspects of the work that added something to the bridge that was not there before, and repaired or rehabilitated aspects of the bridge that had existed before the accident, you would agree in combination amounted to the greater part of the work, did it not? You have already agreed 50 percent each way. If you add to it the work that was added to the bridge, it was more than 50 percent? A. No, I think in the total in terms of the repairs versus the maintenance, it was about 50/50, from what I recall." 348In a report dated 21 May 2003, Geoff Jones of Kellogg Brown and Root Pty Ltd (KBR) provided an inspection report on the impact damage to the mechanical and electrical services on the bridge caused by Mr Luck's accident. The report is exhibit PTB2 361-382. The purpose of the inspection included the examination of the damage to the lift span opening and closing machinery and to the mechanical and electrical service installations on the bridge. Mr Jones observed that the petrol engine bell housing was severely fractured with the starter motor broken away and the friction clutch system inoperable. He suspected damage to the clutch itself (PTB2 p 368). 349Mr Jones described the severe misalignment of the clutch shaft with the gearbox shaft (PTB2 p 369) and the misalignment of the coupling connecting the main gears to the western main transverse shaft (PTB2 p 370). He noted that the raising and lowering steel ropes were slack and lying on the top of the steel beams. Mr Kennedy of Kenshaw Electrical had advised Mr Jones that this was as a result of the counterweights being moved by the vehicular impact (PTB2 p 371). Mr Jones observed severe damage to the locking shafts where they restrain the lift span to the fixed bridge spans (PTB2 p 372). No damage could be seen to the gearbox. 350Mr Jones concluded that "the type of damage observed both in and below the control room supports the RTA's claim that the damage done to the machinery is as a result of impact damage" caused by Mr Luck's accident (PTB2 p 373). He found the damage "to the control room structural flooring would have caused large relative movement of the machinery" consistent with the damage and misalignments observed (PTB2 p 373). The relative movement was more pronounced as a result of the design of the bridge, which did not include the machinery being mounted on a common structural base. 351Mr Jones recommended repairs be undertaken but noted that the machinery repairs could not be commenced until a stable and fixed control room floor had been provided. As this required the total rebuilding of the control room and associated support beams, Mr Jones considered that this might necessitate the removal and re-installation of that machinery. Mr Jones understood that to enable this work to be carried out "the counterweights will be required to be removed or temporarily secured in position" (PTB2 p 373). He noted that the petrol motor would need to be replaced as it was 51 years old and replacement parts were unavailable. He agreed with the proposal that the petrol engine be replaced with a new diesel engine as diesel fuel presented a much reduced fire hazard. 352In a report on structural impact damage to the bridge dated 21 May 2003 Ian Cochrane from KBR observed that in span 6 (i.e. span 7), "the Northern end transverse beam in the top chord bracing had been damaged recently at about 1/3 of [its] length from the Western end, the impact had been from the North, the bottom flange of the beam had been locally twisted and the beam had been rotated about [its] longitudinal axis" (PTB2 p 391). Mr Cochrane noted that "similar, more severe older damage was observed to the same member at about 1/3 of its length from the eastern end." 353Before proceeding further with a summary of Mr Cochrane's report, it is common ground that Mr Cochrane had individually adopted a different numbering system for the spans. Mr Cochrane numbers the spans 1-6 from south to north rather than 2-7 adopted by other witnesses. Accordingly, Mr Cochrane's numbering is one out across the bridge. In my summary, I will use the numbering system of the other witnesses. For example, where Mr Cochrane refers to 'span 6', it is in fact 'span 7'. 354When discussing span 6, Mr Cochrane recounts that similar damage was observed to all transverse beams in the top chord bracing of the span. He depicts in photo 3-5, the line of recent damage (in orange) and the line of older damage (in blue). The older damage was located about 2000mm east of the newer damage. Mr Cochrane observed recent cracking distress in the paint at the end of the transverse beam where it was bolted to the main truss top chord. Mr Cochrane opined, "the distress observed was consistent with local yielding of the beam caused by the recent impact" (PTB2 p 393). Photo 3-7 shows the recent damage of the top chord bracing and the 50-75mm buckle in the bottom flange caused by the recent impact is shown in photo 3-9. 355Mr Cochrane reported that similar damage was observed to the top chord bracing transverse beams to span 5 to that in spans 6 and 7. He noted that the last southern transverse beam in the top bracing of span 5 counterweight tower was a deeper member with its top aligning with the typical smaller beams. Mr Cochrane reported that it had been torn through about 80 per cent of its depth by the recent impact. 356Photograph 3-11 shows the damage to the northern end transverse beam in span 4 (lift span), which Mr Cochrane says, was severely bent and buckled by the recent impact. Photograph 3-12 shows damage to the transverse support beams for the control/machine room on top of span 4 that were damaged by Mr Luck's accident. Mr Cochrane reported, "the hold down pin between the lift span and the adjacent bracing beams and its actuating mechanism was damaged" (PTB2 p 398). 357When considering spans 3 and 2, Mr Cochrane observed "the northern transverse bracing beam of span [3] that also braces the span [3] counterweight tower was severely bent laterally from the vehicle impact" (PTB2 p 400). A red line on photo 3-16 depicts the damage to the top chord bracing beams caused by Mr Luck's accident. 358Mr Cochrane concluded that severe damage had been caused to many truss top chord bracing beams by the recent impact. He opined that "this could compromise the stability and possibly the strength of the main trusses" (PTB2 p 401). He reported, "the severe lateral bending damage to the major transverse bracing beams restraining the counterweight towers in spans [3] and [5] is considered to have reduced the stability of the towers to withstand lateral loads. The damage to the hold-down pins has also reduced the stability of the lift span against unintended uplift" (PTB2 p 401). 359In his recommendations, Mr Cochrane considered the repair methodology. He reported that the appropriate procedure for repairing the impact damage to the bridge should take into account the structural strength and stability of the bridge in its current condition, would need to be consistent with the requirements of the lifts and crane standards for the lifting mechanisms and consistent with RTA, WorkCover and OHS standards. It would also need to provide for the safety of travelling vehicles. The expert evidence of the parties 360Professor Peter Ansourian was engaged by the RTA's solicitors to prepare a report on the damage suffered by the bridge in Mr Luck's accident. He was also asked to carry out a dynamic analysis of the impact. Professor Ansourian's Investigation report is found at exhibit V V V annexure B. 361At the commencement of the report, Professor Ansourian considers the prior damage to the bridge by reference to the Parvez Shah report. He notes at p 3: "...recommendations were made for repair or replacement of members. It is believed that there would not have been a sufficient time interval between the [Parvez Shah] report and the accident for the recommendations of that report to be implemented so that consideration must be given to the pre accident condition of members or connections that were eventually repaired or replaced." 362Professor Ansourian summarised the findings of the Parvez Shah report and then expressed opinions as to the significance of the pre-accident damage to repairs following the collision of 15 April. 363As to span 2 (Truss span) he noted the pre- accident damage and opined (ex V V V p 4): "Significance to repairs following collision of 15th April: This later collision would have reduced the stiffness of the bracing system and hence made repairs to the end posts urgent, as they are compression members susceptible to buckling. Had the collision not occurred, these posts could have remained in their lightly damaged state for the normal life of the bridge." 364As to span 3, Professor Ansourian summarised the pre-accident damage reported in the Parvez Shah report and opined (ex V V V p 4): "Significance to repairs following collision of 15 April: This later collision would have reduced the stiffness of the bracing system and hence made repairs to the truss compression members (top chord members) imperative. Brace U0-U0 was recommended for replacement before the accident." 365After summarising the pre-accident damage to span 4 (Lift Span) reported in the Parvez Shah report, Professor Ansourian stated (ex V V V p 5): "Significance to repairs following collision of 15 April: Two of the deep braces in this span required repair/replacement following older impacts, but were neither repaired or replaced prior to the collision. This later collision caused heavy damage to all remaining braces, and serious damage to several diagonal braces." 366When considering span 5, Professor Ansourian summarised the pre-accident damage reported in the Parvez Shah report and then expressed the following opinion (ex V V V p 5): "Significance to repairs following collision of 15 April: The early fracture noted above to the bottom flange of the deep 598mm brace most likely exacerbated the severe fracture observed during the later collision, the final fracture was through the bottom flange and most of the web. It is considered likely that had the old partial fracture not occurred, the damage to the deep brace would have been of the same form as observed in other deep braces: plastic deflection and rotation rather than fracture; despite the older fracture, the deep brace would have to be replaced. Further, the later collision would have reduced the stiffness of the bracing system and hence made repairs to the truss compression members (top chord members) imperative." 367As to span 6, Professor Ansourian summarised the pre-existing damage reported in the Parvez Shah report and opined (ex V V V p 6): "Significance to repairs following collision of 15 April: Further loss of stiffness of the cross and diagonal braces caused by the later collision would force urgent repair to the previously damaged posts, as they are compression members requiring lateral support from the braces. The five cross braces and four diagonal braces had suffered unspecified damage." 368Having summarised the pre-existing damage to span 7 reported in the Parvez Shah report, Professor Ansourian states (ex V V V p 6): "Significance to repairs following collision of 15 April: All 5 braces were recommended for replacement before the accident; their replacement post accident became imperative." 