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

Roads Act 1993 Uniform Civil Procedure Rules Main Roads Act 1924-1954 Electric Power Boards Act 1925 (NZ) Electricity Act 1976 LEGISLATION CITED : Harbours, Docks and Piers Act of 1847 (10 Vict. c. 27) Harbour Boards Act 1892 Transport Administration Act 1988 Public Sector Employment and Management Act 2002 Law Reform (Vicarious Liability) Act 1983 Crown Proceedings Act 1988

Commissioner of Main Roads v Engel (1962) 80 WN (NSW) 137 Springs-Ellesmere Electric Power Board v Robson [1967] NZLR 94 Postmaster v Beck and Pollitzer [1924] 2 KB 308 R v A Judge of the District Courts at Brisbane and Dale, ex parte the South East Queensland Electricity Board [1984] 1 Qd R 655 Commissioner of Main Roads v Tran (1994) 10 SR (WA) 21 The River Wear Commissioners v Adamson (1877) 2 AC 743 Townsville Harbour Board v Scottish Shire Line Limited (1914) 18 CLR 306 CASES CITED : The Geelong Harbour Trust Commissioners v Gibbs, Bright & Co (1970) 122 CLR 504 The Geelong Harbour Trust Commissioners v Gibbs, Bright & Co (1974) 2 ALR 362 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hollis v Vabu Pty Limited [2001] HCA 44; 207 CLR 21 Scott v Davis [2000] HCA 52; 204 CLR 333 Hutton v West Cork Railway Company (1883) 23 Ch Div 654 Wayde v New South Wales Rugby League Limited (1985) 180 CLR 459 Hunter Area Health Service v Presland [2005] NSWCA 33

PARTIES : Roads and Traffic Authority of New South Wales (plaintiff) Barrie Toepfer Earthmoving & Land Management Pty Ltd (defendant / cross-claimant)

COUNSEL : J. Glissan QC and K.J. Manion for the plaintiff M. Neil QC and S. Benson for the defendant / cross-claimant

SOLICITORS : Robertson Saxton Primrose Dunn for the plaintiff Peter Evans & Associates for the defendant / cross-claimant

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/293003 Roads and Traffic Authority of New South Wales v Barrie Toepfer Earthmoving & Land Management Pty Ltd

JUDGMENT 1 McCALLUM J: The Hexham Bridge is a steel truss bridge that carries traffic southbound across the Hunter River at Hexham in the State of New South Wales. Traffic on the bridge travels through the trusses, with transverse structures overhead. The height of any vehicle crossing the bridge must accordingly be lower than the height above the road of those structures. 2 On 15 April 2003, the bridge sustained extensive damage to the overhead structures, allegedly caused by a truck owned by Barrie Toepfer Earthmoving and Land Management Pty Ltd. By these proceedings, the Roads and Traffic Authority of New South Wales seeks to recover the cost of making good the damage from that company and the driver of the truck, Mr Barry Luck. The application presently before the Court is the RTA's application to have part of the defence filed by the defendant company struck out and a cross-claim brought by the company dismissed. 3 The truck alleged to have caused the damage was a prime mover hauling a trailer. The trailer was carrying an excavator. All three vehicles were either owned or leased by the defendant company, Barrie Toepfer Earthmoving. Mr Luck was an employee of that company. The RTA alleges that, as Mr Luck drove the truck across the Hexham Bridge, the excavator or some other part of the truck or its load struck the overhead structures of the bridge, causing damage that cost millions of dollars to repair. 4 The RTA's claim is brought under s 102 of the Roads Act 1993, which relevantly provides: 102 Liability for damage to public road (1) A person who causes damage to a public road … is liable to pay to the appropriate roads authority the cost incurred by that authority in making good the damage. (2) If damage referred to in this section is caused by a motor vehicle or vessel, the owner and the driver of the motor vehicle or, as the case may be, the owner and the master of the vessel are jointly and severally liable for the damage. 5 Barry Toepfer Earthmoving does not admit that the truck or its load came in contact with or damaged the bridge, nor that any repairs were carried out as a consequence of any damage caused by it (paragraphs 6 and 7 of the amended defence filed 24 September 2009). Separately, by way of defence to the whole of the claim, the company contends that it did not cause any damage to the bridge and that the RTA is the author of its own loss (paragraph 11 of the amended defence). 6 In support of the defence pleaded in paragraph 11, the company alleges that, shortly before driving across the bridge, Mr Luck was directed to stop at an RTA heavy vehicle checking station where an authorised officer of the RTA directed him to adjust the load so as to move the excavator further forward on the trailer. The object of requiring him to do so, as it appears, was to redistribute the weight of the excavator across the trailer so as to avoid excessive weight on the rear axle of the trailer. 7 It was assumed in argument that the direction was given under s 231 of the Roads Act (since repealed), or at least purportedly in exercise of the power conferred by that section. It was common ground that the driver was required by law to comply with any such direction. Barry Toepfer Earthmoving alleges that Mr Luck adjusted the load as directed and that, as a result of his doing so, the boom of the excavator then stood higher than it had when it was originally loaded onto the trailer. It is implicit in those contentions, although not specifically pleaded, that until the excavator was moved in accordance with the direction of the authorised officer, the load was lower than the maximum height of clearance under the Hexham Bridge. 8 In addition to relying on those matters by way of defence to the claim under s 102 of the Roads Act, Barry Toepfer Earthmoving relies on the same contentions to sustain a cross-claim against the RTA alleging breach of statutory duty and breach of a duty of care owed at common law. The damages claimed by the cross-claim are confined to any amount the company is held liable to pay to the RTA under its claim. The company does not appear separately to claim any amount in respect of damage to the truck or the excavator. 9 The question raised by the present application is whether it is open to Barrie Toepfer Earthmoving to maintain those contentions, either by way of defence or cross-claim. The RTA says that it is not, and seeks orders: 1. striking out paragraph 11 of the amended defence pursuant to rule 14.28(1)(a) of the Uniform Civil Procedure Rules (the notice of motion refers only to paragraphs 11(b), (c), (d), (e) and (f) but the argument proceeded by reference to the whole paragraph); 2. dismissing the whole of the cross-claim pursuant to rule 13.4(1)(b) of the UCPR on the grounds that it discloses no reasonable cause of action.

