RTA of NSW v Rolfe

CATCHWORDS : APPEAL - Local Court - Civil Liability Act - s 102 Roads Act 1993 - Contribution

Civil Liability Act 2002 Local Court Act 2007 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946 Roads Act 1993 Transport Administration Act 1988

Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 Amaca Pty Ltd v New South Wales (2003) 1 DDCR 39; (2003) 199 ALR 596; (2003) 77 ALJR 1509; (2003) Aust Torts Reports 81-705; [2003] HCA 44 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Blacktown City Council v Hocking [2008] NSWCA 144 Carr v Neill [1999] NSWSC 1263 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Commissioner for Main Roads v Engel [1962] NSWR 1313 Coulton v Holcombe (1986) 162 CLR 1; (1986) 65 ALR 656 Devries v Australian National Railways Commission (1993) 177 CLR 472 CASES CITED : Kensington Borough Council v Walters [1960] 1 QB 361; [1959] 3 All ER 652 Metwally (No 2) v University of Wollongong (1985) 59 ALJR 481; (1985) 60 ALR 68 North Sydney Council v Roman [2007] NSWCA 27 O'Brien v Komesaroff (1982) 150 CLR 310; 41 ALR 255 R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479 Roads & Traffic Authority of New South Wales v Refrigerated Roadways Pty Limited [2009] NSWCA 263 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Swain v Waverley Municipal Council [2005] 220 CLR 517 Water Board v Moustakis (1988) 77 ALR 193; (1988) 180 CLR 491

PARTIES : Roads & Traffic Authority of New South Wales (Plaintiff) Russell Clift Rolfe (Defendant)

COUNSEL : J Maconachie QC with J Rowe (Plaintiff) A Hourigan (Defendant)

SOLICITORS : Milne Berry & Freedman (Plaintiff) Fraser Clancy Lawyers (Defendant)

LOWER COURT DATE OF DECISION : 15 June 2009, 3 August 2009

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/295227 ROADS & TRAFFIC AUTHORITY OF NSW v RUSSELL CLIFT ROLFE

JUDGMENT (Appeal - Local Court - Civil Liability Act 2002 - s 102 Roads Act 1993 - contribution) 1 HER HONOUR: By amended summons filed 15 September 2009, the plaintiff seeks leave to appeal from the part of the decision of her Honour Magistrate Freund in the Local Court, dated 15 June 2009, in relation to the rejection or failure of the Magistrate to apply ss 42, 43, 43A and 45 of the Civil Liability Act 2002. The plaintiff also appeals orders 2 and 3(b) made on 3 August 2009. The plaintiff seeks an order that the appeal be allowed and that the judgment of the Court below be set aside and a verdict be entered for the plaintiff. 2 The plaintiff in these proceedings is the Roads & Traffic Authority of New South Wales (the "RTA") who was the plaintiff/cross defendant in the Local Court proceedings. The defendant is Russell Clift Rolfe ("Mr Rolfe") who was the defendant/cross plaintiff in the Local Court proceedings. For convenience, I shall refer to the parties by name. The RTA relied on the affidavit of Mittu Gopalan sworn 7 December 2009. 3 In the Local Court the RTA commenced proceedings seeking damages in the sum of $10,134.50 for the costs of repair to a guardrail. Mr Rolfe defended the proceedings and cross claimed against the RTA alleging negligence and seeking damages in respect to his vehicle in the sum of $33,829.99. 4 On 15 June 2009, the Magistrate ordered firstly, judgment and verdict for the RTA in relation to its statement of claim in the sum of $10,134.50; and secondly, judgment and verdict for Mr Rolfe in relation to the cross claim in the sum of $33,829.99. 5 On 3 August 2009, the Magistrate varied the orders pursuant to rule 36.19 of the Uniform Civil Procedure Rules 2005 to find that the RTA was liable to indemnify the cross claimant Mr Rolfe, for the sum of $10,134.50 together with interest from 8 October 2004 to date. The Magistrate also ordered the RTA to pay the costs of Mr Rolfe on an indemnity basis from 10 January 2008 up until 15 June 2009.

The appeal 6 Section 39 of the Local Court Act 2007 provides that a party who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. 7 Section 40 of the Local Court Act provides that the onus lies with the plaintiff to demonstrate that there has been an error of law or that leave should be granted on a mixed question of law and fact. What is a question of law (as opposed to a question of fact) was considered in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156; Carr v Neill [1999] NSWSC 1263 and R L & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479. The judicial officer cannot act on evidence inconsistent with facts that are incontrovertibly established by the evidence: see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. 8 Section 41 of the Local Court Act provides that the Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. 9 In Swain v Waverley Municipal Council [2005] 220 CLR 517, Chief Justice Gleeson at [2] reiterated that in the common law system of civil justice, the trial process determines the issues between the parties. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. I shall refer to Swain v Waverley Municipal Council in more detail later in this judgment.

Grounds of appeal 10 The RTA's grounds of appeal, as set out in the amended summons filed 15 September 2009, are as follows: "6 Section 42 of the Civil Liability Act sets out principles concerning resources, responsibilities etc of public and other authorities. The principles apply in determining whether the plaintiff has a duty of care or has breached the duty of care in civil proceedings.

7 There was no evidence to indicate the plaintiff had failed to comply with the general procedures and applicable standards. The appellant relies on this section as evidence that there is no duty of care owed by the plaintiff to the defendant and/or there is no breach of duty of care.

8 Section 43 of the Civil Liability Act is in relation to proceedings against public or other authorities based on breach of statutory duty. This is a case where the defendant alleges a failure by the plaintiff to exercise statutory duties or functions.

9 There is no evidence upon which the Court could have found in the circumstances the plaintiff was acting so unreasonably that no authority having the functions of the plaintiff could properly consider the omission to be a reasonable exercise of its functions.

10 Section 43A is in similar terms as section 43 but refers to a special statutory power. The powers bestowed on the plaintiff would appear to also come within a definition of special statutory power. If so, the argument in relation to section 43 is applicable to section 43A.