369Professor Ansourian provides the following summary (ex V V V pp 6-7): The heaviest direct damage to a brace member was in the form of a partial fracture of the bottom flange in the first northern brace of tower span 5. This fracture would have strongly contributed to the extensive fracture of the same member on 15th April 2003, but the member would have required replacement with or without the pre existing fracture. All significantly damaged compression members in the trusses (end posts and top chords) would require immediate repair following 15th April 2003, when a partial loss of effective bracing would have occurred through the heavy damage to many of the braces (spans 2, 3, 5 and 6); partial loss of bracing to these damaged compression members would reduce their ultimate strength capacity, requiring urgent restoration of the bracing and repairs to the members. Overall, the pre collision damage was evidently not of sufficient magnitude to require immediate repair to members and braces, and the bridge operated satisfactorily albeit with a reduced ultimate strength capacity until the collision of 15th April. A possible exception to this observation is the reported pounding of the south western end of Lift Span 4 against the supporting pier. Braces seriously damaged pre accident were necessarily replaced post accident. 370Professor Ansourian carried out a dynamic analysis of the tower span impacted by the vehicle. The analysis was said to be equally relevant to the same impact at the southern end of tower span 5. The aim of the analysis was to determine whether or not dynamic effects caused by the impact were significant to the structures at the top of the towers. Professor Ansourian details at pages 15 to 17 of the report, the calculations and assumption that were used. He concluded that the level of vibration is unlikely to have caused any significant damage to the components at the top of the tower. 371A separate dynamic analysis was described by Professor Ansourian for the more direct effects on the counterweight and its support structures by the impact to the top chord brace immediately adjacent to the lifting points of span 4 to which the counterweight ropes are attached. Professor Ansourian's analysis is set out at pages 18 to 22 of the report. He concluded that the overstress was of sufficient magnitude to cause concern for the counterweight system, especially as some lateral unbalance may be expected in the counterweight itself. 372In his report Professor Ansourian considered the damage to the bridge caused by Mr Luck's accident. He provides a summary of the damage at Tables 1 and 2. Table 1 (ex V V V p 25) is as follows: 373Table 2 (ex VVV p 26) is as follows: 374Professor Ansourian's summary of his conclusions includes (ex V V V p 23): "2. The bridge had suffered significant damage in the period from its consideration in the early 1940s to the collision, in the form of impacts to many of the braces joining the top chords, and to several main truss members. 3. Earlier damage to compression members such as top chords, end posts and other members required urgent repair following the collision, because of the cost or reduced effectiveness of the bracing members, themselves requiring urgent rehabilitation. 4. The most severe damage to the braces occurred during the collision in the southern most brace of Tower Span North, with a fracture through the bottom flange and almost the entire web. While this brace had previously sustained a partial fracture of the bottom flange, the severity of the impact damage would force replacement of the brace irrespective of previous damage. Four other cross braces suffered damage similar to Spans 6 and 7. 5. All 5 cross braces of Truss spans 6 and 7 sustained serious damage and required replacement, subject to approval by RTA. Additionally, span 6 suffered damage to top chord bracing angles. 6. Lift span 4 suffered extensive damage including all 9 cross braces, 5 of which were deep (598 or 480mm) and 4 relatively shallow (270mm); effective destruction of the machinery house, and heavy damage to the machinery and power supply cabling also occurred. ... 8. Dynamic computation of the impact on the lift span brace and consequently on the counterweight system, have shown a high likelihood of damage at least of the western trunnions. 9. Computations of the effect of the collision on the tower span showed that the upper parts of that span suffered a relatively low level of vibration, resulting in a low probability of damage to the upper parts. ... 11. The locking pin shaft and socket system that stabilised the Lift span to the Tower Spans in its powered position had been severely damaged, effectively destroyed. 12. Damage to Tower Span South and Truss Span 2 was relatively light and largely caused by pre collision older damage, with the exception of a 480 mm deep brace that required replacement, it is not clear whether the lesser braces originally 254 mm deep were actually replaced with 200UC46. 13. Replacement of brace members necessitated removal of the original rivets and installing bolts, retaining the original gussets where possible." 375Richard Wiltshire's brief from the insurers' solicitors included his opinion as to the conclusions drawn by Professor Ansourian taking into account the analysis methods and investigations used to form those conclusions. Mr Wiltshire is a mechanical engineer with over 45 years of professional experience. His reports are exhibits CD15, CD16 and CD24. 376In his report (ex CD15 par 98), Mr Wiltshire opines that Professor Ansourian overestimates "the actual impact force [at the time of Mr Luck's accident] given the beam was a welded section and such sections are likely to fail at a weld before the full plastic moment is realised." His considerations included the high local deformation of the lower flange which was not consistent with yield of the complete cross section, criticism of Professor Ansourian's reliance on bending of the girder about its major axis rather than bending about the major and minor axis and Professor Ansourian's calculations being based on "simple support conditions for the girder's connections to the top chords" (ex CD15 par 103). Mr Wiltshire states (ex CD15 pars 104-105): "However, based on the net effect of the above comments, I consider that Prof Ansourian's estimate of a 'dynamic magnifier' of approximately 30% is an overestimate of the likely value and I consider that a more reasonable upper bound to this dynamic magnifier would probably be much less but I do not consider this to be a significant point for dispute. In practical terms, a 30% increase in the static or 'normal' loading is well within the capability of a well-designed structure subjected to time-varying loads." 377Mr Wiltshire noted that the bridge and the counterweight system are subjected to time-varying loads and the ropes were designed on "their ultimate strength using a factor of safety of 5" (ex CD15 par 105). He observed that "a factor of safety of 5" means that the ropes were designed to withstand a 400 per cent increase in the static load. 378As to a claim for replacement of the counterweights and ropes based on an allegation that these components were damaged by the excavator striking the bridge, Mr Wiltshire was of the opinion that this allegation was not supported either by the supplied documents or Professor Ansourian's analyses. Mr Wiltshire concluded (ex CD15 par 113): "In my opinion, the nature of the impact to the lift span's transverse girders and the likely magnitude of the impact forces would have generated impulsive dynamic forces in the counterweight ropes. These dynamic forces would have been superimposed on the static forces associated with the weight of the counterweights. Given the design strength of the ropes, the net effect of the static and dynamic forces would not have damaged or "overstressed" the ropes but it is clearly possible for the impact to have resulted in uneven rope tensions." 379Mr Wiltshire did not support Professor Ansourian's conclusion that "there was a high likelihood of damage at least to the western trunnions" (ex CD15 par 122). He opined that "an increase in loading of 29% does not necessarily represent an 'overstress' and [he] would consider it most unlikely for a sudden and short duration increase in loading of 29% (or even 50%) to represent an excessive and hence damaging stress for well-designed rotating machinery and associated equipment" (ex CD15 par 130). 380In his summary as to the RTA's claim that Mr Luck's accident caused damage to the counterweight system, Mr Wiltshire observed that it seemed to rely largely on the calculations undertaken by Professor Ansourian. He noted that the supplied documents contained material that suggested the condition of the ropes and counterweights was such that their replacement was deemed to be necessary before the accident. Regarding the sheave system, Mr Wiltshire stated that the non-destructive testing described crack-like defects in the bushes and one sheave but considered this damage to be "consistent with fatigue failures and would thus have been present before the accident" (ex CD15 par 137). 381However, Mr Wiltshire was of the opinion (ex CD15 pars 138-139): "...the extent of the accident damage, and especially the damage to the control house and the lift span braces could have given the RTA cause for concern regarding the safety and stability of the counterweight system. I would there have expected the RTA to assess the likelihood of such damage with considerable urgency, and to have adopted appropriate measures to ensure the safety of the bridge and the traffic using it." 382In a supplementary report (ex CD16), Mr Wiltshire recounted his disagreement with Professor Ansourian's method of estimating the magnitude of impact force. He considered that Professor Anourian's analyses are based on a significant overestimate of that force. His criticism is as follows (ex CD16 p 3 footnote 6): "Prof. Ansourian calculates that at the impact region, a full plastic moment is developed about both the major and minor axes and yield occurs sooner than with bending about the major axis only. The girder is also a fabricated section and it is unlikely that the weld strength would support the full plastic moment. It is also clear from the supplied photographs that local bending dominates the deformation in the impact zone and yield will be developed by local bending considerations in the flange." 383Mr Wiltshire repeated that Professor Ansourian's analyses tended to overestimate the magnitude of the impact forces and the consequential effects of that impact on the counterweight system. 384In order to resolve potential differences of opinion, Mr Wiltshire undertook an advanced "simulation" of the excavator's impact with the girder at the northern end of the lift span using the same analysis techniques and software used extensively to simulate crash and high impact conditions. He said that the well established analysis was based on "explicit finite element analysis (FEA)" (ex CD16 par 25). Using this "crash simulation" technology, Mr Wiltshire determined that "the resulting calculations imply that the maximum value of the reaction forces is less than 250 KN and most probably, much lower" (ex CD16 par 45). He observed that, "even 250 KN is less than half the value of 517 KN used by Prof Ansourian to estimate the impact's effects on the counterweight system" (ex CD16 par 45). 