Dagenham Nominees Pty Ltd v Shanks

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DAGENHAM NOMINEES PTY LTD v SHANKS
[2012] SASCFC 41
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice White)
26 April 2012
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS - GENERALLY
SALE OF GOODS - CONDITIONS AND WARRANTIES - IMPLIED CONDITIONS AND WARRANTIES - QUALITY OR FITNESS FOR PARTICULAR PURPOSE - FITNESS FOR PARTICULAR PURPOSE - IN GENERAL
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - ONUS OF PROOF - OTHER MATTERS
DAMAGES - GENERAL PRINCIPLES - MITIGATION OF DAMAGES - WHAT MATTERS MAY BE CONSIDERED
Appellant designed, supplied and installed the mast and rigging for a 56 foot racing yacht. The mast broke during a race.
Whether mast installed was fit for its purpose - whether the way in which the yacht was sailed caused or contributed to the mast failure - whether trial judge correctly found the mast was not fit for its purpose because of lack of strength in spreader and mast - whether respondent failed to mitigate its loss - whether trial judge correct on onus of proof.
Held: Trial judge correctly held that the cause of the broken mast was the insufficient strength of the spreader and mast - there was expert evidence to support the findings of the trial judge - mast not fit for its purpose, the trial judge correctly held that the manner of sailing did not cause or contribute to the broken mast - the respondent did not fail to mitigate its loss - judge erred in discussing onus of proof but correctly decided that the respondent had proved its case in any event.
Dagenham Nominees Pty Ltd v Shanks [2011] SADC 81; Dagenham Nominees Pty Ltd v Shanks [2003] SASC 219; Dagenham Nominees Pty Ltd v Shanks [2007] SASC 242; Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365; J Kitchen & Sons Pty Ltd v Stewart's Cash and Carry Stores (1942) 66 CLR 116, considered.

DAGENHAM NOMINEES PTY LTD v SHANKS
[2012] SASCFC 41
Full Court: Doyle CJ, Anderson and White JJ

THE COURT:
Introduction
This is an appeal from a judgment of the District Court: see Dagenham Nominees Pty Ltd v Shanks [2011] SADC 81. The Judge dismissed a claim by the appellant (Dagenham) for the unpaid costs of designing, manufacturing and installing a new mast for the respondent’s yacht. The Judge allowed a counter claim by the respondent (Dr Shanks) for the expenses incurred in replacing the mast. The mast had broken during a yacht race in Gulf St Vincent.
Dagenham agreed with the respondent to design, supply and install a new mast and the associated rigging. There is no dispute that Dagenham knew the purpose of the new mast and rigging, namely, for use on a yacht in ocean racing including the Sydney to Hobart yacht race. Dagenham admits that it supplied and installed masts and rigging for yachts in the ordinary course of its business and admits that it was an implied condition of the contract to supply the mast and rigging that they would be fit for the purpose of ocean racing.
The issue at trial was whether the mast and rigging supplied were reasonably fit for their intended purpose. That issue can be further refined to one of whether the mast and rigging had been manufactured with the requisite strength for ocean racing by Doctel Rager.
Background Facts
Dr Shanks is the owner of Doctel Rager, a 56ft sailing yacht. In February 2001 Dr Shanks was racing Doctel Rager in Gulf St Vincent, off Outer Harbour. During the race he changed course by performing a gybe. In the course of this manoeuvre Doctel Rager broached and the mast collapsed. A broach is a sudden change in direction of a yacht, involving the yacht turning broadside to the wind and becoming unbalanced. The mast was cut loose and sank.
The Judge found that the mast failed because of the failure of the lower starboard spreader, and that this failed because it was not adequate to meet the loads that would be placed upon it. A spreader is a piece of wood or metal, attached to the mast of a vessel, that is used to spread apart the shrouds, a wire that runs from the top of the mast to each of the spreaders, on each side of the mast, and then is attached to the side of the vessel. The shrouds are part of the rigging used to hold the mast upright.