11 Section 45 of the Civil Liability Act confers a special nonfeasance protection for roads authorities that requires the defendants to show actual knowledge of the particular risk that materialisation of which resulted in the harm.

13A Her Honour erred in finding, in paragraph 5 of her judgment of 3 August 2009, that Mr Rolfe (the Cross Claimant) was entitled to relief pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 and/or s 5(2) of the said Act for the reason that: (a) no determination was made that Mr Rolfe (the Cross Claimant) answered the description of "Any tortfeasor liable …"; (b) such a determination was pre-condition to the operation of s 5; (c) there was no evidence upon which any such determination could have been made. 13B On its true construction, s 102 of the Roads Act : (a) precludes reliance by Mr Rolfe (the Cross Claimant) on s 5 of the 1946 Act; (b) entitles the Plaintiff (RTA) to relief irrespective of fault on its part." 11 As grounds [13A] and [13B] related to errors of law, leave was granted to the RTA to make these two amendments and provide submissions on these two issues only. The RTA was ordered to pay the costs thrown away by the amendments. Mr Rolfe made an application for indemnity costs. It was refused. In turn Mr Rolfe was granted leave to file a notice of contention and further submissions. 12 The RTA submitted that it should have a verdict if the Court finds in its favour on any one of the following issues, firstly, failure by Mr Rolfe to overcome the defences to the RTA created by Part 5 of the Civil Liability Act; secondly, failure by Mr Rolfe to show the road surface was excessively slippery when wet at the time of the accident; thirdly, failure by Mr Rolfe to show any excessive slipperiness was a breach of duty at common law by the RTA; and finally, failure by Mr Rolfe to show on the balance of probabilities that any excessive slipperiness was the cause of the Mr Rolfe losing control of his vehicle. 13 The grounds of appeal can be divided into two categories, firstly, those concerning the operation of ss 42, 43, 43A and 45 of the Civil Liability Act (Grounds 6 to 12); and secondly, the operation of s 102 of the Roads Act 1993 and s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (Grounds 13A and 13B). The pleading framework 14 In the Local Court the RTA sought damages in the sum of $10,134.50 together with interest and costs in relation to the alleged negligence and/or breach of statutory duty by Mr Rolfe as the driver of a heavy vehicle, which was involved in an accident on 8 September 2004 on the Great Western Highway at Marrangaroo, which collided with a guardrail on the left hand side of the road causing some damage to the guardrail and infrastructure and significant damage to Mr Rolfe's vehicle. 15 Mr Rolfe denied negligence and the breach of statutory provision so as to be indebted to the RTA. By amended statement of claim filed 21 July 2008, Mr Rolfe alleged that the RTA was negligent in so far as the road surface, as it was not or not properly maintained or repaired and there was an absence of warning signs, was unsafe and materially contributed to or caused the accident on 8 September 2004. Mr Rolfe has filed a notice of contention stating that the decision of the Magistrate should be affirmed on the basis of this pleading raised in the amended statement of claim. 16 Mr Rolfe claimed the costs of repairs of his vehicle in the sum of $33,829.99 together with interest and costs. The RTA denied negligence and alleged contributory negligence.

The Magistrate's reasons 17 On 8 September 2004, Mr Rolfe was the driver of a prime mover and attached trailer ("the vehicle"). He was driving the vehicle along the Great Western Highway at Marrangaroo, New South Wales, when the vehicle collided with and caused damage to the Armco guardrail located on the left hand side of the roadway. The vehicle was damaged in the accident. 18 The Magistrate in her written reasons dated 15 June 2009 stated at [16] - [28]: " C. WAS THE RELEVANT SECTION OF THE HIGHWAY EXCESSIVELY SLIPPERY FOR VEHICLES IN WET CONDITIONS? 16) Mr Rolfe relied upon the expert reports of Mr Bruce Hazel a Civil Engineer and Road Safety and Traffic Management consultant dated 13 May 2008 and 23 June 2008, namely exhibits 5 and 6 respectively in the proceedings. 17) It was the evidence of Mr Hazel inter alia that: a) photographs taken in December 2004, prior to maintenance work being carried out, indicated a " fatty and deteriorating surface over a length of the Great Western Highway for several hundred metres east and west of " the site of the Accident; b) pavement surfaces do not deteriorate over such a length of highway instantaneously and therefore the surface of the road at the time of the Accident would have been as he observed in December 2004; c) smooth road surfaces can be readily recognised and that SCRIM tests are not necessarily needed to reach conclusion that the road surface if flushed and or fatty; d) experienced and competent engineers and asset inspectors: i) should be able to recognise if a highway surface is smooth on visual inspection; and ii) should know that fatty and flush surfaces of bitumen sealed coats are very likely to have a very slow SFC when wet; e) that the SCRIM test data of 29 January 2005 establishes that the intervention rate was high and at the time the surface of the roadway was in places as "slippery as wet ice" and extremely hazardous; f) based on the inspection of the road and results of the SCRIM tests carried out at the site and other recorded accidents of the same type under the same condition that the very slippery nature of this surface when wet was a contributing factor in the cause of the accident; 18) The RTA relied upon the evidence of its employee Mr Brian Maloney, a civil engineer and the area maintenance manager for the Bowenfels District … It was Mr Maloney's evidence that he made observations of the relevant section roadway every working day in 2004 and he observed nothing that caused him alarm nor did he form the view that the relevant section of highway was in a dangerous condition. 19) Mr Maloney also stated that: a) Sideways force Coefficient Routine Investigation Machine ("SCRIM") tests are carried out at about 12 monthly intervals on Main Roads; b) The SCRIM test last carried out before the accident on the relevant stretch of road was on 27 March 2004. At that time, the "SCRIM" data was recorded at 100m intervals. One 100m segment rated intervention high but that segment was 100 metres from the accident site. The area of the accident site was not indicated as requiring intervention; c) He directed a "slippery when wet" sign to be erected in advance of the 100m indicated in the March 2004 SCRIM test; 20) It was submitted by Mr Rowe, Counsel for the RTA inter alia that: a) Mr Hazel: i) was biased in his opinion as he could not concede that another engineer may validly have a different opinion; ii) had no experience at taking readings and wrongly believed the readings were an average of a number of readings taken over a 100m space; iii) ultimately conceded in cross examination that SCRIM is no more than an indicative tool; and therefore, b) Mr Maloney's evidence should be preferred by the Court as he had the advantage of regularly inspecting the road prior to the accident. 21) I do not agree with Mr Rowe's submissions. I preferred the evidence of Mr Hazel over that of Mr Maloney for the following reasons: a) In my view Mr Hazel readily accepted that he had wrongly analysed the SCRIM data as an average; b) I found him to be generally forthright and honest in the witness box and in particular his reliance on the SCRIM data in forming his conclusion was no more than corroborative/indicative of the condition of the relevant section of Highway at the time of the Accident;

