Bollen v Condor of Bermuda

[1999] FCA 1832

FEDERAL COURT OF AUSTRALIA

Bollen v Condor of Bermuda [1999] FCA 1832

TORT – Negligence – member of crew on maxi yacht injured in course of charity race on Sydney Harbour when genoa block comes off its track and strikes him on inside of right knee – whether plaintiff had been invited to be on yacht – duty of care – whether duty required owner to have stopper block in place to safeguard against known risk of sailing – whether res ipsa loquitur – whether defence of volenti non fit injuria available – whether plaintiff, an experienced sailor, guilty of contributory negligence by standing in a position of danger.

PATRICK JOSEPH BOLLEN v THE SHIP CONDOR OF BERMUDA

NG 300 OF 1998

LINDGREN J
23 DECEMBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 300 OF 1998

BETWEEN:	PATRICK JOSEPH BOLLEN Plaintiff
AND:	THE SHIP CONDOR OF BERMUDA Defendant
JUDGE:	LINDGREN J
DATE OF ORDER:	23 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The proceeding be dismissed.

2.The plaintiff pay the defendant’s costs.

3.The sum of $100,000 paid and maintained in relation to the release of the ship ‘Condor of Bermuda’ together with the net interest earned on that money be paid to the person or persons entitled to such monies in consequence of the dismissal of the proceeding.

4.Liberty be reserved to either party to apply in respect of the outworking of order 3.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 300 OF 1998

BETWEEN:	PATRICK JOSEPH BOLLEN Plaintiff
AND:	THE SHIP CONDOR OF BERMUDA Defendant

JUDGE:	LINDGREN J
DATE:	23 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION AND PROCEDURAL HISTORY

1. The plaintiff (“Mr Bollen”) brings this action in rem pursuant to s 17 of the Admiralty Act 1988 (Cth) for injuries sustained while he was on board the defendant, the yacht “Condor of Bermuda” (“Condor”). He makes a “general maritime claim” concerning that vessel in that he claims damages for personal injury suffered by him during a “charity race” on Sydney Harbour on 28 November 1997. Mr Bollen was struck in the right knee by a “genoa block” which had come off its track on the deck.

2. Mr Bollen’s amended statement of claim pleads a case against the owner of Condor, his servants and agents. It is not in issue that in terms of s 17 and the definition of “relevant person” in s 4 of the Act, if there is a liability to the plaintiff at all on the case as pleaded, the owner of the ship would have been liable on that case if Mr Bollen had made his claim in a proceeding commenced as an action in personam.  In fact the vessel interests are being defended by the beneficial owner.  Accordingly, there is no issue but that the Court has jurisdiction under s 10 of the Act to hear and determine Mr Bollen’s claim.

3. Due to significant expenses incurred in connection with the arrest and maintenance of the ship, on 27 October 1998 I ordered that the hearing be expedited.  The hearing commenced on 16 December 1998 and continued out of term on 21 and 23 December.  On 23 December the parties informed me that they had agreed that the ship was to be released upon the owner’s paying $100,000 into an account to be operated by the solicitors for both parties.  The agreement was implemented and the ship was released from arrest.  With the ship’s release the case for giving the proceeding priority over other proceedings in the Court disappeared.  The hearing resumed in July of this year and after an interruption finished on 12 August.

   GENERAL BACKGROUND

4. Condor is a 78 ft maxi yacht.  Robert Arthur Bell (“Mr Bell Sr”) is its beneficial owner.  His son, Robert Andrew Bell (“Mr Bell Jr”) skippered the vessel on the day in question.

5. Mr Bollen is a professional sailor of eighteen years’ experience.  He has earned income from maintaining and repairing vessels in and around Middle Harbour and elsewhere within Port Jackson and the Sydney area, and skippering and crewing on yachts and other craft.  In more recent years he has carried on his business activities through a company, Windsong Promotions Pty Limited (“Windsong”) of which he is the sole director and the secretary.  Mr Bollen and Mr Bell Sr have known each other for approximately fifteen years.  They have sailed together on Condor.  Both Messrs Bell attest to Mr Bollen’s experience and skill as a sailor.  In fact, Mr Bell Sr had asked Mr Bollen to be a member of Condor’s crew on many prior occasions, including a return voyage from Australia to the United States West Coast, the Clipper Cup Racing Series in Hawaii, and several Sydney to Hobart races.  Mr Bollen holds a Yacht Master Offshore ticket and a Master Class 4 licence. 

6. On the day in question, Mr Bell Sr was in New Zealand.  Mr Bell Jr had been either the master or in charge of Condor for the preceding three years and holds a Yacht Master Offshore Certificate.

   THE EVIDENCE

   The accident and events leading up to it

7. A rough sketch of Condor is annexed to these Reasons.  Of principal present concern is the “genoa block”.  A “genoa” is a sail whose corner (“clew”) reaches behind the line of the mast when the sail is pulled in as far as possible.  A number three genoa is the smallest genoa carried on a yacht and is frequently used in strong winds.  The genoa block is involved in the “trimming” or setting of the genoa.  The genoa block is mounted on a car which runs along a track bolted to a yacht’s deck (“genoa track”).  Terminology used in the evidence varies.  For example, the genoa block is sometimes called the “trimming block”.  More importantly, the expression “genoa block” is often used to refer to the composite car with the block on top of it.  I will refer to the total assembly as the genoa block or simply the “block”, distinguishing between the “car” and the “block” strictly so called when I wish to be more specific.  There is evidence that in all, the block weighs some six to eight kilograms.  After the accident, steps were apparently not taken to keep the particular genoa block that struck Mr Bollen appropriately identified.  With the parties’ consent, I have inspected a sample genoa block used on Condor.  Whether the estimated weight is correct or not, there is no doubt that it is a heavy metallic object apt to injure if it came off its track and struck a person with force. 

8. The genoa sheet (rope) runs from the clew to and through the genoa block on and through a turning block some distance aft then forward to a winch which is located just forward of the cabin.  We are concerned with all this equipment on the starboard side of the vessel, although there are counterparts on the portside. 

9. The genoa block can be positioned at different points along its track.  The position chosen coupled with the force of the “pull” on the genoa sheet will determine the angle of the genoa itself.  The genoa sheet, and therefore the sail, is tightened or loosened by means of the winch.  On a yacht of Condor’s size, the genoa block routinely withstands loads approaching four tonnes.  No doubt, genoa blocks and tracks on smaller vessels are smaller and lighter than those on Condor.  The forces exerted on the genoa block by the sheet tend to lift it, pull it outboard and propel it aft along the track.  It is important that it be able to resist this force and remain firmly in position.  The most common mechanism by which this is achieved, and that which was employed on Condor, is the use of a spring-tensioned securing “pin” built into the car, which locks into holes located at intervals along the track.  The spring forces the pin downwards so that it protrudes below the underside of the car into the hole in the track.  When the pin is seated in a hole in the track, two forces operate on it to keep it in position: the downward force of the spring and, when the sail is under pressure, torsional or lateral force tending to drive it aft and therefore hard against the aft side of the hole in which it is seated.  When the sail “luffs”, that is, ceases to be under pressure and flaps, and the boat comes upright, the torsional force dissipates.

10. There were three genoa tracks aboard Condor.  It is with the “number three” genoa track that this case is concerned.  The number three track was located on the starboard side of the foredeck to the right and a little forward of the winch, and therefore of the cabin.

11. The following account of the events of 28 November 1997 is primarily based on Mr Bollen’s testimony and does not represent any finding of fact.  I have noted where his version of events differs from that of other witnesses.

12. Mr Bollen says that on Saturday 22 November he received a telephone call from Mr Bell Jr who asked him whether he could recommend and organise a berth for Condor, stating that at the time the vessel was off Coffs Harbour on a journey from Fiji to Sydney.  Mr Bollen says he arranged for Condor to be moored at Middle Harbour Yacht Club and advised Mr Bell Jr of this.  According to Mr Bollen, Mr Bell Jr told him that the yacht would be arriving in Sydney early on the morning of Monday 24 November.  It is not in dispute that Mr Bollen was present when Condor arrived and that he assisted in the yacht’s berthing.  However, the Messrs Bell claim that this occurred on or about Thursday 20 November. 

13. Soon after Condor had berthed, Mr Bollen had a conversation with Mr Bell Sr, the content of which is in dispute.  It is relevant to the question whether Mr Bollen was invited to participate in the charity race at all.  Mr Bollen’s version of the conversation is to the following effect:

    “[Mr Bell Senior]:     Would you help the boys sail Condor of Bermuda on Friday 28 November for a charity sail?

    [Mr Bollen]Yes.”

    Later, the conversation included the following:

    “[Mr Bollen]:             Will there be other experienced yachtsmen joining the boat?

    [Mr Bell Senior]      There will be other experienced yachtsmen, in addition to Rob (Bell Junior) who will skipper her, Tom Gurr and David.”

14. Mr Bell Sr denies having invited Mr Bollen to participate.  He says the conversation was simply as follows:

    “[Mr Bell Senior]:     Hi Patrick, good to see you, thanks for your help. (Meaning the docking of the yacht)

    [Mr Bollen]:Not a problem, good to see you back.  I am in the middle of a job.  I will catch you later.”

    According to Mr Bell Sr, it was not until late on Thursday 20 November, the day on which he claimed Condor arrived in Sydney, that he was first asked by Mr Tony Shaw of Middle Harbour Yacht Club whether he would allow Condor to be used in a charity event the following week.  Mr Bell Jr’s account differs from that of his father in the minor respect that he states that on 20 November, Mr Shaw merely requested to meet with his father and himself, and that it was not until the following day, Friday 21 November, that he asked that Condor take part.  Both Bell versions are to the effect that neither of them invited Mr Bollen to be part of Condor’s crew.  Mr Bell Jr further states that a few days before the race Mr Bollen asked whether he could join the crew and that he, Mr Bell Jr, refused, saying that he already had sufficient crew members, including Thomas Gurr, David Beharrell, Julie Hodder, Anthony Tomas and Glenn Miles. According to Mr Bell Jr, he suggested that Mr Bollen inquire about other vessels but Mr Bollen replied: “Oh, I don’t think I will be coming”.  Mr Bell Jr states that he therefore did not expect Mr Bollen to be sailing at all, let alone to be sailing on Condor.  According to Mr Bollen, on the other hand, Mr Bell Jr informed him later the same week that “there [would] be several others on the vessel, experienced big boat sailors joining the crew for the sail on [the] Friday.”  Unfortunately, the contradictory versions of events given by the Messrs Bell and their witnesses on the one hand and Mr Bollen on the other have bedevilled the case.

15. According to Mr Bollen, on the morning of Friday 28 November the weather had turned overcast and a south-easterly was blowing with a force of between twenty and twenty-five knots.  At about 11 am, Mr Bollen asked Mr Bell Jr whether he was still going to sail, to which he replied “We have to be seen to be willing”.  Mr Bell Jr denies having spoken to Mr Bollen on the morning of the race.  In a supplementary statement Mr Bollen claims he phoned Mr Bell Jr twice that morning.  Mr Bollen’s Telstra phone bill shows that Mr Bollen phoned a number, which Mr Bell Jr conceded was his mobile number, on the morning of the race at 8.11 am for 3:07 minutes and at 9.32 am for 1:11 minutes.