Dagenham carried on a business which included the design, supply and installation of masts and associated rigging for yachts. It was retained by Dr Shanks. Between April 2000 and October 2000 Dagenham, through Mr Banwell, prepared the design, and supervised the construction and installation, of the mast in question. The mast was 22.85 metres in height. In preparing the design, Dagenham used a computerised design program developed by a naval architect, Scott Jutson.
Dagenham issued proceedings in June 2001 claiming payment for its work. Dr Shanks counterclaimed for the cost of replacing the mast. He alleged that it was not fit for its intended purpose, which included offshore yacht racing, including races such as the Sydney to Hobart yacht race. Doctel Rager had raced in a number of Sydney to Hobart yacht races, and in other offshore races. Dagenham admitted that it agreed to design and supply and install such a mast.
Dagenham denied that the mast failed by reason of it having inadequate strength, or because of any deficiency in its design, construction or installation. Dangenham alleged that Dr Shanks had mishandled Doctel Rager on the day in question. It alleged that he overloaded the mast and rigging by setting too much sail during the leg in question, and then by allowing Doctel Rager to broach as it did in the course of the gybe. Dagenham also alleged that Dr Shanks failed to take reasonable steps to minimise his loss by failing to recover the mast.
The trial Judge found in favour of Dr Shanks, and awarded him damages of $69,643.21, after allowing for an offset in favour of Dagenham. Dagenham now appeals.
The case has an unfortunate history. Dr Shanks was successful in an earlier trial, but on appeal the decision was set aside because the Judge had not made findings on matters essential to his conclusions: see Dagenham Nominees Pty Ltd v Shanks [2003] SASC 219. The case was remitted to the trial Judge for further hearing. Further evidence was given. The Judge again found for Dr Shanks. Dagenham again appealed, and again the Full Court found that the Judge’s reasons were inadequate: see Dagenham Nominees Pty Ltd v Shanks [2007] SASC 242. The Court ordered a retrial before a different Judge. The present appeal is against the decision in that retrial.
Preliminary Comment
The retrial was lengthy, occupying some 17 days. The parties led a substantial quantity of very technical expert evidence about design, construction and installation of this mast and in respect of masts generally, and about the performance of the mast, or likely performance, under sailing conditions. Much of the evidence involved complex calculations and measurements, and complex principles and theories relating to the design, construction and installation of masts on yachts. The Judge gave detailed reasons for her decision. While Mr Scragg, counsel for Dagenham at trial and on appeal, criticised aspects of the Judge’s reasons, there is no suggestion on this occasion that the Judge’s findings are not adequate to support the conclusion reached. The issue is whether the Judge has erred in some of her findings.
The dispute over the suitability of the mast for its intended purpose generated a number of disputed subsidiary issues of a highly technical nature. Some of them seem to us to be of marginal significance.
Many of the submissions on the appeal were directed to technical issues fought out before the Judge. This was particularly so in the case of the submissions by Mr Scragg.
As we will attempt to demonstrate in these reasons, the Judge’s decision can and should be upheld on the basis that it rests on the expert and technical evidence, and does not require close analysis of all aspects of that evidence.
The Judge relied on the expert evidence called by Dr Shanks. The key witnesses were Mr Mitchell and Mr Dovell. The Judge rejected the evidence of Mr Doherty who was an expert called by Dagenham.
The Judge considered that it was not essential to find the actual cause of the mast breaking. However, she went on to find that “the mast broke in consequence of a failure of the lower starboard spreader and that the cause of the failure of the spreader was that it was not adequate to meet the loads that would be placed upon it”.
It is reasonable to conclude that a purpose-built mast for a racing yacht will not break in conditions to which the yacht may reasonably be exposed when racing. As already noted the Doctel Rager was intended for ocean racing, which included races such as the Sydney-Hobart yacht race.
A yacht may be exposed to conditions unreasonably, whether by recklessness, unprofessional sailing or negligence. The implied condition of fitness for purpose may not require a mast to be sufficiently strong to be able to withstand all the forces to which it may be subject in such conditions. It was in fact that scenario that was alleged by Dagenham but rejected by the Judge.