c) Although Mr Hazel had not inspected the stretch of road before the accident he did inspect it in December 2004 approximately 3 months after the Accident. He took photos of the relevant section of road and these are photos 1 to 9 of exhibit 5. At that time he observed the relevant portion of highway he was of the opinion that " It is the experience of the writer that road surfaces with appearance of that observed … at and on approaches to the accident site usually exhibit very poor frictional qualities ". d) On the other hand, Mr Maloney is and was at the relevant time an employee of the Plaintiff. He was the person responsible for making the decisions as to what intervention was necessary regarding the state of repair for the relevant section of highway. Despite Mr Maloney observing the relevant stretch of Highway almost daily throughout 2004 I do not accept the conclusion of his report namely that " the relevant road during 2004 did not cause him alarm nor did he form the view that the road was in dangerous condition ". I note that Mr Maloney conceded during cross examination, that prior to the Accident, that intervention was required on this particular stretch of road as he had: i) received SCRIM test data that indicated such intervention; and ii) that he was "aware of the deteriorating nature of the road". 22) Therefore, on balance I preferred the expert opinion of Mr Hazel and I am of the view that: a) the relevant section of Highway needed intervention at the time of the accident; b) that based upon the SCRIM test results taken in January 2005 (4 months after the accident) that portion of the relevant section of road would have been "as slippery as wet ice"; c) Mr Maloney was aware of the requirement for intervention in June 2004 after he received the March 2004 SCRIM test results particularly having regard to his evidence that he ordered a "slippery when wet" sign to be erected and that he did not have to inspect the road as he was aware of its deteriorating condition. 23) Accordingly, on the balance of probabilities I am satisfied that the relevant section of Highway was excessively slippery when wet at the time of the accident and was the cause of the loss of control of the Vehicle, which resulted in the Accident. D. WAS THE RTA NEGLIGENT IN MAINTAINING THE RELEVANT SECTION OF HIGHWAY? 24) Mr Rolfe's cross claim alleges negligence against the RTA. In order to succeed Mr Rolfe must satisfy the court that on the balance of probabilities that: a) The road was slippery at the time of the accident;

b) That the slipperiness of the road was as a result of a breach of duty to exercise reasonable care on the part of the RTA;

c) That the slipperiness of the road was the cause of Mr Rolfe losing control of the Vehicle; and

d) That the RTA had "actual knowledge" of the slipperiness of the road (namely the particular risk) the materialisation of which resulted in the harm.

25. I have previously found that the relevant section of road was excessively slippery at the time of the Accident and on balance was the reason that Mr Rolfe lost control of the Vehicle.

26. Mr Rowe submitted for the RTA inter alia that: "a) Pursuant to section 45 of the Civil Liability Act it is incumbent on Mr Rolfe to satisfy the court on balance that the RTA had actual knowledge of the dangerous condition of the road, namely that it was slippery when wet; and b) That pursuant to the authorities of North Sydney Council v Roman and Blacktown City Council v Hocking "actual knowledge; precludes reliance on constructive or imputed knowledge. c) Mr Hazel's report at its highest states that it was "highly likely that the condition of the pavement on the section of highway at which the accident occurred on 8 September 2004 was a contributory factor"; Therefore there was no evidence proffered by Mr Rolfe of actual knowledge. 27) In my view I am satisfied on balance that Mr Maloney did have actual knowledge of the slipperiness of the relevant portion of the highway prior to the accident on 8 September 2004 as; a) Upon receiving the results of June 2004 SCRIM test results that indicated part of the relevant stretch of highway required "high intervention" he did not need to inspect the road as "he was aware of its deterioration"; b) That as at June 2004 he had ordered a "slippery when wet sign" be erected prior to the stretch of highway at issue in these proceedings and at the time of the accident that sign had yet to be erected; c) Furthermore, in April 2004 the RTA issued a policy document "technical directions for Road Safety Practitioners - RSO5". That document stated inter alia that: i) The policy was to take effect immediately; and ii) Outlined the timeframe for delivery of the program and remedial works program. d) Mr Maloney's initial evidence was that the Policy was not in general use until Christmas 2004 (some months after the Accident). However, in cross examination he conceded that it in fact the Policy was in use in June 2004. It follows therefore that once he was in receipt of the March 2004 SCRIM test results, he was personally aware that the relevant section of road had deteriorated and he should have "Erected appropriate warning signs ASAP". 19 The Magistrate concluded that on balance she was satisfied that the RTA had actual knowledge of the dangerous and slippery conditions of the relevant section of the roadway.

The RTA 20 The RTA is constituted by s 46 of the Transport Administration Act 1988 and has the functions conferred or imposed on it by the acts set out in s 46(2)(a) including the Roads Act 1993. 21 The objects of the Roads Act are set in s 3. It provides: "3 Objects of Act

(a) to set out the rights of members of the public to pass along public roads, and

(b) to set out the rights of persons who own land adjoining a public road to have access to the public road, and

(c) to establish the procedures for the opening and closing of a public road, and

(d) to provide for the classification of roads, and

(e) to provide for the declaration of the RTA and other public authorities as roads authorities for both classified and unclassified roads, and

(f) to confer certain functions (in particular, the function of carrying out road work) on the RTA and on other roads authorities, and

(g) to provide for the distribution of the functions conferred by this Act between the RTA and other roads authorities, and

(h) to regulate the carrying out of various activities on public roads." 22 Section 71 of the Roads Act provides that a road authority may carry out road work on any public road for which it is the roads authority and on any other land under its control.