385Based on his analyses and impact simulations, Mr Wiltshire concluded that the impact reactions at the ends of the subject girder have a magnitude of less than 250 KN which reinforced his opinions and conclusions in ex CD15. In summarising his conclusions, Mr Wiltshire said (ex CD16 p 13): "I do not consider the impact forces to have been of sufficient magnitude to damage the ropes, the counterweights, sheaves and bearings or the piers and I conclude that the inclusion of these items in the RTA's claim is most unreasonable. I would consider the inclusion of the costs to investigate the likelihood of damage to these items in the RTA's claim to be reasonable. I consider it most unlikely for the impact forces to have exacerbated the lift span warp although the warp could have been increased by the impact generating out-of-balance counterweight rope tensions. This warp could be rectified by appropriate re-adjustment of the rope tensions and I consider that a claim for those costs would be reasonable." 386Mr Wiltshire's brief was not confined to the ropes, counterweights, sheaves, bearing and the lift span warp. He also concluded (ex CD15 par 179): "(a) The damage caused by the excavator was clearly severe and there is little doubt that the accident was directly responsible for the damage to the lift span girders and locking mechanisms and the control house and the damaged equipment in the control house. I therefore conclude that the inclusion of these items in the RTA's claim is reasonable. (b) The excavator also caused severe damage to the braces and girders north of the lift span but these braces and girders were already damaged and an RTA report (Ref 2) states that these braces and girders should have been replaced or repaired. I therefore conclude that the inclusion of these items in the RTA's claim is only reasonable if an appropriate allowance is made for the existing damage. (c) The excavator caused minor damage to one, possibly two, of the braces and girders south of the lift span and I therefore conclude that the inclusion of any structural repair work south of the lift span is unreasonable unless the claim is for minor repairs to one or two braces." 387Mr Wiltshire used the term "brace" throughout his reports to describe the 270 mm deep transverse beams connecting the LH and RH top chords (ex CD15 par 30). 388It is now convenient to return to Professor Ansourian's evidence. 389In cross-examination by Mr Deakin, Professor Ansourian accepted that the calculations in his first report (ex V V V) should be set aside. Professor Ansourian agreed that for the purpose of calculation, he had assumed that the first brace in the lift span was undamaged at the time of Mr Luck's accident. By contrast the Parvez Shah report had indicated there was pre-existing damage to every brace in that span. The pre-existing damage did not enter into Professor Ansourian's calculations. Professor Ansourian said that he had not taken into account that the beam at the northern end of the lift span was a welded section. He was of the opinion that there was no difference between a welded section and a rolled section. He did not agree that welded sections are more likely to fail before a full plastic moment is realised. 390Professor Ansourian did not agree that when dealing with a dynamic impact situation, the half sign wave was more appropriate than a rectangular impulse. He accepted that the rectangular impulse is the worst in terms of impact. Professor Ansourian could not cite any peer review paper or textbook, which supported his approach. He agreed that he had not taken into account a "ramp input", which he accepted would reduce his calculations. 391Professor Ansourian's revised calculations of the impact force on the counterweight cable are detailed in exhibit AAA. The maximum value of the impact force was calculated as 530 KN, rather than 517 KN. 392In a second supplementary report (ex CD24), Mr Wiltshire commented on Professor Ansourian's revised calculations. According to Mr Wiltshire, Professor Ansourian overestimated the impulsive force input to his dynamic analyses and the effect of this impulse on the counterweight cables and the counterweight system. Mr Wiltshire states (ex CD24 par 27): "This means that Professor Ansourian not only overestimates the inputs to his analyses, he also overestimates the outputs and his calculation of the bending stresses in the trunnions is in error by two successive levels of 'overestimation'." 393Mr Wiltshire's criticisms include Professor Ansourian not taking into account Karmalsky's permissible bending stress of the trunnions being based on fatigue considerations when assessing the potential for damage from Mr Luck's accident. Another criticism was that Professor Ansourian was mistaken in stating that the trunnions yield stress was "unknown". Mr Wiltshire noted in Table 2.1 for Class M alloy steel forgings and the relevant trunnion dimensions, the minimum yield and tensile strengths are 758 Mpa and 930 Mpa respectively. 394Mr Wiltshire considered Professor Ansourian's assumption that a "plastic hinge" was developed in a welded non-compact section to be "inappropriate and [a] gross simplification of what actually happened" (ex CD24 par 80). He observed that Professor Ansourian's conclusion that a plastic hinge was formed at the point of impact was based entirely on a visual examination of photographs of the impact's residual damage. He stated that neither scaled measurements of the girder's deformation had been taken nor was any attempt made to explain how the residual deformation in a plastic hinge might replicate the actual residual deformation. 395Mr Wiltshire's disagreement with Professor Ansourian included the Professor's evidence about the behaviour of welded beams. Mr Wiltshire stated (ex CD24 par 99): "It is thus preposterous to suggest that there is no difference between a welded section and a rolled section and there is [a] vast body of knowledge to confirm that this is so. See, for example, Blodgett, O. W., Design of Welded Structures [Ref 13]." 396With regard to the possibility of there having been pre-existing damage at the point of impact, Mr Wiltshire noted that there was damage on the southern-most girder on span 5 immediately in front of the impact location and there was a reasonable possibility that after 50 years of service, fatigue cracking may have developed at the (hidden) root of the girder's welds. As Mr Wiltshire made no allowance for any pre-existing damage in his calculations, or for the weld, he said that his results were "upper bounds to the likely impact forces" (ex CD24 par 101). 397Mr Wiltshire concluded that for a non-compact, built-up "1" section with unknown welding details; subjected to impact loads from an (effectively) rigid body moving at approximately 60km/h; and where those contact loads are imparted to the tip of the "1" sections lower flange setting up local buckling and bi-axial bending, any analysis based on the assumed generation of a plastic hinge was unlikely to return useful results with regard to the estimation of the actual impact forces. 398Based on his analysis "involving linear finite element analysis to provide insight into the girder's behaviour, and the use of explicit non-linear finite element analysis to simulate the impact dynamics", Mr Wiltshire concluded that "the maximum reaction at the western end of the subject girder was almost certainly less than 200 KN" (ex CD24 par 103). 399Having reviewed Professor Ansourian's revised calculations and the approach he used to estimate the forces and stresses in the counterweight system, Mr Wiltshire concluded that Professor Ansourian "greatly overestimates the likely values of those forces and stresses." Another conclusion was that Professor Ansourian had not compared his calculated stresses with the appropriate allowable stress and that "as a consequence, he greatly underestimates the reserve strength of the trunnions when the trunnions are subjected to a short-term, one-off increase in load" (ex CD24 pars 46-47). 400Mr Wiltshire stated that his "opinion has firmed regarding the forces developed in the counterweight system to the extent that [he] now concludes there is an extremely low probability of the subject impact [having] led to damage of the counterweight system (which includes the trunnions, counterweight cables, counterweights, sheaves and trunnion bearings), or the piers" (ex CD24 par 49). 401During cross-examination by Mr Glissan, Mr Wiltshire accepted that after Mr Luck's accident a prudent engineer would have wanted to investigate and ensure there was no damage to the counterweights, ropes, sheaves and trunnions. On this topic, Mr Wiltshire's evidence included the following (T1502 L3-15): "Q. But you would, nonetheless, have expected that there would have been investigation of the counterweights and the ropes and the trunnions to ensure, because of the high risk involved, that they had not been damaged? A. Investigation doesn't have to involve physical investigation of things that are hard to investigate. It is possible to undertake calculations based on extreme estimates of loads that are likely to have been imparted to the system and this is in general, not just this one. It's possible to given enough time, to do reasonable calculations to determine whether there would have been any damage. Q. But you would, nevertheless, agree with the proposition that you would have expected there would be investigation? A. And that's the investigation I would have expected." 402Mr Wiltshire agreed that severe lateral bending damage to the major transverse bracing beams restraining the counterweight towers had reduced the stability of the towers to withstand lateral loads. He agreed that repairs to the control room would also require removal from the towers of the counterweights or temporary supporting of the counterweights in the raised position. Mr Wiltshire accepted that there had been severe damage to the girders in Mr Luck's accident but the severity of the damage varied along the bridge. There had been very severe damage to the members of the southern most tower span. 403In a report (ex CD12) Brian Pearson, a structural engineer and senior loss adjuster who was engaged by the insurers, makes reference to the RTA's amended claim for damages and seeks to make distinctions between existing damage and the damage caused by Mr Luck's accident. Mr Pearson refers to the RTA's claim for structural bridge repairs and details the pre-existing damage to the truss spans and tower spans (ex CD12 pp 20-24). Mr Pearson provides the following convenient tabulation of the repair of damaged members as follows: Span Damaged in First Event. Number Repaired or Replaced Damaged in Second Event. Number Repaired or Replaced Total Number Repaired or Replaced (excluding truss members) Number 2 3 5 5 3 8 6 8 5 14 6 8 6 13 9 9 7 9 5 5 Total 47 31 35

