RTA v Welling & AnorRTA v Comerford & Ors

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 55035 of 1998 FILE NUMBER(S) : SC 55034 of 1998 LOWER COURT Hunter J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41030 of 2001 CA 41031 of 2001

MEAGHER JA HANDLEY JA SHELLER JA

Wednesday, 12th February 2002 ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v GERHARDUS HENDRIKUS WELLING & Anor ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v WILLIAM KEVIN COMERFORD & 2 Ors

On 6 January 1989 at Wellington in New South Wales, an excavator owned by the respondent to the first appeal (Mr Welling) and carried on a vehicle owned by the respondents to the second appeal (the Comerford parties) collided with the superstructure of a bridge owned by the appellant ('the RTA').

At first instance the RTA sued the Comerford parties for damage to the bridge, and the Comerford parties cross-claimed against the RTA for damage to their vehicle. Mr Welling sued the Comerford parties, and in the alternative, the RTA, for the damage to his excavator.

On 3 September 1998 in each set of proceedings, Hunter J, pursuant to SCR Pt 72 r 2(1) referred for inquiry and report the question "the cause of the collapse of the Wellington bridge". The report, which absolved the RTA of any liability either to Mr Wellings or the Comerford parties, was adopted by Einstein J on 30 March 1999.

On 21 May 1999, pursuant to SCR Pt 72, Einstein J referred the remaining questions of liability in each case for inquiry and report. At the hearing before the referees the parties amended their pleadings to allege two acts of misfeasance, and no act of non-feasance on the part of the RTA was alleged.

In a subsequent hearing concerning the adoption of this second report, the Comerford parties sought leave to re-open the case and lead further evidence in connection with the alleged negligence of the RTA, which application was dismissed by Hunter J on 17 May 2001.

In the ensuing period, the High Court of Australia delivered its judgment in Brodie v Singleton (2001) 206 CLR 512, holding that, henceforth, highway authorities were liable for non-feasance as well as misfeasance.

Accordingly, on 23 November 2001 Hunter J granted leave to Mr Welling and the Comerford parties to amend their pleadings so as to enable them to allege an act of non-feasance on the part of the RTA. From these orders, the RTA appealed to the Court of Appeal.

The history of the ensuing litigation is set out fully in the judgment of Meagher JA hereunder.

HELD per Meagher JA (Handley and Sheller JJA agreeing) i. It did not matter that the High Court changed the law in the meantime. Once a trial has been concluded on the basis of the old law, a litigant cannot seek to take advantage of the new law unless the litigant had at the trial "taken objection to the application of the old law": Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521 at 524-25, following Piening v Wanless (1968) 117 CLR 498. No such objection was taken at the trial, nor were factual findings on those issues sought from the referees. ii. For the purpose of applying the rule in Piening v Wanless, the hearing of a reference under an order of the Court pursuant to SCR Pt 72 r 2(1) is a trial: see Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 at 558-9, quoting the observations of Stephen J in Buckley v Bennell Design & Constructions Pty Ltd (1978) 140 CLR 1 at 15.

HELD per Handley JA (Sheller JA agreeing) i. There are additional reasons in this case for applying the rule in Piening v Wanless. The non-feasance rule obtaining before the advent of Brodie v Singleton did not apply to cases in which it could be demonstrated that the highway authority knew or suspected that an old bridge was a danger to the public, and then failed to warn the public of that danger. See, for example, Fisher v Ruislip-Northwood UDC KB 584 CA. The respondents did not seek to establish such a case in the court below.

ORDERS ii. That the decision and orders of Hunter J of 20 and 23 November be set aside; iii. That the report of the Hon John Brownie QC and Mr Geoffrey Verge dated 30 September 1999 be adopted in full; iv. That the Respondents pay the Appellant's costs of the reference before Messrs Brownie and Verge and of the proceedings before Justice Hunter for adoption of the report; v. That the Respondents pay the Appellant's costs of the Appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41030 of 2001 CA 41031 of 2001