Onus of proof
Dagenham submitted that the Judge erred in her consideration of the onus of proof. Her Honour said:
[22]… The plaintiff bears the onus of establishing that it had satisfied that implied term in order to successfully enforce the contract. …
She also said:
[145]The onus is on the plaintiff to show that the mast and rigging were fit for purpose. Given the plaintiff has not established what it designed manufactured and constructed it has failed to discharge that onus. …
Finally Her Honour said:
[210]… The plaintiff has failed to establish that this particular broach was a remarkable event. I consider that the mast should have catered for the broach that occurred here and that its failure to do so reinforces my finding that the plaintiff has failed to establish that the mast was fit for its purpose.
Mr Swan for Dr Shanks accepted that these statements of the Judge as to where the onus of proof lay are incorrect. He accepted both at trial and on appeal that Dr Shanks bore the onus of establishing that the mast was not fit for its purpose.
We agree that the Judge’s view of the onus of proof is incorrect: see Sanpine v Koompahtoo Local Aboriginal Land Council [2005] NSWSC 365 at [170]-[186]; J Kitchen & Sons Pty Ltd v Stewart’s Cash and Carry Stores (1942) 66 CLR 116 at 126-128. However, the Judge made a finding in the alternative to the effect that, if Dr Shanks did have the onus, he had discharged it:
[24]Even if I am wrong about this, for the reasons that follow, it can be seen that I accept the defendant’s case that, on the balance of probabilities, the mast broke in consequence of a failure of the lower starboard spreader and that the cause of the failure of the spreader was that it was not adequate to meet the loads that would be placed upon it.
Accordingly, we are satisfied that the Judge’s error as to the onus did not affect the conclusion which she reached.
The Strength of the Mast and the Spreader
As already noted, Dr Shanks’ claim was that the mast and spreaders which Dagenham supplied and installed on the Doctel Rager were not fit for the intended purpose because they were of insufficient strength.[1] He claimed, in particular, that Mast Panel No 1 (which we understand to be the panel between the deck and the first set of spreaders) was between 56 and 70 per cent of the necessary athwartships strength, and only 56 per cent of the appropriate strength in those portions of the panel which were not reinforced.[2] Dr Shanks claimed that Mast Panel No 2 (which we understand to be the panel of the mast between the first and second set of spreaders) was only 57 per cent of the appropriate athwartships strength. In relation to the spreaders, Dr Shanks alleged that the spreaders at level one were 57 per cent of the buckling strength required.[3]
[1] Further Amended Defence and Counterclaim at [13].
[2] Ibid at [13.1.2].
[3] Ibid at [13.1.4].
Dr Shanks claimed that the fracture of the first starboard spreader occurred first and was the cause of the mast breaking shortly afterwards. He claimed that the spreader broke because it was of insufficient strength, especially as it was fixed rigidly to the mast at its inner end.
The Judge accepted Dr Shanks claims with respect to the strength of the first starboard spreader and the role which it had played in the failure of the mast. Her Honour found that the mast failed by bending following the break in the spreader: reasons [132]. The break occurred in Mast Panel No 1. Later the Judge found that the spreader was undersized, causing it to break and, in consequence, the mast to suffer a bending failure to port: reasons [143].
It was common ground at the trial that Dagenham had constructed the mast by fixing the inner end of each spreader to a collar which was then mechanically fitted to the mast: reasons [43], [101]. The two experts called by Dr Shanks, Messrs Mitchell and Dovell, were critical of this method of fixation. In his report of 12 October 2009, Mr Mitchell said:
During the visit to Adelaide, I became more aware not of the mast and spreader section properties that we already knew, but actually how they were manufactured and assembled. I was aghast that the spreader section (extrusion) was welded directly to the mast section. I consider it a totally unsuitable and unsafe practise to weld the spreader section rigidly to the mast on a 56’ sailing yacht. This is because as the rigging stretches and the mast bends, the spreader has to articulate to suit. By rigidly welding the spreader to the mast this will produce very high flexural stresses into the mast and spreader. I believe that this alone could have caused a spreader failure.[4]
In his oral evidence, Mr Mitchell acknowledged that the spreader had been welded to a collar which was in turn welded to the mast, but remained critical of this method of fixation.[5]
[4] Exhibit D5C, p148.
