| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BURDEN -v- HORLOCK & ANOR [2009] WADC 200 CORAM : GOETZE DCJ HEARD : 26-28 AUGUST & 1 SEPTEMBER 2009 DELIVERED : 22 DECEMBER 2009 FILE NO/S : CIV 1381 of 2008 BETWEEN : TERRI LYNNE BURDEN Plaintiff
AND
NICHOLAS JAMES HORLOCK
First defendant
PIGMY PTY LTD T/AS COMMERCIAL MARINE MAINTENANCE (ACN 110 185 370)
Second defendant
Catchwords: Repairs to marine pleasure craft which subsequently sank - Cause of sinking - Breach of contract and negligence - Consequential damage - Turns on own facts Legislation: Nil
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Result: Judgment for the plaintiff in the sum of $110,740.07 Representation: Counsel:
Plaintiff : Mr R J Nash
First defendant : Mr P G McGowan
Second defendant : Mr P G McGowan
Solicitors:
Plaintiff : SRB Legal
First defendant : DLA Phillips Fox
Second defendant : DLA Phillips Fox
Case(s) referred to in judgment(s):
Atanoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
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Introduction 1 The plaintiff, Mrs Terri Burden, was the owner of a 34 foot marine pleasure craft named "Blackadder". 2 In November 2006, Mr John Burden, the husband of the plaintiff, ran Blackadder aground. It required immediate repairs, which were carried out at the Mandurah business of Commercial Marine Maintenance. The business name records reveal that the first and second defendants, namely Mr John Horlock and Pygmy Pty Ltd, were the proprietors of that business at the relevant time. 3 Upon completion of the repairs, Blackadder was returned to Mrs Burden shortly prior to Christmas 2006. It sank, on 9 February 2007, whilst moored at the jetty in front of Mr and Mrs Burden's South Yunderup canal home. 4 This case concerns the repairs carried out on Blackadder following it having been run aground. Mrs Burden contends that the repairs were improperly performed and that as a consequence, Blackadder sank. She claims loss and damage caused by that sinking. 5 The defendants claim that after they had completed the repairs and returned Blackadder in a seaworthy condition, Mr Jason Macneall, the son-in-law of Mr and Mrs Burden, was piloting Blackadder when it hit a sandbar causing damage to it and it is that damage which led to Blackadder sinking.
The issues 6 Mrs Burden contends that the defendants failed to service, adjust or repack the rudder glands of Blackadder, causing it to sink. She says that, following Mr Burden having run Blackadder aground with such force that the rudder stocks were bent, that, the packing should have been replaced. 7 The defendants contend that: (Page 4)
Technical terms 8 Annexed to these reasons is a diagram prepared by Mr Horlock indicating the component parts of the rudder apparatus, which is the same for both port and starboard rudders. 9 The rudder is connected to a rudder stock or shaft which passes up from the rudder, through the hull of the vessel in the rudder tube assembly and it is attached to the steering device within the body of the vessel. 10 There is a gland or packing nut through which the rudder stock passes at the point of entry into the hull. That packing is designed to prevent the ingress of water into the hull and it works by "packing" itself around the stock. The packing can be adjusted to suit requirements. Naturally it must be tight around the stock and this is achieved by tightening the packing nut onto the stock, as required.
The need to check the packing 11 It is not in dispute that amongst other repairs required by reason of Mr Burden running Blackadder aground, it was necessary to remove the port and starboard rudders, including the rudder stocks, to then restraighten those rudder stocks and to refit each of them back into Blackadder through the glands, or packing nuts. In theory, the nuts will need to be loosened prior to removal and tightened upon refitting. 12 I will deal further with expert evidence below, but the starting point can be taken from the evidence of the plaintiff's expert, Mr Terry Salomons, who has had a lifetime of experience in marine craft and the defendants' two expert witnesses, Captain Alexander Burns, a marine consultant and Mr Colin Spence, a naval architect. 13 Captain Burns said that if the rudder stocks had been bent by the vessel having running aground in November 2006 by Mr Burden then, upon repairing damage caused by that running aground, it would be fundamentally important to inspect and check the rudder nut packings to (Page 5)
see if the packings were serviceable. If serviceable, they should be repacked, and if not serviceable, they should be replaced (T336). 14 Mr Spence said that the fact that the rudder stocks were bent in the grounding by Mr Burden suggested a significant impact, such that it would have been prudent to actually remove the packing nuts to see what had happened to the packing material itself in that situation. A fairly hard grounding may well have substantially displaced one or both of the port and starboard packings within the packing nuts (T256-T257). 15 This is consistent with the plaintiff's expert, Mr Salomons. Indeed, it was Mr Salomons' view that it is good practice to replace the packing following such a grounding . Mr Spence agreed with that (T258).
Expert evidence 16 For the last eight and a half years, Mr Salomons has been a marine assessment consultant and for 15 years prior to that, he was a Volvo marine engine dealer. He has received certification relating to Volvo marine engines, stern drives, glands and gear boxes. He is a mechanical fitter and has been involved in marine engineering workshops for some 40 years. He has worked on petrol and diesel engines, stern drives, air boxes, shafts, rudders and electrical items on motor vessels from 30 to 60 feet long. He has also owned powerboats with rudder glands and has undertaken his own maintenance on those boats. He has changed quite a few hundred gland packings (T103). He also said that to remove and refit the rudder stocks can affect packing (T103), but packing can last for years (T104) and as a rule, water does not usually enter through a rudder gland (T105). 17 Captain Burns is a marine consultant. He is an international ship and port safety auditor or security officer, an ISO and ISM lead auditor, which is an international standards organisation and international standards marine business management system. He has a post-graduate certificate in management, an MBA and he has a master foreign going certificate of competency class 1 which is an unrestricted, unremitted certificate for any vessel going anywhere in the world. 18 In cross-examination, Captain Burns said he was qualified to take a merchant vessel to sea, but such a vessel would bring its own engineer. Although masters do an engineering paper to obtain their qualification, Captain Burns accepted that he was not an expert engineer (T326). He has a lifeboat certificate which qualifies him to handle small vessels, but, he has never changed a gland packing. He has never been required to (Page 6)
do so. He has never been required to assess whether a gland packing requires replacement. (T327). 19 Captain Burns has no demonstrated expertise in the physical properties of this type of packing material or in assessing how this packing material responds to impacts. He measures its malleability by touch. He did not answer the question of whether he had capacity to assess whether or not it has suffered any impact except by looking at it. He said that if it appears to be undamaged, he assumes "it's correct", but without saying why (T328). That seems to demonstrate a lack of expertise, or at least, does not provide a basis for the opinion: Atanoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 and Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370. 20 Captain Burns agreed, that, a naval architect or a marine engineer is better qualified than he is to assess the nature of likely impacts and forces that may have led to hull damage (T329). 21 Captain Burns took Mr Spence with him to examine Blackadder to determine the floodability of the vessel ie, to determine how long it would take to sink the vessel and to generally provide a different view of things given his different qualification. (T328) 22 Mr Spence is a naval architect, being an engineer specifically relating to marine structures. He graduated in 2002 (T253). 23 Mr Spence was cross-examined about his experience in vessels the size of Blackadder. He said, that, he worked for smaller consultancies in Fremantle earlier in his career (T276), as is demonstrated by his curriculum vitae (Exhibit 17). 24 Mr Spence's curriculum vitae indicates that between March 2002 and July 2003, he was a naval architect with International Maritime Consultants Pty Ltd and from February 2004 to February 2006, he was a naval architect at McAlpine Marine Design Pty Ltd. These companies are located in Fremantle. In respect of each, his scope of work included "providing Naval Architecture Consultancy Services, including Stability Analysis, Inclining Experiments, Structural Design and Class Society/Survey Authority Liaison for local vessel owners and operators". 25 It is not apparent from this, that, his work dealt with boats of approximately 34 feet in length or indeed, with work concerning packing glands. Further, for both these places of employment at Fremantle, (Page 7)
Mr Spence listed offshore projects and it is difficult to ascertain the relevance of that employment to the specific problem at hand. 26 Mr Spence has never changed a rudder gland and has never assessed whether or not a packing needs to be changed (T254). That is not to say, that, a naval architect is not capable of providing an opinion for the instant problem, however, it is not readily apparent, that, Mr Spence has had any of the relevant practical experience which Mr Salomons has had. Likewise, it is not apparent that Captain Burns has had any of the practical experience of Mr Salomons. 27 My finding is, that, Mr Salomons is, without doubt, the most qualified expert by reason of his day to day work over many years and the one whose opinion I should rely upon in this trial. He is the only expert with any practical "hands-on" experience in the inspection, packing and replacement of packing and the consequences of improperly packed glands.