16. The race was due to commence at 2.00 pm off Balmoral Beach.  Mr Bell Jr had asked crew members to arrive at Condor at the Middle Harbour Yacht Club at 8.45 am.  Early that morning a member of the crew, Glenn Miles, informed Mr Bell Jr that he would be unable to participate.  This meant that Mr Bell would be shorthanded by one person.  Nevertheless, the remaining crew having assembled, Condor set sail from the Yacht Club at about 9.00 am.  Mr Bollen was not present.  It was necessary for Condor to move out from the Yacht Club so long before the start of the race and anchor elsewhere until the race began, because, otherwise Condor could, by reason of its large keel, become trapped.  Condor proceeded to Balmoral near “HMAS Penguin” where she anchored.  The Middle Harbour Yacht Club had arranged a tender service to convey guests from Swiss Re Life & Health Insurance Australia Ltd (“Swiss Re”) to Condor.  It was a five to ten minute trip by tender from the Yacht Club to the yacht.  According to Mr Bell Jr, before the guests arrived, he and the crew checked the yacht’s equipment, including the winches, grinders and pulleys.  Mr Bell Jr states: “the genoa trimming block was already in place.”

17. Shortly before the race was due to commence, the guests arrived in two boatloads.  There were fourteen of them.  Just before the race’s commencement, a third tender brought Mr Bollen and his brother Joseph.  According to Mr Bollen, Mr Bell Jr told him he had been becoming worried that he (Mr Bollen) would not make it in time.  Mr Bell Jr, however, claims to have been surprised to see Mr Bollen and his brother at all, as Mr Bollen had not been invited to take part.  It crossed Mr Bell Jr’s mind, however, that someone from Swiss Re may have invited the Bollens.  Mr Bell Jr did not ask Mr Bollen to leave or ask him why he and his brother had come uninvited.  He said that he did not raise the matter because he was familiar with what he described as Mr Bollen’s “forceful and self-opinionated” personality and believed that challenging him would result in an “unpleasant scene”.  A further reason, he said, was that if arrangements had to be made for Mr Bollen to leave, this would delay Condor’s start in the race.

18. Mr Bell Jr instructed the crew and guests as to dangers of sailing and told them they must adhere to directions given by himself and the First Mate, Thomas Gurr.  He also explained the race’s format and certain matters related to the yacht.  To Mr Bell Jr’s surprise, Mr Bollen then also addressed the guests, warning them of various dangers of sailing.  Mr Bollen claims he had discussed previously with Mr Bell Jr the positioning of crew members and guests and the sail configuration for the race.  Mr Bell Jr did not confirm or deny this.  He merely says that the usual positioning on board sailing boats was adopted, that is, that the skipper, Mr Bell Jr himself, was at the helm and controlled the aft area of the yacht, while the First Mate controlled the forward areas.  According to Mr Bell Jr, the remaining crew members were dispersed throughout the vessel, with Mr Beharrell controlling the main sheet and Ms Hodder and Mr Bollen’s brother, Joseph Bollen, on the running back stays.  Mr Bell Jr said he allocated people to go and help Mr Gurr on the foredeck.  He said that Mr Bollen went with Mr Gurr and Mr Tomas to assist on the foredeck and that Mr Gurr allocated Mr Bollen to the trimming and grinding equipment.  Mr Bollen denies this.

19. At some point, Mr Bell Jr saw Mr Bollen instruct guests from Swiss Re and Mr Tomas on how to use the trimming and grinding equipment, change gears and tail the primary winch.  He said that at this time he saw Mr Bollen “check the genoa trimming blocks”.  Mr Bell Jr said he did not question Mr Bollen’s doing so, as that area was, to his mind, Mr Bollen’s responsibility and he considered it appropriate for an experienced sailor to conduct such checks.  Mr Bollen said he did not “check the genoa trimming blocks”.  Mr Bollen said that he had ascertained from Declan Brennan that he was “an experienced trimmer” and on that basis “appointed him to the starboard trim”, as he (Mr Bollen) needed to remain aft and work the main sheet.

20. Condor’s sail configuration for the afternoon was “two reefs in the main” and a number three genoa.  “Two reefs in the main”, signifies that the main sail was taken in and shortened at two “reef-points” in accordance with the prevailing wind conditions.  Mr Bollen states of the number three genoa, “The number 3 position of the car on the forward track was in situ.”  This appears to mean only that the car for the number three genoa was already fixed in position on the forward track.

21. According to Mr Bollen as Condor made its way to the starting line, Mr Bell Jr was at the helm; “David” was on the main sheet (presumably David Beharrell); Mr Gurr was on the port side trim; Ms Hodder was a “floater” (aft cockpit runners); Mr Bollen’s brother, Joseph, was at the runner (grinder) at the starboard side aft end of the yacht; Declan Brennan was at the starboard trim; another man was on the mast, and the remaining persons on board were allocated to grinders.  The testimony of Mr Bell Jr suggests that Mr Bollen was standing “in the area around the primary winches” and was “involved with the trimming of the genoa” and that soon afterwards, Mr Bollen left that task and went aft to tend the main sheet.  Mr Bollen said that he “decided to remain aft and work the main sheet”.  However, as will be seen later, he did not remain aft.

22. The yacht was on a starboard tack from the time it passed Middle Head to a point north-west of South Reef when it changed to a port tack.  It remained on port tack until it reached a point just north of Sow & Pigs Reef where the accident happened.  Annexed to these reasons is a map on which I have indicated the very approximate course of the voyage as I understand it based on the evidence.

23. Mr Bell Jr and Mr Bollen agree that the wind generally on the day varied between twenty and twenty-five knots.  It was generally from the south.  At the turning point north-west of South Reef, the wind conditions became erratic.  According to Mr Bollen, David was too slow in easing the main sail.  Mr Bollen then came forward to the trimming position and told Declan Brennan to “trim the starboard side”.  Mr Bollen then went back to the cockpit.  However, he noticed that Mr Brennan was “straddling the block and sheet”.  Mr Bollen returned to him and warned him not to stand in that position.  He said “Don’t stand there” and “if that block blows up it’ll kill you”.  He directed Mr Brennan to sit on the deck in front of the cabin and to the rear of the winch drum which he recalls in his statement made a year later on 18 November 1998, had “six turns on it”.  He then turned intending to return to the cockpit.  He went down the leeward side of the vessel between the genoa sheet and the side of the cabin.  He states that prior to moving aft, he heard Mr Bell Jr ask Mr Gurr to check the position of the genoa car on the port side, that is, the high side of the vessel opposite that where Mr Bollen was positioned.  Mr Bell Jr denies having made that request of Mr Gurr.  According to Mr Bell Jr, his conversation with Mr Gurr concerned the tack on the head sail which had come loose.  Mr Bollen testifies that when Mr Bell Jr asked Mr Gurr to check the port side genoa car, Mr Gurr was crouched on the high side of the vessel and that he (Mr Bollen) did not see whether Mr Gurr in fact checked the genoa car.  Mr Bollen states that he did not, at any time, touch the genoa car on either track. 

1. Mr Bollen says that as he moved aft, Mr Bell Jr told him he feared there was “potential for a port and starboard situation”, by which Mr Bollen understood him to mean that there was a possibility of a collision with another yacht on the starboard (leeward) side of Condor to which Condor would have to yield way.  Again, Mr Bell Jr denies having had such a conversation with Mr Bollen.  According to Mr Bollen’s testimony, on hearing of the potential danger he stopped and turned at a time when he was standing between the genoa sheet and the side of the cabin in what he describes as a “position of safety”.  According to Mr Bollen he was “between the starboard doghouse [cabin] and the [genoa] sheet just forward of the turn block”.  He says that while in this position he held onto the starboard rail on the cabin top and satisfied himself that there was no danger of a collision.  As he turned to return to the cockpit, “the vessel luffed up sharply”.  Then a sudden strong gust of wind drove the boat over hard on the starboard side at an approximate angle of thirty-five to forty degrees.  Then Mr Bollen heard “a loud explosion”.  According to his recollection, the starboard genoa car “exploded” coming off its track.  It (car and block) then travelled aft at a great speed and struck Mr Bollen on the inside right knee.  The car and block, still connected to the genoa sheet passing through the block, was “flaying around on deck”.  Mr Bollen says that he quickly assessed the danger of the situation and let go of the handrail and threw himself into the water to avoid being struck again.  (I note that according to para 5 of the Amended Statement of Claim, it was the severity of the genoa block’s impact with Mr Bollen’s right knee that propelled him overboard.)  Mr Bollen denies having been standing astride the genoa sheet, or having been lifted up by it over the side of the vessel.  This, however, is the version of events given by several other witnesses.

2. Ms Hodder threw a life ring to Mr Bollen.  Another yacht, “Team Jaguar”, motored to him and one of its members dived into the harbour and assisted him.  Mr Bollen was quickly pulled to safety aboard Team Jaguar.  Team Jaguar took him to Watsons Bay Wharf from which an ambulance took him to St Vincent’s Hospital, Darlinghurst.

3. Mr Bollen’s account of the events immediately leading up to the accident differs from that of several witnesses.  According to Mr Bell Jr, Mr Bollen was standing adjacent to the coach house at its forward end and close to the primary winch and to Mr Brennan.  This position is much further forward than that identified by Mr Bollen as his “position of safety” at the time of the accident, that is, just forward of the turning block.  Mr Bell Jr testified that when Mr Bollen was standing in the position described, the sail lost wind, the sheet slackened and Condor righted herself; that moments later wind filled the sails, tightened the sheet and pushed Condor over to an angle of approximately thirty degrees; and that he saw Mr Bollen being lifted up and carried over the side of Condor by the rising sheet.  Mr Bell Jr did not see what hit Mr Bollen, but assumed it was the genoa sheet or block.  Mr Bell Jr says that Mr Bollen was carried over the starboard life lines and held onto the sheet above the water, about two metres from Condor, before falling into the water.

4. Ms Hodder gave a generally similar account.  She said she saw Mr Bollen warn Mr Brennan against “standing astride of the head sail car”, only to see him adopt the very same stance himself soon afterwards.  Ms Hodder had been on the point of warning Mr Brennan of the danger in standing in that position when Mr Bollen had done so and that she had been about to give a similar warning to Mr Bollen himself, when the wind lulled and then rose filling the genoa. She said that at that point the genoa car slid off the track; that the sheet and the genoa trimming block rose upward and the block hit Mr Bollen on the leg; that Mr Bollen was lifted off the deck and held onto the sheet for a couple of seconds before falling overboard; and that she immediately threw a life buoy to Mr Bollen who appeared to have an expression of pain on his face when he grabbed the buoy. 

5. On 29 November 1997, the day after the accident, Mr Bell Jr, assisted by Ms Hodder, completed a “Waterways” “Boating Incident Report” which Mr Bell Jr signed.  In the form the causes of the incident were identified as “Fault of Equipment” and “Lack of Judgement”.  The report also gave the following account of the sequence of events:

   “1.Boat was sailing on Port tack, half way between South Head and Sow of [sic - &] Pigs.

