RTA v Comerford

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST HUNTER J THURSDAY 17 MAY 2001

55034/98 ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES -v- WILLIAM KEVIN COMERFORD & ORS

1 The history of this litigation for present purposes is usefully set out in the reasons for judgment of the Court of Appeal of 8 December 2000, which is set out below for ease of reference: "3 On 6 January 1989 a road bridge forming part of the Mitchell Highway over the Macquarie River at Wellington collapsed. It was the property of the Roads and Traffic Authority of New South Wales ("the RTA"). The matter has been outstanding for so long that no further time should be taken by reserving judgment given that the case is one in which I have formed a firm view.

4 The bridge collapsed when an excavator owned by Gerhardus Hendrikus Welling ("Mr Welling") carried on a vehicle, namely a low loader, driven by William Kevin Comerford and owned by W K Comerford, K B Comerford and J L H Comerford ("the Comerford parties") came into contact with the superstructure of the bridge. 5 In proceedings 55034 of 1998 (formerly 13584 of 1993) the RTA sued the Comerford parties for the damage to the bridge and the Comerford parties cross-claimed against the RTA for the damage to their vehicle. 6 In proceedings 55035 of 1998 (formerly 21036 of 1994) Mr Welling sued the Comerford parties and alternatively the RTA for the damage to his excavator. 7 On 3 September 1998 the primary judge made the following order (Grey 2D-F): "That pursuant to Part 72 Rule 2(1) of the Rules of Court, in each proceeding the question of the cause of the collapse of the Wellington Bridge on 6 January 1989 to be referred to Geoffrey Verge, consulting engineer, to inquire and report to the Court on that question." 8 On 14 December 1998 Mr Verge provided his report. It concluded (Grey 33P): "On the balance of probabilities the collapse of the bridge was caused by a buckling failure of the bridge deck in accordance with the contentions of the defendant." By "defendant" he meant the Comerford parties. 9 In reaching his conclusion, Mr Verge was rejecting the RTA's theory of the collapse and upholding the theory advanced by the Comerford parties. The RTA's theory was that the excavator being carried across the bridge in the low loader had its arm in too high a position, that it struck the upright of the bridge, and that that caused the collapse. The contention of the Comerford parties, in the simplest terms, was as follows. The bridge included a number of unrestrained concrete slabs sitting on cross girders. Over the years, the embankments had moved and the bridge itself had moved. This generated compressive forces which caused adjoining concrete slabs to buckle and pop upwards at the moment when the low loader was coming across the bridge. This pushed the low loader up, and the arm of the elevator struck the bridge. This process was described as a "toggle buckle". 10 By way of background, the bridge was described thus by the referee (Grey 10R-11N): "The bridge was built in 1920 and has two main steel truss spans of approximately 37 m each and 11 concrete approach spans of about 9 m each (five at the Wellington end and six at the Dubbo end). The deck is about 12 m above normal water level, however, this level varies being controlled by Burrendong Dam some 15 km upstream. The bridge is typical of structures of that time and has some features that differ from current practice for medium span road bridges. The steel trusses have members of latticed built up sections and the overhead bracing comprises angle truss members. The entry panel of each truss has an inclined angle truss brace rigidly connected to the diagonals to form a portal frame. The concrete deck of each truss comprises 10 separate slabs each 6.3 m wide and 3.7 m long. The slabs are supported by steel beams but not tied to them with shear connectors except at the end of the first and last slab where the slab edge is enclosed in a steel channel riveted to the cross beam.

The concrete approach spans are connected rigidly to their supporting piers by reinforcement so that movement of the deck arising from temperature changes, concrete shrinkage or traffic forces requires The (sic) piers to bend or the deck to crack. According to the RTA maintenance file Ex D41, the bridge has a history of movement and distress requiring repairs for many years. The piers and abutments supported on timber piles had settled and rotated towards the river.

The movement joints and gaps at the steel spans had closed so that the deck slabs were compressed. The abutments and wingwalls had cracked and some piers flexed and cracked. Some approach span beams and headstocks had cracked and moved to act as expansion joints."