Did the defendants fail to service, adjust or repack the rudder glands? 28 Immediately following Mr Burden running Blackadder aground in November 2006, the vessel was taken to Commercial Marine Maintenance where an employee, Mr Martin Pope, did most of the repair work. 29 I accept that Mr Horlock was the supervisor of that work and that he was present, or at least called to attend and inspect, when wear in the rudder tube assembly was noticed at the time that the rudders were being refitted after repairs. He was also required to assist in the refitting because it was not possible for Mr Pope to attend to that task alone. 30 Mr Horlock gave evidence-in-chief and in cross-examination about the process of removing the rudders and rudder stocks and refitting them but, without examining the packing (T193-194, T197-199 and T221-222). Indeed, he said that the packing nuts are loosened from the assembly when the rudders are removed and that they stay on at that stage. The rudders are then pulled out (T194 and 221). He also agreed that at no stage were the packing nuts completely unscrewed from the assembly (T222). This means that the packing within those nuts could not have been inspected. 31 Mr Pope said that he inspected the packing in the rudder glands and found them to be in very good condition. When he was replacing the rudders, he noticed a lot of wear in the starboard rudder tube assembly. (Page 8)
Nonetheless, the rudders were replaced back into the assembly, the packing nuts on the glands were tightened and that "took the play out of the rudders" which in Mr Pope's view, "proved that the packing was working". 32 In cross-examination, Mr Pope at first denied that he had spoken to anyone about the evidence he proposed to give at trial, but later agreed that he had spoken to Mr Horlock "a couple of days ago" (T287) prior to giving his evidence on Tuesday, 1 September 2009, being the fourth and last day of the trial. He agreed Mr Horlock had given him an "update on the evidence of how this case was going". When asked if Mr Horlock told him the sort of things he would be asked, he said "that's the natural thing to - - -", but he did not complete the sentence. He denied he spoke to Mr Horlock about things that were important for him to say (T287, 288). 33 Mr Horlock was aware that the packings were a central issue in the trial. He described them as "the hot topic" in his evidence-in-chief (T197). He gave his evidence on Friday 28 August 2008, being the third day of the trial. 34 Mr Horlock was also well aware that he should not have spoken to Mr Pope about Mr Pope's evidence, or indeed any witness, because earlier in the trial on Wednesday 26 August 2009, being the first day of the trial, Mr Macneall had been cross-examined just after lunch about whether he had spoken to Mr Burden about his evidence. Further, defence counsel requested me to warn Mr Macneall to not speak to anyone about his evidence. This all occurred in the presence of Mr Horlock (T64-T65). 35 Mr Pope's evidence warrants further scrutiny. 36 The fact that Mr Pope and Mr Horlock discussed evidence in this trial does not mean that Mr Pope's evidence is false, whether intentionally so or otherwise. 37 Mr Pope was asked about removing the rudders and described the procedure involved in that task. He was asked about straightening the rudders, and then he not only volunteered that "the packing was inspected … and was in very good condition", but he further volunteered that "we tightened up the packing and that took the play out of the rudders. So that proved that the packing was working, that it was tightening onto the shaft" (T282). 38 Mr Pope was also asked about checking for leaks on the sea trial, and twice gratuitously stated that packing seals require ongoing maintenance (Page 9)
and that they need to be checked regularly (T284). Later in these reasons I will comment further upon Mr Pope's role in the sea trials after Blackadder was repaired by Commercial Marine Maintenance. 39 Further, Mr Pope was engaged in refitting the rudders to Blackadder, which is a reasonably commonplace event and, in light of the whole of his evidence, this raised another issue of whether his evidence was a reconstruction of that reasonably commonplace event, rather than of what in fact occurred. 40 Mr Pope was cross-examined about his time records detailing all work performed by him on Blackadder and other pleasure craft at the same time as he worked on Blackadder. He said that he was able to recall refitting the rudders on Blackadder, yet he could not recall refitting the rudders on another vessel called "Checkmate", which the time records show occurred on the same day as he refitted Blackadder's rudders. 41 One would expect that if Mr Pope could remember refitting the rudders on Blackadder because of the time taken in that task, then, he should have remembered refitting the rudders on Checkmate for the same reason, but he could not recall that. 42 The worksheets (Exhibit P8) and invoices (Exhibits P6 and P7) do not itemize the various steps involved in refitting the rudders. Indeed, they do not refer to the packing nuts or packing. Mr Horlock gave contradictory evidence to Mr Pope's evidence of the "hot topic", namely that at no stage were the packing nuts completely unscrewed. Rather, he said that the packing nuts stayed on at the disconnecting stage, the rudders were straightened and refitted and the packing nuts were then tightened (T221). 43 In addition to this, regard must be had to the periods from when the work was done to the times when Blackadder returned after sinking and to trial, as to which Mr Pope said: "Well, when a vessel goes out and everything is okay, and then, as in the case of Blackadder, when it comes back, you then have recollections … and this going back a couple of years of course. Then – then you go through the process of what was done, don't you?" (T292). 44 Mr Pope at first gave evidence saying that Mr Horlock "would have been there" to refit the rudders, then he "would say that he was there" which was followed by him saying that "(h)e was there". When pressed (Page 10)
further as to whether he could actually remember that or was just guessing that Mr Horlock was there for this task, he could only say "I'm afraid that I can't remember every detail of that day". (T292-T293). 45 Mr Pope's evidence about Mr Horlock's presence on refitting the rudders suggests that he was reconstructing his evidence to say that he was there about a matter which is a reasonably commonplace event in his work requiring two men, but in reality, he could not remember. 46 Mr Pope did not give any direct evidence as to the time when he inspected the packing, although it might be inferred that is ordinarily done at the time of refitting the rudders, because Mr Horlock said that the nuts stayed on at the disconnecting stage. If the inspection occurred during refitting then, Mr Horlock was likely to have been present, and there is no such evidence from Mr Horlock that the nuts were then checked. Indeed his evidence is to the contrary. 47 In answer to a direct question about what he observed when he shook the rudders from underneath after tightening the packing following the November 2006 running aground and repairs, Mr Pope said that "there was nowhere near the amount of play that there had been before" he tightened the packing (T283). From this answer, there would seem to have continued to be some "play" in the rudders after the tightening of the packing nut, and as I have noted, movement can be seen in the video referred to above. He probably was not concerned with movement in the rudder because rudder glands usually do not leak (T296). 48 By reason of such "play", either the packing was not serviceable or the packing nuts had not been tightened, either adequately or at all, or both, following the November 2006 running aground repairs or, some event occurred, such as the vessel impacting the sea bed for a second time after its return in December 2006. 49 That Mr Pope gave evidence regarding inspection and replacement of the packing as part of refitting the rudders is not in itself remarkable. The rudders were refitted, but it is the routine nature of that event, which highlights the danger in accepting the detail of Mr Pope's evidence without proper scrutiny, especially given: (i) Mr Horlock's contradictory evidence; (ii) Mr Horlock's telephone conversation with Mr Pope during the trial, a "couple of days" before Mr Pope gave evidence; (iii) matters volunteered by Mr Pope in his evidence-in-chief; (Page 11)