   2.Wind dropped suddenly the headsail sheet went slack, and the sheet released the button on the car.  The car slid off the track when the sail filled in again.

   3.Patrick was astride of the headsail sheet.  It collected him and he was lifted off the deck.  He held onto the sheet for a couple of seconds and then fell over.

   4.Life Buoy was immediately thrown and Patrick swam a couple of metres to pick it up.

   5.Boat came head to wind, engine was started and sails dropped.

   6.Two people were instructed to become lookouts – to stand and constantly point to him in the water.

   7.We were on our way back when the yacht ‘Team Jaguar’ under motor came to his assistance.

   8.‘Team Jaguar’ was able to retrieve him and take him to Watsons Bay.  We stood by to provide further assistance.

   Under “Details of Witnesses” the report named “Declan Brennan”.  Under “Crew Details at the time of the Incident” the report named Robert Bell, Thomas Gurr and David Beharrell. 

   The course followed by Condor

6. On the day of the charity race, the wind was blowing from the south at between sixteen and thirty knots and the evidence suggests, and I accept, that the wind speed was predominantly in the range of twenty to twenty-five knots and that a gust might add a further 30 per cent of that speed.

7. After clearing Middle Head, Condor sailed on a starboard tack from Hunters Bay to a point north west of South Reef.  Mr Bollen testified:

   “After starting on starboard tack to the heads from Middle Harbour, the boat was well balanced in 20 to 25 knots, tacked off inside South Reef.  We had sailed a course on starboard tack from Hunters Bay to a point northwest of South Reef.” 

   Mr Tomas said that Condor sailed “down the harbour” and “tacked shortly after clearing Middle Head”.

8. According to Mr Bollen, as the yacht tacked onto port, it became “overpowered” and he assisted David Beharrell to ease the main sheet.  Mr Bollen also instructed Mr Brennan on how to “trim the starboard side”. Since the yacht was on port tack, the main sail was on the right hand side of the vessel.

9. The genoa block came loose from the track when the boat was sailing on the port tack between the turning point north-west of South Reef and Sow & Pigs Reef.  Mr Bollen said he was picked up from a point just north of Sow & Pigs Reef.  In the Boating Incident Report, Mr Bell Jr gave the location of the accident as “half way between South Head and Sow of [sic - &] Pigs” Reef.

10. The precise point north-west of South Reef where Condor changed from starboard to port tack cannot be known.  Nor can the precise point north of Sow & Pigs Reef where the accident occurred.

11. The duration of the port tack down to the time of the accident is in issue.  The expert witnesses expressed different views on the matter.  Mr Mitchell, who was called for the defendant, estimated that Condor would have sailed on the port tack for eight to ten minutes.  His estimate was founded on an assumption, based on Mr Bollen's testimony, that the change to port tack occurred at a point north of South Head and that the block came adrift north of Sow & Pigs Reef.  He estimated the distance as some 2,000-3,000 metres which he said could be traversed in eight to ten minutes at his estimate of Condor’s speed of eight knots.  However, according to Mr Hearder, an expert called by Mr Bollen, the distance between the two points would have been far less.  He thought it would have been only half a nautical mile and would have been covered by the Condor in about two minutes.  It is difficult to be confident about either expert’s estimate since each is based on termini at points on the surface of the Harbour which are only rough approximations and allow much latitude for error.

12. Between the change to port tack and the accident, Mr Bollen made two trips from the cockpit to the foredeck.  It was in the course of his return aft on the second trip to Declan Brennan that the accident occurred.  It has been suggested that the time Mr Bollen spent going forward and aft and instructing Mr Brennan on the correct trimming method and standing position would have exceeded two minutes, but again one cannot be confident about this.

    REASONING ON LIABILITY
    The invitee-trespasser issue

13. I think Mr Bollen was invited to be on board Condor for the charity race.  Mr Bollen states that he had a telephone conversation with Mr Bell Jr on the morning of the race day; Mr Bell Jr denies this; the telephone records suggest that Mr Bollen may well be correct (it is possible, but unlikely, that someone other than Mr Bell Jr answered on Mr Bell Jr’s mobile telephone).  The telephone conversation as recounted by Mr Bollen assumed that Mr Bollen was to be on the vessel for the race.

14. When Mr Bollen and his brother were delivered to Condor by tender, Mr Bell Jr did not refuse to take them on board.  One of the reasons he gives for not having later arranged for them to depart (delaying Condor’s start in the race) has no application to a refusal to take them on board.  He did not remonstrate with Mr Bollen, even by way of a quiet word in private.  Moreover, he made use of the Bollens on the vessel. 

15. While I think Mr Bollen was an invitee, even if he was not I do not think that for that reason any less duty of care would have been owed to him.  Subject to the defence of volenti non fit injuria dealt with later, Mr Bell Sr owed a duty at least to those who, like Mr Bollen, were on board Condor for the charity race with the knowledge and acquiescence of his son, to take reasonable care to ensure that they were not injured as a result of the yacht’s having inadequate equipment, including inadequately maintained or defective equipment.

16. I think there is no substance in the defendant’s submission that no duty of care was owed to Mr Bollen or that the scope of the duty of care owed to him was reduced on account of his not having been invited to participate in the charity race.

    What caused the genoa car and block to come adrift from its track?

    Res ipsa loquitur

17. For several reasons which I can state briefly, I am not aided in the present case by this

    “ … process of logic by which an inference of negligence may be drawn from the circumstance of the occurrence itself where in the ordinary affairs of mankind such an occurrence is not likely to occur without lack of care towards the plaintiff on the part of a person in the position of the defendant ; … ”(Government Insurance Office of New South Wales v Fredrichberg (1968) 118 CLR 403 at 413 per Barwick CJ)

18. First, while the operation of the genoa block and track system is easily understood once explained, it cannot be said that the cause of the car’s coming off the track is something within the knowledge of the ordinary person untutored by expert evidence.  Second, there was expert evidence before me that explored in some detail the possible causes of the accident, not all of which pointed to negligence of the owner in the maintenance of the yacht, its fittings and equipment.  Third, it was within the province of Mr Bollen as much as within that of Mr Bell Sr to explain and expose the cause of the accident.  Fourth, there is no evidence touching the cause of the departure of the genoa car from its track that the parties have not been able to put before the Court.  Fifth, Mr Bollen conceded in cross-examination that he had responsibility for the trimming of the genoa and so it cannot be said that the operation of that system was exclusively under the control of the owner, Mr Bell Sr.

19. I need not cite authorities for the significance of the above considerations for present purposes: they are discussed in Balkin and Davis, Law of Torts (2^nd ed, 1996) at 287-299 and Trindade and Cane, The Law of Torts in Australia (3^rd ed, 1999) at 465-473.

    General

20. In the nature of things, there is no direct evidence of the mechanism by the operation of which the block left the track.  We know that it did so and that it struck Mr Bollen on the inside of his right knee.  I accept that it was reasonably foreseeable that if the genoa block came adrift, it might well move about in a haphazard manner under the influence of the flailing genoa sheet and injure a person on the yacht.  I accept that Mr Bell Sr owed persons on Condor such as Mr Bollen a duty to exercise reasonable care to ensure that the genoa block did not come off its track.

21. The spring-loaded securing pin must have come out of its hole at the time of the accident and not before.  But there is a question whether it worked its way out or came out from a fully seated position in the one movement.

22. Expert evidence touching the cause of the block’s coming adrift was adduced by Mr Bollen from Mr Hearder of Marinassess Pty Ltd and David Kellett of David Kellett Pty Ltd. Evidence on the issue was also given by Alastair Mitchell, Maritime Consultant, called for the defendant.  There was no challenge to the qualifications of these witnesses to give the opinions they gave. 

23. I have, however, found the evidence of Messrs Kellett and Mitchell generally more persuasive than that of Mr Hearder.  While Mr Hearder’s expertise, on the basis of his sailing experience alone, qualifies him to express the opinions he expressed, his main activity has been in the area of loss assessment and valuation of damaged vessels.  Moreover, his first statement referred in the main to cars that are screwed down into position and to the unscrewing of the securing bolt, rather than those that are held in position by spring loaded pins.  His evidence in response to that of Mr Mitchell was more relevant to the issues in this case than his evidence in chief.  In general, my impression is that he came to understand the issues in the case only after Mr Mitchell had addressed them.

24. Mr Mitchell’s one and only report was much more detailed than either of those of Mr Hearder.  Moreover, his expertise in respect of “safety in sailing” is greater.  He has, for example, been a consultant on sailing safety issues and a member of various bodies concerned with those issues.

25. Mr Kellett’s two reports were brief, though to the point.  His expertise is based on his having sailed for over forty years, competed in twenty-four Sydney to Hobart yacht races, seventeen times as skipper, and having competed in two America’s Cup events as a sail trimmer.  He has been skipper, sail trimmer or helmsman on nine of the largest ocean going yachts in the world, including Condor itself.

26. The sequence of the experts’ reports was:

    Expert evidence in chief adduced by Mr Bollen

    Mr Hearder’s report dated 18 November 1998.

    Mr Kellett’s report dated 22 November 1998

    Expert evidence adduced by the defendant

    Mr Mitchell’s report dated 9 December 1998

    Expert evidence adduced by Mr Bollen in reply

    Mr Kellett’s report dated 17 December 1998

    Mr Hearder’s report dated 18 December 1998

27. It was common ground that the genoa block and track system was not defective in design and, subject to the matter of “burring” of the lip of the holes in the track (discussed later), it was not suggested that the particular equipment involved was in a defective condition.  Photographs of the track, block and car were in evidence.  A considerable body of evidence was given relating to the track’s condition which I will discuss below.  The particular car and block were inspected at Watson’s Bay following the accident by Mr Tomas and shortly afterwards back at the Middle Harbour Yacht Club by Mr Bell Jr.  Mr Tomas said of the assembly:

    “I found it to be in perfect working order.  It was not broken nor showed any signs of being defective.  As I had sailed for many years I was familiar with this type of equipment.  I replaced the genoa trimming block into its track and secured it with the spring release pin.  The genoa block held firm when locked into position within the track and appeared to me to function correctly.”

28. Mr Bell Jr said that his examination back at the Yacht Club after the block had been put back on the track by Mr Tomas revealed that it was “in perfect working order.”

29. On 30 November 1998, Mr Mitchell inspected Condor, including its genoa tracks and blocks, in company with the Admiralty Marshall.  That was about a year after the accident.  His enquires led him to believe that one of the two blocks he inspected was the one that hit Mr Bollen.  Mr Bell Sr testified that “[t]he blocks were purchased and fitted new to Condor” and “have not been modified since purchased new”.  There was no other evidence before me identifying a particular block on the vessel on 30 November 1998 as the one involved in the accident.  On the other hand Mr Mitchell gave evidence of his inspection without objection.  In any event, Mr Bollen’s case is not that the block was defective.  Accordingly, and although the particular block is not in evidence, I can take Mr Mitchell’s description of the block and of its state of repair, as applying to the block that caused Mr Bollen’s injury.