Part 5 of the Civil Liability Act 23 Part 5 of the Civil Liability Act is entitled "Liability of public and other authorities". Part 5 sets out the principles upon which the RTA can rely in any case brought against it and makes it very difficult for allegations of negligence to succeed against the RTA. Part 5 comprises of ss 40 to 46. Section 40 states that Part 5 applies to civil liability in tort and it extends to any liability even if the damages are sought in an action for breach of contract or any other action.

24 Section 42 of the Civil Liability Act reads: "42 Principles concerning resources, responsibilities etc of public or other authorities The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate." 25 Mr Hazel, the engineer for Mr Rolfe, confirmed that the particular stretch of road was subject to upgrade at the time of the accident and upgrade works had commenced (LCT 11.11.08, 37.25). The RTA argued that there is nothing in the evidence to indicate that the RTA had failed to comply with the general procedures and applicable standards. But the onus is on the RTA to satisfy the Court that it complied with the general procedures and applicable standards by relying upon evidence to that effect. It did not do so. The RTA submitted that it can rely on s 42 of the Civil Liability Act as there is no duty of care owed by the RTA to Mr Rolfe and/or there is no breach of any duty of care. 26 Section 43(2) of the Civil Liability Act provides: "(2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions." 27 Mr Rolfe says that the RTA has failed to raise any prima facie case in which it can rely on ss 42, 43 and/or 43A of the Act and that the RTA's submissions are substantially irrelevant.

Was the road excessively slippery? 28 The RTA submitted that at common law Mr Rolfe must show that the RTA knew or ought to have known of the excessive slipperiness of the road when wet. The RTA says that the evidence of Mr Hazel does not address this knowledge other than by implication. The RTA submitted that the evidence of Mr Maloney, its engineer, contradicted the evidence of Mr Hazel in a direct way and established that no such knowledge was held by the RTA. 29 According to the RTA, the only evidence before the Magistrate or otherwise available to support a verdict for Mr Rolfe who was the onus bearer, was that the road was "in places" slippery and hazardous, established by the 29 January 2005 Sideways Force Coefficient Routine Investigations Machine test data ("SCRIM") four months after the accident and the evidence of Mr Maloney that the only segment of the SCRIM test done months before the accident that was relevant was 100 metres from the accident site.

30 The RTA submitted that with the evidence in that condition, failing to incriminate any relevant section of the roadway as being excessively slippery on objective criteria, and there being another plausible explanation for Mr Rolfe's loss of control (driving at or near the speed limit on a curve in wet conditions), the evidence was left in such a state that the Court was required to choose between competing possibilities of equal degree of probability, and this was putting Mr Rolfe's case at its very highest, and was not sufficient for him to discharge the onus of proof case upon him. 31 Mr Hazel's opinion was derived from his observation of the road some months after the accident. Mr Hazel opined that the road would have been excessively slippery when wet at the time of the accident. Mr Hazel supported his opinion by reference to SCRIM readings. The RTA submitted that Mr Hazel had no experience at taking readings and wrongly believed that the readings were an average of a number of readings taken over a 100 metre stretch of road and if any reading indicated a low coefficient of friction then an intervention was indicated. Mr Hazel conceded that it was no more than an indicative tool. 32 Mr Maloney was of the opinion that the road was not excessively slippery when wet at the time of the accident. The RTA submitted that Mr Maloney had the advantage of regularly inspecting the road at that time and therefore his opinion should have been preferred to the opinion of Mr Hazel. The RTA submitted that, in the alternative, Mr Rolfe had not discharged his onus to satisfy the Court on the balance on probabilities that the road was excessively slippery when wet at the time of the accident. The RTA says that there was no evidence available to the Magistrate with respect to the standard or protocol that would have enabled her Honour to come to the conclusion that the roadway was slippery to a point of breach. 33 Regardless of the methodology of the SCRIM testing, it was ultimately common ground between the parties that the SCRIM test data of 27 March 2004 contained a number of readings that certain areas, which Mr Rolfe submitted included the section of the roadway relevant to the accident on 8 September 2004, indicated that high intervention was required. Mr Rolfe submitted that while the RTA's interpretation of the evidence concerning the methodology and application of SCRIM test data was disputed, and even if the Court were to accept the RTA's interpretation, there would have been no material difference in the findings of the Magistrate. I agree. 34 The Magistrate summarised both Mr Maloney and Mr Hazel's evidence. Her Honour stated that Mr Hazel based his opinion on his inspection of the road and results of the SCRIM tests carried out at the site and other recorded accidents of the same type under the same condition and concluded that the very slippery nature of this surface when wet was a contributing factor in the cause of the accident. 35 Her Honour at [22] stated that on balance she preferred the expert opinion of Mr Hazel. Her Honour was of the view that, firstly, the relevant section of roadway needed intervention at the time of the accident; secondly, that based upon the SCRIM test results taken in January 2005 (4 months after the accident) that portion of the relevant section of road would have been "as slippery as wet ice"; and thirdly, Mr Maloney was aware of the requirement for intervention in June 2004 after he received the March 2004 SCRIM test results particularly having regard to his evidence that he ordered a "slippery when wet" sign to be erected (100 metres from where the accident occurred); and finally, that Mr Hazel did not have to inspect the road as he was aware of its deteriorating condition. 36 On this issue, her Honour at [23] concluded that on the balance of probabilities she was satisfied that the relevant section of roadway was excessively slippery when wet at the time of the accident and it was the cause of the loss of control of the vehicle, which resulted in the accident. In my view, there was evidence that supported her Honour's findings and her conclusion that at the time of the accident the roadway was excessively slippery when wet and it was the cause of the accident. In my view there is more than a scintilla of evidence on which the Magistrate based her findings and ultimately her conclusion. It was open to the Magistrate to come to this conclusion. There is no error of law.