11 The referee's findings on buckling were as follows (Grey 27S-Y): "The bridge deck is unusual in that each main span comprises ten slabs 200 mm thick, 6.3 m wide and 3.7m long and unconstrained except at the ends of the span where the slab edge is enclosed by a steel channel. There seems little doubt that the slabs were subjected to high compressive forces during hot weather when the slabs expanded against the bridge abutments. Under this condition the slabs act as a series of plates subject to an in plane compressive force and also a bending moment arising from the eccentricity of this force with respect to the centroid of the cross section. Some eccentricity of the force is inevitable in practice and the eccentricity has an important effect on the critical buckling load of a slab. (In theory if there were no eccentricity the slab would not buckle; it would fail by crushing of the concrete.)" 12 On 30 March 1999 Einstein J adopted the report in each set of proceedings. The parties thereafter moved their attention away from any deficiencies in the conduct of the Comerford parties and towards the RTA's role in relation to the bridge. 13 On 21 May 1999 Einstein J made the following order (Grey 40-41): "That, pursuant to Part 72 r 2 of the Rules of Court, refers to Messrs G C Verge and the Honourable John Brownie QC for inquiry and report to the Court the following questions: In Proceedings No 55034 of 1998 ... (2) Is the Roads and Traffic Authority of New South Wales liable to pay damages to the Cross Claimants by reason of: * public nuisance; * negligence; or * breach of statutory duty as pleaded and particularised in paragraphs 11, 12 and 13 of the Cross Claim? In Proceedings No 55035 of 1998 Is the Roads and Traffic Authority of New South Wales liable to pay damages to the Plaintiffs by reason of: * public nuisance; * negligence; * breach of statutory duty as pleaded and particularised in the Statement of Claim in Proceedings No 55035 of 1998 ... Note: The Referees are not asked to find or determine the nature or quantum of any damage suffered by the Roads and Traffic Authority, Comerford ... or Welling but should assume, only for the purposes of each Reference, that each of the Roads and Traffic Authority, Comerford ... and Welling suffered some damage as a result of the collapse of the Wellington Bridge on 6 January 1989."

It will be seen that the parties were left at large to prove commission of the torts referred to, so long as the specified pleadings and particulars were adhered to. 14 Counsel for the Comerford parties, in his opening address to the referees on 14 July 1999, said (Grey 54V-55Q): "The Comerfords, in either negligence or public nuisance, need to establish an act of misfeasance by the RTA as a highway authority. As you probably are both well aware, it is not good enough for this bridge to have fallen into disrepair and that condition to have materially contributed to the collapse as found by Referee Verge. Something must have been done by the RTA to have caused or materially contributed to the state of affairs that led to the collapse, as found by you, Mr Referee Verge. To establish public nuisance the RTA needs to establish all that it is required to establish to get up on its negligence claim. So we will concentrate on the negligence cause of action. We do not pursue the breach of statutory duty cause of action so that you will be invited to find the RTA liable, at the suit of the Comerfords, by reason of the RTA's negligence, by reason of an act of misfeasance. Now, what was that act? It will be the Comerfords' contention, or it is the Comerfords' contention, that repairs effected to the bridge materially exacerbated problems within the bridge, particularly materially exacerbated problems of [in plane] compression forces in the concrete deck slab [in plane], which deck slab Referee Verge found, by reason of those [in plane] compression forces, to have acted in a particular way and to have led to the collapse of the bridge.

The burden of the Comerfords' position is that the repairs to cracks in the bridge, and the placement of product in the expansion joints of the bridge, exacerbated the [in plane] compression forces and materially contributed to the collapse by the so-called toggle buckle.

It is, if you like, in that positive way, by those positive acts, rather than mere omissions that the Comerfords will seek to establish the act of misfeasance in the Roads and Traffic Authority." 15 The Comerfords were thus relying on two acts of misfeasance. The first was that the RTA, in carrying out routine repairs, had injected a rigid epoxy as opposed to a flexible epoxy in certain cracks which had opened up over the years in the piers of the bridge. The second act of misfeasance was carrying out work to certain rotation joints in the bridge. There were gaps in the bridge which over the years had closed because of movements back and forth. Both gaps - the rotation joints - had cover plates over them and the traffic passing over the cover plates had caused them to pop up and down. That led to spalling of the concrete below. The RTA, as part of its regular maintenance, removed the cover plates and refilled them, using only epoxy material, and replaced the cover plates. 16 Counsel for Mr Welling did not disagree with the issues as propounded by counsel for the Comerford parties. The issues as presented in opening did not change during the hearing of the reference. The referees summarised them as being (Grey 47K-L): "(a) injection of Megapoxy into cracks (in the piers); and (b) inserting Set 45 into the gaps in the deck over piers 6 and 8." 17 On 30 September 1999 the referees reported that the RTA was not liable to the Comerford parties and Mr Welling.

18 On 10 December 1999 the primary judge heard argument in which the RTA contended that the second report should be adopted and the other parties contended that it should not. He reserved judgment, and made reference to two applications for special leave being heard that day in which the High Court was being asked to reconsider the law on non-feasance in relation to highway authorities. In fact the High Court referred both applications to a full bench to be argued as on an appeal.