50 There is however, further evidence regarding the issue of whether or not the packing was inspected and retightened. 51 The plaintiff's expert, Mr Salomons, inspected Blackadder in March 2007 to determine the cause of it sinking. It was his opinion that the rudder glands had not been serviced or repacked following the grounding incident in November 2006. 52 Mr Salomons said that failure to service and replace the glands was evidenced by the visible condition of those glands, and the fact that the packing nuts had not been touched. That is, they did not have spanner marks on them to indicate that they had recently been loosened and retightened. Nonetheless, Mr Salomons did not just rely on shiny marks from spanners used to adjust the packing nuts. He relied on their general state. 53 Mr Salomons provided photographs to show this (Exhibit P2), but I am not able to discern the lack of spanner marks from the photographs. 54 This directly challenges the evidence of Mr Pope that the packings were inspected and is consistent with the evidence of Mr Horlock that the stocks were refitted into the packing nuts without inspection of the packing in those nuts. 55 Mr Salomons' evidence also challenges the evidence of both Mr Horlock and Mr Pope that the nuts were loosened to remove the rudders and retightened on refitting the rudders. Mr Salomons also found that the stern glands had not been touched, for the same reason. However, he later retracted from that finding when shown the worksheets. In the circumstances, I do not place any weight on the absence of spanner marks on the rudder glands. 56 Further, during his evidence, Mr Salomons was shown photographs (Exhibit 11) apparently depicting the packing in the packing nuts following removal thereof from Blackadder by Mr Nigel Abdilla, who purchased Blackadder after it sank and had been salvaged. Mr Salomons was of the view, that, the packing, as photographed, was inadequate. (Page 12)
57 Even without seeing the photographs, Mr Salomons' opinion was that the rudder gland packings were unserviceable by reason of the amount of movement in the rudders and the tiller arm. If the packings had been in good condition, then, the rudder stock would have been held in a central position and would have restricted movement (T112). 58 Mr Salomons examined Blackadder again on 20 September 2007 with Captain Burns, Mr Spence and Mr Horlock for the purpose of identifying the cause of Blackadder sinking. 59 Captain Burns said that the starboard rudder was free to move 30 to 50 millimetres. It "had quite a bit of play", but the port rudder would not move (T313). 60 Mr Spence said that there was some movement in the starboard rudder, in the range of a few millimetres (T240). He measured movement in the starboard rudder at the top of the rudder, but at the bottom of the rudder, the movement would have been of a greater distance. In any event, from Exhibit P10, being a video, the movement can be seen in both rudders, more in the starboard rudder than in the port rudder. This movement is consistent with Mr Pope's evidence that even after tightening the rudders "there was nowhere near the amount of play that there had been before" tightening (T283). There would therefore seem to still have been some "play", when there should not have been. 61 This movement in the rudders could have been restricted by serviceable packing which had been appropriately tightened, even with a worn rudder tube assembly. Both Mr Horlock and Mr Pope agreed that tightening the packing causes restriction of movement in the rudders. Tightening with new packing, is what Mr Abdilla has done, as will be seen below. 62 Captain Burns and Mr Spence were both of the opinion that the packing within each of the packing nuts observed by them in November 2007 was serviceable. 63 Captain Burns disagreed with Mr Salomons that if there is wear in the rudder tubes, then, it would be appropriate to use more packing. Captain Burns was of the view, that, the problem really lay in the starboard rudder stock tube, rather than in the packing (T339). 64 Mr Salomons conceded in cross-examination that he had never seen the packing in the rudder shaft assembly (T122). He was shown photographs of the packing (Exhibit 11). He disagreed with the (Page 13)
defendants' two experts that the packing was serviceable. He disagreed that there was not enough room for more packing to be added to the nuts (T125). 65 Importantly, Mr Salomons was also cross-examined on the basis that the packing was adequate such that Mr Abdilla had re-used the existing packing when he salvaged Blackadder, as to which Mr Salomons said that he would be "surprised. Shocked" (T126) if Mr Abdilla had done so. Presumably, this line of cross-examination hoped to elicit from Mr Salomons a concession that if Mr Abdilla had used the original packing after salvage without incident, then, Mr Salomons might review his opinion and concede that the packing must have been serviceable, which was the opinion of the defendants' two experts. However, Mr Salomons could not be swayed. 66 After salvage, the repairs to Blackadder were carried out in the yard of Commercial Marine Maintenance. Mr Abdilla did the majority of the work, but, for certain items he required the assistance of the defendants. 67 Mr Abdilla was a witness for the plaintiff. He gave his evidence on the day following Mr Salomons' testimony and the day before Mr Horlock's evidence. 68 Mr Abdilla said that he removed the starboard rudder packing nut and noticed that the packing therein "obviously" needed replacing and so he gave it, together with the port rudder packing nut, to Mr Horlock for repacking (T175). 69 Mr Abdilla did not have any work undertaken on the rudder tube assembly (T176). He has not had any leaking since replacing the packing. That was the only repair affected by him to the whole of the rudder tube assembly and its component parts. He has also not run Blackadder aground. I accept his evidence on these matters, which supports the view that with serviceable packing, adequately tightened, and not having run aground, Blackadder is a functional and operational vessel. 70 On the evidence of Mr Horlock and Mr Pope, tightening of the packing nut itself would be sufficient to prevent the ingress of water even if the packing was dislodged by running aground. It is still functional if retightened (T225-T226). On Mr Horlock's evidence, the problem was with the worn rudder tube assembly. He did not give any consideration to the packing, as his two experts would require. (Page 14)
71 As noted above, Mr Salomons is very experienced regarding gland packings. The defendants' experts do not have that same practical experience as Mr Salomons. 72 I accept the opinion of Mr Salomons that the packings at the time of the sinking were unserviceable based on his observations of the vessel save for what I have noted above, photographs shown to him of the packings and the movement in the rudders after sinking which would not have been present if the packings were in good condition, and the packing nuts had been properly tightened. Mr Abdilla, an independent witness, also considered that the packing in the starboard rudder nut obviously required replacing, thus providing support for Mr Salomons' opinion. Mr Pope's evidence that the packing was inspected and the nuts were tightened on refitting the rudders is contradicted by Mr Horlock. Further, Mr Pope's evidence that the packing was in good condition (T282) is contradicted by Mr Abdilla and Mr Salomons. There are other concerns listed above regarding Mr Pope's evidence. In all of the circumstances, I cannot accept Mr Pope's evidence. 73 My finding is that Blackadder was returned in December 2006 without the packing nuts having been opened and inspected. Even if they were inspected, the packing nuts were probably not adequately retightened to remove all movement as explained by Mr Pope and to which I have referred above (T283).