Issues raised by the present application 10 As to paragraph 11 of the amended defence, the submissions put on behalf of the parties addressed three discrete issues: a) whether the phrase "causes damage" in section 102 of the Roads Act requires proof of anything more than physical causation of the damage in question; b) whether it is open to defend a claim under that section on the grounds that the damage would not have occurred but for the driver's compliance with a direction of an authorised officer under s 231 of the Roads Act ; c) whether it is open to defend a claim under that section on the grounds of contributory negligence. 11 The last issue is complicated by the provisions of s 234 of the Roads Act (also now repealed), which purports to create an exemption from liability in respect of the exercise of the power to give a direction under the relevant division of the Roads Act. The RTA contends that, leaving aside any other consideration, the operation of that section precludes any defence of contributory negligence based on the matters pleaded in paragraph 11 of the amended defence. 12 Separately, the RTA relies on the operation of s 234 as an objection to the company's cross-claim. The other issues raised by the RTA's objections to the cross-claim are: a) the proper construction or characterisation of the role of the authorised officer as a matter of law. The RTA contends that it is not the proper defendant to any cross-claim based on the conduct of an authorised officer; b) assuming a cross-claim may properly be brought against the RTA on the strength of such conduct, whether the present cross-claim adequately pleads any basis for holding the RTA liable for the conduct of the authorised officer in question; c) whether the claim for breach of duty of care at common law can be maintained in light of the so-called principle of coherence. 13 A separate question, which was raised during the course of argument, is whether Barry Toepfer Earthmoving should have leave to file a reply to the RTA's defence to its cross-claim. The RTA contends that the matters raised in the proposed reply concerning the application of s 234 of the Roads Act should properly be pleaded as an element of the cross-claim itself, rather than by way of reply to the RTA's defence.

14 The RTA submits that the element of causation in a claim under s 102 of the Roads Act requires no more than proof of physical causation by a person or a motor vehicle owned or driven by the person. Mr Glisson QC, who appeared with Mr Manion for the RTA, submitted that it is settled law that negligence is not an element of the cause of action, citing Commissioner of Main Roads v Engel (1962) 80 WN (NSW) 137. 15 Engel was a case involving a semi-trailer that hit the Berrima Bridge on the Hume Highway. As the driver went down a hill towards the bridge, the truck's brakes failed, although the driver had tested them just before beginning his descent. Road works were being carried out on the near side of the bridge. The driver sounded his horn and waved a piece of paper to warn the workers, but they apparently did not appreciate the difficulty he was in. There was no place where the driver could safely run off the road and he ultimately collided with a gravel truck and a steamroller, following which he lost control of the truck and hit the bridge, causing damage to the bridge structure. The Commissioner for Main Roads brought a claim to recover the cost of making good the damage. 16 The claim was brought under s 40 of the Main Roads Act 1924-1954, which relevantly provided: "40(1) Any person who causes damage or injury to - a) any road maintained, managed or administered by the Commissioner under this or any other Act; or b) any safety fence, barrier, treeguard, handrail or the like the property of the Commissioner or a council in any such road shall, except where such damage or injury is caused by ordinary wear and tear due to ordinary and reasonable use of the road , pay the cost incurred by the Commissioner or by the council, as the case may be, in making good such damage or injury.