30. Mr Mitchell said that the block was in used condition and in “good working order”.  He said, in particular, that the pin was not worn and that its edges were sharp and not burred over or rounded.  He said that the pin had an adequate tension and was in proper working order and that if the pin somehow became dislodged as the car moved along the track, a spring in that condition would force it down into the next hole that it encountered.  There is no reason to think that this would not have happened in the present case.  Mr Mitchell fitted the block to the deck track and a sheet rope through the block and found that “[t]he mechanisms all worked as designed and [he] could find no suggestions as to why the carriage block might have left its track on 28th November 1997.”

31. The expert evidence was that there were three systems in use for securing a genoa car in position.  The first, that used on Condor and on most vessels, was the large spring-tensioned locking pin fabricated as an integral part of the car, which the spring forced down into holes in and along the track, as mentioned earlier.  The head of the pin protrudes above the upper surface of the car.  The underside of the head of the pin sits flush with the upper surface of the car except when it is being pulled up against the force of the spring.

32. The second is a second “car”, without an attached block, but with a spring-tensioned locking pin or a thumb screw to secure the device into the chosen hole in the track on the deck.  The “stopper car” is attached to the track behind the operative car.  The pin operates as described above in respect of an operative car and block.  Where a screw is used, the thumb screw projects above the upper surface of the stopper car and is liable to cause sheets and ropes to snag and can be accidentally unscrewed by their being dragged around or caught on it.  The stopper car is variously referred to as a “stopper block”, “preventer block” or simply “stopper”.

33. The third system is the attachment of a rope to the front of the genoa car.  The rope leads forward to another block and then to a jamber or winch which holds it in position.  With this arrangement, there is usually no stopper.  This system is a specialist one used in racing which allows trimming of the genoa while the sail remains subject to pressure and the yacht remains under way.  In the case of the first and second systems, on the other hand, the pressure must be taken off the sail with consequent loss of power and delay. No one suggested that the third system described should have been in use on Condor in the charity race on Sydney Harbour.

1. “Fairings” are distinct from stopper blocks.  Fairings are placed at the end of a track to “blunt” or “cover” the sharp metallic end of the track so that sheets and ropes will not be caught around it and people with bare feet will not be injured by it.  Fairings are not designed to act as stoppers.  Moreover, while a fairing would, incidentally, have offered some resistance to the momentum of the genoa car and block running along the track, that resistance would have been slight and probably would not have prevented it from leaving the track.  Mr Hearder agreed that it was, if not an “incidental” function, a “very much secondary” function and a “fringe benefit” of a fairing, to act as a stopper.  Mr Mitchell said that fairings “are not stoppers or locks nor are they intended to be so.”  Photographs of fairings show that they are much lighter than a genoa car and block.  Being positioned at the end of a track, they would be in the most inefficient position possible to act as a stopper, since by the time a genoa car reached that position, its momentum would be at a maximum.  The most efficient position for a stopper would be right next to the operative genoa car.  In my opinion it was not required, in order for Mr Bell Sr to discharge his duty of care to Mr Bollen, that he ensure that fairings be in place at the end of the number three genoa track, and it is irrelevant that Condor in fact had fairings in place at the end of certain other tracks on its deck.  I need not refer to fairings further.

2. There are several possible causes of the accident to be considered.  These are :

   1.that the accident was a “fluke” accident;

   2.that the locking pin had, from the start of the race, not been properly seated in the hole by reason of the presence of burring at the lip of the hole;

   3.that the locking pin had been dislodged by a blow from someone’s foot;

   4.that the locking pin had been dislodged by a sheet.

   1.        “Fluke” accident

3. There was no disagreement that fluke accidents do occur, that is, that in an appropriate combination of circumstances, a properly seated pin can come out of its hole.  Mr Hearder said:

   “[From] [t]ime to time due to the movement and eccentric loadings and change in loadings on the block it has been known for the screw thread or spring loaded pin to work its way loose.” (emphasis supplied)

   and

   “ … the block could come lose [sic – loose] at any weight of wind as it is due to the shaking and vibrating and the slow unscrewing action of the locating devices and/or the car locating device not having been correctly secured.” (emphasis supplied)

   This latter passage contemplates only a screw thread securing device but the former contemplates a spring loaded pin as well.

4. In cross-examination Mr Hearder agreed that the kind of circumstances in which one might expect a block to come loose are “eccentric loadings such as gusting winds, luffing sails and so on”.

5. Mr Bollen agreed in cross-examination that there is a risk of blocks coming out of their tracks on new vessels and old vessels, and on perfectly maintained vessels, adequately maintained vessels and poorly maintained vessels. 

6. Mr Mitchell said that in his forty years’ sailing experience, he has known carriage blocks to come adrift “usually … as a result of extreme vibration and the thrashing of the sheet when for some reason the sail has been let go by mistake or some similar reason”.  In the present case, just before the accident, Condor suddenly and violently came upright due to a lull in the wind then was suddenly and violently forced over hard to an angle of say thirty-five degrees.  Mr Mitchell said that the lull and coming upright indicate that the genoa would have flapped momentarily and the gust would have suddenly imposed great pressure on the genoa, its sheet and block.  In cross-examination, Mr Bollen agreed that the load imposed would have been substantial and that the forces operating on the block and sheet would have been akin to those operating on a bow and arrow.

7. According to Mr Mitchell, the sudden change of wind direction would have placed the genoa car under considerable strain:

   “sudden flapping of the sails and sudden shock loading of the sails can and do put greater strains on the sails and their control systems than normal.  This flailing of sails and ropes often suggests that the fittings might be wrenched from their anchor points.  The flapping sails and flailing ropes and sheets can create an air of havoc and sometimes can cause this.”

   Moreover, Mr Mitchell said that the flapping of the genoa:

   “would have loosened and tightened the sheet with considerable force and rapidity.  When the vessel was hit by the gust, and pushed hard over onto her starboard side, a massive snap loading could have been placed on the Genoa’s controlling sheet.  This could also have strained the carriage block and forced it free.” (emphasis supplied)

   Mr Mitchell was not cross-examined upon this issue.  Mr Hearder accepted that the scenario described by Mr Mitchell may be correct but it appeared to him “coincidental” that the accident happened after the yacht had sailed on its new tack for “a very short period”.

8. There is really no dispute about the slackening followed immediately by the sudden filling of the sail and tightening of the sheet.  This fluke but not unknown combination of circumstances was apt, if anything was, to cause the pin to be dislodged.

   2.        Pin not properly seated from the beginning due to “wear” or “burring” of the hole.

9. There is no doubt that there was burring on some of the holes in the number three genoa track.  We do not know at which hole the genoa block was set.  The nature and extent of the burring can best be seen from the photographs in evidence.  The extent of the burring varies as between holes.  Perhaps no hole is in pristine condition.  I do not understand Mr Bollen’s counsel to submit that it is inconsistent with the discharge of Mr Bell Sr’s duty of care, that there should be the slightest chip or burring at the lip of any hole.  It is a question of degree.

10. Apparently the burring in this case did not impress Mr Bollen’s expert witness, Mr Hearder, as a problem when he first inspected Condor: he did not refer to burring at all in his first report dated 18 November 1998.  Only in his second report of 18 December 1998, a few days before the commencement of the hearing and after reading Mr Mitchell’s report and inspecting the track a second time, did he refer to the wear on the number three genoa track.  He said that wear could prevent a pin from seating correctly because the pin could sit in the “wear hole” rather than right down in the pin hole itself.  In such a case, he said, there is “only millimetres of material and a slight worn up hill slide to prevent the pin from coming out.”

11. Mr Mitchell thought the condition of the track satisfactory and did not think it a cause of the genoa block’s having come adrift.  He said that there was only a very small number of holes in which the pin fitted.  His recollection was that burring or “scrap[ing] out of the back edge” of certain holes extended down to about 1 millimetre of a total hole depth of about 1 centimetre and that in the case of one hole the metal was actually raised by about 1 millimetre.  A properly seated pin would be seated to a depth of approximately one centimetre in the track.  No expert suggested that this was inadequate, that is, that the design of the car and track system was deficient.  As one lacking any expertise or experience in this area, having regard to the tonnes of pressure applied from time to time directly to the sail and indirectly to the sheet, and having regard also to the “eccentric” vibrations and movements to which the pin is subjected from time to time, I would have questioned the adequacy of only a depth of one centimetre as the feature on which the security of the entire system depends.  But there may be opposing considerations of which I am unaware.  For example, a deeper track would signify a higher protuberance above deck level and this may be thought to give rise to other hazards.

12. In addition to testifying that in his opinion the condition of the track was satisfactory, Mr Mitchell expressed the firm view that the pin must have been firmly seated in order to survive the pressures associated with the change from starboard to port tack.

13. In his statement dated 18 December 1998 Mr Hearder said that “the level of maintenance on the headsail tracks [was] very poor”. But Mr Kellett said that in order for there to be a “problem” for a pin of the size in question, a “substantial” part of the depth of the hole would have to be burred.  I take him to mean much more than one millimetre.  But it seems that the “problem” that Mr Kellett had in mind when giving that evidence was that of a correctly seated pin working its way up and out of the hole.  This is not Mr Bollen’s case.  Mr Bollen’s case is that the burring prevented the pin from ever being correctly seated, that is, at any time from the time of rigging.  Nonetheless, the extent of burring is relevant to that case.

14. A more detailed account of Mr Kellett’s evidence is, perhaps, called for.  Mr Kellett said that a pin’s effectiveness in securing a car to a track depended on “the degree of wearing on the track” and that “a small amount of wearing or burring around the hole would not cause [a] problem [but] if half of the depth of the [hole] was burred and gouged out” it would be a problem.”  Mr Kellett’s re-examination included the following:

    “And in order for there to be a problem, does it need to be as much as a half? – It would need to be substantial for a pin of the size that we are talking about to come out of that hole.”

15. Mr Kellett’s evidence was to the effect that the block had appeared to him to have “worked correctly for some time on the port tack before it ‘let go’ ” and that it was therefore unlikely that the crew would think the pin was correctly seated in the locking hole when in fact it was not and was “caught on a bolt head or some other form of minor obstruction on the track.”  Mr Kellett conceded that the amount of burring would have to be “substantial” for a pin of the size in question to come out of the hole but did not proffer an opinion as to what amount of burring would be “substantial”.  Mr Hearder estimated the pin’s thickness to be a little less than half an inch- approximately three eighths or five sixteenths of an inch.  Importantly, counsel for Mr Bollen submits:

    “the securing pin [became] dislodged because, by reason of the presence of burring of the track, it was not properly secured in the first instance (the degree of burring here involved being less than that which is required to dislodge the pin if properly secured in the first instance).” (emphasis supplied)

16. But this submission is inconsistent with the evidence of both experts, Mr Mitchell and Mr Kellett, that in their opinion the pin must have been correctly seated when the vessel changed to port tack.  I do not place much weight on the fact that Mr Bell Jr ticked “Fault of Equipment” and “Lack of Judgement” in the Waterways “Boating Incident Report” as one of the causes of the incident.  In so answering the question on the form “What in your opinion caused the incident?” Mr Bell Jr meant no more than that “a piece of equipment did something it was not meant to do”.  He did not mean that the particular equipment was defective or of a kind not appropriate to be used in the circumstances.  He said that by “Lack of Judgement” he was referring to Mr Bollen’s lapse in judgment in having his legs astride the genoa sheet.