The sea trial upon completion of repairs 74 Mr Wayne Walton is a sandblaster and a friend of Mr and Mrs Burden. He has been involved in pleasure craft for about 40 years. 75 Mr Walton described how the vessel was returned from Commercial Marine Maintenance by it being placed in the water. He was to pilot the vessel for a mechanic, whom it is now known was Mr Pope. He checked for leaks. 76 Mr Walton said he started the engines and took the vessel out of the yard. After this, Mr Pope lifted the engine lids and asked Mr Walton to slow down because there was a leak from either the port or starboard stern gland (ie, the propeller gland). He also lifted the tiller flap to see if any water was being taken in. Apart from that, Mr Walton did not see any other checks or inspection being undertaken. He then returned the vessel to the yard, Mr Pope departed and Mr Walton took Blackadder to Mr and Mrs Burden's property at South Yunderup. He then plugged in the shore (Page 15)
power, but he did not otherwise use the vessel again. It was of course used at least once more before the sinking, when it was taken out by Mr Burden and Mr Macneall and their families. 77 In cross-examination, Mr Walton said he did not see the mechanic do any adjustment to the stern gland because the mechanic was in the engine room and because Mr Walton could not leave the controls (T187-T188). 78 Mr Walton was not asked in cross-examination about any inspection of the rudder glands. 79 Mr Pope said that, during the sea trial, he adjusted the propeller shaft gland. He said there were no leaks coming from the rudder shaft glands. 80 Mr Pope said that, during the sea trial, he was in the engine compartment where the propeller shaft glands are and in the stern compartment where the rudder shaft glands are. He did not detect any leaks other than from the propeller shaft glands. He said there was no water in the stern compartment at all (T285). 81 Mr Pope acknowledged, that, from within the vessel, access to the rudder glands was difficult (T283). He also accepted, that, the rudder glands are difficult to check because they are behind a generator set in the rear compartment and that usually, rudder glands do not leak (T296). 82 At par 31 in his report, Mr Salomons said that a person has to lie down head first and look into the space where the rudder glands are located. Mr Spence said that the floor boards had to be removed to see the rudder packing nuts (T259) and Mr Abdilla said that it was impossible to get a spanner in there unless the genset is taken out (T175). I accept that the packing nuts were difficult to view and access. More is required than lifting the tiller flap to see those glands. 83 Mr Pope did not give evidence of any water entering the rudder glands. However, if water had been entering there, then, the bilge pump would have been removing it and the sound of the engine would have prevented anyone from hearing the sound of the bilge pump. 84 Mr Spence said that with the added complication of the worn rudder tube, there are two ways to determine whether or not the packing is operating correctly. One is a visual inspection whilst the vessel is out of the water on the hard and the other is by way of sea trial to check whether (Page 16)
there is any ingress of water. However, this required that the floorboards in the stern compartment be removed and for the observer to be in the correct position, so that he could then see any water coming in through the nuts. On the evidence, this was not done. 85 Mr Salomons gave evidence, that, the appropriate testing not only required leaving Blackadder in the water to see if any leaks developed, but also, to start the engines and place them in reverse to see if water entered into the glands. Only if nothing happened should the sea trial have been undertaken. The second mentioned step was not undertaken. Based on what Mr Salomons said, this step might well have revealed the ingress of water through the starboard rudder tube assembly. Given the difficulty in viewing and accessing the rudder glands, the task in doing so would have been more easily performed whilst the vessel was stationary rather than when being driven. 86 Mr Pope said in his evidence-in-chief that the propeller shafts and the rudder shafts require ongoing maintenance (T284), yet he had not been asked about that. In cross-examination, he said that he had a policy of informing the owner or skipper on a sea trial about ongoing maintenance and that was also volunteered (T288). However, he made no attempt to say that he gave any such information to Mr Walton and the defendants' counsel did not seek to lead that from him and nor was Mr Walton cross-examined to that effect and he gave no evidence of it. Mr Pope, of course, gave evidence after Mr Walton. 87 I also note, that, Mr Pope could not describe Mr Walton. He suggested that the person to whom he delivered the vessel was about 30 years old. Mr Walton is in fact 56 years old. 88 For reasons I have previously enunciated, I have difficulty in accepting Mr Pope's evidence. There is no reason to not accept Mr Walton's evidence.
Were there problems with the genset and rudder bilge pump before Christmas 2006? 89 It was put to Mr Macneall in cross-examination that at or about Christmas 2006, he contacted Mr Horlock by telephone telling him that Blackadder's genset was not working and that Mr Horlock came to his aid at the fuel jetty near the Commercial Marine Maintenance yard. It was also put to Mr Macneall that there were problems with the rudder bilge pump. Mr Macneall denied all of this (T70-T73). (Page 17)
90 This is an issue which needs to be resolved by reason of what Mr Horlock said in evidence was discussed at this meeting. The alleged problems with the genset and the bilge pump impact upon the seaworthiness of Blackadder and the defence contention that Blackadder hit a sandbar whilst Mr Macneall was driving it after it had been returned following repairs caused by Mr Burden having run it aground. 91 Mr Macneall gave evidence that he knew Mr Horlock from dealings prior to Blackadder being run aground in November 2006. Those dealings related to repairs to the vessel, but, he did not have any dealings with Mr Horlock over the repairs to it following the running aground in November 2006, although he may have had a telephone conversation with him, but he had no clear recollection of that conversation. 92 Mr Horlock gave evidence that he first met Mr Macneall in November 2006 when he attended in relation to the repairs required by Mr Burden when Blackadder ran aground. Mr Macneall was not challenged about the timing of their meetings in cross-examination (T68, 69). 93 Further, in cross-examination, as noted above, Mr Macneall denied that he contacted Mr Horlock at about Christmas 2006. 94 This matter was put to Mr Macneall again, but, he denied making a telephone call to Mr Horlock regarding the genset and he denied that Mr Horlock came to see him at the fuel jetty to inspect the genset because it would not start. He further denied that Mr Horlock then noticed water in the fuel and suggested to him that the genset be removed and fixed. He denied saying to Mr Horlock that he would organise the repair thereof himself. He denied that Mr Horlock replaced an oil filter and got the genset going. 95 These matters were again put to Mr Macneall and he again denied them. It was further put to him, that, Mr Horlock noticed water in the rudder compartment and that Mr Horlock told him that the bilge pump was not working. Mr Macneall denied that he told Mr Horlock that he would get it fixed. 96 Mr Macneall was further cross-examined about Mr Horlock pointing out that there was oil in the water and that he, Mr Macneall, said that he was going to pump that out, to which Mr Horlock replied that he should not do that in the marina, but to take the vessel out to sea for that purpose. This was also denied. (Page 18)