… (3) Where such damage or injury is caused by the use of a vehicle the driver thereof, or in the case of a bridge by the use of a vessel the owner thereof, shall pay such cost [my underlining]". 17 Jacobs J found that no negligence on the part of the driver had been established. On that premise, his Honour turned to consider the scope of the section and whether it was necessary to establish any such culpability. His Honour held that s 40 did not require proof of culpability or liability in accordance with common law principles. The driver submitted that the section should not be construed so as to create "a degree of absolute liability, drastically wider than any liability at common law". Jacobs J was satisfied that there was sufficient indication in the section and its context to warrant a wider operation. 18 Two of the considerations that led his Honour to that view turned on particular wording of s 40 that is not reproduced in s 102 of the Roads Act (the underlined words above). However, the primary consideration, which applies with equal force to s 102, was the unlikelihood that Parliament would have enacted such a provision with the object of achieving so little effect as contended for on behalf of the driver. His Honour said (at 139.2): "It cannot be said that the purpose of the section was to vest in the Commissioner a right to proceed at law on a ground based on common law liability because the Commissioner would have that right independently of the statutory provision." 19 Separately, Jacobs J considered the question of causation. It was submitted on behalf of the driver that the damage was caused not by him but rather by the condition of the vehicle he happened to be driving and by the events in relation to the gravel truck and the steamroller, which were wholly beyond his control. His Honour rejected that submission, for two reasons. First, he thought that s 40(3) (which made specific provision for payment by the driver where "such damage or injury is caused by the use of a vehicle"; cf s 102(2)) was directed to the situation where the damage was caused by the use of the vehicle in circumstances where the driver "may not be properly described as causing the damage or injury". 20 Secondly, Jacobs J concluded that, on the facts of the case before him, the driver of the semi-trailer caused the damage to the bridge by driving towards the bridge in a vehicle the braking system of which failed, resulting in its colliding with the bridge structure. His Honour said (at 140.7): "I am not here referring in any way to culpability or responsibility. I merely refer to the bare physical facts. I do not think that as a matter of bare physical fact the cause of the brake failure is important; the fact is that the defendant was driving a vehicle in which the brakes failed. The damage was caused by the driving of that vehicle to a position in proximity to the bridge. Whether or not the fortuitous presence upon the road of obstacles resulted in a collision with the bridge structure which would not otherwise have occurred is conjectural, but whatever the degree of probability is in this regard it does not break the chain of causation springing from the bringing by the defendant on to the road and on to the slope down towards the bridge of a vehicle which became out of his control." 21 As submitted by Mr Glisson, the cases in which a driver has escaped liability under similar provisions have entailed something in the nature of involuntariness on the part of the driver. Thus in Springs-Ellesmere Electric Power Board v Robson [1967] NZLR 94, the Supreme Court of New Zealand held (at 102) that a taxi driver who was throttled into unconsciousness by a passenger and whose taxi then collided with and damaged an electric power pole was not liable to pay for the damage to the pole. The provision under which the claim was brought in that case was s 123 of the Electric Power Boards Act 1925 (NZ), which adopted the phrase "every person who damages electric works [etc]". 22 In Postmaster v Beck and Pollitzer [1924] 2 KB 308, the English Court of Appeal held the defendants liable to make good the damage done to a fire alarm post hit by a lorry being driven on a public highway by the defendant's servant without any negligence on his part. Significantly, however, Scrutton and Atkin LJJ expressly did not decide what the position would have been had the injury not been directly caused by any act of the servant, "as for instance if the defendant's lorry had been forced against the post by another vehicle, or if the machinery of the lorry or the horse drawing it had got out of control": at 312.6 per Scrutton LJ; at 314.9 per Atkin LJ. Atkin LJ was "glad" to be able to reserve that question, "for otherwise one would have to try and determine the real ratio decidendi of the decision of the House of Lords in The River Wear Commissioners v Adamson." For reasons to which I shall return, I have been denied such gladness. 23 In similar vein, the Full Court of the Supreme Court of Queensland upheld a decision that a person "involuntarily impelled" (in his car) towards the relevant structure as a result of being struck by another car could not be regarded as having broken or damaged it for the purpose of s 425 of the Electricity Act 1976: R v A Judge of the District Courts at Brisbane and Dale, ex parte the South East Queensland Electricity Board [1984] 1 Qd R 655 at 657.35. The relevant provision in that case enabled the authority to recover a sum of money by way of satisfaction for damage done "from any person who carelessly or accidentally breaks, throws down or damages any electric line or other works belonging to the electricity authority or under its control". 24 A similar conclusion was reached by the District Court of Western Australia in Commissioner of Main Roads v Tran (1994) 10 SR (WA) 21 at 30.2. 25 Mr Glissan submitted, correctly in my view, that the events relied upon by Barrie Toepfer Earthmoving, if established, did not fall within any relevant qualification to the principles stated in Engel, since they did not render the driver's conduct involuntary. 26 Mr M J Neil QC, who appeared with Mr S A Benson for the defendants, acknowledged the judgment of Jacobs J in Engel but submitted that there is "compelling high authority" to different effect in claims under similar provisions in navigation and harbour legislation. That brings me back to the River Wear. 27 Mr Neil submitted that the decision of the House of Lords in The River Wear Commissioners v Adamson (1877) 2 AC 743, and subsequent decisions of the High Court, stand as authority for a requirement to establish an element of fault in the present case. The decision in The River Wear Commissioners concerned a ship which encountered a violent storm near the mouth of the River Wear. The ship went ashore at low tide at the entrance of the Sunderland Docks. The crew did not have an opportunity to take down the sails before escaping from the wreck "by means of the rocket apparatus". When the tide rose, the sails carried the vessel into the pier. The River Wear Commissioners sought to recover damages for the injury to the pier. 28 The Commissioners' claim was brought under s 74 of the Harbours, Docks and Piers Act of 1847 (10 Vict. c. 27), which relevantly provided that the owner of a vessel "shall be answerable to the undertakers for any damage done by such vessel…and the master or person having the charge of such vessel or float of timber through whose wilful act or negligence any such damage is done shall also be liable to make good the same". 29 The House of Lords held, by majority and with some equivocation, that the owners of the ship were not liable under that section to pay the damage caused to the pier. Each party had initially alleged negligence on the part of the other but those allegations were subsequently withdrawn. The decision accordingly turned on the question whether the relevant section required proof of liability in accordance with common law principles. 