19 The primary judge then re-listed the matter on 11 February 2000 and invited further submissions from the parties, which were heard on 8 March 2000. The topic which the primary judge raised with the parties was whether there was a negligence issue not addressed in the second report which ought to be considered. 20 On 15 March 2000 the primary judge made the orders against which this appeal is brought, and in a reserved judgment stated his reasons for that course. After setting out the background, he referred to the two acts of negligence relied on against the RTA. He said (Red 21 line 11-23 line 40): "In relation to the first alleged act of negligence, the referees noted the following: `The experts agree and we concur that cracks in the piers would reduce their stiffness and increase their flexibility thus more readily accommodating the movements. [The Authority's engineer] proposed that the cracks should be sealed with a flexible epoxy to maintain the status quo; in the event the pier cracks were sealed with a rigid epoxy.

If the cracks were sealed with a flexible material this would permit the cracks to move so that the flexibility of the cracked piers would not alter in any significant way. ... we are of the view that sealing the pier cracks with rigid epoxy probably had only a marginal and temporary effect on the behaviour of the bridge. The fundamental defects in the original design and construction of the bridge led to the excessive compression of the bridge deck and its ultimate failure. Any change to the flexural rigidity of the piers arising from sealing the cracks was not significant compared with the movement of the Wellington end abutment, the closing of the gaps and temperature expansion of the deck.' Dealing with the second alleged act of negligence, the referees concluded that both the rotation joints and the expansion joint had ceased to operate as a result of them being `practically closed'. The Authority's repair work was described by the referees as follows:

`Apparently the steel cover plates to the rotation joints had worked loose under the traffic and the edge of the concrete had broken away to form an irregular space at the top of the concrete slab. The joints were repaired by the following procedure: remove the steel cover plates; insert a temporary timber spacer at the top of the joint and against the steel protection angle at the end of the steel span;

provide a temporary filler to close the bottom of the gap between the slabs;

remove the timber spacer and insert a compressible seal in the space at the top of the joint; and

replace the steel cover plate and fix to the steel span with chemical anchors.'

Clearly this work was intended to cure problems arising from the loose cover plates, the spalling of concrete at the edge of the concrete approach spans and the ingress of deleterious matter into the joints. It did not attempt to address the long-term problems in the design and construction of the bridge.' The referees reached the following conclusion:

Considering all the evidence regarding the repair of the rotation joints, we are not able to determine the precise effect of this work on the likely behaviour of the joint if it were subject to in-plane compressive forces. However, on the balance of probabilities we consider that this repair work is unlikely to have appreciably altered the performance of the bridge deck compared with its condition prior to the work.' As a result of the way in which the second reference was conducted, the referees did not address any responsibility of the Authority in performing repair work on expansion and rotation joints which was ineffective in restoring the function for which those joints were designed and which aided serviceability of the bridge deck for traffic. The significance of that omission, in my view, is reflected in the following opinion of the referees in the second report: The expert evidence of Dr Ivering and Mr Kell is conflicting in part on the issue of foreseeability. Dr Ivering's opinion is that a structural analysis as suggested by Mr Kell if carried out prior to 1988, was not warranted and in any event would not have predicted a buckling failure. And further that no reasonably competent bridge engineer could have foreseen that the bridge would suffer the catastrophic collapse as found in the previous reference.