17. I think that the genoa block was probably correctly seated in the locking hole in the first instance: the vessel had changed from starboard to port tack just north of South Reef in the face of a generally twenty to twenty-five knot southerly wind then sailed on the port tack at about eight knots for say two minutes against that wind, all without mishap.  I accept Mr Mitchell’s evidence that the change from starboard to port tack and the associated dragging of the sheet through the block and tightening of the genoa sheet would probably have dislodged an inadequately seated pin.  The shift from starboard to port tack had not been a smooth manoeuvre.  Mr Bollen stated that the wind had become “flukey” and the vessel had been “overpowered” requiring the main sail to be eased quickly.  All these considerations point to the pin having been securely and properly seated initially and at the time of the change to port tack.

    3.        Dislodgment of the pin by a blow from someone’s foot

18. Mr Mitchell said he had known genoa blocks to have come adrift as a result of a blow from the feet of crew moving fore and aft unseating a locking pin or unscrewing a locking screw.  In the course of cross-examination, Mr Kellett agreed with counsel for the defendant that kicking a genoa block is an acceptable way of ensuring that it is secure.  Subsequently, in the course of his own cross-examination, Mr Bell Jr said he saw Mr Bollen “kick [the genoa block] at one stage during the day”.  But Mr Bollen had not been cross-examined as to whether he had checked the genoa track by kicking it, no doubt because Mr Bell Jr had not previously mentioned it to anyone.  He had not mentioned it in his statement although he had said in that statement that he had seen Mr Bollen “check the genoa trimming blocks”, an allegation that Mr Bollen denied.  Asked why he had not mentioned kicking in his statement, Mr Bell Jr said it was something that occurred to him after the event.  Later, he said that when he had said “check” in his statement, he had had kicking in mind as the particular means by which Mr Bollen had “checked” the block.  Then asked why he had earlier said that kicking was something that had occurred to him only later, Mr Bell Jr said that what he had meant was that what had occurred to him later was not the kicking itself but his having omitted to mention it in his statement.

19. But the important point is that if Mr Bollen did check the genoa block by kicking it, this was not the kind of inadvertent blow from the foot to which the expert evidence of Mr Mitchell was referring.  Rather, it would have been a deliberate kicking to check that the block was securely in place.  Mr Bell Jr’s testimony as to what Mr Bollen did does not show that an accidental kick caused the pin to be dislodged.  If Mr Bollen did check the genoa block by kicking it as Mr Bell Jr says he did, he must have been satisfied as a result that it was securely in place.  This would reinforce the conclusion that I have reached on the other grounds that it was in fact securely in place initially.

20. Mr Kellett said that it was “highly improbable that a crew man [could] inadvertently dislodge the locking pin in a block on a Maxi yacht” and that “[i]t is extremely unlikely that the car would have moved if the locking pin had been securely positioned in the locking hole in the track in the first place.”  Mr Kellett agreed in cross-examination, however, that at least in a lull the torsional force on the pin is removed so that “inadvertent knocking of the pin [would be] that much more likely to actually result in the block … leaving”.  This would, however, leave the downward force of the spring-loaded pin operating and the likelihood of the pin being “kicked up” would be greater or lesser according to the strength of the spring.

21. Mr Mitchell agreed that dislodgment of the locking pin by an accidental kick was “uncommon” but said that it had happened once in his personal experience.  He said:

    “It has happened to me on board a vessel which I was sailing once, and I can see how it did happen now and how it could happen in the future, but I haven’t had experience of it beyond that once”

22. Mr Mitchell said that the occasion was an ocean race, the track was a fairly long one, the yacht was sailing hard on the wind and a separate stopper was positioned well towards the back of the track some distance away from the actual block through which the sheet controlling the sail passed.  The corner of a crew member’s shoe caught on the plunger on the built in stopper and flicked it up.  The block came aft with sufficient force to “snap” the separate stopper.  He said that the yacht had separate stoppers because it lacked fairings “and also because it was an ocean race and we were going to be sailing at night and those sorts of things”.

23. According to his own evidence, Mr Bollen moved to and fro along the starboard side of the cabin several times prior to the accident.  He moved from the mast aft to speak to David Beharrell about easing the main sail more quickly; he went forward to instruct Declan Brennan to trim the starboard side; he next went aft to the cockpit; next he returned to Declan Brennan and instructed him not to stand astride the sheet (saying to him “don’t stand there … if that block blows up it’ll kill you”); then he began to go aft to the cockpit again.  It is not clear that all these trips were down the leeward side (the last one clearly was).  But, even if they all were, it would have been difficult for a blow from Mr Bollen’s foot to dislodge the pin because the genoa, and hence the block, were under pressure throughout.  I think it possible but unlikely that the pin was dislodged by a blow from someone’s foot.

    4.        Dislodgment of the pin by a sheet

24. A sheet or line would need to get in under the head of the pin in order to lift the pin.  The genoa sheet would have become slack during the lull just before the accident.  It is possible that the sheet had somehow become caught under the head of the pin then lifted up the pin once the genoa filled with wind.  I think this too is a possible but unlikely scenario: again, in the lull the spring would be expected to have forced the pin down into its hole.

25. I think that the cause of the pin’s becoming dislodged was probably (1).  That cause did not attract liability to the owner or skipper.  It was an adventitious event.

    “Stopper block”

26. Did the exercise of reasonable care require a stopper to be in place on the genoa track? 

27. Mr Hearder said in his statement in chief dated 18 November 1998 that in the case of cars that are screwed down, sometimes the bolt works loose or is not screwed down properly, and that in either case, loads and vibrations can make the bolt undo.  He said that as a safety precaution, these cars are fitted with a “stop” or “stopper”.  Annexed to his statement was a photograph of a screwed down car and an abutting stopper that were on Condor on the day of his inspection.  He said that sometimes the stopper is held in place by a spring loaded pin rather than a screw to permit faster movement of the stopper.  Mr Hearder said that even in the case of the more modern mechanical puller, “stoppers are regularly fitted to the tracks as an added safety precaution”.

28. Mr Hearder stated:

    “In vessels of this vintage which are not fitted with car pullers, the cars should be backed up by a track stopper.”
    …

    “To ensure that the blocks remain in their place is a simple matter of checking the locating screw in the car regularly and/or fit a car stopper immediately behind the car.  At worse case the stopper should be at the aft end of the track.”

    and

    “The steps involved in maintaining a position of a genoa block is simply to fit stoppers, preferably two and check to ensure that they and the car are all properly secured to the deck.  The cost of a deck stopper should not exceed $200.”

    After referring to seven large yachts on which he had sailed, Mr Hearder said:

    “Throughout my racing career involving all of the above large yachts, all of the older ones with systems similar to Condor of Bermuda were fitted with track stops as a safety feature.

    On a large number of these yachts I was the headsail trimmer and one of my direct responsibilities was to ensure that the stops were fitted to the tracks once the genoa cars and blocks had been located.

    I am of the opinion that the genoa cars and blocks should have been backed up with track stops.  This is a normal preventative safety function undertaken with this type of system and due to them not being fitted they were leaving crew open to the potential of severe injuries and risking substantial damage to the yacht’s equipment and accessories.”

1. It is possible to read Mr Hearder’s statement as referring only to genoa cars that are screwed down on the track and not to those that are held in position by an in-built spring tensioned pin.

2. Mr Hearder’s statement dated 18 December 1998 in reply was mainly concerned with burring.  He had inspected Condor a second time on 27 November.  It is clear that by the time of his statement in reply, if not by the time of his statement in chief, he knew that the genoa car in question had been held in position by a spring loaded pin and not by being screwed down.  After referring to the problem that wear or burring of the hole lip can pose for securing pins, Mr Hearder said:

   “This is the reason why it is highly recommended that track stoppers be fitted on all headsail tracks.”

3. Referring to the stopper that accompanied the screwed down car in the photograph annexed to his first statement, Mr Hearder asserted that a stopper like the one in the photograph should have been fitted at the time of the accident, and asked rhetorically:

   “Have the owners and crew of ‘Condor’ now decided that stoppers should be regularly fitted to prevent the re-occurrence of such an accident?”

4. In cross-examination, Mr Hearder said that although it was not a “fairly common event” and does not happen “frequently”, it does happen that genoa cars come loose from their track.  The cross-examination of Mr Hearder included the following:

   “You’ve sailed on the Brindabella, correct?---That’s correct.

   Now known as the Jaguar?---Yes, that and the new Brindabella, yes.

   You’ve raced on her?---Yes.

   And in fact her tracks don’t have stoppers, do they?---They have the movable type stopper as referred to in that other photograph that I used to demonstrate the purpose in my first report.

   Is it your testimony that stoppers are the norm in racing yachts?---That’s correct.

   I suggest to you that in fact it is more common that [[sic] – than] not that stoppers are not fitted on tracks?---Movable stoppers certainly are.  It’s certainly the case that fixed stoppers are not – that is not the norm.

   And by movable stoppers you mean like the ones you have on this …..?---No, a secondary stopper.  That’s all it does, with a similar type of pin but it’s a different fitting that fits behind the block.  It’s moved up behind the block once the block’s put in position so that if something fails, because there are various systems that control these blocks, it will only come back to that particular point, it can’t come back and fly off the end of the track.

   Unless that stopper fails?---Fails as well, yes.”

5. Mr Hearder said that genoa blocks of the kind with which I am concerned “are very heavy”.  In re-examination, Mr Hearder identified in a brochure movable stoppers available on the market.  He estimated their cost to be of the order of $250.  Mr Mitchell thought they might cost less.  But Mr Mitchell said that the stoppers shown in the brochure were used mainly on racing yachts as distinct from cruising yachts like Condor.

6. Mr Mitchell accepted that movable stoppers like those in the brochure were available in 1997 but could not be sure that one would have prevented the genoa block from coming off the track here, although he conceded it may have done so.  But he testified that he had been on a racing yacht that had a stopper block which failed to prevent a genoa block from coming off the track.

7. Mr Kellett said that there were three alternative methods of securing a genoa car in position on its track:

   “(i)A large pin is fabricated in the slide section of the car which locks into holes along the length of the track.

   (ii)A second car with a locking pin as described in (i) is attached to the track behind the genoa car.

   (iii)A rope is attached to the front of the genoa car and led forward to a block and then to a jamber or winch to hold it in position.”

8. Mr Kellett also said that virtually 100 per cent of cruising yachts, such as Condor, use system (i) above.  His cross-examination included the following:

   “Is it [method (iii)] really a racing design?---Yes. More of the cruising yachts, I would say, cruising vessels would be almost 100 per cent (i).  It’s the most accepted system. 

   Of course, the Condor is a cruiser---Yes, it certainly is”.

9. Mr Mitchell said that in his opinion “the system used onboard Condor [a spring loaded pin in the genoa car itself and no “back up” stopper] was suitable for both situation and circumstances”.

10. No expert said expressly that in the particular circumstances prevailing at the time of the accident, a stopper block would probably have prevented the genoa car and block from coming off the track.  Mr Hearder probably implied that it would have done so.  Mr Mitchell gave evidence of a case in his personal experience where a stopper block did not do so but was itself taken off the track by the momentum of the genoa car and block.  In cross-examination Mr Mitchell agreed that he had known cars incorporating a spring loaded pin to fail but insisted that he had also “known the other ones …, the separate ones to fail as well”.