30 Lord Cairns held that the section was not intended to create a right to recover damages where there was no such right at common law. His Lordship expressed the view (at 751.9) that s 74 was "a clause of procedure only", the purpose of which was to obviate the need for the Commissioners to prove whether the fault in question was that of the owner or some other person in charge of the vessel at the time. His Lordship said (at 751.6) "[the section] takes the owner as the person who is always discoverable by means of the register, and it declares that he shall be the person answerable". 31 Lord O'Hagan and Lord Blackburn each reached a similar conclusion but by slightly different paths of reasoning, each confessing some hesitation in his view (see especially at 758.5 and 760.8 per Lord O'Hagan; 766.9 and 768.8 per Lord Blackburn). 32 Lord Gordon expressed a dissenting opinion, stating (at 780.2): "I am humbly of the opinion, which I entertain with very great hesitation after the opinions which have been expressed by your Lordships, that the statute ought not to be construed as if it contained an exemption from liability for damage where it occurred from the act of God. The words of the statute appear to me to be express and unambiguous, and being so, I think they should be read according to their ordinary construction." 33 Lord Hatherley appeared also to dissent from the majority except, curiously, as to the result. His Lordship said (at 756.1): "I am unwilling to do anything farther than to say that I cannot concur in the opinion expressed by my noble and learned friend on the woolsack otherwise than with extreme doubt and hesitation." 34 A close analysis of each of the speeches in the River Wear Commissioners discloses no common statement of principle inconsistent with the decision in Engel. Rather, the decision turned specifically on the proper construction of the provisions under consideration in the legal context in which they had been enacted. It is difficult to identify any proposition for which the decision stands as authority beyond the conclusion that s 74 of the Harbours, Docks and Piers Act of 1847 did not create a statutory cause of action. After much deliberation, I have ultimately concluded that the decision is of little assistance in construing s 102 of the Roads Act. 35 The next decision relied upon by Mr Neil was the decision of the High Court in Townsville Harbour Board v Scottish Shire Line Limited (1914) 18 CLR 306. That case involved a claim under s 196 of the Harbour Boards Act 1892, which was adopted "with some verbal modifications" from s 74 of the Harbours, Docks and Piers Act of 1847 (the provision under consideration in The River Wear Commissioners). The Court held that the variation between the two sections was not sufficient to displace the presumption that the Queensland legislature intended to adopt the English statute as interpreted by the House of Lords in The River Wear Commissioners: at 315.5 per Griffith CJ; at 318.4 per Barton J; at 330.6 per Isaacs J. On that basis, Griffith CJ concluded (at 315.6) that the defendants "would not be liable for an injury done by their ship if the immediate cause of the injury were vis major". I do not think the reasoning of the High Court in that case, turning so closely on the assumed adoption of the relevant provision "as interpreted by the House of Lords", is of assistance in the present case. 36 Finally, Mr Neil referred to the decision of the High Court in The Geelong Harbour Trust Commissioners v Gibbs, Bright & Co (1970) 122 CLR 504. In that case, the High Court (by majority) affirmed a decision that the owner of a vessel was not liable for damage caused when an exceptionally severe wind caused the securely moored vessel to break loose and cause damage. McTiernan and Menzies JJ (at 517.8), and Kitto J in a separate judgment (at 519.4), so held essentially on the ground that the decision in Townsville Harbour Board v Scottish Shire Line should be followed. 37 In a strong dissenting judgment, Barwick CJ said (at 506.4): "The principal question in this appeal is whether a section of a statute means what its words seem plainly to say or whether those words are subject to limitations or exceptions unexpressed by the legislature but to be declared by the Court in order to implement a policy of the legislature divined by the Court from the words of the statute and their impact, if applied without qualification, upon the previously existing general law." 38 Having articulated the question in those terms, the Chief Justice unsurprisingly concluded that the words of the section under consideration were "unambiguous and intractable" (at 512.9) in entitling the Harbour Trust to recover from the owner, agent or master damages for any injury in fact caused by the vessel. His Honour held the section to be "unqualified in any respect" and, in particular, did not accept that its operation was circumscribed by "such facts as formed the basis of the decision in The River Wear Commissioners" (at 517.2). Owen J agreed with the Chief Justice (at 520). 39 The Privy Council declined to interfere with the majority decision. Their Lordships were of the view that, irrespective of whether or not they themselves considered the decision in Townsville Harbour Board to be wrong, it would not be proper to interfere with a decision which the High Court reached "to abstain from altering the law in Australia from what it had previously been understood to be": The Geelong Harbour Trust Commissioners v Gibbs, Bright & Co (1974) 2 ALR 362 at 370. 40 I do not think that the authorities relied upon by Mr Neil derogate from the principle stated in Engel that the provision there under consideration did not require proof of culpability or liability in accordance with common law principles. The critical question for present purposes is whether there is a real question to be determined at trial as to the applicability of that principle in the present case. 41 Mr Neil reminded me that the principle in General Steel applies equally to a triable question of law as to a triable question of fact: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ. However, the only question of law identified in the present case is the correctness of a principle clearly stated and well reasoned in an earlier decision of this Court. For the reasons explained above, nothing that has been put on behalf of Barrie Toepfer Earthmoving causes me to doubt the correctness of that principle. I do not think there is any reasonable prospect that it would not be applied if the proceedings went to trial on that issue. 42 It does not follow, as apprehended in the submissions on behalf of Barrie Toepfer Earthmoving, that the company is not entitled to put the RTA to proof on the issue of causation. In my view, however, it does follow that the direction allegedly given by the authorised officer is irrelevant to that element of the RTA's claim. It was put as being relevant in two ways. In the defence itself, Barrie Toepfer Earthmoving contends that the defendants did not cause any damage to the bridge and that the RTA is solely responsible for any damage and, by reason of the conduct of its own officer, is "the author of its own loss". 43 That assumes the existence of a single, exclusive cause of the damage. There is no warrant in law or in logic for such an assumption. Engel establishes that, if the damage was physically caused by Mr Luck driving the truck across the bridge, that is enough, whether or not other causes can be pointed to. Accordingly, I do not think it is open to defend a claim under s 102 of the Roads Act on the grounds that the damage would not have occurred but for the driver's compliance with a direction of an authorised officer under s 231 of the Act. 44 If it were open to defend a claim under s 102 on those grounds, I do not think the exemption from liability created by s 234 of the Act would be an answer to that defence, as submitted on behalf of the RTA. In my view, the RTA's submissions on that issue confused the notion of liability with the notion of causation. The fact that an authorised officer was excused by statute from any liability would not mean that he did not cause the damage in question. 45 Conversely, however, even if it were established that the damage would not have occurred but for the driver's compliance with a direction under s 231, it would not follow that the driver did not physically cause the damage. As already explained, the determination of causation at law is not a binary analysis.