Mr Kell's opinion is that an investigation should have been undertaken to assess the condition of the abutments and the probable compressive force induced in the deck. And that if this disclosed a force in excess of any value for which the bridge may have been designed, the unrestrained deck slabs should have been examined to check their susceptibility to buckling failure. This apparently prudent approach advocated by Mr Kell may have been coloured by hindsight. Nevertheless we concur with his view that similar buckling failures have occurred in slabs on ground and that the construction of the Wellington bridge deck is unusual in that the concrete slabs are not restrained by the supporting steel beams. We do not accept the inference from Dr Ivering's comment that because there was no visible distortion of the concrete slabs, a structural analysis was not warranted. Unfortunately a buckling type failure is especially dangerous : (a) it may be difficult to predict and (b) if it occurs it does so often without any warning. An engineering investigation of the bridge structure if carried out in 1988, probably would have disclosed a large compressive force in the deck and the vulnerability of the unrestrained concrete slabs to a buckling or pop-up failure . Although a structural analysis of the slabs probably would not have been conclusive it should have raised the possible risk of a deck failure. If a deck slab were to pop up this would pose some danger to a vehicle traversing the bridge at that time. But it would require a highly imaginative and risk averse engineer to predict the possibility of a catastrophic collapse such as occurred.' [emphasis added] In my view, those opinions of the referees call for consideration of a negligence issue which was not addressed in the second report. I raised these concerns with the parties by re-listing the matter on 11 February 2000 and invited further submissions from the parties which were head on 8 March 2000. In light of those submissions I have decided that, in determining whether the second report should be adopted, varied or rejected, Comerford and Welling should be afforded the opportunity of having a wider issue of negligence considered than that addressed by the referees. The wider issue of negligence is of the kind examined in Hill v The Commissioner for Main Roads (1989) Aust. Torts Reports ¶80-260; (1989) 68 LGRA 173; and McDonogh v The Commonwealth (1985) 73 ALR 148; (1985) 9 FCR 360." 2 In the following reasons I have adopted the terminology from the Court of Appeal judgment. 3 Following upon that decision of the Court of Appeal the Comerford parties have made a further application which, in substance, is an application for leave to adduce fresh evidence. No formal notice of motion was given. 4 The form that the application took was as follows: "1. That pursuant to Part 72 Rule 13 (1) (c) that the report of Messrs Brownie QC and Verge dated 30 September 1999 be remitted to the Honourable J Brownie QC as the surviving Referee for further consideration by the Referee in the light of the matters expressed in the supplementary report of Richard A Kell dated 8 November 2000 and for consideration of the further items of reference referred to in paragraphs 2 and 3 below. 2. Whether there was a foreseeable risk of injury resulting in bridge collapse which could have been prevented by reasonable care on the part of the RTA in conducting maintenance in the light of the known risks. 3. Whether the remediation work which was conducted to the bridge deck surface in July 1998 either exacerbated the known defects in the bridge or amounted to a failure to remedy the known defects in the bridge, which caused or materially contributed to the bridge collapse. 4. That the Court defer the adoption of the said Referees' report of 30 September 1999 until such time as the Referee reports on the matters referred for further report." 5 In addition the Comerford parties sought to amend their cross claim to allege the following "22. The Defendants as Cross Claimants wish to allege as part of their Cross Claim for negligence (paragraph 12 of the Cross Claim) 1. The Cross Defendant at all material times since 1976 (a) Knew of horizontal compressive forces operating upon the condition of the bridge. (b) Knew that existing cracks in the structure acted as "expansion joints". (c) Knew or ought to have known that any rigid repair of cracks would result in their renewal or in opening or new cracks in the weakest point in the structure. (d) Knew that temperature movements in the bridge were accommodated within existing cracks and deck joints between spans. (e) Knew that the bridge required regular expert observation. 2. During the patching of the bridge joint in July 1998, the RTA failed to have regard to the horizontal compressive forces operating on the bridge deck and failed to prevent a foreseeable risk of injury that the compressive forces on the bridge deck would cause the untied slabs to pop up. 3. The patching of the bridge failed to remedy a foreseeable risk which the Cross Defendant knew or ought to have known was certain to reappear at some stage in the future with predictable hazardous consequences which could have been prevented by reasonable care on the part of the RTA." 6 I think that application is bound to fail as it invites the Court to ignore the determination of the Court of Appeal which held that the exercise of my discretion under Pt 72 r 13 of the Supreme Court Rules in permitting the Comerford parties to revisit the negligence issue against the RTA miscarried. 7 While the application is without merit, it is not difficult to understand why the Comerford parties have been unwilling to accept the second report. It was the opinion of the referees that the Wellington bridge, which carried the traffic of the Mitchell Highway in New South Wales, was in a dangerous condition which was capable of disclosure by engineering investigation and in respect of which nothing was done by the RTA to alleviate that condition, nor to warn the public of the danger. 8 It is also clear from the findings of the referees that the RTA undertook repairs of damage occasioned to the piers and the road surface of the bridge in the vicinity of two rotation joints which had the effect of maintaining the trafficability of the bridge deck whilst the bridge was in that dangerous condition. The repairs to the rotation joints were of a kind which, of necessity, required the closure or progressive closure of the highway traffic lanes and their reopening to traffic, without warning of the dangerous condition of the bridge. The photographs in evidence of the subject repairs underway make that plain. 9 The application for leave to adduce fresh evidence is equally without merit. The evidence sought to be adduced is that of Richard Albert Kell who was chairman of a firm of consulting engineers, Cardno MBK Pty Ltd, and who had given evidence on behalf of the Comerford parties in the second reference. The evidence, the subject of this application, is contained in his report of 8 November 2000 relating to an inspection of sections of the bridge carried out by him on 28 and 29 October 2000. The relevant portions of his report are as follows:

"9. Inspection of the Steelwork I inspected some steelwork stored in the yard of Hydraulic & Tractor Service Pty Ltd on 28-29 October. There are 4 sections each being one half of the length of an end cross girder of the original bridge truss span. This steelwork can be identified because it is assembled from rolled sections by rivetting and corresponds with the original design drawings. One pair of girder sections corresponds with the centre (P7) joint and the other with the P6/P8 joints. On the P6/P8 sections, I could observe the bituminous jointing still adhering to the top of the steel angle under the cover plate for much of the length. The jointing is about 55 x 20mm, located where described by the Walkers, down to the top of the rivets (Fig 1). Where the whole piece of jointing is intact there is cementitious material pressed into the outer side and bottom edge. Below the jointing small pieces of cementitious material are adhering to the steel in a number of places including around rivet heads, and there is a bloom over much of the steel angle surface which appears to be cementitious in nature. This could be verified. I note that it is not almost 12 years since the collapse. The appended photos illustrate the condition. … * Inspection of material in the Dubbo yard reveals the bitumen jointing strip, 19mm thick and about 55mm deep down to the top of the rivet heads, still adhering to the steel. Furthermore, there is extensive embedment of cementitious material on the outer face and bottom edge of the jointing, suggesting that Set 45 was poured against the jointing strip. The Walkers may be able to explain this. * Inspection of the material in the Dubbo yard reveals cementitious material attached to the steel below the jointing strip even after 10 years in the open. Refer photos bound with this Report. This indicates that the Set 45 was poured against the steel to more or less fill the complete gap with hard material below the jointing strip - refer Figure 1. It can be concluded that the sealing of the gap was toward the bottom of the steel angles." 10 The significance of those things observed by Mr Kell was set out in pars 11 to 14 of his 8 November 2000 report as follows: "11. In any event, the jointing strip was in place from July 1998. Bitumen impregnated fibre jointing is stiff, and could not be compressed more that about 10% of its thickness, i.e 2mm, without very high pressure. That is, it can be considered virtually rigid, beyond 2 to 3 mm compression and would transmit the full forces arising from thermal expansion or abutment movement. In my experience, bituminous impregnated fibreboard is totally unsuited as an expansion joint filler. To call it "give and take" is misleading - as a joint filler it neither gives not takes. It is used commonly in footpaths and domestic driveways to create joints which accommodate shrinkage, but not in bridge decks. 12. GAPS AND MOVEMENTS The bridge as originally detailed had gaps of 3 inches at P7 (expansion) and 2 inches at P6 and P8, totalling 7 inches (about 180mm). At the time of the inspection by RTA bridge engineer Karol in March 1976, the 3 inch expansion gap at P7 was reported to have closed and the fixed gaps at P6 and P8 had been forced partially closed (0mm to 10mm reported), causing some local failures of fixings.

The movement of the deck to be accommodated under the temperature range now current for bridge design is: * temperature range -5+46 =51°C * movement required + 54mm from the mean (107 mm total) * 19mm bituminous jointing movement capacity 2 to 3mm

Thus the P7 gap as designed from adequate. Karol also expressed this view in his report. Once closed at P7 the 2 inch gaps at P6 and P8 would have been adequate although localised yielding would have (and did) occur since the bearings were designed as fixed and not expanding. These joints also substantially closed according to E Karol.

The work by the RTA in July 1998 created at P6 and P8 at best a 19mm gap filled with a virtually rigid material which could not accommodate more than 2 or 3 mm of deck expansion, which is very different from the 50mm clear gap detailed on the design drawings, and much less than the requirement of 27mm (54 divided by 2 joints) to accommodate temperature movements in the deck from the average position. 12. Conclusions The Set 45 repair work as carried out by RTA in July 1998 did create a solid block between the ends of the deck at Piers P6 and P8 and changed the situation in respect to the behaviour of the deck. Either the Set 45 bridged the gap below the bituminous jointing, as visual evidence suggests, or the jointing itself would have been virtually rigid for the order of deck movements involved.

• Dr Roper advised in his evidence that the Set 45 would expand during the setting process. This would tend to transfer longitudinal compressive load onto the deck.

• The work on the joint including the Set 45 placement took place in July, at the coldest time of year, when the deck would have been at its shortest and P6 and P8 gaps at the maximum. The compressive force in the deck arising from restraint to thermal expansion in subsequent mid-summer (January) temperatures at the time of failure would therefore be maximised.

• The filing of the P6 and P8 joints in this way would have exacerbated the condition of high in plane compression forces on the deck arising from abutment movement and thermal expansion. The concrete deck failed because there was a high in plane compression force, and the concrete deck comprised individual slabs which were not tied to the supporting steelwork. The work by RTA on the joint in July 1998 changed the situation in respect to the deck in a detrimental way. Gaps had been present at P6 and P8. These gaps, even if containing some broken concrete, would have allowed some thermal expansion. Although this was not the design intent, the compressive force in the deck would be relieved. The gaps were filled in July 1998 in a way which was fully or almost fully rigid. The failure less than 6 months later, on 6 January 1989, at the hottest time of the year, followed the filing of the joints during the previous winter. 14. The above conclusions in respect to the P6 and P8 joints, i.e. that the repair work undertaken by the RTA in July 1998 had a direct impact on the failure of the bridge 6 months later, does not cause me to change the views I expressed in my Report of 8 July 1999, including: * the bridge was configured quite differently from the way it was designed. (Karol 1976) and thus there were forces not properly catered for in the structure; * there had been movements in the embankments and abutments and piers and cracking in the piers and deck; * there were a number of design features which would not be acceptable in 1976, not currently, and