Whether the relevant section of the highway was identified 37 Next the RTA contended that the relevant section of the roadway at which Mr Rolfe lost traction was never identified. However, the Magistrate had before her Mr Maloney's witness statement dated 13 June 2008. Attached a diagram/map upon which Mr Maloney identified the location of the accident by highlighting on the diagram/map the segments being measured numerically heading away from Reserve Road. Further, the RTA's own reports (see Event No E21768145 attached to the affidavit of Mr Andrew Bament) stated: "At 3am on Wednesday the 8 th of September 2004 a 61 yr old male driver of a semi traylor (sic) was travelling west on the Great Western Hwy Marrangaroo. About 800m west of Reserve Road the vehicle slid off to the left side of the hwy hitting the guard rail. The vehicle slid along the rail for about 54 metres before coming to a stop." 38 In light of this evidence it is not surprising that the relevant section of the roadway at which Mr Rolfe lost traction was not disputed in the Local Court. The proceedings in the Local Court were run on the basis that it was known where Mr Rolfe's vehicle lost traction and hit the guardrail. 39 The Case law makes it clear that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet: Water Board v Moustakis (1988) 77 ALR 193; (1988) 180 CLR 491 at 498; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Metwally (No 2) v University of Wollongong (1985) 59 ALJR 481 at 483; (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; (1986) 65 ALR 656; O'Brien v Komesaroff (1982) 150 CLR 310 at 319 ; (1982) 41 ALR 255. This point cannot now be raised on appeal.

Sections 43(2) and 43A of the Act 40 So far as s 43(2) is concerned, the RTA submitted that there was no evidence upon which the Court could find that it was acting so unreasonably that no authority having the functions of the RTA could properly consider the omission to be a reasonable exercise of its functions, and that the alleged acts or omissions do not constitute a breach of statutory duty. 41 The RTA also says this submission applies in relation to s 43A. Section 43A relates to proceedings against public or other authorities for the exercise of special statutory powers. So far as I can discern, no special statutory powers were referred to in the Local Court proceedings so s 43A played no part in the Local Court. Mr Rolfe did not plead that the RTA breached any statutory duty. 42 Turning to the pleadings, paragraph 6 of Mr Rolfe's cross claim pleads firstly, failing to ensure that the surface of the highway provided sufficient friction for safe use by vehicles; secondly, failing to maintain the surface of the highway so as to provide sufficient friction for safe use by vehicles; thirdly, failing to resurface the highway so as to provide sufficient friction for safe use by vehicles; fourthly, failure to repair the highway so as to provide sufficient friction for safe use by vehicles; fifthly, allowing vehicles and in particular prime movers to use the highway when it was not safe to do so because it provided insufficient friction for safe use by vehicles; sixthly, failing to erect any warning signs so as to warn vehicles of the unsafeness of the highway because it provided insufficient friction for safe use by vehicles; seventhly, failing to erect proper advisory signs so as to warn vehicles of the unsafeness of the highway because it provided insufficient friction for safe use by vehicles; eighthly, failing to lower the speed on the highway to a safe speed; ninthly, failing to conduct regular audits on the highway to ensure it was safe for vehicles; and tenthly, failure to undertake testing of the highway to ascertain whether it provided sufficient friction for safe use by vehicles. 43 Negligence is defined in s 5 of the Civil Liability Act to mean "failure to exercise reasonable care". Mr Rolfe pleaded that the accident was caused by the RTA's negligence. Mr Rolfe did not base his claim on breach of statutory duty. Section 43(2) and s 43A of the Act has no application here. There is no error by the Magistrate.

Funding constraints 44 Section 42(a), (b) and (c) of the Civil Liability Act refer to the allocation of financial and resources. No submissions specifically were made in relation to these subsections in the Local Court but there was evidence that funds had been allocated for upgrading and resealing of this roadway. The work was to commence in early 2005 and it had actually commenced by March 2005. 45 The RTA referred to Roads & Traffic Authority of New South Wales v Refrigerated Roadways Pty Limited [2009] NSWCA 263, where the Court of Appeal held at [299]: "299 If the judge was intending by his finding at [51] to convey that the officials of the RTA were free to ignore budgetary constraints to meet what they perceived to be a need for expenditure of money, that could not be accepted. When the court makes a finding that a public instrumentality has failed to take reasonable care, by failing to spend money in some particular way, it is not finding that the officers of that instrumentality ought to have ignored the budgetary context within which they worked. After all, the rules concerning the way in which public money is raised, appropriated, spent and then accounted for are themselves rules of law, and it would be a rare case indeed (if it could ever happen) when a court could properly make a finding that performance of one legal duty required a public official to ignore another legal duty that he or she was subject to. Rather, the finding is one that has implicit in it that the ordering of priorities for expenditure of money ought, if reasonable care was to be taken, have been different to what they actually were. In fairness to the judge, it should be said that it is not at all clear that he was intending to say that the public officials involved in the present case should have ignored the budgetary constraints on them and simply spent the money." 46 The way that funds were allocated was not challenged by Mr Rolfe. Budgetary constraints were not raised in the written submissions furnished by the RTA in the Local Court. Mr Rolfe conducted his case on the basis that budgetary constraints were not an issue and did not produce evidence nor cross examine Mr Mahoney on this topic. There is no error in the approach of the Magistrate in relation to s 42(a) and (c) and budgetary constraints. Actual knowledge 47 Section 45(1) of the Civil Liability Act reads: "(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm." 48 On this topic, the RTA referred to North Sydney Council v Roman [2007] NSWCA 27 and Blacktown City Council v Hocking [2008] NSWCA 144. In North Sydney Council v Roman the issue for decision on appeal was whether "actual knowledge" for the purpose of s 45, required a connection between the person with actual knowledge of the particular risk and the person able to, but who failed to, carry out the roadwork which would have avoided the harm which materialised. It was argued that even if it was assumed a street sweeper had actual knowledge of a pothole, that knowledge was not sufficient because street sweepers did not carry out repairs. 49 The majority of the Court of Appeal in North Sydney Council v Roman (Bryson and Basten JJA) and the dissenting judgment of McColl JA are not in disagreement as to what is meant by "actual knowledge" and the affect of the immunity. Basten JA stated at [157]: "... the section confers an immunity on a roads authority where harm arises "from a failure of the authority to carry out roadwork" The exception only arises where "at the time of the alleged failure" the authority had actual knowledge of the particular risk. A purposive construction would require that the relevant knowledge exist in an officer responsible for exercising the power of the authority to mitigate the harm. The existence of the power is only coupled with a duty to act in circumstances where such knowledge exists. Accordingly, the knowledge must exist at or above the level of the officer responsible for undertaking necessary repairs. The knowledge of others without such responsibility will not, relevantly for the purposes of the provision, constitute "actual knowledge" of the roads authority itself; at best it could give rise to "constructive" or imputed knowledge. The use of the term "actual" precludes reliance on constructive or imputed knowledge. It follows that, even if a street sweeper having a duty to note and report defects, was aware of the pothole, the immunity is engaged absent proof on the balance of probabilities that the officer in charge of maintenance works received that information." 50 However, McColl JA in North Sydney Council v Roman was of the view that knowledge of the street sweepers with an obligation to report became actual knowledge of the Council: "55 It is a reasonable inference that s 45 was intended to prevent roads authorities from being held liable in Brodie circumstances merely for failing to take reasonable steps to look for such risks as might reasonably be expected to arise. On the other hand, s 45 presupposes a system of inspection by which a roads authority can acquire actual knowledge of particular risks. That system of inspection must exist as an essential adjunct to the roads authority's obligation to keep roads in a reasonable state of repair at least implicit, if not expressed, in its function of carrying out road work.