[5] T582.
In his separate report of 22 October 2009, Mr Dovell described the fixing of spreaders with an effective pivot at the inboard end about the fore/aft axis as being industry standard.
The Judge accepted the evidence of Messrs Mitchell and Dovell to the effect that the fixing of the spreader to the mast at its inner end without any means of pivot had the consequence that the spreader needed to be considerably stronger than would otherwise have been the case: reasons [119]. Mr Dovell’s evidence on this topic was that if the inner end is fixed so as to prevent any degree of pivot, then the spreader should be 4-5 times stronger than if some pivoting is possible.[6]
[6] T201-2, T344.
Mr Scragg accepted on the appeal that the Judge’s finding on this topic was open and did not contend that it was erroneous.
Both Mr Mitchell and Mr Dovell expressed the opinion in their evidence that Mast Panel No 2 was substantially under-strength. Mr Dovell said that it was only 57 per cent of the appropriate strength. It is apparent that Dr Shanks’ pleading was based on this opinion of Mr Dovell. The Judge accepted the evidence of Mr Mitchell and Mr Dovell about these matters: reasons [89]. Her Honour noted that Dagenham had not called expert evidence to contradict the opinions of Messrs Mitchell and Dovell on this topic.
A consideration of the evidence of the experts concerning the strength of the mast and spreaders confirms the soundness of the Judge’s conclusions and the absence of any basis upon which this Court could interfere with her findings.
There were difficulties for the Judge in making an assessment of the precise dimensions and strength of the mast built by Dagenham. It could not produce a detailed drawing or design used in the construction of the mast, and the versions of the workshop drawing which it did produce had details which had obviously been added after the failure of the mast. Mr Banwell (the principal of Dagenham) himself described the workshop drawing (Exhibit D6) upon which Dagenham had worked as being “pretty crude” and as “indicative” only.[7] Mr Banwell had made a number of reconstructions and had produced models of the mast as built. However, the Judge said that she had no confidence that these reconstructions were accurate: reasons [31].
[7] T928, 1020, 1099.
It seems, however, that the engineering experts prepared their opinions on the basis of Dagenham’s workshop drawing, and other information, provided by Dagenham. That is to say, despite the uncertainties as to the precise dimensions and construction of the mast, much of the expert evidence was given on a basis which was favourable to Dagenham.
Mr Dovell
Mr Dovell is an experienced naval architect, who had been involved in yacht design for more than 20 years. He has a Masters Degree in Engineering (Naval Design and Offshore Engineering). Mr Dovell was retained by Dr Shanks in late 2007 to provide an opinion on the adequacy of the strength of the mast.
For the purpose of providing his opinion, Mr Dovell assumed that the mast had been constructed in accordance with Dagenham’s workshop drawing. In order to evaluate the adequacy of the mast’s strength, he prepared his own “standard rig layout plan” based on Dagenham’s rig plan.[8] He then provided this plan, together with Doctel Rager’s righting moment, to Applied Engineering Services NZ Ltd (AES). Mr Dovell said that his usual practice when retained to prepare a mast and rigging design for a yacht was to sub‑contract the engineering aspects. Although he is qualified to perform this work, Mr Dovell said that he regards it as a specialist task and for this reason thinks it appropriate to retain a specialist engineer. He regarded AES as such a specialist. Thus, in briefing AES in relation to Dagenham’s design, he was following his usual practice.
[8] Exhibit D5A at [3.5].
On the appeal, Mr Scragg accepted (indeed emphasised) that the dimensions on the plan which Mr Dovell provided to AES matched those on Exhibit D6, Dagenham’s workshop drawing.