404Mr Pearson noted that in addition to the member replacement, a total number of 257 rivets were corroded in the top chord area and required attention, such as replacement with high tensile bolts or welding during the course of repair. Mr Pearson observed (ex CD12 par 4.29): "In the above tabulation of damage it will be noted that the pre 15.04.03 damage was numerically more severe than the damage inflicted on that date. A total of 47 members suffered in prior events while 37 members suffered damage in both events." 405When considering the lift span repairs, Mr Pearson said (ex CD12 pars 4.59 - 4.60): "The damage suffered by the overhead bracing during events prior to 15 April 2003 comprised impact distortion to all nine cross-braces with heavy damage to the five deeper braces U0U0, U2AU2A, U3U3, U2A U2A. Two rivets and six bolts were corroded in the top chord connections of the upstream truss. Eighteen rivets and four bolts were corroded in the top chord of the downstream truss. In the event of 15 April 2003 the five deeper braces of the top chords again suffered damage and the four remaining cross-braces also suffered damage. The two end cross-braces of the lift span were of 598mm depth. The remaining cross-braces were of 480mm and 270mm depth. The three deeper braces of 480mm depth were beneath the operator's cabin." 406Mr Pearson observed that the replacement of the machinery house instead of its repair resulted in a considerable improvement in the quality of the building and "hence there was a high degree of betterment when compared with the original conditions" (ex CD12 par 4.101). Much of Mr Pearson's report considers other adjustments for betterment which are unnecessary to mention here. 407As to Mr Pearson's evidence, the parties agreed that no Browne v Dunn point would be taken in relation to Mr Glissan not cross-examining this witness. General findings as to damage 408In his final address, Mr Glissan informed the court that notwithstanding the lengthy consideration in the evidence of Professor Ansourian and Mr Wiltshire as to whether Mr Luck's accident damaged the counterweight system, the RTA accepted that the counterweights were not damaged. 409Fred Salome, an industrial chemist, prepared a report in August 2003 in relation to the condition of concrete elements of the bridge including the piers and the counterweights. After testing, Mr Salome concluded that the counterweights were generally sound and not significantly affected by 50 years of service. Mr Salome's affidavits are exhibits Q and R. 410The respective positions of the RTA and the insurers as to the counterweights and counterweight ropes was clarified in the following exchange during final addresses (T1693 L6-17): "GLISSAN: Cables and counterweights are both claimed, your Honour, but not because of direct damage having been caused to them in the accident, but because the work methodology that was required to make good the damage, involved their removal, which could only be done by their destruction. HIS HONOUR: You claim the removal? GLISSAN: And replacement and, therefore, the remanufacture. HIS HONOUR: And Mr Deakin says that they were not damaged, so too bad? DEAKIN: Yes, that is exactly right." 411As direct damage to the counterweights is not in issue, the principal difference between the RTA and the insurers as to the direct damage occasioned by the excavator arm hitting the overhead members, was to the spans to the south of the lift span. 412There is no dispute that the damage caused by the excavator arm was severe and caused damage to the braces and girders north of the lift span. 413The most severe damage was in the vicinity of the lift span which had been physically moved and was no longer securely located in its proper position by its original fixing mechanism. The locking pin shaft and socket system were destroyed. The mechanical components controlling the lift span were inoperable, as was the lift span itself. 414The control room was located on top of the beams that had been struck directly and forced upwards by the impacts. The drive house was effectively destroyed and heavy damage to the machinery and power supply cabling also occurred. The control room middle section had been raised causing the motor to distort from alignment by approximately 34mm. The motor casting and starter motor were broken with the petrol engine bell housing being severely fractured. The timber frame structure of the control room was distorted and the cladding had completely come off the frame in some places. 415The counterweights were no longer hanging level. The up haul / down haul ropes were not in equal tension, which indicated twisting of the spans. 416I am satisfied on the balance of probabilities that Mr Luck caused all of this damage. Damage south of the lift span 417It is the RTA's case that there was damage to the transverse braces south of the lift span. Particular reliance was placed on the evidence of Mr Gooley and Dr French. 418Mr Gooley was of the opinion that the damage caused by Mr Luck's accident extended along the full length of the bridge and was most severe at the lift span. He reported that it appeared the truck was in the fast lane until it passed the drive house, where it then veered towards the road centreline (see [333] above). Mr Gooley noted that as the truck passed the southern end of the lift span, it caught the main beam, which it distorted. In his affidavit (ex JJJ) Mr Gooley noted that the damage ranged from severe to moderate on each of the cross members, generally becoming less severe towards the southern end. In cross-examination, Mr Gooley said that the damage he had given evidence about (in the slow lane to the south of the lift span) was "uncannily similar" to the damage in the photographs in exhibit BB which showed a line of damage in the slow lane near span 7 and was old damage. 419Dr French supported Mr Gooley's description of the passage of the truck across the bridge. His recollection was that to the south of the lift span there was a reduced amount of damage. He considered that the last eight transverse beams suffered less impact effect than the more northerly ones. 420Professor Ansourian expressed the opinion that damage to Tower Span South and Truss Span 2 was relatively light and largely caused by pre collision older damage, with the exception of a 480mm deep brace that required replacement. He reported, "it is not clear whether the lesser braces originally 254 mm deep were actually replaced with 200 UC46" (ex V V V p 24 par 12). 421Mr Wiltshire was of the opinion that "the excavator caused minor damage to one, possibly two of the braces and girders south of the lift span..." (see [386] above). He considered that the inclusion of any structural repair work south of the lift span was unreasonable unless the claim was for minor repairs to one or two braces. 422During cross-examination by Mr Glissan, Mr Wiltshire gave the following evidence (T1520 L32-41): "Q. You would not disagree with the proposition it was very severe damage caused to the cross bracing members of the bridge by the impact that occurred between the excavator, as you understand it, and the transverse cord braces? A. I agree that there is severe damage to the girders. I agree that there is damage to the braces. The severity of the damage varies along the bridge, so I think a more specific question would help me more. Q. Certainly, so far as the end of the southern most tower span was concerned, there was very severe damage to those members? A. Absolutely." 423As the truck continued travelling south of the lift span before it came to a halt, it is more likely than not that some damage was done to the braces and girders to the south. However, none of the witnesses gave evidence of this damage being severe. In the RTA's Report of Truck Impact Damage dated 24 April 2003, Vincent Gooley opined (PTB1 p 143): "The truck then continued travelling south through the bridge, veering towards the centre of the road. We can assume that the excavator boom had been somewhat depressed by now, because the damage to these beams is, although still apparent somewhat less than occurred at the northern fixed spans." 424All of this supports a finding that the damage to the south of the lift span was relatively light. Mr Wiltshire's opinion was that the excavator caused minor damage to one, possibly two girders south of the lift span whereas Professor Ansourian records light damage to five span 2 members in the table reproduced at [372] above. 425The insurers did not contend Mr Ford's "continual line" of new damage along the cross-members was not caused by the truck. It is more likely than not that in the truck's journey to the south of the lift span, the excavator arm came into contact with more than one girder. I find on the balance of probabilities the damage that was caused by Mr Luck to the south of the lift span is confined to light damage to five span 2 members. Findings as to pre-existing damage to the bridge 426As I have previously recounted, a "level 3" inspection of the bridge was carried out in September 2002. The major findings from the structural inspection were summarised in Table 1 of the Parvez Shah report, which are set out in [276] above. Rather than repeating those findings, it is sufficient to state that I am satisfied on the balance of probabilities that spans 2 to 7 suffered the damage detailed in [276] above, before Mr Luck's accident. 427I accept Mr Fok's evidence that the two top chord members UO, UI on span 3 were seriously damaged. They were recommended for repair. The heavily corroded bottom chord connection required urgent attention. Mr Fok recommended that the top chord braces on spans 4, 6 and 7 be replaced. 428The heaviest direct damage to a brace member was the partial fracture of the bottom flange in the first northern brace of span 5. There was major impact damage to the first verticals and second diagonals from the north on the downstream side, two top chords (UO-UI) and one cross brace. Mr Fok recommended that the major damage to the members of the tower span 5 be repaired but Professor Ansourian considered that the partial fracture of the bottom flange required replacement. 429The RTA contended that there were no plans to do the work identified in the Parvez Shah report and Mr Luck's accident changed the nature and urgency of the work required. 430Following receipt of the Admiralty report, Mr Manchanayake asked Parvez Shah to commission the level 3 inspections of the bridge and produced a Project Brief to be provided to Project Management Services in case all of the Admiralty criticisms were borne out by his investigations. The Project Brief provided a general consideration of the possible scope of works. 431In cross-examination, Mr Manchanayake agreed that the serious structural issues identified in the Parvez Shah report were to be managed by Mr Gooley when the full scope of the assessment was completed. Mr Manchanayake did not agree it was a question of whether work would be needed upon completion of the assessment. 