46 As the point was developed in submissions, it appeared that the conduct of the authorised officer was relied upon in a second way, as founding a positive defence of contributory negligence. However, if negligence is not an element of a claim under s 102 of the Roads Act, it makes no sense that there should be a defence of contributory negligence to such a claim. 47 Properly understood, the argument put by Barrie Toepfer Earthmoving by way of defence is that there was contributory causation. For the reasons already explained, that is no answer to the claim, on the current state of the law. In those circumstances, in my view, any question of negligence on the part of the authorised officer may be raised only by way of cross-claim, not as a defence to the claim. 48 For those reasons, I am satisfied that the matters pleaded in paragraph 11 of the amended defence do not raise any reasonable defence to the RTA's claim and are liable to be struck out. As already explained, it does not follow that the company is not entitled to put the RTA to proof of its claim, including proof of the allegation that Mr Luck physically caused the damage complained of when he drove the truck across the bridge, proof of damage in fact caused and proof of the cost incurred by the RTA (if any) in making good the damage. Those matters are plainly put in issue by paragraphs 5, 6, 7, 8 and 9 of the amended defence.

The cross-claim 49 The RTA's objections to the cross-claim were distilled in oral submissions to four points, which are addressed in turn below. Although the written submissions filed on behalf of the RTA addressed a further argument that the cross-claim is bad in law because no statutory duties exist as alleged, it was not ultimately pressed on me that I should dismiss the claim on a summary basis on that ground.