11. Importantly, Mr Mitchell distinguished a car that has a “plunger” or “stopper pin” built into it (as on Condor) on the one hand and a car that does not on the other.  In the case of the latter a separate “stopper block” is available as the only means of holding the operative “running car” and its block in place.  He also distinguished between racing yachts and cruising yachts on the basis that the former, but not the latter, often used “control lines” by which a running car can be moved fore and aft subject to the restraint of a separate stopper block of the kind described.  The effect of his evidence is that although it would be possible to have a stopper block in addition to a block of the former kind, that is one with an in-built spring-tensioned pin stopper, this is rarely seen.

12. No doubt, Mr Bell Sr might have had in place a stopper block or two or three stopper blocks.  No doubt this might well have prevented the operative car and block from coming off the track.  But Mr Bell Sr was not an insurer.  It is clear that he conformed to the almost universal practice in the case of cruising yachts.  While this is not conclusive, I do not think that the exercise of reasonable care required him to do more.

13. Mr Bollen has not discharged the burden of proving that the accident resulted from negligence on the part of Mr Bell Sr in failing to have a stopper block in place.

    Volenti non fit injuria

14. My conclusions above that the genoa car came adrift as a fluke accident and that Mr Bell Sr was not negligent in failing to have a stopper block in place relieve me of the necessity of dealing with the submission that Mr Bollen accepted the risk of injury.  I will deal with it nonetheless.

15. The defendant submits that Mr Bollen impliedly agreed that Mr Bell Sr was not to be liable if he, Mr Bollen, suffered injury by such an occurrence.  The present case is one of the “sport or pastime” category but in addition to the nature of the activity, the defendant relies on evidence of specific knowledge of Mr Bollen. 

16. In Rootes v Shelton (1967) 116 CLR 383, Barwick CJ said this:

    “By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other.  Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances.  In this connexion, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.” (at 385)

    The defendant submits that I should find that the risk of a genoa block coming adrift and causing injury is an accepted risk of sailing.  There was general agreement that genoa blocks come adrift from their tracks on occasion without any identifiable cause, such as a defective piece of equipment or a breakage.  For example, while opining that “the system used on board Condor was suitable for both situation and circumstances”, Mr Mitchell said that on one occasion in his experience, not only did the genoa block leave its pin-locked position, but in addition it ran along the track with such force that it “flicked up” a pin-locked stopper block as well and actually snapped it.  He said:

    “On that particular boat we didn’t have end track fairings at all, so that’s why we had the stoppers on the back and also because it was an ocean race and we were going to be sailing at night and those sorts of things”

17. The cross-examination of Mr Bollen included the following:

    “You recognise that there is a risk of blocks coming out of tracks?---Yes, sir.

    And that happens on new vessels and old vessels?---It can, yes.

    That happens on perfectly maintained vessels, adequately maintained vessels and poorly maintained vessels?---Yes, sir.

    You recognise that in sailing on the vessel in the condition in which you say it was, there was a risk to you that you might be struck by a block that came loose from the track?---Waking up every day is a risk.

    And it’s risk you accepted?---It’s a risk I accept, yes; there’s an element of danger in everything we do.

    It’s a risk that you accepted on the day you went out on the ….. race on 28 November last year?---You wouldn’t expect to be put in harm’s way, though.

    Well, it was a risk – on the morning of the race this time last year, Mr Bollen, were you familiar with the condition of the vessel?---I hadn’t seen the vessel since 1994.

    And you boarded it, correct?---Correct.

    You knew the condition of the vessel from the long period that you spent on her before?  You’d spent months on it her before, hadn’t you?---No, sir.

    Weeks on it?---No, sir.

    How long had you spent on board in total?---Four days.

    In total?---Plus preparation – I think we were on board for about an hour and a half.”

18. I think that Mr Bollen was intending to say two things in this passage:

    (1)that he accepted that it was a risk of sailing that he might be struck by a genoa block that came loose from its track as a result of the fluke that the securing pin, properly seated originally, had worked out of its hole; and

    (2)that he did not accept that he should be at the risk of being injured by being “put in harm’s way” by, for example, a defective track or a failure to check that the pin was properly seated.

19. Although I have found that the accident here was a fluke, and was not caused by burring or inadequate seating of the pin from the beginning, it remains a question whether Mr Bollen accepted the risk of injury caused by negligence consisting of the failure to have a stopper block in place.  It is in this respect that the evidence of Mr Bollen’s knowledge assumes significance.

20. In this respect, Mr Bollen himself gave certain testimony in chief on which the defendant relies.  He said that that on 24 December 1994 he had been on Condor with Mr Bell Jr when the yacht was moored at D’Albora at Rushcutters Bay, when he noticed that there was no “stopper” on the number three track.  He states that the following conversation ensued:

    Mr Bollen:      “Why isn’t there a stopper on that track?”

    Mr Bell Jr:      “We don’t need  it.”

    Mr Bollen:      “That’s dangerous.  If it comes out, it will kill someone.”

21. Mr Bell Jr denies that this conversation took place.  He agrees, however, that Mr Bollen was on Condor on Christmas eve 1994 as he was one of the crew preparing Condor to sail in the 1994 Sydney to Hobart Yacht Race to commence two days later on Boxing Day, for which he, Mr Bell Jr, was also to be a member of the crew.  He states that the genoa trimming blocks used on Condor for that race were the same blocks as were used in the charity race on Sydney Harbour on 28 November 1997.  He states that none of them failed or came adrift during the 1994 Sydney to Hobart Race and that he could recall no other occasion prior to or following 28 November 1997 on which they had done so.

22. In cross-examination about the conversation which he alleged took place on Christmas eve 1994, Mr Bollen agreed that he proceeded to crew in the 1994 Sydney to Hobart race knowing that there was no stopper block in place and knowing that the race was an extremely demanding one and much more demanding than a charity race around Sydney Harbour.

23. Did Mr Bollen know on the day of the charity race that there was no stopper block in place?  Mr Bollen states that he did not inspect the genoa track.  Mr Bell Jr states that prior to Condor’s reaching the starting line, he “observed Mr Bollen check the genoa trimming blocks” and said that as this area of Condor was Mr Bollen’s responsibility, he (Mr Bell Jr) considered this to be the correct thing for an experienced sailor such as Mr Bollen to do.  Mr Bollen agreed that trimming was his responsibility but said that he delegated to Declan Brennan “the position of starboard trimmer” which was a “position intimately involved in the particular number three track starboard side”.

24. Notwithstanding Mr Bollen’s denial that he checked the genoa block, it is not in dispute that before the commencement of the race and certainly during it he was close enough to the track to see that there was no stopper block on it.  According to his statement, he and his brother were delivered by tender to Condor at about 1.30 pm.  I find it difficult to accept that during the half hour before the commencement of the race, Mr Bollen did not observe that there was no stopper block on the number three genoa track.  He states that at that time he:

    “took particular care to go through the precise procedures with all of the guests organising allocation of those persons and crew to positions as grinders, runner hands, steerers and tailers.”

    Nowhere does Mr Bollen say that he was unaware on 28 November 1997 that the number three genoa track lacked a stopper block.  The cross-examination of Mr Bollen set out earlier seems clearly to be related to the issue of any defect in the condition of the vessel, and, in particular, the burring of the holes in the genoa track.

25. I find that just as Mr Bollen was willing in December 1994 to be a member of the crew in the Sydney to Hobart Yacht Race with full knowledge that there was no stopper block on the genoa track, he was also willing to be a member of the crew in the charity race on 28 November 1997 with the same knowledge.  It must be remembered that Mr Kellett said that virtually 100 per cent of cruising yachts participating in an event of the kind in question would rely upon a spring-loaded pin in the genoa car without the additional precaution of a stopper block.

26. Yet in my view there remains a potential difficulty to be considered in connection with the volenti defence.  Realistically it was never open to Mr Bollen to leave Condor.  As Mr Bell Jr said in a different connection, a departure by Mr Bollen and the associated arrangements would delay Condor’s start in the race.  Although Mr Bollen must have observed the absence of a stopper block on the number three genoa track after he boarded Condor, by that time he was committed to stay with the yacht.  Does this affect the volenti defence?  I think not.  He knew in December 1994 that Condor lacked a stopper block.  According to his own evidence, his warning to Mr Bell Jr was not heeded by the start of the Sydney to Hobart race two days later but he was willing to be a member of the crew in that race nonetheless.  I think Mr Bollen was also willing to run the risk that his warning of 24 December 1994 had not been heeded by 28 November 1997 for the purpose of the much less testing charity race to be held on Sydney Harbour on that day.

27. In the result, if Mr Bell Sr was in breach of his duty of care to Mr Bollen by not having a stopper block in place, Mr Bollen agreed to accept the risk of being injured as a result of that particular breach of duty. 

    Contributory negligence

28. In view of my conclusions that Mr Bollen has not shown that Mr Bell Sr was in breach of a duty of care to him, or that if he was the volenti non fit injuria defence succeeds, I need not deal with Mr Bell Sr’s claim that Mr Bollen’s own negligence contributed to his misfortune.  But against the possibility that the case may go further, I will do so. 

29. The contributory negligence defence relates to the position of Mr Bollen on Condor at the time of the accident.  There are two aspects of his “position”: his location and the placing of his feet.  Mr Bollen says that he was located just forward of the turning block whereas other witnesses place him much further forward in the area of the front of the cabin, the winch and Mr Brennan.  In relation to the positioning of Mr Bollen’s feet, Mr Bollen says that he was standing astride the return of the genoa sheet between the turn block and the winch.  Other witnesses say that he was standing astride the genoa sheet running from the genoa block to the turning block.  That is, according to their evidence, he was standing astride the very sheet along which the genoa car and block would run if they became dislodged from the genoa track. 

30. On the hearing, more attention was given to the question whether Mr Bollen was standing astride the genoa sheet than to the question of his location.  Mr Bollen agreed in cross-examination:

    ·     that a genoa sheet under pressure that is suddenly freed of restraint will move “outboard” and that it is for that reason that one’s “position of safety” is “inboard” or “upwind” of the genoa sheet;

    ·     that if a person is downwind and something gives way, the person is likely to be hit by a sheet, a block, a sail or any other item;

    ·     that it was for these reasons that he told Mr Brennan to move from the leeward side of the genoa sheet which he had been straddling;

    ·     that he warned Mr Brennan because he recognised that he could be struck by the genoa trimming block if it came loose.

31. Mr Bollen’s cross examination continued as follows:

    “ … you recognised the actual risk that Mr Brennan confronted was the trimming block coming loose?---Yes, I did.

    Because they’d come loose from time to time?---They can.

    Especially in blustery conditions?---They can.

    And especially in gusty conditions, that’s really the time when you’re most likely to see it, isn’t it?---Yes, sir.

    Now, Mr Brennan moved into a position of safety, correct?---After I had warned him, yes.

    After you had warned him.  And he was entirely inboard from the Genoa trimming sheets?---Yes.”