432Mr Manchanayake noted the description in the Parvez Shah report of two of the damaged top chord members on span 4 being major. He agreed that although one damaged brace might not be of structural significance, when all of them are damaged, it did have structural significance. When his attention was drawn to five of the top chord braces in span 7 being damaged and was asked to assume that there was a recommendation that they be replaced, he acknowledged that he would have arranged to have that work carried out. 433It is apposite to note that in addition to the span 7 damage, nine top chord braces were damaged in each of spans 4 and 6. The heaviest direct damage was to span 5. 434The RTA referred to Mr Gooley's evidence that none of the identified work was a priority. Mr Gooley had prepared a 33-point task list (ex JJJ annex C) but none of the work was put out to tender or contract. He was unaware of any plans to undertake the repairs in his 33-point plan. 435In cross-examination, Mr Gooley accepted Mr Fok's opinion that the combined effect of several-damaged bracing would be critical in providing stability to truss span 7 and it was urgent that the damage be addressed. Mr Gooley also agreed that the damage to top chord bracing identified by Mr Fok had to be addressed urgently. 436I do not accept that the work identified in the Parvez Shah report would not have been carried out. 437Although the recommendations in the Parvez Shah report for repair or replacement were not implemented before Mr Luck's accident, it is inevitable that they would have been. The cost that Barry Toepfer Earthmoving is liable to pay for the structural repair of the bridge is to be reduced by the cost of the repair or replacement of the items identified in the Parvez Shah report. Further consideration to this issue will be given when I come to the RTA's claim for structural bridge repairs (ex CD22 Item 8) and the repairs to the lift span (ex CD22 Item 9). 438I propose now to deal with the RTA's claims for the work performed in restoring the bridge after Mr Luck's accident. The RTA's claims are itemised in the Treasury Managed Fund document (ex CD22) and the insurer's response is summarised in the schedule of damage (now marked MFI 68). Item 1 - Emergency repairs 439Emergency repairs were carried out on the bridge on the nights of 16 April 2003 and 29 April 2003. Amongst the damage observed by Mr Oates was severe damage to the transverse members in towers 3 and 5 that are adjacent to the lift span. Mr Oates was very concerned about the stability of the northern tower, as the main portal beam above the deck had been sheared through its bottom flange. In his view, the strength of the portal frame was seriously compromised and emergency repairs were required to secure the bridge against a possible catastrophic failure. 440Emergency repairs, which included welding a 61OUB101 beam over the damaged northern counterweight tower's main portal beam, were undertaken on the night of 16 April 2003. The bridge was closed from 7.30am to 7.00pm so that the beam could be welded into place and other emergency repairs completed. 441On the night of 29 April 2003, further emergency repair work was carried out to the portal beam on the southern lift span tower. Additional repairs to lock down the lift span were undertaken as a matter of public safety and to safeguard the bridge from sustaining further damage from passing traffic. 442Mr Pearson was of the opinion that if the RTA had repaired the earlier damage after it had occurred, Mr Luck's accident would not have caused the severe damage which necessitated the emergency repair work at the lift span (ex CD12 par 4.5). He opined that the RTA was responsible for a degree of the later damage by failing to attend to the earlier damage and there should be some apportionment in the amount claimed for emergency repairs. 443Dr French supported Mr Oates' opinion that the damage caused by Mr Luck's accident had seriously compromised the structural integrity of the bridge. Dr French said (ex V V par 15): "The force of the collision directly caused such damage as to render the lift span unsafe and unserviceable and created a danger of catastrophic failure. I commended the initial work by emergency crews of installing heavy timbers to prevent immediate buckling and other failures and recommended further emergency investigations and repairs be carried out to ensure the safety of the bridge." 444I am not persuaded that the emergency repair costs should be apportioned. It was the severity of the damage caused by the excavator arm that necessitated the emergency work. The bridge had been operating safely before Mr Luck's accident. 445I am satisfied on the balance of probabilities that the repair work undertaken on the bridge on the nights of 16 April 2003 and 26 April 2003 was a necessary element of making good the damage so as to secure the bridge against the possible collapse of the towers. 446The RTA is entitled to a judgment for the cost of the emergency repairs. Mr Deakin drew my attention to Mr Pearson's observation that in his experience design costs had never exceeded construction costs. However, questions of the quantification of the emergency repair costs are a matter for the referee. Item 2 - Mechanical Damage Inspection 447Kenshaw Electrical was retained to investigate and report on the extent of damage to the electrical and mechanical systems. I have referred to part of Mr Kennedy's evidence at [339]-[342] above. This was a necessary step in making good the damage. The RTA is entitled to a judgment for the cost of Kenshaw Electrical's inspection. Quantification is a matter for the referee. Other inspections 448Dr French from Worleys was retained to provide a report as to the structural damage to the bridge caused by Mr Luck. His evidence is inter alia referred to at [343]-[345] above. 449KBR provided inspection reports on the impact damage to the mechanical and electrical services on the bridge (see [348]-[359] above). Mr Salome was engaged to report on the lead content of the paint and as to the condition of the concrete elements including the piers and counterweights (see [409] above). 450The bridge was painted in lead based paint and it was evident following Mr Luck's accident, that it was essential to know how the lead paint could be dealt with safely. Mr Salome's recommendations to be employed when working with the paint were implemented by Mr Toneguzzi (ex S par 42). 451Other experts were engaged to consider individual issues. Boyd Engineering was asked to determine if the steel used in the bridge construction was suitable for welding (PTB4 pp 965-969). Austech Structural Consultants were also retained to conduct crack detection tests of the lift span gearbox shafts. 452Shortly after the accident, Mr Gooley instructed Mr Love and his team from the RTA Engineering Technology Branch to conduct a survey of the damaged components of the bridge and to ascertain whether there had been any change in its location. 453All of these investigations were a necessary part of making good the damage caused by Mr Luck. The RTA is entitled to a judgment for their cost with the exception of Mr Salome's inspection of the counterweights which is considered separately at [503] below. Quantification is a matter for the referee. Inspection of the bridge piers 454Mr Gooley engaged Grey's Diving Services to ascertain whether there was any impact damage to the underwater portions of the piers and their underwater condition. Mr Gooley explained, "the entire weight of the steel structure, road surface and traffic was supported on bearings which were located on the top of the piers... I could not be certain of the possible extent of any damage to the deck, bearings or piers until investigations were undertaken" (see [336] above). The scope of the work was to identify any damage caused by the truck impact. 455The underwater pier inspection which took place on 3, 4 and 7 July 2003 did not reveal any truck impact damage to the piers. 456The RTA argued that the underwater pier inspection was necessary and reasonable and it was irrelevant that damage was not found. The RTA submitted that there were reasonable grounds to suspect that forces must have been impacted to the deck and hence the piers as the truck passed under the bridge, particularly the heavy beams. The RTA claimed the full cost of the inspection. 457Consistent with their general argument that if an item was not damaged whatever was spent on investigating or inspecting it necessarily falls out s 102(1) Roads Act the insurers contended that no allowance should be made for the underwater pier inspection. 458The respective arguments of the RTA and the insurers on this issue have been addressed at [224]-[233] above. I did not agree that the lack of damage necessarily resulted in the cost of inspection not being allowed. I also found that work which is necessary to put the bridge in its pre-damaged condition must not only be reasonable for that purpose but must be a reasonable course to adopt. 459Mr Oates' opinion that an underwater pier inspection was necessary is supported by Dr French. Dr French opined (ex V V par 13): "The force of the excavator arm on the [Toepfer] truck hitting the overhead transverse members would have exerted a downward vertical load on the bridge deck that is likely to have been beyond the design load of the structure. Steel truss bridge decks are typically designed to allow for impact effects which are 30% above the static weight of a truck. This is to allow for foreseeable dynamic loadings, such as a truck running over a piece of 4 x 2 timber (or similar) lying on the road. But the dynamic loadings created by the Toepfer truck being rapidly forced downwards by the impact of the arm on overhead members, and then released when the impacting arm passed the members, would have been significantly greater and the load exerted was likely to have caused high stresses in the vertical mechanisms of the bridge..." 460In my view, there were reasonable grounds for Mr Oates' concern that the bridge piers may have suffered damage caused by Mr Luck's accident. 461The inspection was a reasonable and necessary step in making good the damage. The RTA is entitled to a judgment for the cost of the underwater bridge inspection. Quantification is a matter for the referee. Items 4 and 5 - Western Bridge Traffic Switches and Traffic Control 462There is no dispute that the damage to the bridge required the diversion of the southbound traffic from the bridge to the concrete northbound bridge so that the repairs could be undertaken. The closure of the bridge for an extended period was not a viable option as the Pacific Highway is the main arterial road from Sydney to Brisbane. Work hours were restricted to 9pm to 5am Sunday to Thursday. 463The RTA's claim is made for all traffic control required as a result of making good the damage caused by Mr Luck's accident up to the time of commissioning of the bridge. The claim includes the design of previously planned traffic switching. 464In his affidavit (ex JJJ par 41), Mr Gooley explained that a new design was required as "the earlier designs had been intended to provide for an occasional single oversize vehicle wishing to U-turn." The new design allowed for the continuous contra flow of all southbound traffic. 465Mr Pearson proposed that the quantum of the items claimed in Item 4 (and presumably Item 5) be divided in proportion to the major repair costs (ex CD12 par 4.13). Whilst that will be a matter for the referee, I am satisfied that some reduction should be made for the time spent in traffic control whilst pre-existing damage was repaired or replaced. 