97 Mr Macneall readily accepted in cross-examination that he used Blackadder without Mr Burden's knowledge. He also had a "funny feeling", as noted below, that he had used Blackadder on another occasion, after its return, without Mr Burden being on board. In any event, there is no reason to not accept Mr Macneall's evidence that this meeting did not occur at all. 98 Mr Horlock gave evidence-in-chief about these matters, but he was not really cross-examined about them (T231). Nonetheless, it does seem implausible, but not impossible, that within a week or so (T231) of the vessel being returned, it had trouble with both the genset and the rudder bilge pump, at the same time, both requiring further repair and maintenance. 99 However, there are reasons to be cautious in accepting any evidence from Mr Horlock. 100 In September 2007, the three experts met together at the yard of Commercial Marine Maintenance to examine Blackadder in order to determine the cause of it sinking. On this occasion, Mr Salomons asked Mr Horlock why he had not repacked the rudder glands in November/December 2006 before returning Blackadder after repairs. 101 Mr Horlock said that he responded to Mr Salomons' comment regarding slop in the rudders, by saying that such was not the state of the rudders when they left his yard. He said that Mr Salomons did not ask him why he had not repacked the glands. He said that Mr Salomons had referred to the worn rudder tube assembly. Mr Horlock indicated, that he had contacted Mr Burden who did not wish to have any replacement thereof undertaken if he could not claim it on insurance. As will become apparent below, such replacement is an expensive exercise. However, Mr Horlock said that he told Mr Salomons that he tightened the packing up, that that "took all of that play out and it didn't leak when it went in" (T210). Captain Burns was present for this discussion. 102 Mr Salomons' report at par 28 details that Mr Horlock claimed to have told Mr Burden that the nuts needed repacking, but that Mr Burden declined to do this if it was not covered by insurance. Mr Salomons gave similar evidence-in-chief (T102) and in cross-examination (T134). Captain Burns gave evidence to the same effect when cross-examined (T331). Mr Spence was unable to recall this conversation (T270). 103 On this basis, Mr Salomons and Captain Burns are consistent with each other that it was the original packing which Mr Horlock claimed in (Page 19)
September 2007 that he was instructed to re-use by Mr Burden, who would not pay for new packing if it was not covered by insurance and their evidence is contrary to that of Mr Horlock. 104 Contrary to the cross-examination of Mr Salomons, Mr Horlock gave evidence consistently with what Mr Abdilla had previously said regarding replacing the packing namely, that he provided new packing to him in November 2007. 105 Mr Horlock was however contradicted on this issue by Captain Burns, the last witness in the trial, who said in cross-examination that Mr Horlock had told him "a few days ago" before, he Captain Burns, gave his evidence that the original packing was used by Mr Abdilla (T331-T332). 106 In cross-examination, Mr Horlock said that he had not instructed his solicitors that the packings were not replaced by Mr Abdilla but rather, he had instructed them that the rudder tube assembly had not been replaced (T215 and 228). Further, he said that his solicitors were mistaken in not pleading that the rudder tube assembly was worn and required replacement (T225). 107 Nonetheless, on the day before he gave evidence, Mr Horlock heard his counsel ask Mr Salomons whether it would surprise Mr Salomons to learn that Mr Abdilla had not put new packings in but, prior to giving his own evidence, he had not corrected counsel, or at least, counsel had not disclosed the need to make any correction to that aspect of cross-examination of Mr Salomons. 108 It was, Mr Horlock said, a case of his solicitors making mistakes (T229). It would therefore seem that Mr Horlock approached this trial on the basis that a line of defence would be that Mr Abdilla had reused the original packing in the rudder glands. Mr Salomons was cross-examined to that effect and Captain Burns had been told the same thing by Mr Horlock "a few days ago". That is consistent with the pleaded defence filed 7 July 2008 that the packings were checked and did not require replacement. 109 Further, Mr Horlock gave evidence that after the sinking, he wound the packing nuts off for his experts to examine (T211). He said that the packing was then "still pliable and malleable" (T212). If that was so, then, one might rhetorically ask, why was it "obviously" necessary for Mr Abdilla to require new packing, why did Mr Horlock not tell Mr Abdilla that the packing was "still pliable and malleable" and did not (Page 20)
require replacement and why did Mr Horlock replace the packing for Mr Abdilla without comment? 110 In cross-examination, Mr Abdilla said that he did not recall whether Mr Horlock was present when he removed the packing nuts, and that he took them over to Mr Horlock who then came to the vessel to have a look. Mr Abdilla said that he took the packing nuts out himself. He was cross-examined to the effect that Mr Horlock was there, but he replied "I don't think so. I'm not 100 per cent sure on that one. I don't think he was." (T180) 111 Mr Abdilla agreed however, that, he and Mr Horlock had a discussion about the worn rudder shaft bearings. Mr Abdilla decided not to replace them. 112 The evidence of Mr Abdilla regarding his removal of the packing nuts and the delivery of them to Mr Horlock for repacking is to be contrasted with Mr Horlock's evidence-in-chief during which the following exchange occurred: "What about the rudder packing glands?---Yes, the rudder packing he [Mr Abdilla] – because I – at this stage I knew that this was – was in question from Club Marine against me. I was quite vigilant that nobody touched this packing, because of all the information that had been put forward to that point. Nobody had actually ever bothered to inspect the packing, which, to my amazement, I still don't know why. So I informed Nigel [Mr Abdilla] that, 'when we go to take this out, I want to make sure that my assessors are here to witness this because' – you know the reasons. So yeah, when it came time he wanted to remove the rudders, I then contacted my insurance company. And that's when Martin [Mr Pope] and – Martin, Colin Spence – Alex Burns came down to witness the packings. All right. Were you there when the packing glands were removed? --- Yeah, absolutely. Who removed them?---I removed them just by winding them off. As you can see, it was with the - - - You unscrewed the packing nut?---Unscrewed the packing nut and I took both packings up to – to my shop and – waiting for Alex and Colin to – to arrive." (T211) (Page 21)
113 The defendant's substance of expert evidence discloses that the experts were instructed by the defendants' solicitors to inspect the component parts of the vessel's rudders, which had been removed (pars 18 and 20). 114 In November 2007, Mr Horlock told Captain Burns that he had removed the packing nuts and left them to one side and that he had not touched anything (T338). 115 Certainly, neither Captain Burns nor Mr Spence saw the packing nuts being removed (T249 and T339). They examined and photographed those packing nuts which were shown to them by Mr Horlock on 7 November 2007. 116 Mr Abdilla was not cross-examined that Mr Horlock had said to him that he wanted his assessors to be present when the packing nuts were removed. Further, Mr Martin Pope did not give any evidence that he "came down to witness the packings", presumably being removed. 117 Mr Horlock's evidence is in direct contradiction to Mr Abdilla's evidence as to who removed the packing nuts, who took them to his workshop, and the reason why they were so taken there. 118 However, in September 2007, at the inspection with Captain Burns and Mr Spence, Mr Salomons bluntly told Mr Horlock that the packings were "no good", as to which Mr Horlock made no immediate comment. The packings were clearly an issue by then and despite Mr Horlock "being quite vigilant that nobody touched this packing", as he claimed, he was not vigilant enough to ensure that Mr Spence, Captain Burns and Mr Pope were present to "witness" the packing nuts being removed from Blackadder. They were not so present. Indeed, Mr Abdilla did not think that Mr Horlock was present at all when he, Mr Abdilla, removed the nuts and they were returned, he thought, by the next day, with new packing (T175). 119 Another matter going to Mr Horlock's credibility relates to the cross-examination of Mr Burden to the effect that Mr Horlock telephoned him to say "that there was movement in the rudder shafts" (T45). Mr Burden disputed this. He further disputed that he asked Mr Horlock whether this would be covered by insurance. He disputed that he said "if its not covered by insurance, don't worry about it" (T45-T46). (Page 22)