MEAGHER JA HANDLEY JA SHELLER JA

Wednesday, 12th February 2002 ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v GERHARDUS HENDRIKUS WELLING & Anor ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v WILLIAM KEVIN COMERFORD & 2 Ors Judgment 1 MEAGHER JA: These proceedings, which come to the Court of Appeal from the Commercial List, arise out of the collapse of a road bridge at Wellington, in the State of New South Wales. The bridge was the property of the appellant ("RTA"). The date of the accident was 6 January 1989. It collapsed when an excavator owned by Mr Welling (the respondent to the first appeal) and carried on a vehicle owned by the Comerford family (the respondents to the second appeal) came into contact with the superstructure of the bridge. 2 In proceedings 55034 of 1998 (originally 13584/93) 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. In proceedings 55035 of 1998 (originally 31036/94) Welling sued the Comerford parties, and alternatively the RTA, for the damage to his excavator. 3 On 3 September 1998 Hunter J, pursuant to SCR Pt 72 r 2(1) in each set of proceedings referred to a Mr G C Verge for inquiry and report the question "the cause of the collapse of the Wellington Bridge". That gentleman's report, dated 14 December 1998, concluded that the cause of the collapse was "a buckling failure of the bridge deck in accordance with the contentions of the defendant (scil. the Comerford parties)." 4 Mr Verge's report was adopted in each proceeding by Einstein J on 30 March 1999. 5 On 21 May 1999, pursuant to SCR Pt 72, the remaining questions of liability in each case (but not any questions of quantum) were referred by Einstein J to Mr Verge and Mr Brownie QC for inquiry and report. 6 At the hearing before Messrs Verge and Brownie, the Comerford parties limited the case which they sought to make against the RTA to two specified acts of misfeasance. Mr Wellings's legal representatives did not suppose that he was making any different case, and the case proceeded on the basis outlined. Expert witnesses were called by each side, and submitted to cross-examination. No allegation of non-feasance was made. No allegation of failure to warn was made. 7 The two referees reported on 30 September 1999. They found (on the two issues before them) that the RTA was liable neither to Mr Wellings nor to the Comerfords. 8 When the question of the adoption of the Referees' report came before Hunter J, the RTA sought adoption of the Report, the other parties opposed it. The parties argued the point manfully on 10 December 1999, 11 February 2000 and 8 March 2000. 9 On 15 March 2000 his Honour made a most curious order. He granted the parties leave to adduce further evidence "limited to the issue of the Authority's alleged negligence and consistently with the findings of the first report as adopted." The parties have interpreted this cryptic utterance to mean that whilst the parties had to accept the Referees' findings on the two issues with which they dealt, there was an outstanding third head of negligence still remaining. Nobody has been able to identify what that "third head" of negligence is, or was considered to be, by his Honour. 10 Needless to say, the RTA appealed against the decision of Hunter J. The Court of Appeal upheld that appeal. The Court consisted of Handley JA, Powell JA and Heydon JA. The main judgment was that of Heydon JA, with whom the other two judges agreed. Amongst other things his Honour said: 29 In my opinion the appeal should be allowed for the following reasons. 30 First, it is impossible to understand from either the orders or the reasons for judgment what the point is on which further evidence is to be called. 31 Secondly, it is no answer to that difficulty to say, as Mr Cotman did, that the matter could be worked out in the course of directions hearings before the primary judge. Parts of 10 December 1999, 11 February 2000 and 8 March 2000 have already been devoted to that enterprise without success. It was not unreasonable for the appellant to seek relief from this Court before further costs were expended below. 32 Thirdly, even if the issues are as Mr Cotman would have them, and even if the issues do not involve questions of non-feasance only (and paragraph 11 of the document Mr Cotman handed up in oral address suggests that they do) the case is one in which the non-RTA parties elected to run the reference in a particular way. They were represented by experienced and capable solicitors and counsel. They made concessions before it, recorded at the start of the second report. They opened on a relatively narrow basis. The "third issue" which they seek to raise, if Mr Cotman's explanations about it are correct, is a matter which rests on extremely technical questions. It is an abuse of process to seek to agitate the third issue at this stage of so ancient a case when so much care has been taken by the Commercial List judges and by the referees to decide the facts identified as being in issue.

The Court of Appeal remitted the matter to his Honour for consideration of the adoption of the Report in accordance with Pt 72 r 13. 11 The Comerford parties then filed a motion seeking leave to re-open this case and leading further evidence. That application was dismissed by Hunter J on 17 May 2001. 12 A further complication then presented itself on 31 May 2001 when the High Court delivered judgment in Brodie v Singleton (2001) 206 CLR 512, changing the law of Australia by holding that highway authorities were liable in negligence for non-feasance as well as for misfeasance. This decision gave fresh life to his Honour's manifest disinclination to accept the Referees' report, and emboldened him to make another order on 20 November 2001 adopting the whole of the Report "save as to the following" which appears at the final page of the report: "We conclude therefore that the Comerford's claim fails. Conclusions We answer the question now posed as follows:

1. Are the Defendants liable to the RTA pursuant to the State Roads Act 1986? No.
2. Is the RTA liable to the cross-claimants by reason of public nuisance, negligence, or breach of statutory duty? No."