32. Clearly, very experienced sailor as he was, Mr Bollen knew that he would be demonstrating a lack of reasonable care for his own safety if he were to stand astride the genoa sheet.

33. In summary, Mr Bollen’s testimony is that after moving Mr Brennan out of harm’s way and directing him to trim the genoa by sitting on the cabin with his back to the window and staying “inboard”, he himself (Mr Bollen) went aft along the leeward side of the cabin when Mr Bell Jr indicated to him that there was a possibility of a “give way situation” in which Condor might have to make way for a boat on starboard side.  According to Mr Bollen

    ·     he turned around to assess the position;

    ·     at the time he was looking out at 45 degrees to starboard;

    ·     he was located a little forward of the turning block standing astride the genoa return holding onto the handrail on the top starboard edge of the cabin; the yacht luffed up suddenly and fairly violently;

    ·     then in its upright position it was struck by a gust of wind that forced it to heel over hard to 30-35 degrees;

    ·     the yacht was heeled over to such an extent that water was running along the gunwale and could have been running over his (Mr Bollen’s) feet;

    ·     Condor was doing about eight knots at the time;

    ·     he (Mr Bollen) was in a unstable position but did not put his right foot across the genoa sheet to steady himself. 

    Mr Bollen’s cross-examination included the following:

    “I suggest to you, Mr Bollen, that you were in a position of danger at the time you were hurt?---I think that’s obvious, I got hurt.

    You weren’t in a position of safety, were you?---I was in a position of safety, there’s a fine line.  I was in a position of safety.

    Why do you say you were in a position of safety?---Because I wasn’t standing over the outward going line.”

1. In a second statement dated 27 November 1998 he said this:

   “6.Since the date of the accident on 28 November 1997, I have attempted to gain employment.  I attended a TAFE course during which I obtained my commercial tickets.  I also made an application to the State Transit Authority for a position of Marketing Manager.  That application was ultimately unsuccessful.”

2. In oral evidence on 21 December 1998, Mr Bollen estimated that he had lost approximately 70 per cent of his income earning capacity and that for the first seven months following the accident he was “able to do absolutely nothing.”

3. Counsel for Mr Bollen submitted that an award of general damages of not less than $70,000 would be appropriate plus pre-judgment interest from 28 November 1997. 

4. In relation to “future economic loss/diminished earning capacity” counsel for Mr Bollen made a claim for an amount in the vicinity of $86,000.  This amount was based on average after tax earnings for the years ended 30 June 1991, 1992, 1993, 1994 and 1995.  The average for those years, reduced to a weekly basis, was $366.  Mr Bollen’s 70 per cent of this weekly amount was $256.  Counsel for Mr Bollen submits that Mr Bollen would have worked until the age of sixty-five years, that is, for a further seventeen years, then makes the following calculation:

   “(a)     $256 x 697 ( ie 17 years x 3 % tables) =                   $101,632
     (b)     Less 15[%] for vicissitudes  ($15,245)
     (c)     TOTAL   $86,387”

   Attacks on Mr Bollen’s claims generally

5. In my opinion, the defendant has successfully attacked many of Mr Bollen’s claims.  That attack took various forms.  First, Mr Bollen was examined by Dr Sikander N Khan on behalf of the defendant, and Mr G G McLeay, Chartered Accountant, provided a report on Mr Bollen’s claim to have suffered economic loss.  Second, the defendant led testimonial evidence from people who observed Mr Bollen doing various things involving his right leg which presented a picture different from that given by Mr Bollen.  Third, two diaries of Mr Bollen and banking records relating to his company Windsong have led me to conclude that Mr Bollen’s testimony on the issue of damages is unreliable.

6. I find it convenient to address the issues by reference to the sequence of topics dealt with in the defendant’s written submissions.

   Attack on Mr Bollen’s evidence of disability

7. In his statement of 18 November 1998 and adopted by him on the first day of the hearing, Mr Bollen said in relation to the period after his discharge from hospital on 3 December 1997:

   “My right leg remained in a splint and cast for approximately 3 months during which I was bedridden.

   From the date of the accident to March 1998, my mobility was severely restricted and I was not able to move around due to my reliance on crutches.”

   But approximately four weeks after his discharge from hospital, Mr Bollen flew to Hobart to compère the “Quiet Little Drink” celebration following the Sydney to Hobart Yacht Race.

8. Mr Bell Jr testified that over the months following Mr Bollen’s discharge from hospital, he saw him at the Middle Harbour Yacht Club many times.  He said that in late January 1998, when Condor was alongside the dock at the Middle Harbour Yacht Club, he saw Mr Bollen “walking normally”.  Mr Bell Jr said:

   “He did not have any leg brace on, but I do recall that he had a bandage around his knee.  I observed Mr Bollen step down from the wharf onto Condor’s deck and walk around the deck.  Mr Bollen did not appear to be in any pain.  He appeared to have no difficulty walking around the deck or other parts of the yacht.  I observed Mr Bollen alight from the yacht by stepping up to the dock and walking back [to] the yacht club buildings.  I observed that he was walking normally.”

9. Mr Bell Jr said that over the following weeks, he saw Mr Bollen about half a dozen times at the Middle Harbour Yacht Club both walking around the dock and inside the Club house.  He said that as far as he could recall, Mr Bollen was not wearing a leg brace when he (Mr Bell Jr) saw him.  He said that he saw Mr Bollen several times in the bar of the Yacht Club which is on the first floor up two flights of stairs and that he appeared to be in a “chirpy and gregarious mood”. 

10. Mr Bell Jr said that on a Saturday or Sunday afternoon there was some form of “open day” held at the Club at which Mr Bollen gave a lecture or talk to people, remaining standing while he was talking to the audience.  Again, Mr Bell Jr said that Mr Bollen was standing and walking about normally and without any sign of inhibition or pain.

11. According to Mr Bell Jr, in late February 1998 at a time when Condor was in Pittwater, Mr Bollen asked him by telephone when the yacht would be returning to the Harbour as he needed his (Mr Bell Jr’s) help to perform a job.

12. On Tuesday 7 April 1998, Mr Bollen came to Condor when it was moored at Middle Harbour Yacht Club and asked Mr Bell Jr to help him with work on a vessel the following week, to which Mr Bell Jr agreed.  Mr Bell Jr said that Mr Bollen was not wearing a leg brace at the time (Condor was arrested the next day, 8 April).

13. Other individuals also gave a picture of Mr Bollen different from that to be derived from his own evidence.  Ms Hodder said that she met Mr Bollen “a number of times” at Middle Harbour Yacht Club a couple of weeks after he got out of hospital.  It must be remembered that Mr Bollen testified that he was “bedridden” for approximately three months following the accident, that is, until approximately 28 February 1998, and that from the date of the accident to March 1998 his mobility was severely restricted and he was not able to move around due to his reliance on crutches.  Ms Hodder also testified that in August 1998 she took part in the Hamilton Island series of yacht races and saw Mr Bollen walking around Hamilton Island without any leg brace.  She said that he walked normally and did not appear to be in pain.

14. Mr Bollen told Dr Coyle on or about 10 March 1998 that he had “recently stopped using his supportive brace”.  It may be recalled that the knee brace had been fitted on 30 January 1998.  Accordingly, Mr Bollen had used the knee brace for no more than the period from 30 January 1998 to a date before 10 March – a period of a month (in fact the month of February) and perhaps a few days.  By 22 April 1998, Dr Coyle noted that Mr Bollen was “walking without crutches or a knee brace”. 

15. No doubt Mr Bollen’s injury caused him pain.  No doubt some of the subsequent treatment, such as the physiotherapy, would also have been painful, unpleasant and inconvenient.  It is difficult to be confident for what period of time or in what circumstances down to 30 January 1999 he used the splint and crutches, and from then down to early March he used the knee brace.  Perhaps over the same period there were occasions when he did, and other occasions when he did not use them.  I find, however, on the basis of Mr Bell Jr’s testimony that in January 1998 he was able to walk about fairly normally and by late February 1998 was able to do some work. 

    Medical reports

16. Dr Luke Coyle recorded in his report of 19 December 1997 that Mr Bollen “continue[d] to lead an active life”.  The defendant relies on this passage but I do not place much weight on it.  It is a generalisation and should not be taken to indicate that Mr Bollen had informed Dr Coyle on 18 December 1997 that he, Mr Bollen, was then active in any specific respect.

17. On 18 September 1998  Dr Coyle reported:

    “Patrick remains quite well.  He continues his nomadic life style and appears to be enjoying life in Northern Queensland and appears to be obtaining a reasonable amount of work.  He remains fatigued but not dysfunctional from this point of view.  In general he is well.” 

18. Dr Khan, the defendant’s doctor, recorded in his report dated 30 November 1998 that Mr Bollen had told him that he had not worked since the injury apart from going on one trip to the Gold Coast when, with difficulty, he skippered a powered vessel from Sydney.  As will appear later, Mr Bollen had done much more work than that over the year between the date of the accident (28 November 1997) and the date of Dr Khan’s report (30 November 1998).  Dr Khan reported:

    “Fitness
    He is unfit for jobs that require excessive stresses and strains on the right knee such as working at great heights and frequent climbing up and down stairs, squatting, kneeling or running activities.

    He would be fit for skippering powered boats and carrying out other activities of boat maintenance and repair, provided these did not involve frequent squatting and climbing up and down stairs.”

    Disability Assessment
    On the basis of examination carried out today and with reference to the AMA Guides to the Evaluation of Permanent Impairment, this man appears to have 10% impairment of his right lower limb.” (emphasis supplied)

19. I have referred earlier to the expert opinion of Mr Bollen’s orthopaedic surgeon, Leo Pinczewski, that as at 1 April 1998, he estimated Mr Bollen’s loss of the efficient use of his right leg at 10 per cent.  Although Dr Pinczewski observed that the percentage might increase over time, the report was not updated by the time of the hearing.

20. I do not accept Mr Bollen’s estimate given in the witness box that for the first seven months following the accident he was “able to do absolutely nothing” as a result of the injury and that after that period his income earning capacity was reduced by 70 per cent due to the accident.  I find that he has lost 10 per cent of the efficient use of his right leg.  This does not, of course, necessarily signify that he has suffered a diminution in earning capacity also of 10 per cent, but it is relevant to that issue.

    Financial records

21. Nowhere in his evidence, did Mr Bollen reveal that he was in receipt of a Total Disability Pension on account of his cancer.  He had in fact become ill in about February 1996 and had been receiving the pension since April or August, 1996 (both months appear in the evidence).  In fact, down to the time of the accident, Mr Bollen had been performing some remunerative work.  In re-examination he said that “on the day before the accident” he had an intention, when he got back into work, of informing the Department of Social Security that he “no longer needed a disability claim.”  I do not believe Mr Bollen in this respect.  If the accident had not happened, he would probably have continued to receive the Total Disability Pension.  In fact, even though he continued to engage in remunerative work down to the hearing he had not, at any time, informed the Department of Social Security of that fact. 