466Accordingly, the RTA is entitled to a judgment for the items claimed in Items 4 and 5 with a reduction in traffic control costs whilst pre-existing damage was repaired or replaced. Quantification is a matter for the referee. Item 7 - Bridge Bearings and Lift Span Support Item 9 - Lift Span Repairs Item 10 - Ropes and Counterweights 467It is convenient to deal with these items together as a major part of the claim is the removal of the counterweights and counterweight ropes. It is the RTA's case that the repairs to the bridge lift span required the detachment of the ropes and counterweights. Furthermore, the RTA argued that the interests of safety did not permit the suspension of the counterweights. 468The insurers contended that as the counterweights were not damaged, Barry Toepfer Earthmoving should not bear the costs of their removal and replacement. The insurers referred to Mr Wiltshire's evidence that an assessment of potential damage to the counterweights, ropes and trunnions was ascertainable without resorting to dismantling them. Another argument was that in all likelihood the counterweights were to be replaced whether or not the accident occurred. Mr Deakin invited me to accept that all that happened after the accident was the RTA took the opportunity to carry out this work at the same time as other repair work. 469During the bridge inspection on 23 April 2003, Mr Gooley "was cognisant of the prospect that cast iron sheaves, their axles and bearings at the top of the counterweight towers would have sustained shock loadings, as would the wire ropes, the spliced terminals and the mild steel rope support brackets embedded into the tops of the counterweights" (ex JJJ par 12). 470Mr Gooley observed that the counterweights were no longer both hanging level. The wire ropes that had in 2002 been adjusted for equalisation of tension and rechecked by Kenshaw just weeks before Mr Luck's accident were no longer in equal tension and some of the ropes were lying slack. Mr Gooley described the counterweights as being in a distressed condition. He stated (ex JJJ par 12): "The counterweights were a considerable height up in the air, positioned directly above the traffic, supported only by wire ropes affixed to 5/16 mild steel angle brackets. They were quite capable of destroying the Bridge should they fall." 471Upon his inspection of the bridge, Dr French was concerned that the force of the impacts could have caused or exacerbated cracking in the counterweights which could compromise their integrity and safety. Both Professor Ansourian and Mr Wiltshire considered that the impact forces from the excavator arm striking the bridge would have generated dynamic forces in the counterweight ropes. These experts, however, disagreed as to the likelihood of damage occurring to the counterweight system. In view of the RTA's acceptance that the counterweights were not damaged, it is not necessary to resolve this issue. It is sufficient to note that the opinions of Professor Ansourian and Mr Wiltshire as to the generation of dynamic forces support Mr Gooley's concern in April 2003 that the counterweights and counterweight ropes may have been damaged. 472Mr Gooley was of the view that any shock or impact loading when the drive house was lifted and then dropped must have been transmitted to the sheaves and rope fixing points in the tops of the counterweights. He opined that these loads were necessarily transmitted via the wire ropes, which may have been compromised. I find that his concerns were entirely reasonable. 473The damage that Mr Luck's accident caused to the lift span was severe. Some of the overhead beams were deeper and sat lower and cross members had been damaged. The lift span itself had been physically moved and was no longer securely located by its fixing mechanism. Mr Gooley was of the opinion that the lift span repairs required the detachment of the counterweights. 474The work methodology for the bridge repairs that was established in May 2003 is contained in a report (PTB3 pp 569-577). In the report's preamble, the RTA noted that "we will continue to seek smarter ways to achieve the end result. For example, the removal of the old counterweights will be a very difficult operation. We will consult RTA Wollongong and continue to seek alternative work methods" (PTB3 p 569). 475The work method was described as follows (PTB3 p 570): "...the counterweights balance the weight of the lift span. This load lift span and counterweight is then transferred down through the towers onto the fixed lift span bearings. Since the counterweights are to be removed this lift span load needs to be transferred directly to the fixed span bearings. This will require four horizontal connections between the ends of the lift span and the adjacent fixed spans." 476This work method was confirmed in similar terms in the Construction Plan (PTB3 p 692). 477Upon the removal of the counterweights, scaffolding was required to support the lift span. The June 2003 methodology program recorded (PTB2 p 409): "the 200 tonne mass of the lift span must be transferred onto the fixed span bearings before the ropes and the counterweights are removed..." 478Following enquiries about the use of false work, the use of a crane from the riverbank or a floating crane, the RTA decided that the counterweights could not be suspended and that along with the ropes they must be removed. 479The counterweights weighed 135 tonne and were not designed for removal from the bridge. I accept that neither the counterweights nor the ropes could be re-employed once removed. 480By the use of VSL jacks supported on scaffolding erected for that purpose at the top of the bridge, the counterweights were lowered. The lowering ropes could not be used due to damage to the lift span and machinery. 481The insurers were critical of the removal of the counterweights and ropes. Mr Wiltshire gave evidence that whilst he would have expected the counterweights, ropes and trunnions to have been investigated after Mr Luck's accident, this did not mean that a physical investigation was required. He said (T1502 L7-11): "It is possible to undertake calculations based on extreme estimates of loads that are likely to have been imparted to the system and this is in general, not just this one. It's possible to - given enough time, to do reasonable calculations to determine whether there would have been any damage." 482On this topic, Mr Wiltshire gave the following evidence in re-examination (T1530 L21-47): "Q. Assuming you have information of that character, how long, in your opinion, would it have needed a competent and professional engineer to have done the calculations that you have referred to, approximately? A. The time to take the calculations, less than an hour. The time to think about them and dwell upon them afterwards, to reflect, given the importance of the calculations, another two or three hours. Certainly something that could be done overnight, for example. What I would do, and what I would assume somebody similarly qualified would do, would be look at the damage to the girder; make what would tend to be a reasonable overestimate of the forces likely to have generated that damage; made a calculation about what those forces would have implied for the counterweight system and probably come up with a number that was of the order of, let's say, the force in the cable, because I would be really, really conservative in this. So I make every calculation and, upper bound, I would err on the side of safety, and probably calculate the force in the order of, let's say, a 1,000 kilonewtons, which is roughly twice, and this is the, this is the sort of thing I would calculate. Doing similar calculations GLISSAN: I object. It's now beyond the question. DEAKIN Q. Would that time that you've referred to in your opinion give rise to a conclusion such as you ultimately arrived at or a different sort of conclusion? A. No. You would come to the conclusion because you would know that the factor of safety with the ropes would be five or six and you would come to the conclusion it was all okay pretty quickly." 483Mr Pearson was of the opinion that the counterweights did not have to be removed to enable the structural elements of the lift span to be repaired. He stated (ex CD13 par 3.31): "The two counterweights operate in spans 3 and 5 and move down the towers of these spans as the lift span rises, being in balance with the lift span. The lift span deck is a simply supported span and the tower spans are also simply supported. Hence there is no deck continuity over the these three spans. If the counterweights are locked into the towers, the lift span can rest on its bearings separated from the counterweights." 484Unlike the RTA engineers, Mr Pearson did not see the damage to the lift span which had been physically moved and was no longer securely located by its fixing mechanism. 485All of the engineers tasked with the bridge repair considered that it was necessary to remove the counterweights, as the lift span had been severely damaged. I prefer their evidence on this issue to that of Mr Pearson who did not inspect the damage. The weight of the lift span had been balanced by the counterweights. In my view, it does not matter that the counterweights and counterweight ropes were not damaged as their removal was a reasonable and necessary step in making good the damage to the lift span. 486Although Mr Wiltshire considered that damage could be calculated mathematically, the RTA was obliged to ensure the safety of the public. As Mr Gooley said, the counterweights were capable of destroying the bridge if they fell. In my opinion, the RTA's duty of care required that visual and scientific tests be undertaken to ascertain their condition. 487The question remains whether the counterweights and counterweight ropes would have been replaced whether or not the accident occurred. There is some material which suggests that this was a consideration before Mr Luck's accident. 488Mr Pearson expressed the opinion that "there is firm evidence that the replacement of counterweights and ropes was required because of deterioration due to age" (ex CD13 par 3.34). 489An email from Kevin Strange to Mr Manchanayake on 6 November 2000 included the following (ex CD18 Tab 1): "It may be an opportune time for the RTA to also consider replacing the counterweight ropes. These ropes are as original i.e. 50 years old, and their structural integrity is unknown, which presents a major risk to the users of the bridge." 490I have previously referred to Mr Gooley's 33-point task list. Items 30 and 31 were the "change out" of the up haul and down haul ropes and counterweight ropes. Item 27 was "inspect report and repair / replace counterweights" and item 28 "inspect, report and repair counterweight rope attachments". 