• that these serious problems were known to the RTA following Karol's 1976 report. I concluded that a full and comprehensive investigation, including structural analysis, should have been undertaken, and that such an analysis would in all probability have identified the need for substantial remediation. That there was no such engineering investigation as a basis for remediation leads me to the opinion that the management and maintenance of the bridge was not of an appropriate standard. Given the evidence now available, I would remove the qualification "in all probability". Both Walkers reported that routine maintenance was carried out, but this comprised such procedures as greasing the expansion bearings that Karol reported in 1976 no longer functioned. The Set 45 repairs at piers P6 and P8, incorporating a 19mm gap filled with virtually rigid material where there was originally a 52mm gap may have given support to the cover plates, but was inappropriate as far as the deck was concerned and represented a change from the design and existing condition. It was not a proper engineering solution and exacerbated the conditions which resulted in the failure in my opinion. I am not aware of the origin of any engineering instruction to which the Walkers were responding when they did this work." 11 The basis upon which the evidence is said to constitute fresh evidence is set out in the affidavits of William Comerford and Kenneth Comerford each sworn 2 March 2001. Their evidence comes down to the following. In June 1999, the month before the hearing of the second reference, Kenneth Comerford attended at the Shire council yard at Wellington to inspect the bridge pieces that had been stored there and to take photographs. On inspection, he was informed that the steel sections, which he particularly wished to inspect, were not available and he could not be informed where they might be located. He had previously inspected those pieces some years before in the RTA yard. The RTA yard had been cleared in 1998. William Comerford had inspected the shire tip at Wellington after that to see if he could locate the steel pieces, but was unsuccessful. The missing pieces of the bridge included those elements which had formed the rotation joints. 12 On the hearing of the second reference on 14 July 1999, the Comerford parties ascertained during the taking of evidence from the bridge contractors who had undertaken repairs of the bridge, prior to its collapse, that the missing pieces were located at what was know as the Tomingley yard. 13 The evidence in chief of those two witnesses was principally contained in witness statements, unsigned copies of which had been served on the Comerford parties on 11 June 1999, except that in the case of the statement of William Walker the second page had been omitted accidentally. Neither statement referred to the storing of the missing pieces of the bridge at Tomingley. 14 The hearing on the second reference occupied just two days. On 14 July the evidence was taken and on 23 July submissions were received from the parties. The witnesses called on behalf of the Comerford parties included Mr Kell who was present at the reference when the bridge contractors give evidence of the nature of the repairs carried out on the bridge in the winter preceding its collapse. The referees relied upon their evidence for the findings as to the nature of the repairs carried out on the bridge, as set out earlier in these reasons. 15 Counsel for the Comerford parties obtained a short adjournment to consider their position after the full statement of evidence of William Walker had been tendered. After that adjournment the hearing proceeded. No further adjournment was sought to enable an inspection of the bridge pieces which were located at the Tomingley yard. 16 It is not disputed that, prior to the first reference hearing, the salvaged pieces of the bridge had been available for inspection. After hearing the evidence of the bridge contractors at the second reference hearing, the Comerford parties visited the Tomingley yard, inspected the sections of the bridge which formed the rotation joint and removed a sample of the "compressible" bituminous material which, according to the evidence of the bridge contractors, had been inserted into the joint following the removal of the edging board after the Set 45 had been poured and set. 17 It is not clear when the inspection of the bridge elements was carried out by the Comerford parties at Tomingley. According to their evidence they visited the Tomingley yard on "the weekend following the second reference". Their affidavits read as though it was the weekend of 17 and 18 July 1999 following the taking of evidence at "the hearing on 14 July". Neither affidavit makes reference to the second day of the reference which was a short hearing on 23 July 1999 when submissions were received by the referees. If the inspection occurred after that hearing, then it occurred on the weekend of 24 and 25 July. The report of the referees was not submitted to the Court until 30 September 1999. 18 It was not until some time prior to October 2000 that Mr Kell was requested to carry out further inspection of the bridge elements at Tomingley. I think the evidence of the inspection by Mr Kell is such that, if accepted, would establish that the evidence given by the bridge contractors was wrong: that no edging board had ever been inserted or removed from the rotation joints under repair and that the bituminous material described as "give and take" material was comparatively rigid with compressibility of about 2mm: further, that it had been put in place before the pouring of the Set 45 by adhering it to the face of the steel angle plate and that the Set 45 was then poured into the void. If that was the sequence of repair, the findings of the referees concerning the effect of expansion of the Set 45 during hydration would be wrong also. 19 I place little or no reliance on the fact that the steel or metal pieces which could not be located in June 1999 had been available for inspection several years before. The effect of the repair work carried out on the bridge prior to the hearing of the first reference was not the focal point of the issues on that reference. 20 The issue there was whether the height of the low loader with the excavator was too high, causing it to collide with the portal truss of the bridge, or whether there had been a "rotation of the bridge deck slab under the low loader that lifted" it so that it came in contact with the truss. It was the latter that the referee found to be the effective cause of the collapse of the bridge. It was only on the hearing of the second reference that the nature and effect of the repairs carried out on the bridge became a central issue. 21 However, when the evidence of the bridge contractors at the second reference disclosed that the missing pieces of the bridge could be located at the Tomingley yard, it was always open to the Comerford parties to seek an adjournment to permit an inspection of those bridge elements, or to seek leave to reopen their case before the referees after their inspection at Tomingley. That was not done and I think for that reason alone it could not be said that the evidence now sought to be adduced was not available to the Comerford parties at the time of the second reference. The referees did not report to the Court until 30 September 1999. At the latest, the inspection by the Comerfords had taken place on the weekend of 24 and 25 July. 22 Senior counsel for the RTA has submitted that the application of the Comerford parties is to be approached on the same basis as an application to adduce fresh evidence after verdict and that the principles to be applied are those considered in Commonwealth Bank of Australia -v- Quade (1991) 178 CLR 134. Senior counsel informed me that research has not disclosed any authority directly in point governing the exercise of the discretion on an application to adduce fresh evidence in proceedings before verdict and after report of a referee under Pt 72 of the Supreme Court Rules. 23 The analogy is not complete in my view. At this point, there are no findings binding upon the parties in the form of the second report and there is no judgment of the Court disposing of the proceedings. 24 As observed by Gleeson CJ in Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549, the hearing of a reference should not be equated with a hearing at first instance. The hearing on adoption of a report is not a re-hearing giving a dissatisfied party a right to a hearing de novo. In Leighton Contractors Pty Ltd v C E Heath Underwriting Services; Leighton Contractrors Pty Ltd -v- Kinhill Engineers (1995) 8 ANZ Insurance Cases ¶61-231, Giles J, as he then was, described the confined nature of the hearing as follows: "The Approach to the report The principles which should guide me in considering the report have been discussed in a number of cases culminating in the decision of the Court of Appeal in Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549. A comprehensive summation can be found in Peabody Resources Ltd v Allco Constructions Pty Ltd (O'Keefe CJ Comm D, 14 March 1994, unreported). More shortly, a party dissatisfied with a referee's report is not entitled to have the judge before whom it comes reconsider and determine afresh all issues whether of facts or law which it would wish to contest. Nor does the consideration of the report involve an appeal. Rather, the judge has a judicial discretion to exercise, a discretion which would normally be exercised by reconsidering a question of law or the application of legal standards to established facts, but otherwise may fall to be exercised having regard to matters such as the nature of the complaints, the type of litigation involved, and the length and complexity of the proceedings before the referee. Patent misapprehension of the evidence, or perversity or manifest unreasonableness in fact finding, would ordinarily preclude relevant adoption of or action upon the report, but a report may be adopted or acted upon even if upon reconsideration of the evidence the judge might have reached a conclusion different from that of the referee. In general, where there is shown to be evidence available to support a referee's findings of fact, or where the issue involves a choice between conflicting evidence, in the exercise of the discretion the judge will not reconsider disputed questions of fact. But it is always a question of judicial discretion, exercised in a manner consistent with the object and purpose of the Rules and the place which they play in the administration of justice according to law." (at ¶ 75,533 - 75,534)