Mr Dovell instructed AES to “engineer the rig and [to] prepare a specification for the mast tube, spreaders and all elements of standing rigging”.[9] In other words, AES was to advise as to the appropriate engineering design and specifications. Mr Dovell did not inform AES of the name of the yacht in respect of which he sought the information, nor that he sought its assistance in relation to a matter which was being litigated.
[9] Exhibit D5A, pp 3-4.
Mr Mitchell is a principal of AES. He provided his recommended “rig layout” and specification to Mr Dovell in September 2007. As it happened, in 2004 Mr Banwell had also requested Mr Mitchell to provide recommendations for the rig layout on Doctel Rager. He had given Mr Mitchell his sail plan and other data for this purpose. The design and specifications which AES provided to Mr Dovell in 2007 matched, in material respects, the design and specifications which it had provided to Mr Banwell in 2004. This was significant as the Judge accepted that Mr Mitchell was unaware in 2007 that he was being asked for recommendations in relation to the same yacht as that upon which he had advised in 2004.
Mr Dovell said that on receiving the design and specification from AES, and in accordance with his usual practice, he made a cross-check of some of the critical elements in Mr Mitchell’s design. For this purpose he made a number of his own calculations.

In order to assess the strength of the mast and spreaders which Dagenham claimed had been built, Mr Dovell then made a comparison of the data relating to the strength of the mast and spreaders as provided by Dagenham on the one hand, with the specifications recommended by Mr Mitchell (as verified by his cross-checking), on the other. The data which Dagenham provided was produced by ArupWater (Mr Doherty) in 2002. Dagenham had at that time retained ArupWater to make an assessment of the as-built mast and, apparently, its strength. As we understand it, Dagenham provided to ArupWater at that time a copy of the workshop drawing together with other information about the materials used in the construction of the mast.
Using the assessment made by ArupWater in 2002, Mr Dovell calculated that both the Mast Panel No 2 and the first starboard spreader had 57 per cent of the strength recommended by Mr Mitchell (in the athwartships direction in the case of the mast panel, and in its buckling strength in the case of the spreader).[10] He also considered that all but one element of the “as built” mast was under strength when compared with Mr Mitchell’s recommendations.[11]
[10] Exhibit D5A at [4], Annexure 4A.
[11] Ibid.
Mr Dovell concluded in his report of 7 December 2007 that the most likely cause of the mast failure was the failure of the first starboard spreader “in a combined bending and compression loading associated with the broach that was being experienced at the time of the failure”.[12] Mr Dovell went on to say:
It is my opinion that it was just a matter of time until this rig failed in one of the many extreme loading scenarios racing yachts find themselves [in] on a fairly regular basis as there was just not enough strength margin on many of the key elements of this rig as built.[13]
[12] Exhibit D5A at [6.5]. See also T185.
[13] Ibid at [6.6].
In a later report, and following revised information as to the thickness of the material used in the spreaders, Mr Dovell reviewed his analysis. On that revised analysis he concluded that the spreaders were only 60 per cent of the minimum specified by AES.[14]
[14] Exhibit D5A (Report 30 April 2009) at [15].
In his oral evidence, Mr Dovell said that in making his comparative analysis, he had assumed that the spreaders were not rigidly fixed to the mast. The fact that the spreaders were fixed rigidly to the mast meant, he considered, that they had to be at least four times stronger.[15]
[15] T344.
There was minimal cross-examination of Mr Dovell about his calculations as to the strength of the mast and the spreader[16] and, on our understanding, they were not contested by Mr Doherty, the engineering expert called by Dagenham.
[16] T379.
Mr Mitchell
Mr Mitchell has a Bachelor of Engineering (Hons) (Mech Eng) from the University of Auckland obtained in 1984. Subsequently, he obtained a Masters of Engineering Degree. Mr Mitchell is the principal of AES which is extensively involved in the design and production of yacht masts. He estimated that he had been involved in the design and production of approximately 2,000 masts.