22. Mr Bollen’s claim of loss of earning capacity made in his statement dated 18 November 1998 and 27 November 1998 were set out earlier.  It was following the filing of those two statements that Mr Bell Jr made his statement dated 7 December 1998 suggesting that Mr Bollen had in fact been working.  In response, Mr Bollen filed a further statement dated 15 December 1998 in which he said:

    In further answer to the statement of Bell Junior, I state that I have since the day of the accident, been able to do limited work in the following circumstances:

    (a)I skippered a vessel under power from Sydney to the Gold Coast over a period of one week.  I received in my personal capacity payment in the sum of $ 1,200.00 from the owner of the vessel ‘Arkana’.

    (b)I have received two small payments for two stories I have written in my personal capacity.

    (c)I assisted a friend engaged in some minor repair work at Hamilton Island.

    (d)I carried out some repainting works of the deck at the Middle Harbour Yacht Club.  I still have not received payment in respect of this work.”

23. Mr Bollen continued by stating that beyond the “limited jobs” mentioned, he had “not been able to undertake any other works”.  In cross-examination, he said that he received $100 for each of the two stories; that the “minor repair work at Hamilton Island” was in the nature of ten days’ assistance in October 1998 in the repair of the deck of the “Concordia” owned by Graham Young for which Mr Bollen was paid $3,000; and that he thought the “repainting works” took place in June 1998 and totalled some four hours spread over two days for which he had not billed or been paid, though he had “no reason” why he had not billed.

24. Mr Bollen’s 1998 diary shows that over the days and weeks preceding and following the day on which he signed his 15 December 1998 statement, he worked aboard various vessels.  Prior to the accident he was doing “tradesman-type work around boats” as a “jack of all trades”.  The work included painting, sanding, varnishing and mechanical work.  He said that he had done no “tradesman-type work around boats” other than the four items set out above.  The tradesman-type work which he does is performed through his company Windsong.  Windsong receives the payments for the work done and Mr Bollen received income from the company.  Mr Bollen said that out of the moneys received, Windsong had to pay for casual labour and materials so that the amount received by it was not all profit. 

25. On 26 May 1998, the company received $6,967 for work done on a vessel called “Double A” in May of 1998.  This was within six months of the accident – within the period of seven months following the accident during which he said he had been “able to do absolutely nothing”.  On 19 June 1998 the company received $5,000 for overseeing work done on board the “Arkana”, despite the fact that Mr Bollen had sworn that the amount received was $1,200 as noted in para (a) set out above.

26. There are no records supporting the payments for casual labour.  Asked to identify the “casual labour”, Mr Bollen could refer only to “this young lad … Paul” whose last name he said he did not know.  He conceded that “Paul” was the only person working for him even though he had referred to “casual labourers” and “pay them”.

27. Counsel for Mr Bollen submits that counsel for the defendant did not ask the witness to estimate what proportion of the work in question was done by casual labour.  However, I accept the defendant’s submission that the onus is on Mr Bollen to prove his loss.  The cross-examination of Mr Bollen included the following:

    “Where are there records reflecting the payments you made to your casual labour?---Well, there aren’t any.

    You paid them cash, did you?---Sorry?

    You paid them cash?--- Yes, sir.

    How much cash did you pay the casual labourers and how much went to you?---I don’t know, I can’t recollect.

    What were the names of the casual labourers?--- I only know this young lad as Paul.

    So there’s just one lad?---Yes, sir.

    One person working for you, correct?---Yes, sir.

    And that was worked in June of this year [1998]?---Yes, sir.

    For the Arkana?  Is that correct?---That is correct.”

28. On 24 June 1998, $1,575 was paid into Windsong’s account.  It is shown as “deposit Nelson Bay NSW” on Windsong’s Westpac Business Cheque Statement.  Mr Bollen did not know what it was for. 

29. On 12 August 1998, $3,300 was deposited into Windsong’s account.  Apparently the deposit was made at Airlie Beach, Queensland.  Mr Bollen had written on the Westpac Business Cheque Statement against this item, “moneys owing from 95/96”.  In cross-examination Mr Bollen conceded that he had made a mistake in making that note.  Counsel for the defendant submits that I should infer that Mr Bollen had made the entry with the intention of misleading the Court.  Certainly, it would serve Mr Bollen’s interest that I should think that the payment was for work done before rather than after the accident.  However, I am not prepared to find a dishonest intent on the evidence before me.  On the other hand, the circumstances provide a good illustration of the grounds on which I have little or no confidence in Mr Bollen’s evidence of economic loss, of which I will say more later.

30. On 23 November 1998, $6,000 was deposited into Windsong’s account.  Asked what it was for, Mr Bollen said that it was for work carried out in late November 1995 and early 1996 for Hugo van Kretschmar on his boat the “Nicky O’Dee”.  But Mr Bollen’s 1998 diary (from which I have taken the spelling “Nicky O’Dee”) reveals work done on the Nicky O’Dee at various times in 1998.  Cheque butts indicate a purchase of paint supplies on 16 September 1998 for the Nicky O’Dee.  In the course of the cross-examination about the Nicky O’Dee, Mr Bollen conceded that in 1998 he had been doing limited work on another vessel, the “Folie a Deux”, as well as on the Nicky O’Dee.

31. Although Mr Bollen is the sole director and secretary of Windsong, he said that he had no copies of invoices issued by the company because he did not keep copies.  He said that Windsong kept no cash books, profit and loss statements, copy invoices or copy receipts, and that he (Mr Bollen) was able to keep track of its creditors in his mind.  Immediately after giving that evidence he was asked what was in his mind as to a payment of $ 2,470 which had been deposited into Windsong’s account on 16 November 1998, some five weeks prior to the date on which Mr Bollen was being cross-examined.  He said that he could not recall where the payment came from or what it was for.  It was put to Mr Bollen that he did have records showing what people owed Windsong money but he said he did not.

32. The evidence just recounted is truly remarkable and contributes to my having no confidence in Mr Bollen as a witness.

33. Mr Bollen later testified that he did keep a record of work which he explained was a record of work done, hours spent, name of boat, inventory of goods purchased and rates of payment (apparently for casual labour).  It was put to Mr Bollen, and he could not deny, that records of this kind fell within the terms of a notice to produce which had been given to him, but in response to which the records referred to had not been produced.  In fact only Mr Bollen’s diaries for 1998 and 1999 had been produced.

34. Mr Bollen was asked what would be the last entry for work done that would be contained in the records to which he referred.  He said that he thought it would be an entry for November 1998, that is, some four weeks prior to the date of his cross-examination on 21 December 1998.  This work was not, of course, referred to in the four classes of work which Mr Bollen said in his third witness statement (dated 15 December 1998) represented the “universe” of work that he had done since the date of the accident.

35. I have no confidence whatever in Mr Bollen’s account of his post-accident earnings.  It is clear that he has earned substantially more than the amounts for which he was prepared to give credit in his witness statement.  Only Mr Bollen knows how much he has earned and how much out of it has been spent for casual labour and materials.  But my confidence in his testimony on the matter is so undermined by the inconsistencies between it and such records as do exist and by the generally unsatisfactory state of his testimony, that I would not rely on it to find that he has suffered any economic loss.

    The report of Mr G G McLeay

36. In his report dated 18 December 1998, Mr McLeay noted that Mr Bollen’s claim for economic loss did not take reasonable account of the likely impact of his cancer on his earnings.  This is borne out by his diaries for calendar 1998 and 1999 which show work disruption and treatment on account of the cancer throughout those years.  Mr Bollen has had frequent visits to hospital for treatment of his lymphoma, including a lung biopsy. 

37. If there is a loss of earnings and of earning capacity, it cannot be solely attributable to his knee.  Mr Bollen has chosen not to put on medical evidence regarding his ongoing treatment or the effect on his earning capacity of the cancer as distinct from the knee injury.

38. Importantly, in my view, Mr Bollen’s income fell substantially in the two financial years immediately preceding the accident.  It may be recalled that his claim was formulated on the basis only of the years ended 30 June 1991, 1992, 1993, 1994 and 1995.  But his after-tax earnings for all the years including those ended 30 June 1996 and 1997 were as follows:

1991	1992	1993	1994	1995	1996	1997
31952	14310	16043	16552	15762	10680	10940

1. As can be seen, there was a decline of about 50 per cent from $31,952 in 1991 to the levels in 1992, 1993, 1994 and 1995 and there was then a further decline of about a further third down to the levels in 1996 and 1997.  All of this pre-dated the accident.

2. Mr McLeay provided a detailed summary of the trading statements for Windsong for the years ended 30 June 1989 to 1997 inclusive.  I do not think it necessary to give a detailed account of his report.  He said that based on Mr Bollen’s immediate pre-accident earnings, it seemed reasonable to assess his loss of earnings on the basis of no income for the three month period immediately following the accident and for a further three months’ convalescence.  He arrived at a figure of $6,280 for the total six month period, but said that this would have to be reduced because the earnings would have resulted in some decline in the Total Disability Pension due to the means test.  He said that the additional earnings would have resulted in “a diminution of pension of around $4,680.”  But we know that Mr Bollen was doing at least some work, even during the first six months following the accident.  In late February 1998 and 7 April 1998 he asked Mr Bell Jr to help him perform some work.  On 26 May 1998 Windsong received $6,967 for work done in May 1998.  How much work Mr Bollen was doing in the first six months after the accident and how much he earned from it we do not know.

3. Mr McLeay concluded that there was no future diminution of earning capacity attributable to the accident when compared to the pre-accident period.

4. On the view I take of Mr Bollen’s testimony on the matter, the testimony of other witnesses that I accept, the financial records available and the concessions made by Mr Bollen in cross-examination, he has not made out his case of economic loss to the date of hearing, even for the six month period immediately following the accident.

5. But he has suffered a loss of 10 per cent of the efficient use of the right leg.  This limits to some extent his enjoyment of life.  It must also reduce his capacity to engage in some forms of activity.  But does that reduction indicate a loss of earning capacity?   It has not been shown yet to have been reflected in any actual loss of earnings.  I am not persuaded that there is any one thing that Mr Bollen did before the accident to earn money that he can no longer do.  There is no suggestion that but for the consequences of his injury he would be likely in the future to engage in remunerative activity of a kind that would subject his right leg to greater testing than in the past.  In my view he has not suffered a loss of future earning capacity.

6. If, contrary, to my view, Mr Bollen had been entitled to recover damages at all I would have awarded $30,000 for pain and suffering and loss of enjoyment of life.  If it should be said, contrary to my view, that there must be some loss of earning capacity for Mr Bollen’s remaining working life of some seventeen years, I would have determined a further amount of $10,000.

7. There would have been interest from 28 November 1997 under s 51A of the Federal Court of Australia Act 1976 (Cth).

8. There would have been a reduction of 50 per cent on account of Mr Bollen’s contributory negligence.

   CONCLUSION

9. The proceeding will be dismissed with costs and there will be a consequential order relating to release of the security.

I certify that the preceding one hundred and ninety-nine (199) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:            23 December 1999

Counsel for the Plaintiff:	Mr A M Colefax
Solicitor for the Plaintiff:	Harris & Company
Counsel for the Defendant:	Mr B W Larkin
Solicitor for the Defendant:	Ebsworth & Ebsworth
Date of Hearing:	16, 21& 23 December 1998, 27, 29, 30 July 1999, 6, 12 August 1999
Date of Judgment:	23 December 1999