See also Foxman Holdings Pty Ltd -v- NMBE Pty Ltd (1994) 38 NSWLR 615 at 621. 25 This case has the further element that the Comerford parties elected to conduct their case before the referees in the manner outlined earlier in these reasons. The Court of Appeal in its judgment of 8 December 2000 left no room for speculation as to the extent to which they are bound by that course. 26 If it was necessary to express a view I would prefer to express the exercise of the discretion as one which depends upon the Court's assessment of what will best serve the interests of justice "either particularly in relation to the parties or generally in relation to the administration of justice". In the exercise of that discretion the Court will have regard to "general considerations relating to the administration of justice", any lack of diligence on the part of the applicant and the likely effect of the fresh evidence, if leave is granted: to borrow phrases, used in a different context, in Quade at 142. In this case, which commenced in 1993, the imperative of securing finality to judicial process is especially applicable. 27 For the reasons that follow, nothing turns on the correctness of that approach. 28 The general rule relating to the setting aside of a verdict on the grounds of fresh evidence was identified in Quade as follows: "The general rule identifying the circumstances in which an appellate court is justified in setting aside a verdict merely on the grounds of fresh evidence was identified by Dixon J. in Orr v. Holmes (1948) 76 CLR 632 in a passage which is quoted in the judgment of Burchett J. in the present case. Subsequently, in Greater Wollongong Corporation v. Cowan (1955)93 CLR 435, Dixon C.J. repeated the substance of those comments in a judgment in which the other members of the Court (Williams, Webb, Kitto and Taylor JJ.) concurred. In the later case, his Honour said ibid., at p 444: "If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial." The words "rarely, if ever" in the above passage leave open the possibility of exceptional circumstances justifying a departure from the general rule even in the class of case to which the general rule is directed. It is not, however, necessary to pursue that aspect of the matter for the purposes of the present case. Nor is it necessary to consider whether the somewhat obscure qualification expressed by Dixon C.J. in the words "or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary" represents other than an illusory relaxation of the primary test (i.e. "reasonably clear that ... an opposite result would have been produced"). (at 139-140) 29 The joint judgment of the Court in Quade had the following to say about cases of surprise or fault of the successful party leading to the failure to adduce the fresh evidence at trial: "As the above quotation makes plain, the general rule formulated by Dixon C.J. is directed to the ordinary case where all that is involved is that relevant fresh evidence has come to the notice of the unsuccessful party after the trial. It is not directed to the case where the trial itself has miscarried "through misdirection, misreception of evidence, wrongful rejection of evidence or other error" or to a case of "surprise, malpractice or fraud". Such cases cannot properly be seen as mere cases of "fresh evidence". Nor can a case where the material constituting the fresh evidence was unknown to the unsuccessful party by reason of misconduct on the part of the successful party, such as an admitted failure to comply with the requirements of the trial court's order for discovery of documents. True it is that a case of failure by a party to comply fully with such an order can be distinguished from one in which the trial has miscarried by reason of error or fault on the part of the tribunal itself or a case where the verdict can be seen to have been procured by fraud or perjury. On the other hand, a case of failure to comply with a discovery order could, particularly where the failure was deliberate or remains unexplained, come within the category of "cases of malpractice", and be a stronger case than the category of "cases of surprise", which were both expressly exempted from the above statement of what we have referred to as the "general" rule."