56 Section 45, in my view, indicates a legislative intent to strike a balance between the community's legitimate expectation, that public roads will be reasonably safe to traverse, and the extreme consequences which would flow, in revenue terms, if a roads authority could be found prima facie liable for injuries arising from risks of which it had only constructive knowledge. So much, at least, is evident from the structure of the provision and the Second Reading Speech.

57 Nothing in s 45, in my view, precludes the conclusion that the actual knowledge which will be attributed to the roads authority will at least be that of those relevantly involved in the authority's system of inspecting roads who have a duty to report their knowledge of a particular risk and/or who have a responsibility for repairing the road, or to consider repairing the road, if such a risk is brought to their attention. " 51 In Blacktown City Council v Hocking the Court of Appeal analysed whether actual knowledge could be inferred by a negligent inspection by a Council employee who did not have the duty to repair. The Court of Appeal found the plaintiff had failed to adduce evidence of negligence and therefore s 45 was not engaged. 52 In Blacktown City Council v Hocking Tobias JA in relation to s 45 and the Council liability stated at [177]: "Two issues initially arise with respect to the application of this provision to the facts of the present case. The first is whether an officer or officers of the Council (in this case Mr Shackleton) had actual knowledge of the particular risk the materialisation of which resulted in the plaintiff's injuries. The second, which only arises if the first question is answered affirmatively, is whether that officer or those officers had delegated (or statutory) authority to carry out the necessary roadwork to eliminate the relevant risk or to consider carrying out such roadwork. That the officer or officers with the relevant "actual knowledge" were required to have that authority follows from the decision of the majority of this Court (Basten and Bryson JJA) in North Sydney Council v Roman ." 53 In this appeal, the issues raised in North Sydney Council v Roman and Blacktown City Council v Hocking do not arise in so far as Mr Maloney was not a street sweeper. He was the relevant decision maker in the RTA. Mr Maloney is the civil engineer and area maintenance manager for the Bowenfels District for the RTA. He is the one responsible for inspection of that particular stretch of road where the accident occurred and making the determination whether the condition of the road posed any risk to users of the roadway. What was Mr Maloney's actual knowledge of the particular risk the materialisation of which resulted in the harm? 54 The RTA argues that the Magistrate failed to understand that preferring Mr Hazel's evidence was not evidence of "actual knowledge" of excessive slipperiness or dangerous condition. In respect of the RTA's further submissions addressing actual knowledge, Mr Rolfe submitted that the submissions ought be rejected on the basis that, among other things, the SCRIM data produced by the RTA and disseminated across the RTA including to Mr Maloney whom conceded that he was the responsible person for the relevant section of the Great Western Highway; that the SCRIM data itself is evidence that the RTA was possessed of knowledge the dangerous state of the roadway; and that the RTA's real complaint, and one which is not appellable, appears to be that it considers that her Honour should have preferred the evidence of Mr Maloney over the evidence of Mr Hazel. 55 The Magistrate at [18] outlined the evidence of Mr Maloney and then at [27] her Honour made a finding that Mr Maloney had actual knowledge of the slipperiness of the relevant portion of the roadway prior to 8 September 2004 because firstly, upon receiving the result of the June 2004 SCRIM test results that indicated part of the relevant stretch of roadway required "high intervention" Mr Maloney did not need to inspect the road as "he was aware of its deterioration"; secondly, that as at June 2004, Mr Maloney had ordered a "slippery when wet" sign to be erected prior to the stretch of roadway in issue and at the time of the accident that sign had not been erected; thirdly, in April 2004 the RTA issued a policy document entitled "technical directions for Road Safety Practitioners - RS05" which stated that the policy was to take effect immediately and it outlined the timeframe for delivery of the program and remedial works programs. 56 In my view the Magistrate made findings as to Mr Maloney's actual knowledge as required by s 45. Her Honour did not rely on constructed or imputed knowledge arising from the evidence Mr Hazel to make these findings. On this issue of the findings made under s 45 there is no error of law.

The Roads Act 1902 57 Section 102 of the Roads Act 1993 relevantly reads: "102 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 or any traffic control facility on a road or road related area within the meaning of the Road Transport (General) Act 2005 … 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.

(3) This section does not apply to ordinary wear and tear caused by reasonable use of a public road.