120 The defence as filed did not plead that the rudder tube assembly was worn and needed replacement and it also did not plead, as claimed in evidence by Mr Horlock, that he telephoned Mr Burden to warn him that the rudder tube assembly was worn and that if the vessel were to "bump the rudders", then the load would be transferred through to the packing and that he would need to constantly check the packing nuts for frequent adjustment (T199, 201, 223 and 225). 121 This is significant in the context of the trial, the defence as filed and the order in which the witnesses were called and the evidence which they variously gave. 122 Mr Horlock's evidence was that he told Mr Burden to "replace the rudder tube bearing", ie, the rudder tube assembly. Mr Horlock also said "that it was going to be several thousand dollars, had to remove the genset to gain access and so on" (T223) and that is when, he said, that Mr Burden cut him off and asked about insurance. He advised Mr Burden that insurance was not available for this and then, Mr Burden said "I'm not interested, I'm selling the boat" (T223). 123 The references to the rudder tube bearing, the several thousand dollars and the sale of the vessel were not put to Mr Burden in cross-examination, but, Mr Burden had given evidence that he was, at the time, attempting to sell the vessel. Mr Burden was however cross-examined on the basis that there was movement in the rudder shafts (T45). 124 Mr Horlock was cross-examined about safety issues relating to the rudder packing and commented "absolutely. That's why I remember it so clearly" (T223). Given that he claimed to remember it so clearly, it is surprising that Mr Burden was not cross-examined on all details of this alleged conversation, including that Mr Horlock told him that the rudder tube assembly should be repaired because "any load on the rudders is going to transfer straight through to the packing material … it's just there for a sealing purpose" (T223). Nor was Mr Burden cross-examined that Mr Horlock warned him in this conversation that he would thereafter need to "keep an eye on this rudder packing. It would need frequent adjustment" (T223). 125 It is not disputed, that, the rudder tube assembly was worn. There are two things that can be done about that. The first is to remove and replace it at a cost of several thousand dollars as Mr Horlock said that he (Page 23)
suggested to Mr Burden. The second thing is the appropriate treatment of the packing within the packing nuts. However, this may require careful ongoing management once the vessel is back in the water. It is certainly cost effective being, as Mr Horlock said, about $10 for each of the two packing nuts (T220). Mr Horlock did not suggest that he raised this in the telephone call to Mr Burden, who said that he was a multi-millionaire. 126 Mr Burden said that he did not want his family or grandchildren on a boat that was not seaworthy and so he instructed Mr Horlock that the necessary work be undertaken to make the vessel seaworthy. The packing could be replaced for approximately $20. It was a viable option, as demonstrated by Mr Abdilla. 127 There is no reason to dispute Mr Burden's version of the evidence. I find that this conversation, as alleged by Mr Horlock, did not occur. Mr Horlock did not warn Mr Burden to properly and regularly service the glands of Blackadder. 128 Further, Mr Horlock at first said that he noticed the excessive wear in the rudder tube assembly when the rudders were taken out (T198) and counsel then adopted that course when further questioning him (T199). Thereafter, Mr Horlock's evidence was that the excessive wear in the rudder tube assembly was only noticed when the rudders were being refitted after straightening of the rudder stocks. 129 In all the circumstances, I cannot accept the evidence of Mr Horlock unless it is confirmed in some material way by other evidence. 130 I am therefore not persuaded that this alleged meeting, around Christmas 2006, occurred and further, that Mr Macneall was alerted to the requirement to repair the rudder bilge pump and the genset.
Did Blackadder run aground between December 2006 and February 2007? 131 Mr Burden gave evidence that he, his wife, Mr Macneall and his wife and their children used Blackadder on one occasion after its return from the defendants in December 2006 and before the sinking. Mr Burden and Mr Macneall both said that nothing eventful occurred during this trip. 132 Mr Burden also gave evidence that Mr Macneall never took Blackadder out without him. This was later contradicted by Mr Macneall. In cross-examination, Mr Macneall readily agreed that he had, on occasions, used the vessel without Mr Burden being present. (Page 24)
133 Mr Macneall said that he definitely used the vessel once after its return, and maybe twice. One occasion involved himself and his family, together with Mr and Mrs Burden as noted above. This involved a lunchtime outing to a restaurant in Mandurah. 134 He also had a "funny feeling" that on another occasion after Blackadder's return, he used it without Mr and Mrs Burden but, he did not have any recollection of running the vessel aground. 135 The defence case relies upon its experts to prove facts from which it can be inferred that Blackadder hit a sand bank after its return in December 2006. These facts relate to damage to the vessel observed by the defendants' experts as follows: (a) the starboard rudder stock was loose; (b) water was secreting from the port rudder shaft; (c) the anti-fouling of both rudders had been abraded to an approximate height of 100 millimetres; (d) the leading edges of two blades on the starboard propeller were deflected aft by approximately 15 millimetres; (e) the leading edge of one blade on the port propeller was deflected aft by approximately 5 millimetres; (f) all blades of both propellers had evidence of abrasion from the tips to around 50 millimetres inwards; (g) the marlin board was damaged; and (h) the impeller blades were bent. 136 The rudder stocks were loose in March 2007. The cause of that looseness is either that the packings were not replaced after the November 2006 running aground and/or that the packing nuts were not retightened, or if they were, then they were not adequately tightened, or, there was a further event, such as a running aground, after Blackadder was returned. 137 There was also some secretion of water from the port rudder shaft. The cause of this secretion was most likely the looseness in the rudder stock. 138 Mr Spence said that the abrading of the anti-fouling of the rudders must have happened on a number of occasions. It would not occur over a short period of time because then there would be minor scoring to the (Page 25)
anti-fouling. (T245). However, this seems to be more consistent with Blackadder bouncing on the sea bed as it was filling with water, rather than with Blackadder having been run aground. Mr Salomons disagreed that the anti-fouling on the rudders had been abraded, although he accepted that Exhibit 11.27 showed a bit of abrasion. 139 Captain Burns and Mr Spence said that all propeller blades showed evidence of abrasion. This abrasion of the propeller blades cannot be readily detected in the photographs. Mr Salomons did not investigate this. 140 Mr Salomons was of the opinion, that, if a vessel was underway at speed and hit the bottom impacting on the rudder blades, then, a properly packed rudder gland might fail as a consequence. However, there was no damage to the rudder blades suggesting any significant contact with the sea bed so as to cause dislodgement or loosening of the rudder gland packing. There was no detected deflection of either rudder blade. 141 Mr Salomons did not believe that the vessel had run up into the sand. This was because of his observation, or perhaps more accurately, the lack of observation, of any impact on the hull: report par 39. There were no gouge marks that he could observe on the hull. 142 Mr Salomons did not observe any deflection or bending of the rudder stocks. He did not believe that the rudder packings may have been loosened by the vessel running aground after December 2006, because if it had impacted with the sea bed and dislodged the packings, then, there would have been substantial damage to the rudders. They would have been bent (T110). 143 In cross-examination, Mr Salomons said that a grounding would not have damaged the starboard packing, nor would it have displaced the starboard rudder stock (T136). 144 There was however damage to the trailing edge of two blades on the starboard propeller and one blade on the port propeller which Mr Salomons believed might have been caused by the vessel sitting on the canal bed after sinking or coming into contact with the bottom whilst the propellers were not engaged. The damage was consistent with a low speed impact. If the propellers had hit the bottom at speed, then, he would have expected that the eye brackets would have been bent and the nature of the damage to the blades would have been more extensive. There was no damage or bending to the eye brackets. Mr Salomons went on to say, that, the damage to the blades was such that the engines were not operating at the time such damage occurred. The vessel "sat on the (Page 26)