(at 140-141) 30 If the evidence of Mr Kell was accepted it would establish that the repair work was not carried out in the manner evidenced by the bridge contractors and that the effect of the work performed in the six months prior to the buckling of the bridge deck resulted in a rigid deck with longitudinal movement of no more than 2 mm. It may not be a particularly difficult step to find, on that evidence, that the winter repair work contributed to the buckling of the deck surface in mid summer whilst under the pressure of the Comerfords' low loader. 31 There is no suggestion in this case that the surprise of the Comerford parties in learning of the storing of bridge elements at the Tomingley yard was the result of any conduct of the RTA. No enquiry appears to have been made of it by the Comerford parties prior to the second reference to ascertain the location of bridge elements which had been stored by the RTA. There is nothing to suggest that the RTA had any obligation to disclose to the Comerford parties the existence of bridge sections at the Tomingley yard. 32 Clearly, the discovery during the hearing of 14 July 1999, that the missing bridge sections were to be found at Tomingley came as a surprise to the Comerford parties. It is not disputed that they desired to inspect and photograph those elements prior to the hearing of the second reference, presumably for the benefit of experts. 33 It has not been explained why they failed to seek an adjournment on 14 July to permit an inspection at Tomingley, or why, following their inspection and the taking of a sample of the "give and take" material used in the repair of the rotation joints, they did not seek to reopen their case before the referees reported to the Court. 34 Whether the "general rule" governing applications for leave to adduce fresh evidence after verdict applies, or whether the more flexible approach which I favour is the correct one, is of no particular consequence. On either basis this application, in my view, must fail. 35 Accordingly , the application to adduce fresh evidence is rejected. 36 There remains the question whether the report should be adopted. I have heard the submissions of the parties, including Mr Welling's, prior to the RTA's successful appeal to the Court of Appeal. Those submissions are adhered to by the RTA and subject to the matters I have addressed earlier in these reasons they are relied upon by the Comerford parties. 37 Mr Welling has not been represented on the application by the Comerford parties to adduce fresh evidence and to amend their cross claim and I think it will be necessary to give Mr Welling the opportunity of being heard, before proceeding to a determination of the question whether the second report should be adopted. 38 If the report is to be adopted it may not dispose of the claim brought by Mr Welling against the Comerford parties and it will be necessary to take submissions on that aspect before proceeding to any final determination. 39 Accordingly I direct that the matter be listed for directions on 18 May 2001. 40 The RTA's costs of the application for leave to amend and to adduce fresh evidence are to be paid by the Comerford parties.

Last Modified: 05/28/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.