(4) …" 58 Mr Rolfe agrees that the operation of s 102 does not depend upon any determination of fault being made but he says that there is a requirement that a determination of responsibility be made. Mr Rolfe submitted that as the RTA did not raise this issue in the Local Court it should not be permitted to do so on appeal. Since this argument concerns the interpretation of a statutory provision and requires no further evidence, I will determine this issue. 59 The RTA says that s 102 of the Roads Act is a mechanism allowing the RTA a speedy recovery of the costs of repairs to its property from third parties without any consideration of liability or legal causation and referred to the Commissioner for Main Roads v Engel [1962] NSWR 1313. 60 In 1993 the Main Roads Act 1925 was repealed. It was replaced by the Roads Act 1993. Section 40 of the Main Roads Act is in similar terms to s 102 of the Roads Act. In Commissioner for Main Roads v Engel at 1314 the issue was whether negligence or culpability at common law was a necessary ingredient of any claim under s 40 of the Main Roads Act. Jacobs J at page 1315 concluded that common law liability or culpability was not a condition precedent to the liability of a person who caused damage or injury to a road or bridge. Jacobs J at 1318 stated: "Once it is assumed that a person driving a vehicle damages property because the vehicle causes damage to that property irrespective of the circumstances in which it does so, then it seems to me that, using the word "cause" to express a physical relationship rather than responsibility, it is not possible to distinguish between a "person who damaged" and a "person who causes damage". It therefore seems to me that Kensington Borough Council v Walters is an authority upon which the plaintiff may rely in support of the view that irrespective off the events which caused the defendant's vehicle to go out of control the defendant may be said to have caused the damage or injury to the bridge." 61 On this issue the Magistrate stated: "… I am bound by the superior court authorities of Kensington Borough Council v Walters and Commissioner for Main Roads v Engel namely, that when considering the application of section 102 of the Roads Act 1963 the circumstances and reasons for Mr Rolfe's vehicles collision with the Guardrail are irrelevant. Mr Rolfe's vehicle damages the Guardrail and therefore he is liable for the repair of the damage sustained to it." 62 Mr Rolfe submitted that the decision of Commissioner for Main Roads v Engel should be distinguished from the circumstances of the accident in these proceedings because in Engel causation was established in circumstances where the road authority was not alleged to have contributed in any way to the accident. In Engel the accident occurred due to an alleged break failure of the vehicle which came into collision with a bridge. Whereas it these proceedings it was the RTA's own negligence that caused or contributed to the accident which it is said caused damage to a public road. Hence, Mr Rolfe submitted that the RTA is not entitled to reply upon s 102 of the Roads Act. The RTA submitted that Parliament has expressly provided in s 102 of the Roads Act that, on proof of cause of damage, Mr Rolfe must bear the cost of repair and that there is no warrant for the Court to provide otherwise. 63 It is my view the decision of the Magistrate in relation to s 102 of the Roads Act was correct. For recovery of damages under s 102 of the Roads Act fault or negligence plays no part.

Was Mr Rolfe a tortfeasor pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946? 64 To recover the sum of $10,134.50 from the RTA, Mr Rolfe must engage the provisions of s 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946. 65 Section 5(1) of the Law Reform (Miscellaneous Provisions) Act reads: "5 Proceedings against and contribution between joint and several tort-feasors

(1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage,

(b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered, or for the benefit of the estate, or of the spouse, brother, sister, half-brother, half-sister, parent or child, of that person, against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action,

(c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought." 66 The Magistrate in her reasons dated 3 August 2009, stated at [7] -[8]: "7) In this case the Court inadvertently referred to the Amended Statement of Cross Claim that made no application for indemnity and/or contribution as opposed to the Further Amended Statement of Cross Claim filed in court on 21 July 2008, which did. Such an error/slip in my view can be rectified pursuant to the Slip Rule.

8. Accordingly, pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946, and for the reasons set out in paragraphs 4 to 28 of the Initial Decision, I am satisfied, on the balance of probabilities, that the RTA is liable to indemnify Mr Rolfe, for the sum of $10,134.50. Namely, the cost of repairing damage caused to the Guardrail, as the damage was ultimately caused by the negligence of the RTA." 67 The argument revolves around the Magistrate having made a decision under s 102 of the Roads Act that Mr Rolfe had to pay $10,134.50 for the cost of repairing the guardrail, whether he could recover these damages pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act as a result of the RTA's negligence. The Magistrate held that he could do so. 68 The RTA submitted that Mr Rolfe was never a tortfeasor and there was no evidence on which he could be found to be one. The RTA submitted that this principle was not determined by the Magistrate and there was no evidence upon which it could have been decided. Mr Rolfe submitted that as the RTA did not argue in the Local Court that he was not a joint tortfeasor for the purposes of s 5(1), the RTA ought not be able to argue this point on this appeal. However, since this argument concerns the interpretation of a statutory provision and not further evidence I will determine this issue. 69 The RTA also submitted that in order to engage the section, Mr Rolfe had to satisfy the opening words of s 5(1), that is, "where damage is suffered by any person as a result of a tort…". According to the RTA, Mr Rolfe suffered no damage by imposition upon him of the judgment for $10,134.50. That is a sum for which he was adjudged liable at law pursuant to a statute. Further, even if it were damage, it was not suffered by Mr Rolfe "as a result of a tort". The damages were suffered as a result of the operation of legislation that gave rise to a liability on Mr Rolfe's part without fault. I agree with this submission. 70 The RTA referred to Amaca Pty Ltd v New South Wales (2003) 1 DDCR 39; (2003) 199 ALR 596; (2003) 77 ALJR 1509; (2003) Aust Torts Reports 81-705; [2003] HCA 44 as authority for the proposition that determination of "tortfeasor" is an antecedent condition which must be satisfied before the section is engaged. Mr Rolfe makes no submission to the contrary. 71 In Amaca the High Court stated at [16]: "[16] Those three outcomes of proceedings for contribution are predicated upon the claimant being entitled to recover contribution. The circumstances in which that entitlement arises are specified in s 5(1)(c). Two matters must be established: (i) that the claimant is a tortfeasor liable in respect of particular damage; and (ii) that the person against whom the claim is made is another tortfeasor "who is, or would if sued have been, liable in respect of the same damage". 72 There was no finding that Mr Rolfe was a tortfeasor or wrongdoer in respect of the damages to the guardrail (nor could there be under s 102 of the Roads Act) hence the first precondition referred to in Amaca is not met. Mr Rolfe does not dispute that he was a joint tortfeasor. An order for contribution or indemnity cannot be made. In making an order for indemnity costs the Magistrate erred in law. 73 As I have decided that s 5(1) of the Law Reform (Miscellaneous Provisions) Act has no effective operation then Mr Rolfe's contention is that this Court find in negligence against the RTA by affirming the Local Court decision for the same reasons for judgment made by the Magistrate on 15 June 2009 and 3 August 2009. 74 Mr Rolfe also submitted s 102 of the Roads Act does not alter his rights in negligence under the common law to seek recovery of his statutory requirement to pay the RTA, pursuant to s 102, from the RTA as part of Mr Rolfe's losses resulting from the RTA's negligence. According to Mr Rolfe, causation referred to in s 102 is a factual causation whereas causation under the common law of negligence is a legal causation. It is my view that s 102 of the Roads Act does not require fault or negligence to be establish before damages can be recovered. If the RTA having been awarded the damages under s 102 were to be taken away from it circumvents the operation of s 102 of the Roads Act. Mr Rolfe's submissions on this issue fails.