Who is the proper cross-defendant? 50 The RTA's first objection related to the proper construction (as a matter of law) of the role of the authorised officer who allegedly gave the direction to reconfigure the load. As noted on behalf of the RTA, the structure of the cross-claim is that it repeats the matters pleaded in paragraph 11 of the amended defence and those matters form the basis for the relief sought. 51 Paragraph 11(b) of the amended defence alleges that the direction was given by the RTA "by its employee or authorised officer". A difficulty with the allegation that the person in question was the RTA's employee is that the RTA is prohibited by statute from employing any staff. The constitution of the RTA is established by s 46 of the Transport Administration Act 1988. It is a corporation: s 46(1). It has the functions conferred on it by the legislation listed in s 46(2)(a) and is a "statutory body representing the Crown": s 46(2)(b). 52 However, as to employees, s 46(3) states "the Roads and Traffic Authority cannot employ any staff". The logistic hurdle of being a statutory corporation having statutory functions but no staff is overcome by s 4B of the Public Sector Employment and Management Act 2002. That section makes provision for staff to be employed by the Government of New South Wales "in the Government Service" to enable a statutory corporation to exercise its functions. Such persons are employed "in the service of the Crown": s 4A of the Act. The Crown is vicariously liable for their torts committed in the course of such service: s 8(1) of the Law Reform (Vicarious Liability) Act 1983. 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 that 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). 54 Separately, the RTA denies the alternative allegation that the officer in question was the RTA's authorised officer (see paragraph 1 of the defence to second cross-claim filed 10 December 2009). Presumably the basis on which it was seen fit to traverse that allegation is that the relevant person should be understood to be the Crown's authorised officer, not the RTA's. 55 The term "authorised officer" is defined in the Roads Act as follows: "authorised officer , in relation to this Act or any provision of this Act, means: (a) an employee in the service of the RTA who is authorised by the RTA to exercise the functions of an authorised officer under this Act or that provision, or (b) an employee of any other roads authority who is authorised by the roads authority or by the RTA to exercise the functions of an authorised officer under this Act or that provision, or (c) a person of a class prescribed by the regulations who is authorised by the RTA or any other roads authority to exercise the functions of an authorised officer under this Act or that provision, or (d) a police officer, and, in relation to the provisions of sections 232 and 233, includes a special constable authorised by the RTA to exercise the functions of an authorised officer under those provisions." 56 In that statutory context, the mere fact a person was an authorised officer would clearly not be enough to establish vicarious liability on the part of the RTA for that person's conduct. The fact that an authorised officer can be a police officer militates against that proposition. It appears likely that Barrie Toepfer Earthmoving would rely on the first definition set out above and contend that the person who gave Mr Luck the direction under s 231 of the Roads Act, although not an employee of the RTA, was employed in its service and authorised by it to exercise the functions of an authorised officer under the Roads Act. Leaving aside the fact that no such matters are expressly pleaded, the critical question for present purposes is whether a claim could properly be maintained against the RTA on that basis alone. 57 Mr Glissan submitted that the proper defendant to the claim is the State of New South Wales rather than the RTA. It is difficult to resist that submission. As already explained, the basis for the relief sought is the conduct of an employee of the Crown for whom the Crown would (relevantly) be vicariously liable (subject to the operation of s 234 of the Roads Act). 58 The path to a claim against the State of New South Wales would appear to be open in that context. Section 5 of the Crown Proceedings Act 1988 provides:

5 Crown may be sued (1) Any person, having or deeming himself, herself or itself to have any just claim or demand whatever against the Crown ( not being a claim or demand against a statutory corporation representing the Crown ) may bring civil proceedings against the Crown under the title "State of New South Wales" in any competent court [my emphasis]. (2) Civil proceedings against the Crown shall be commenced in the same way, and the proceedings and rights of the parties in the case shall as nearly as possible be the same, and judgment and costs shall follow or may be awarded on either side, and shall bear interest, as in an ordinary case between subject and subject. 59 Barrie Toepfer Earthmoving contended, however, for a different construction of that section. Mr Neil submitted, with some ingenuity, that the effect of s 5 is to mandate the bringing of the present claim against the RTA rather than against the State of New South Wales. He relied on the emphasised words in parenthesis above, "not being a claim or demand against a statutory corporation representing the Crown." The submission, as I understood it, is that since the proper claim is against the RTA, it is not open to Barrie Toepfer Earthmoving to sue the State of New South Wales. 60 With great respect to Mr Neil, there was an element of question-begging in that argument. It is clear that a person whose proper claim is against a statutory corporation representing the Crown should not name the State of New South Wales as the defendant to the action, but s 5 does not answer the question whether there is a proper claim against the RTA in the present case. That is the very issue raised by the RTA's motion. 61 In my view, s 5 of the Crown Proceedings Act clearly permits a claim to be brought either against the "State of New South Wales" or against a statutory corporation representing the Crown, assuming always the existence of a proper cause of action against the chosen defendant. I do not think the effect of the section is to mandate either choice of defendant. 62 More persuasively, however, Mr Neil submitted that the statutory incapacity of the RTA to employ staff may not be determinative of the question of vicarious liability. He submitted that this should be an issue for the trial, before which the indicia of employment, agency or servitude may be fully explored. 63 Mr Neil relied on the judgment of McHugh J in Hollis v Vabu Pty Limited [2001] HCA 44; 207 CLR 21 at [73]. In that case, McHugh J, in celebration of "the genius of the common law" and its adaptability to social change, held that, although the unidentified cyclist who knocked Mr Hollis to the ground was not an employee of Vabu (which conducted the business of "Crisis Couriers"), Vabu was vicariously liable for his conduct because: "Vabu had delegated to the courier a task that Vabu had agreed to perform; the courier was not acting as an independent functionary but was carrying out the task as Vabu's representative; the courier was subject to Vabu's general direction and control; and the courier was acting within the scope of the authority conferred on him by Vabu." 64 Mr Neil acknowledged that, in so holding, McHugh J was reaffirming what his Honour had said in dissent in Scott v Davis [2000] HCA 52; 204 CLR 333 at [34]. 65 Although I think there is force in the contention that the claim could properly have been brought against the Crown (under the title "the State of New South Wales"), I do not think it is unarguable that the RTA is vicariously liable for negligence or breach of statutory duty on the part of an employee in its service (although not its employee) authorised by it to exercise the functions of an authorised officer under the Roads Act. That is enough for present purposes. In light of that conclusion, it is not necessary to deal with an alternative argument put by Mr Neil based on s 4I of the Public Sector Employment and Management Act 2002.

Vicarious liability not properly pleaded 66 The second objection taken by the RTA was that, even if there is an arguable case of vicarious liability, the present cross-claim does not adequately plead any basis for holding the RTA liable for the conduct of the authorised officer in question. I accept that the pleading is inadequate in that respect. As already noted, the claim is probably based principally on the contention that, having regard to the definition of an authorised officer set out above, it may be concluded that the direction in the present case was given by a person acting as a representative of, and in fact authorised by, the RTA to exercise that function. However, that contention is not pleaded. 67 Since I propose to strike out paragraph 11 of the defence, it will be necessary for the cross-claim to be re-pleaded in any event so as to plead out the contents of that paragraph in full in the cross-claim. The amended pleading should, in addition, plead the facts, matters and circumstances on the basis of which it is contended that the RTA is liable for the conduct of the authorised officer in question. The allegation of vicarious liability for his conduct should be expressly pleaded, assuming that is the basis for suing the RTA.

Exemption from liability under s 234 of the Roads Act 68 The third objection to the cross-claim is that, whether the proper defendant is the State of New South Wales or the RTA, the claim faces the additional hurdle of the exemption from liability under s 234 of the Roads Act to which I have already referred. That appears to be a substantial hurdle indeed. 69 Section 234 provides: 234 Exemption from liability 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. 70 There was some debate at the hearing before me as to whether the section applies to the RTA. Mr Neil submitted that the RTA is certainly not "the Crown", since a distinction must be drawn between the Crown and a statutory corporation representing the Crown (but cf s 3 of the Crown Proceedings Act 1988). Mr Neil submitted, further, that the RTA may not be "any other person" within the meaning of the section. However, if the claim is brought against the RTA only as being vicariously liable for the conduct of the authorised officer, the critical question is whether the authorised officer is "any other person" within the meaning of the section. It seems to me that he plainly is. That being so, if the section exempts him from liability, it is difficult to see how a claim based on his conduct could be maintained against any entity as vicariously liable for such conduct. 71 Mr Neil submitted, however, that there is a triable issue as to whether the conduct of the officer in the present case would satisfy the terms of the section. With some hesitation, I have concluded that, although the point is not without difficulty, there is an issue to be tried. 72 The argument put on behalf of Barrie Toepfer Earthmoving is that the words "in good faith" in s 234 qualify both the exercise of a power and the purported exercise of a power. My preliminary view is otherwise, but I accept that the point is open. 73 On the construction of the section contended for by Mr Neil, he would argue that if the power was exercised with "a form of recklessness", that could amount to a lack of good faith so as to deprive the authorised officer of the protection of the section. 74 The only cases cited by Mr Neil as authority for that proposition came from the field of company law where the issue was whether directors' or shareholders' powers were exercised in good faith in that context. The cases referred to by Mr Neil were Hutton v West Cork Railway Company (1883) 23 Ch Div 654 at 671 per Bowen LJ and Wayde v New South Wales Rugby League Limited (1985) 180 CLR 459 at 469.9 per Brennan J. The central point relied upon from those authorities appears to be that a power is not exercised in good faith if the decision is such that no reasonable person could think it to be substantially for a purpose for which the power was conferred. 75 I have some difficulty seeing how those decisions could be thought to provide any great comfort to Barrie Toepfer Earthmoving in the present case. Nonetheless, since the issue is one the determination of which must necessarily be informed by such facts as may emerge at the trial, I do not think I can dismiss the contention summarily.