His Honour's decision not to adopt this passage was based on his view that it was now for the first time possible for Mr Welling and the Comerford parties to allege that the RTA was liable through its failure to warn users of the bridge of the defects discovered by Mr Verge, that being an act of non-feasance. Therefore on 23 November 2001 he granted leave to amend the pleadings so as to allege this act of non-feasance. 13 (It apparently escaped his Honour's attention that both the Comerford parties and Mr Welling had, in their second Statements of Claim, made many allegations of non-feasance; which they abandoned when they limited their case to two acts of misfeasance). 14 It is from these orders that the RTA has by leave brought the present appeals. 15 In my view the appeals should succeed. Precisely the same considerations which led this Court to uphold the first appeal mandate the success of this appeal. What Heydon JA said then applies word for word now. 16 That the High Court has changed the law in the meantime does not matter. This flows from the decisions of the High Court in Piening v Wanless (1968) 117 CLR 498 and of this Court in Eggins v Brooms Head Bowling and Recreation Club (1986) 5 NSWLR 521 at 524-525. Once a trial has been concluded on the basis of the old law, one cannot seek to take advantage of the new law unless one has at the trial "taken objection to the application of the old law". Certainly, no such objection was taken here. The evidence called for the plaintiffs was not directed to non-feasance issues and factual findings on those issues were not sought from the referees. 17 For the purpose of applying the principle in Piening v Wanless the hearing of a reference under an order of the Court pursuant to SCR Pt 72 r 2(1) is a trial: see Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 at 558-9, quoting the observations of Stephen J in Buckley v Bennell Design & Constructions Pty Ltd (1978) 140 CLR 1 at 15. 18 Since preparing these reasons I have had the benefit of reading Handley JA's reasons with which I agree. 19 In my view, in both appeals the following orders should be made: i. That the decision and orders of Hunter J of 20 and 23 November 2001 be set aside; ii. That the report of the Hon John Brownie QC and Mr Geoffrey Verge dated 30 September 1999 be adopted in full; iii. That the Respondents pay the Appellant's costs of the reference before Messrs Brownie and Verge and of the proceedings before Justice Hunter for adoption of the report; iv. That the Respondents pay the Appellant's costs of the Appeal. 20 HANDLEY JA: In these appeals I have had the benefit of reading the reasons for judgment of Meagher JA in draft form. I agree with his reasons and with the orders he proposes but will add some additional reasons of my own. 21 When Parliament changes the law, particularly when it changes some part of the general law, it almost invariably legislates prospectively so as not to affect accrued rights. Parliaments have recognised that retrospective legislation will disturb the expectations and arrangements of persons who have conducted their affairs on the basis of the existing law, and may therefore occasion injustice. The courts have also recognised the potential for injustice in retrospective legislation and presume that Parliament does not intend to legislate retrospectively so that clear words must be used before legislation will be given that construction. When Parliament does legislate retrospectively the courts construe that legislation strictly. See for example Maxwell v Murphy (1957) 96 CLR 261 and Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553. 22 Even when Parliament does pass retrospective legislation this, in the absence of specific provisions, will not reopen existing judgments where the rights of the parties have become res judicata. In Lemm v Mitchell [1912] AC 400, 405-6 the Privy Council said of such a case: "… the ordinary principle that a man is not to be vexed twice for the same alleged cause of action applies, unless it be excluded by the legislature in explicit and unmistakable terms … it would require language much more explicit than that which is to be found in the ordinance … to justify a court of law in holding that a legislative body intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting". 23 When a court overrules an existing decision or decisions, its judgment has retrospective effect because the new decision affects the existing rights and duties of all citizens and not just the parties to the particular case. The judgment in Brodie v Singleton Shire Council (2001) 206 CLR 512 had this effect. 24 The accident which gave rise to these proceedings occurred on 6 January 1989. The proceedings were commenced in 1993 and 1994 and trials of separate issues took place before referees in 1998 and 1999. The general law in force throughout this period was that declared by the decisions of the High Court later overruled in Brodie. 25 The retrospective effect of judicial decisions is mitigated by statutes of limitation and by Judge-made law. Existing judgments where the old law has been applied and the rights of the parties have become res judicata cannot be reopened. Secondly, in accordance with the principles applied in Piening v Wanless (1968) 117 CLR 498, existing trials where the old law has been applied without challenge are also not reopened. 26 If Parliament had legislated at any time after 6 January 1989 to change the common law immunity of highway authorities for nonfeasance, it is practically certain that the legislation would have had prospective effect, and probably deferred prospective effect at that. It should not therefore be surprising that the common law prevents the new law declared in Brodie on 31 May 2001 being applied to trials which occurred in 1998 and 1999 which cannot be challenged on other grounds. 27 There are additional reasons in this case for applying the rule in Piening v Wanless. The former nonfeasance rule protected highway authorities from liability to users resulting from the non repair of the trafficable surface. Highway authorities were not obliged by law to maintain safe highways in part because they might lack the resources to do so. However this rationale did not apply either at all or with any force to a failure on their part to inspect old bridges which might be approaching the end of their safe life. Nor did the rationale apply where the highway authority knew or suspected that an old bridge was a danger to the public and was sued for failing to warn the public, advise safe load limits, or to close the bridge to traffic. These steps would require minimal expenditure and it is not at all clear that the nonfeasance rule applied to negligence of this type. See for example Fisher v Ruislip-Northwood UDC [1945] KB 584 CA. The plaintiffs did not seek to establish such a case before Brodie. 28 Moreover in my judgment the orders of Hunter J, which are challenged in these appeals, are inconsistent with the orders of this Court, made on 8 December 2000 and subsequently entered, which remitted the proceedings to the Division for consideration of only one issue, namely whether the report of the referees of 30 September 1999 should be adopted. 29 Orders should be made as proposed by Meagher JA. 30 SHELLER JA: I agree with the reasons for judgment of Meagher JA and of Handley JA. The orders should be as Meagher JA has proposed.

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