491Mr Gooley's evidence included the following (ex KKK par 13): "As at 15 April 2003, the bridge was operating normally, even though it was over 50 years old and an obsolete design, it was operating with some obsolete machinery such as the vintage tractor engine but was still functioning properly. We knew of concrete spalling in the counterweights, which required investigation, the wire ropes were over 50 years old, and there was corrosion of steel including some in some structural members. The guide ropes had recently been adjusted to correct a twist in the lifting platform, although at that stage we did not [k]now the cause of the twist. My view as the project engineer was that there were no significant safety concerns requiring urgent or immediate repair and that to undertake the proposed repairs would involve serious traffic disruption. To my knowledge there were no plans to undertake the repairs referred to in 33 point plan at that date." 492In an email dated 3 December 2002 from Bullivants to Mr Gooley concerning "Wire Rope Inspections", Hans Tiller expressed his belief that the ropes could be inspected "and achieve a high certainty that any internal deterioration can be confirmed." Mr Tiller stated that he would assess during the preliminary inspection "if changing these ropes one at [a] time... is realistic" (ex CD18 Tab 40). He attached a copy of samples from the ropes removed from the Batemans Bay Bridge and noted that the samples demonstrated that these ropes were replaced at an appropriate time. 493The management meeting minutes of 13 December 2002 disclose that the results of the Kenshaw annual rope inspection had been received. The minutes record (ex CD18 Tab 42): "This inspector conducted a superficial inspection and recommended that all ropes should be changed out." 494A second inspector was to be asked to prepare a brief and price estimate. 495On 25 March 2003, Mr Tiller suggested in a facsimile to Mr Gooley that "[n]ow that the election is over and won, perhaps the steps outlined in the attached can be implemented" (ex CD18 Tab 51). Mr Tiller had recommended a visual inspection of the ropes be undertaken. Mr Tiller was critical of the rope inspection carried out in November 2002. He observed (ex CD18 Tab 51): "No quantitative comments regarding rope detioration were made. The inspection was apparently carried out without moving the ropes. The report recommends a non-destructive examination which, as discussed, is not possible, and concludes that due to their age the rope be replaced. No reference to any standard regarding rope detioration is made and apart from age, which in itself is not a detiorating factor, no reason for rope removal is given." 496In a report dated 24 November 2004 to Freeman Pty Ltd concerning the increased cost of the restoration and repair of the bridge, Mr Parry-Williams wrote (PTB5 p 1259): "Over more than fifty years, the two counterweights had deteriorated to a condition where they were deemed to be at the end of their life. They were cracked, split, spalling, and showing signs of internal damage." and (PTB5 p 1260): "A quotation was obtained for the new ropes, and this price was used as the estimated cost. However, the rope end hardware had worn and deteriorated such that these also needed replacement with new stainless steel hardware." 497Mr Parry-Williams' concern about the condition of the two counterweights was not supported by the tests conducted by Mr Salome. As previously recounted, Mr Salome concluded that the counterweights were generally sound and not significantly affected by 50 years of service. However, he noted that "there are some indications that unless remedial measures are taken, they may not continue to remain in sound condition for the medium to long term" (PTB3 p 603). 498Mr Salome was of the opinion that the efflorescence in itself was not a cause for concern, but continued leaching of lime from concrete could eventually allow corrosion to develop. The cracks through the concrete that were present, were not considered to be of great significance in their own right, "except that they also provide a conduit for moisture and chlorides into the concrete where they can reach the reinforcing steel and enhance the onset and rate of corrosion" (PTB3 pp 603-604). 499Mr Salome stated that cracks of this nature can be filled by injection, and sealed over using flexible membranes. However, he was of the opinion that (PTB3 p 604): "a more effective solution to both the efflorescence and the cracking would be to either cover the counterweights with a roof, or to fill the wells with a lightweight material and install falls and a membrane to shed water from the top." 500Mr Gooley's 33-point task list prioritised neither the "change out" of the counterweight ropes nor the inspection of the counterweights. 501An inspection prior to Mr Luck's accident would have revealed that there was no need to replace the counterweights. Mr Tiller was critical of the superficial inspection that recommended that the counterweight ropes be changed and opined that age was not in itself a deteriorating factor. 502I am not persuaded that it is more likely than not that the counterweights and counterweight ropes would have been replaced whether or not the accident occurred. All that was contemplated was that they should be inspected. 503I am satisfied, however, that it was inevitable that the counterweight ropes and counterweights would have been inspected and the remedial work recommended by Mr Salome undertaken. Accordingly, the RTA is entitled to a judgment for the items claimed in Item 10 but the cost that Barry Toepfer Earthmoving is liable to pay is to be reduced by the cost of Mr Salome's "more effective" solution to both the efflorescence and the cracking of the counterweights as set out in [499] above. A further reduction is to be the cost of Mr Salome's inspection of the condition of the counterweights. Quantification is a matter for the referee. 504Items 9(d), (e) and (f) relate to the lift span warp. The lift span warp preceded Mr Luck's accident and there is no evidence that the warp was affected by it. In any event, the RTA no longer presses its claim for costs associated with the repair of the lift span warp. The claim for items 9(d), (e) and (f) are not allowed. 505There was pre-existing damage to the lift span which has been detailed at [276] and [405] above. The Parvez-Shah report recommended that the nine damaged top chord braces be replaced. Professor Ansourian's opinion that this earlier damage increased the damage caused by Mr Luck's accident was embraced by Mr Pearson (ex CD12 par 4.69). The cost that Barry Toepfer Earthmoving is liable to pay for the lift span repairs is to be reduced by the cost of the repair or replacement of the nine damaged top chord braces identified in the Parvez Shah report. Furthermore, the extent to which the RTA's failure to repair or replace the damaged top chord braces before Mr Luck's accident increased the new damage occasioned in that accident is to be quantified by the referee and is to be deducted from the amount payable to the RTA. 506With those qualifications, the RTA is entitled to a judgment for the items claimed in Items 5, 7 and 9(a), (b) and (c). Quantification is a matter for the referee. Item 8 - Structural Bridge Repairs 507This part of the RTA's claim concerns repairs to the horizontal transverse members or chord braces damaged by Mr Luck's accident, including damage to the two tower spans and their locking mechanisms. 508I have previously found that the damage caused by the excavator arm was severe and caused damage to the braces and girders north of the lift span and light damage to five span 2 members south of the lift span. However, there was significant pre-existing damage to truss spans 2, 6 and 7 and tower spans 3 and 5 which is detailed in the Parvez Shah report at [276] above. I making findings of the pre-existing damage to these spans in accordance with the Parvez Shah report. 509Mr Pearson's tabulation of the pre-existing damaged members and the members damaged in Mr Luck's accident is set out at [403] above. 510I am satisfied that the methodology adopted by the RTA in changing out the beams was appropriate. I accept the following evidence of Dr French (ex V V par 9): "The steel Hexham was built of was thus very forgiving. The replacement of the members was considered the most reasonable course to adopt bearing in mind all the circumstances. The suggested alternative method of heat straightening can cause embrittlement of the metal where excessive cycles of heating are required to straighten the member." 511The cost that Barry Toepfer Earthmoving is to pay for the structural bridge repairs is to be reduced by the repair or replacement of the pre-existing damage to truss spans 2, 6 and 7 and tower spans 3 and 5 identified in the Parvez Shah report. Furthermore, the extent to which the RTA's failure to repair or replace this damage before the accident increased the new damage occasioned in that accident is to be quantified by the referee and is to be deducted from the amount payable to the RTA. 512With those qualifications, the RTA is entitled to a judgment for the items claimed in Item 8. Quantification is a matter for the referee. Item 11 - Sheave Bearings 513The insurers contended that Barry Toepfer Earthmoving should not bear the cost of the three items claimed, which they contended was created by normal wear-and-tear over many years. Mr Pearson observed (ex CD13 par 3.39): "There is no substantian of damage to sheaves or bearing arising from the impact loading of the event of 15 April 2003. In fact Professor Ansourian's analysis (item A3) of the impact effect on the towers and such movement should not have a detrimental effect on the bearings. If the bearings were worn such detioration would have been due to constant use over many years." 514Mr Pearson accepted that a reasonable cost for investigating the condition of the sheaves and bearings would be appropriate in the circumstances. 515Mr Wiltshire concluded that there was an extremely low probability of the impact of the excavator arm leading to damage in the sheaves and trunnion bearings. Mr Wiltshire agreed that a prudent engineer would have wanted to investigate whether there was any damage to the sheaves and trunnions. 516In his report (PTB5 pp 1255-1264), Mr Parry-Williams states: "Item 11 - Sheaves and Sheave Bearings The original estimate allowed for the replacement of the sheave bearings alone, it was later identified that the sheaves and trunnions needed to be removed for NDT testing. After NDT cracks in the trunnions were identified and repaired and trunnions reinstalled. Access to many of the bearings, bushes and grease nipples required men to climb into hazardous locations. New grease manifolds were installed in safe locations with grease lines running to these bearings and bushes." 517I am not satisfied on the balance of probabilities that Mr Luck's accident caused damage to the sheaves, sheave bearings or trunnions. I find that it was a necessary and reasonable step for the RTA to investigate whether any of the items had been damaged in the accident. The removal of the sheaves and trunnions for NDT testing was a reasonable course for the RTA to adopt. However, I am not satisfied that Barry Toepfer Earthmoving should bear the cost of repairs or the replacement of the sheaves and trunnions as the cause of the their replacement was not Mr Luck's accident. 