76 The last issue raised on behalf of the RTA is the so-called question of coherence. As explained by Spigelman CJ in Hunter Area Health Service v Presland [2005] NSWCA 33, a series of decisions has acknowledged the need to consider whether the imposition of a duty of care at common law is inconsistent with some aspect of a statutory scheme or, if not directly inconsistent, may be "otherwise inappropriate by reason of the scope and purpose of the legislation". In Presland, the Chief Justice referred, by way of illustration, to the situation where liability in tort may "distort the focus" of the statutory decision-making process; may require a decision to be made in a "detrimentally defensive frame of mind"; may "have a tendency to discourage the due performance of statutory duties"; may "undermine the effectiveness of the duties imposed by the statute" or could "distort the performance of the functions of the statutory body" (citations omitted). 77 Those considerations will require close attention in the present case. Plainly, an authorised officer exercising the functions of the RTA under the Roads Act, at least so far as s 231 is concerned, is exercising a duty concerned with the safety of the public. There appears to be considerable force in the contention that the imposition of a duty of care in the circumstances may be inappropriate in the sense identified in the principles discussed by the Chief Justice in Presland. I am not satisfied, however, that the point is so plainly unarguable as to warrant summary dismissal of the cross-claim. 78 Mr Glissan submitted that such relief was warranted, having regard to the additional hurdle faced by Barrie Toepfer Earthmoving of the exemption from liability created by s 234 of the Roads Act. For the reasons set out above, I consider there to be a triable question of law as to the application of that section. 79 Separately, the RTA complained that the pleading of the cause of action for breach of duty of care is too vague. The cross-claim presently alleges that, by reason of the matters pleaded in paragraph 11 of the amended defence, the RTA owed Barrie Toepfer Earthmoving a duty of care at common law. The particulars of that allegation are: "The Plaintiff knew or ought to have known that the vehicle was travelling south and would or might cross the Hexham Bridge and knew or ought to have known that by reason of the reconfiguration of the excavator, would or might collide with the bridge but failed to warn the Second Defendant thereof and or failed to direct the Second Defendant to avoid the bridge." 80 The RTA complained that it therefore faces "16 possible pleaded sets of facts". I do not think the result in the present case is that the pleading is so imprecise as to deprive the RTA of any real notice of the case it has to meet. Although I accept that the net is cast wide in terms of alternative ways in which the case is put, the overall parameters of the factual contentions relied upon to sustain the claim are clear and are relatively confined. Accordingly, I am not satisfied that the claim for breach of duty of care at common law is so vague as to be liable to be struck out.

Reply 81 In light of the conclusion I have reached as to the amended defence and the consequent need for Barrie Toepfer Earthmoving to amend its second cross-claim, it may be premature to grant leave to file the reply to the RTA's defence to the cross-claim. I should indicate, however, that I see no vice in the way in which Barrie Toepfer Earthmoving has approached that issue in the pleadings. 82 In particular, I think it is reasonably arguable that s 234 of the Roads Act may properly be construed to operate as a defence to the matters pleaded in the cross-claim, rather than as raising a matter the exclusion of which forms an element of the cross-claim. I do not think that conclusion entails any surprising outcome as to onus of proof. It remains for Barrie Toepfer Earthmoving to establish, in its case in chief on the cross-claim, the matters relied upon as the foundation of its claim, whatever the proper construction of s 234.

1. That paragraph 11 of the amended defence filed 10 December 2009 be struck out. 2. That the defendant/second cross-claimant have leave to file an amended second cross-claim in accordance with these reasons. 84 I will hear the parties as to costs. **********

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