bottom just as it – and the blade that got bent was the blade that was down, so that – but not driving along, no" (T112). 145 In cross-examination, Mr Salomons agreed that the bending back of the propellers is not explained by slowly sinking at its mooring in South Yunderup (T134). 146 In re-examination, Mr Salomons did not know whether the vessel sat on the bottom but, in his opinion, such a sitting on the bottom could cause bending of the propellers, even in soft ground because of the "weight of the boat, the movement of the boat with wash, other vessels going past and the boat bouncing up and down" (T138). 147 The defendants' expert, Mr Spence commented on this. He thought that an impact of some sort was required to bend the propellers which are made of bronze. He was not "entirely convinced" that Blackadder sank at its mooring because damage to the starboard propeller indicated that the propeller was most likely turning at impact (T244). However, he agreed that, prior to a vessel on a mooring or a jetty sinking in the presence of boat wake, it can bounce on the bottom of the sea bed and that that could cause damage to propellers (T263). He also agreed that, the damage to the blades on the vessel could have occurred in many different ways, one of which is, as Mr Salomons said, that is, that the damage to the blades could have been caused by the vessel sinking at its jetty into the sand of the sea bed below it (T265). 148 Mr Spence accepted that a passing boat could cause wake. The amount of wake depends on speed, size, shape and displacement of the passing boat. If Blackadder was sinking, getting closer and closer to the seabed, then, wake could cause Blackadder to bounce up and down on the seabed (T263). Although Mr Burden owned a home towards the end of the canal, there could still be wake from passing vessels. Swell could also be a relevant factor. Waves could also be caused for other reasons (T265). 149 Captain Burns thought that considerable force would be required to damage the propellers – more force than would result from a mere sinking at a mooring. However, he deferred to Mr Spence on this (T324). 150 Captain Burns said that the rudder and propeller dragged through the sand and the scoring then occurred (T346). In cross-examination, Captain Burns thought that the propeller blade damage indicated that the vessel was travelling in reverse when the propellers were damaged. Nobody else gave this evidence and nor was anyone asked about it. If he is correct (Page 27)
about the vessel travelling in reverse to cause this propeller damage, then, one could reasonably expect some damage to the rudders beyond abrasion. There is no evidence of any such damage. 151 Mr Spence said that the damage to the marlin board was of no consequence on Blackadder running aground going forwards (T266). 152 Mr Salomons said damage to the marlin board and the impeller was pre-existing. 153 On 7 November 2007, Mr Spence and Captain Burns attended to inspect Blackadder's rudder assembly as a whole in its dismantled state. They saw the packing nuts with the packing in situ. 154 Captain Burns thought that the thread of the packing nuts was in good condition and that the packing was still serviceable (T324). His view was that if the vessel ran aground and that moved the rudder stock, then, that would compress the packing on one side and that water would be free to migrate to where there was less of a seal (T324). The packing had lost compression and thereby allowed the ingress of water (T333). 155 Mr Spence was of the view that the packing was adequate (T249). He said, that, if the packing was adequate, there may have been some event that caused the packing to move outside its normal operating range. That is to say some event, possibly a grounding, caused the rudder stock to be moved within the rudder tube which caused some deformation of the packing, and which deformation stopped the packing from having a firm pressure against the stock and permitted water to enter the vessel. This deflection in the packing itself would have caused the additional flow of water (T250). He said that the rudder shaft in the rudder tube assembly appeared to be significantly worn (T251). 156 The event pleaded by the defence is that Blackadder hit a sandbar whilst being driven by Mr Macneall. 157 Mr Spence did not suggest that the packings had been damaged, displaced or distorted when he inspected them (T254). Mr Spence said that "the packing itself could be disturbed when the nut is being removed" (T274-275), so that any deformation which may have been there, may not have been visible when the packing was subsequently inspected because during removal of the packing nut, "there would have been some movement of the packing", but not to the point of reforming evenly. (Page 28)
(T255). Captain Burns said that after removal of the packing nuts in November 2007, there was no sign of displacement (T341). 158 Mr Spence said that if the packings were displaced, they will lose their shape and will not reform back to normal, unless compressed by further tightening of the nuts (T254). On the evidence, the packing nuts were not further tightened by either Mr Burden or by Mr Macneall after the return of Blackadder in December 2006. Therefore, if there was an event, such as a grounding, then the last shape of the packings should have remained in a constant position after that event until November 2007 when the packing nuts were removed. But Mr Spence said that such removal disturbs the packing and any deformation may not then have been visible. 159 However, this all assumes that: 160 It is to be remembered that the November 2006 running aground was the very kind of event which would have caused "deformity" of the packing as described by Mr Spence and "compression" as described by Captain Burns. 161 Captain Burns and Mr Spence both said that the packings were serviceable in November 2007. However, as noted above, any defect in the packing may not have been observed when the packing was subsequently removed and inspected in November 2007 (T254-T255). If Mr Spence is correct about this then, surely the same comment would apply to Mr Pope's alleged removal and inspection of the packings in November 2006 following what was clearly a significant impact by way of grounding sufficient to bend the rudder stocks. Mr Spence said that that grounding in November 2006 "may well have" displaced the packings (T257). 162 Mr Salomons disagreed that the packings were serviceable, by reason of movement in the rudders following the sinking, his observations of the rudder glands and because of what he saw in the photographs taken of the (Page 29)
packings in November 2007 by Captain Burns and Mr Spence, that is, that the packings were not serviceable. Mr Abdilla said that the packings "obviously" required replacement in November 2007. 163 I have previously expressed reasons for preferring Mr Salomons' opinion as to the packings, which is supported by Mr Abdilla. I have also expressed difficulties with Mr Pope's evidence as to inspection of the packing and tightening of the nuts in December 2006. Further, on Mr Horlock's evidence, the packing nuts were not then inspected. It is unsafe to rely on Mr Pope's evidence that they were. And even though Mr Spence and Captain Burns could not see any deformity in November 2007, that does not mean an absence of deformity from repairs in December 2006 because, as Mr Spence said, once removed from the gland, the deformity may no longer have been visible (T254-T255). In a significant grounding, such as that which occurred in November 2006 which may well have displaced the packing, prudent practice dictates that packing be inspected (Mr Spence T257). 164 Further, I accept the evidence of Mr Burden and Mr Macneall that they did not ground Blackadder again after its return in December 2006. 165 There is a possibility that some grounding occurred following the sinking when Blackadder was being towed to the yard of Commercial Marine Maintenance for salvage, but the evidence as to that is imprecise and cannot sustain a positive finding that that is how Blackadder suffered abrading of the rudders and propellers. Even that is only one event and based on the evidence of Mr Spence, it would only be likely to cause minor scoring to antifouling, rather than abrading. 166 Therefore, on the whole of the evidence, it is not possible to draw the inference that some event, such as a grounding as postulated by Mr Spence, occurred after Blackadder was delivered to Mr Walton so as to cause damage to the rudder glands and thereby allow the ingress of water.