Indemnity costs and proposed orders 75 Counsel for the RTA submitted, firstly, that the indemnity costs orders made by the Magistrate cannot stand if it succeeds on either the appeal in total or succeeds in setting aside so much of the Magistrate's judgment as included the sum of $10,134.50 for the costs of repairing the damage caused to the guardrail. 76 On 15 June 2009, the Magistrate entered judgments and made the following orders: "1. Judgment and verdict for the Plaintiff in relation to the Statement of Claim in the sum of $10,134.50. 2. Judgment and Verdict for the Cross-Claimant against the Cross-Defendant for the sum of $33,829.99 together with interest from 8 October 2004 to date to be calculated by the registry; 3. In relation to costs, although each party was successful in relation to their respective Claim and Cross Claim, it was ultimately the Defendant/Cross Claimant who recovered all of his damages (despite the Judgment for the Plaintiff in relation to the damage caused to the Guardrail) in relation to the accident. Accordingly, I propose that the Plaintiff/Cross Defendant pay 75% of the Defendant/Cross Claimant's costs of the proceedings in a sum agreed between the parties or as assessed ("the Proposed Order as to Costs"). …" 77 The parties had liberty to apply in respect of the proposed order as to costs. They did so and a hearing took place on 7 July 2009. Ultimately, order (3) as set out above was not made. 78 On 7 July 2009, the following issues were considered: (a) determination under slip rule 36.19 of the Uniform Civil Procedure Rules so far as the application pursuant to s 5(1) of the Law Reform (Miscellaneous Provisions) Act is concerned for contribution and/or indemnity; (b) to confirm costs orders previously made by the court; (c) to seek indemnity costs against the RTA, in relation to a prior costs order entered into by consent dated 14 April 2008 and filed 15 April 2008; and (d) to make an application for indemnity costs against the RTA from either 15 January 2008 or 5 June 2009 as a result of various offers of compromise served by Mr Rolfe. On 6 August 2010, orders were made in relation to these issues. I shall refer to them shortly. 79 The RTA opposed orders in relation to the slip rule with respect to the consideration of s 5(1) of the Law Reform (Miscellaneous Provisions) Act. Mr Rolfe was successful on the slip rule issue. Mr Rolfe sought clarification of costs orders previously made but he was unsuccessful on this issue. Mr Rolfe sought that the RTA pay its costs of 15 June 2009 on an indemnity basis, but this application also failed. Mr Rolfe also sought indemnity costs be awarded as a result of two offers of compromise served on the RTA on 15 January 2008 and 5 June 2009. This argument succeeded. Although the Magistrate acceded to the slip rule application the subject of the slip rule namely contribution/indemnity costs has been set aside on this appeal. 80 The Magistrate then went on to consider the costs in relation to the hearing of 7 July 2009 and 3 August 2009. Her Honour stated at [18] - [19]: "18) Although not all the evidence upon which the Defendant/Cross Claimant relied had not been served at the time of the First Offer of Compromise I am satisfied on balance that: a) At the time of the First Officer of Compromise the Plaintiff/Cross Defendant was aware of the ambit of Mr Rolfe's claim; and b) The condition of the relevant stretch of road was at all times known to the RTA and its own documents confirmed that the road was slippery; c) Therefore the RTA was in a position to assess the merits of the First Offer of Compromise and make an informed commercial assessment of it and its ultimate rejection. 19) Accordingly, I am satisfied that the RTA should pay Mr Rolfe's costs on an indemnity basis from 10 January 2008 up to including the hearing and judgment handed down on 15 June 2009." 81 On 3 August 2009, the Magistrate made the following orders: "1. Judgment and verdict for the Plaintiff in relation to the Statement of Claim in the sum of $10,134.50' 2. Judgment and Verdict for the Cross-Claimant against the Cross-Defendant for the sum of $43,964.49 (which includes the amount of $10,134.50 which the Cross Defendant is to indemnify the Cross Claimant) together with interest from 8 October 2004 to date to be calculated by the registry; 3. The Plaintiff/Cross Defendant pay the costs of the Defendant/Cross Claimant: a. On a party/party basis up until 9 January 2008; and b. On an indemnity basis from 10 January 2008 up until 15 June 2009; and c. With respect to the costs application of 7 July 2009 and submissions filed in relation thereto on a party/party basis." 82 There is an error of law in so far as the Magistrate made an order for contribution. 83 The proposed orders that I intend to make subject to the submissions of counsel are as follows. The appeal is upheld in part. The judgment contained in paragraph (2) of the orders made on 3 August 2009 should be set aside. The judgment contained in paragraph (2) made on 15 June 2009 should be affirmed. The judgment contained in paragraph (1) of the orders dated 15 June 2009 and repeated in paragraph (1) of the orders made on 3 August 2009 should still stand. I invite the parties to prepare agreed short minutes of order reflecting the changes that should be made to the Magistrate's orders. 84 I reserve, firstly, the question in relation to costs orders that should now be made in relation to the hearings before her Honour Magistrate Freund in the Local Court; and secondly, the costs of this appeal. **********

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