518Accordingly, the RTA is entitled to a judgment for the cost of investigating the condition of the sheaves, bearings and trunnions and the cost of their removal for NDT testing and their reinstallation. Quantification is a matter for the referee. The RTA is not entitled to the cost of the repair or replacement of any of these items. Item 12 - Mechanicals 519The mechanical components claimed under this head refer to the mechanical components in the drive house on the lift span, including the structure of the drive house itself. It includes components such as winches, gears and drums that hauled the ropes that raised and lowered the lift span, motors such as the emergency auxiliary motor and the generator, and the various non-electrical componentry of the drive house. The RTA does not pursue its claim for repair of the winch drum bearings and idler bearings. 520I have previously referred to the mechanical damage to the bridge. The damage to the lift span and drive house / control room was undoubtedly severe. I am satisfied that none of the pre-existing damage to the lift span impacted upon the mechanical components of the bridge and nor did it prevent the bridge from operating as a lift span. I accept the RTA's submission that all of the damage that occasioned the need to remove and replace the mechanical components was caused by Mr Luck's accident. 521The principal contention by the insurers was that the replacement of the drive house instead of its repair resulted in a considerable improvement in the quality of the building and hence there was a high degree of betterment. Mr Pearson proposed that the cost of replacement be shared in a similar manner to the cost of removal of the original building (ex CD12 par 4.101). 522The new steel-framed drive house replaced the hardwood timber-framed drive house which had been designed in 1943. It was undoubtedly an improvement on the existing structure. However, there is no evidence that the RTA contemplated the replacement of the drive house before Mr Luck's accident. The drive house was effectively destroyed by the accident and even if it had not been damaged, it had to be demolished to effect the structural repairs to the lift span. 523In these circumstances, Barry Toepfer Earthmoving is not to be given credit for betterment of the drive house. The RTA is entitled to the cost of the demolition and replacement of the drive house. 524The drive house petrol motor was damaged and could not be repaired due to its age. The issue of fire safety drove the change from petrol to diesel. A new diesel motor was used to replace it of equivalent power. There is no evidence that the RTA contemplated the replacement of the drive house motor before Mr Luck's accident. No credit is to be given to Barry Toepfer Earthmoving for betterment of the motor, other than any cost difference between a petrol and diesel motor. Accordingly, the RTA is entitled to the cost of dismantling, removing and reinstalling all of the mechanical components in the drive house. There is to be a judgment for the RTA for all of the items claimed in Item 12. Quantification is a matter for the referee. Item 13 - Electrics 525The RTA principally relies on the evidence of Mr Kennedy who was said to be in the best position of all the witnesses to assess the electrical condition of the bridge and the extent of the works undertaken. Mr Kennedy's affidavit is ex QQQ and his immediate post accident report is found at PTB2 pp 339-359. 526I accept that the wiring and electrical operations of the bridge were in good functioning condition before Mr Luck's accident. 527Mr Kennedy's observations of electrical damage after the accident included damage to all three-lock pin proximity switches and to some cabling under the bridge. Replacement of the damaged beams required the removal of the old wiring. None of this old wiring required replacement before the accident. 528When the drive house motor was replaced, the installation of a new control board and cabling was required. All new wiring had to be completed in accordance with Australian Standards and modern wiring standards. 529Mr Kennedy stated that the bridge had old limited protection devices which were no longer in use. Because of this, the RTA was required to install new protection devices and cables that were compatible with the replacement drive house machinery. 530KBR in their report (PTB2 pp 361-382) found that the power supply to the control room had been damaged where it passed onto the lift span but the electrical services on the span were not damaged. KBR concluded that the repairs required to allow the electrical services to perform their intended function were: Repair the incoming power cable at the junction of the span and the fixed bridge section. This repair should also include mounting the cable from below the beam so that it was not exposed to future damage. Realign safety interlocks when the lift span structure was repaired and the control room realigned. 531KBR observed that in order to repair the structure of the lift span it would be necessary to disconnect all cabling on the underside of the control room. 532Mr Pearson noted that while relatively minor electrical damage had been reported, the quantum of the RTA's claim would suggest that there had been a general replacement of the electrical components with up-to-date equipment. There would have been, he said, a considerable betterment factor in modernising the electrical installations. 533It appears from Mr Kennedy's affidavit that the electrical work was not confined to the damage caused by Mr Luck's accident. He said (ex QQQ par 18): "In order to bring the system up to appropriate standards, including those of New South Wales Fair Trading and the Australian Wiring Rules, we were required to replace the whole wiring system." (italics added) and further (ex QQQ par 35) "...on top of that Stramit was engaged by RTA who asked us to bring the bridge up to AS for lighting. The lighting had to comply to provide for pedestrian traffic to cross the bridge." (italics added) 534I am satisfied that the disconnection and removal of the electrics under the lift span and the removal of the control panel and motor control panel in the drive house were reasonable and necessary steps, in making good the damage caused by Mr Luck's accident. The installation of the new control board and cabling, the repair of the incoming power cable at the span junction, the mounting of that cable, the realignment of the safety interlocks and the installation of new protection devices and cables compatible with the replacement drive house machinery were also reasonable and necessary steps. The RTA is entitled to a judgment for the cost of this work. 535I accept that all of the new wiring had to be completed in accordance with Australian Standards and modern wiring standards. Although by the provision of the new equipment and modern wiring there was a degree of betterment, there is no evidence that the RTA contemplated carrying out that work before Mr Luck's accident. No credit is to be given to Barry Toepfer Earthmoving for betterment. 536I am not satisfied, however, that the RTA is entitled to recover for any electrical work carried out on the bridge other than in the area of the lift span and the drive control house. 537The RTA is entitled to a judgment for the cost of design of the electrical systems in making good the electrical damage to the lift span and drive control house. 538As to the cost of the installation of the temporary electrical supply and of the power feeders and power supply, the RTA is entitled to a judgment, but the amount of the judgment is to be reduced by that part of the cost that is attributed to the pre-existing damage and work that was un-associated with the electrical damage to the lift span and drive house. Quantification is a matter for the referee. Item 15 - Bridge Access Item 16 - Commissioning Item 20 - Site Facilities Item 21 - Project Management 539In oral address, Mr Glissan submitted that the court might say that all of the above items are "matters part of which will be recoverable as necessary parts of the cost of making good the damage caused by the truck, but the division, the determination of which parts is properly a matter for the reference out" (T1591 L7-14). 540It is plain that bridge access, commissioning, site facilities and project management were required to make good the damage caused by Mr Luck's accident, but part of these costs were incurred in repairing or replacing the pre-existing damage or in upgrading the bridge. Mr Glissan's suggestion is sensible and was not opposed by Mr Deakin. Mr Pearson proposed that these costs be apportioned. 541Accordingly, the RTA is entitled to a judgment for Items 15, 16, 20 and 21 in such amounts determined by the referee as reasonably incurred by the RTA in making good the damage caused by Mr Luck's accident. Quantification is a matter for the referee. Orders I make the following orders:

1. Verdict and judgment for the plaintiff (the Roads and Traffic Authority of New South Wales now known as Roads and Maritime Services) against the first defendant (Barrie Toepfer Earthmoving and Land Management Pty Ltd).
2. Verdict and judgment for the cross-defendants (CGU Insurance Ltd, Vero Insurance Ltd, and NTI Ltd) against the cross-claimant (Barrie Toepfer Earthmoving and Land Management Pty Ltd) on the first cross-claim.
3. Verdict and judgment for the cross-defendants (the Roads and Traffic Authority of New South Wales, and the State of New South Wales) against the cross-claimant (Barrie Toepfer Earthmoving and Land Management Pty Ltd) on the second and third cross-claims. Orders for Referral I make the following orders for referral to a referee: a. The parties agree on a referee to prepare a report into the questions identified for referral in the Schedule. b. That the referee hold structural engineering qualifications, be a certified member of Engineers Australia, and be a registered / chartered member recognised by the National Engineering Registration Board. c. Direct that, if the parties agree on the form of the orders appropriate to give effect to the decision of this court, they shall within 14 days file an agreed short minutes of those orders naming an agreed referee to conduct the assessment. d. Direct that, if the parties cannot agree on the form of the orders appropriate to give effect to the decision of this court, each shall within 21 days file their own short minutes of the orders for which they contend, together with brief written submissions not exceeding 5 pages in support of the making of those orders. e. Direct that, in preparing proposed orders for the court, regard is to be had to Annexure 2 to Supreme Court Practice Note Equity 3. Schedule The questions arising for referral to the referee are contained within the following paragraphs of the judgment: (i) 439 - 446; (ii) 447; (iii) 448 - 453; (iv) 454 - 461; (v) 462 - 466; (vi) 467 - 506; (vii) 507 - 512; (viii) 513 - 518; (ix) 519 - 538; and (x) 539 - 541. Costs Direct that if the parties do not agree as to costs, they are to file and serve written submissions as to costs within 21 days. Grant liberty to the parties to apply to re-list this matter on 7 days notice to each other.

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. Decision last updated: 28 August 2014