The sinking 167 Mr Salomons gave evidence that water would have been entering the vessel through the starboard rudder tube from the time it was placed back in the water after Commercial Marine Maintenance concluded the repairs a week or so prior to Christmas 2006. He referred to the failure of the bilge pumps (T109–110), but he believed that the bilge pumps were satisfactorily dealing with water entering the vessel between it having (Page 30)
been put back in the water until those pumps failed at some unknown time prior to the vessel sinking on 9 February 2007 (T128). 168 Mr Spence thought that the bilge pumps would have been able to cope with the volume of water entering through the starboard rudder tube until such time as there was no power to drive the bilge pumps. 169 All experts agreed that one cannot rely on bilge pumps to prevent a vessel from sinking. So too did Mr Horlock (T230). 170 Mr Burden said that on leaving the vessel it was routinely connected to shore power and Mr Macneall said that the vessel was connected to shore power when it sank (T57). Mr Walton connected the shore power when he left the vessel after taking delivery of it from Mr Pope (T184), but he could not recall if he or a neighbour disconnected the shore power when the vessel sank (T184). There was no challenge to any of this evidence. 171 There was a power failure on 4 February 2007. 172 Until an unknown point in time, no doubt the bilge pumps did operate to successfully remove any water entering Blackadder, in particular through the starboard rudder tube assembly. However, once the bilge pumps stopped working, for whatever reason, then, water continued to enter without it being removed and ultimately, the entry of such water through the starboard rudder tube assembly and then through the self-draining mechanism caused Blackadder to sink slowly. 173 Even with the shore power failure, there were four batteries (T93) on the vessel and these would have taken some time to exhaust before the vessel sank. That the batteries were corroded indicates that they were still functional when they were immersed in water, as stated by Mr Salomons in the video (Exhibit P10) when the camera was trained on the batteries. 174 In September 2007, the three experts filled Blackadder's compartment with water to test Mr Salomons' theory that the vessel sank by reason of the ingress of water through the starboard rudder tube. Once filled to a certain level, they observed what Mr Spence termed an "abnormal volume" of water exiting the starboard rudder tube and water also exited the port rudder tube, but to a lesser extent. The exhaust flange on the port side also leaked a little bit of water in a consistent trickle. (Page 31)
175 As Mr Spence said following the test, the most likely cause of the sinking was that water had entered through the starboard rudder tube (T245). Captain Burns and Mr Salomons both agreed, but for different reasons as I have already indicated. But that was the major contributor to Blackadder sinking: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. The test confirmed Mr Salomons' theory that water entered the vessel through the starboard rudder tube. 176 I accept that the vessel sank by reason of the defendants' failure to inspect and replace the rudder packing nuts, and/or that they failed to tighten them either adequately, or at all, and in particular, the starboard nut.
The liability of the first defendant Mr Horlock 177 Initially, the business Commercial Marine Maintenance, was carried on by Mr Horlock, but, the business names registry records show that the second defendant was a corporation carrying on that business from 24 October 2004. Mr Horlock was a director of the second defendant, trading as Commercial Marine Maintenance. Mr Horlock said that he was no longer the owner after 2004 (T235). 178 Although the business names records show that Mr Horlock remained carrying on the business until 4 April 2008, the second defendant is also named as carrying it on from 24 October 2004, but it too ceased on 4 April 2008. There would have been no need to register the second defendant as a corporation carrying on that business unless the business was transferred to it, either in whole or in part. 179 The accounts from the business to Mr Burden and his insurer (Exhibit P7 and P8) required payment of those accounts to the second defendant. 180 In all of the circumstances, I accept that Mr Horlock transferred the business to the second defendant from 24 October 2004 and that he is not contractually liable as proprietor of the business to Mrs Burden. 181 However, it is conceded by counsel for Mr Horlock that he was under a duty of care to Mrs Burden to repair Blackadder with due care and skill. On my findings, he has breached that duty of care and Mrs Burden has suffered consequential loss. Mr Horlock is therefore liable to her for his breach of that duty of care and the resulting damage. (Page 32)
Assessment of damages 182 Mrs Burden claims: 1. Dewatering costs $1,020.00 2. Survey fee $595.00 3. Storage costs $6,008.54 4. Survey fee $150.00 5. Assessors' fees $6,089.60 6. Market value of the vessel $120,000.00 7. Less salvage ($26,166.00) Total $107,697.14 183 The cost of dewatering is agreed. The survey and assessors' fees are not the subject of any evidence. They can not be recovered. Storage costs are agreed after a deduction for GST of $600. The market value of the vessel was disputed. The salvage price was agreed. 184 Since 2006, Mr Brendan Grieve has been the dealer principal of R Marine which is a subsidiary of the Riviera Group of companies. Prior to that he was, from 1997, the manager of Aquarama Marine Boat Brokers. He is a member of the Marine Brokers Institute of Western Australia and he is engaged in his work in the sale of marine pleasure craft. I accept that he has sufficient experience to be able to give an opinion on the value of pleasure craft by reason of his work over a sufficiently lengthy period. That work requires him to keep abreast of sales of pleasure craft and the prices at which sales are achieved. 185 Mr Grieve gave an opinion as to the value of a vessel, such as Blackadder, as at February 2007, with a number of optional extras. He relied on two other sales of Riviera 34 vessels and his general knowledge gained over time selling pleasure craft. There were two actual sales of Riviera 34 vessels that he was able to retrieve from Aquarama Marine Boat Brokers computer involving a 1987 model sold in May 2005 for the sum of $130,000 (Exhibit 16.1) and another sale in 2005, being a 1983 model which sold for $114,000. On the basis of these sales, Mr Grieve gave his opinion that Blackadder was valued at approximately $114,230 (T155). 186 After Blackadder had run aground in 2006, but before it sank in 2007, Mr Burden had advertised it for sale at a price of $175,000. He had received an offer for it of $160,000, to which he counter-offered at (Page 33)
$170,000, but after that, he determined he should keep the vessel. A written copy of the offer, if any, was not tendered into evidence. 187 The defendants did not lead any evidence of the value of Blackadder prior to it sinking. 188 I am prepared to accept the valuation of Mr Grieve at $114,230. Allowance can also be made for dewatering and storage costs, less salvage. 189 I am accordingly prepared to allow judgment for the plaintiff against the defendants calculated in the sum of $94,492.54 plus interest at 6 per cent per annum from 9 February 2007, thus making a total of $110,740.07. (Page 34)
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