In his evidence, Mr Mitchell confirmed the recommendations which he had made to Mr Banwell in 2004 and to Mr Dovell in 2007. He also confirmed that at the time of making each of those recommendations, he had been unaware that they had been sought in relation to litigation about the adequacy of the mast and rigging, and that he had been unaware in 2007 that he was being asked for information in respect of the same yacht upon which he had previously advised.
Mr Mitchell made the point that he had not been asked to provide recommendations as to appropriate rig layout based on the “state of the art” in 2000 (when Dagenham had performed its work). Hence he had used the information and technology which was available in 2004 and 2007 respectively. He said that if the position was considered in the light of the information known in the industry in 2000, his recommendations would have been much the same but that some of the inertia requirements could be reduced by 10 per cent. He emphasised, however, that his recommendations as to the standard rigging and as to the spreaders would not have altered.
Mr Mitchell said that the design and strength which he had recommended allowed for reasonable longevity of the mast over a period of 15-20 years service.[17] He was not asked to comment on Mr Dovell’s comparison, but did indicate his awareness of it, and confirmed that the mast which Dagenham claimed it had designed and installed was not as safe and conservative as that which he had recommended.[18] He described the strength of the spreader as being “quite a way below what I recommended”.[19]
[17] T117.
[18] Exhibit D5C, Report 29 April 2009 at pp 7-8.
[19] T863.
As noted earlier, Mr Mitchell gave his recommendations on the assumption that the spreaders would not be rigidly fixed to the masts. He considered that if the spreaders did not have some degree of pivot at the mast, then they needed to be considerably stronger.
In his report of 29 April 2009, Mr Mitchell said that he had prepared his recommendations using “a normal factor of safety” of about 2.5. He went on to say:
[T]hat implies that a mast section at 40% of the recommended AES size would have a factor of safety of 1. So, in other words a rig even at 40% of the AES recommended size should be able to survive normal sailing in steady state, albeit with little or no longevity for fatigue and shock loads. So, I would not dispute that the panel 2 inertia could be ‘survivable’ at 40% of the AES recommended sizes. However, in order for the rig to survive with smaller mast inertia we believe that the stay setup pretentions would have to be ideal for the critical cases in the respective panels and that it would be exceedingly difficult to get this exactly right for every panel.[20]
[20] Exhibit D5C at pp 5-6.
In his oral evidence, Mr Mitchell explained that he incorporated the safety factor of 2.5 in order to satisfy the requirements of Germanischer Lloyd (which, as we understand it, is an entity involved in safety surveys of ships and boats).
There was no suggestion in the evidence that it was necessary for Doctel Rager to meet the requirements of Germanischer Lloyd. On the other hand, there was no suggestion that Mr Mitchell’s recommendations involved a degree of over-engineering, or specifications which were unnecessary for yachts such as Doctel Rager. On the contrary, Mr Mitchell said that AES had used its “standard method that has been very successful for nearly 2,000 rig designs”.[21] It is noteworthy that both Mr Banwell, on behalf of Dagenham, and Mr Dovell, on behalf of Dr Shanks, had thought it appropriate to obtain AES’ recommendations. There was therefore no reason for the Judge to conclude that the AES recommendations reflected a degree of strength which was unreasonably high, or which exceeded that which was necessary in order that the mast be reasonably fit for its intended purpose.
[21] Exhibit D5C at p 5.
Mr Doherty
Mr Doherty has an honours degree in civil engineering and has had considerable experience as a civil engineer. His work experience did not seem to involve, however, the design and engineering specifications for yachts. Mr Doherty was retained by Dagenham.
Mr Doherty did not contend that the recommendations of Mr Mitchell were inappropriate, nor that the comparative analysis made by Mr Dovell was inappropriate. Instead, by applying computerised modelling to the dimensions of the rig layout and other data provided by Dagenham, Mr Doherty made a detailed analysis of the forces to which he considered the rig may have been subject. On that analysis he was unable to replicate any circumstances in which the mast would fail. Dagenham relied upon this evidence for the submission that the mast had failed on 3 February 2001 because of Dr Shanks’ misuse of the yacht, rather than because of the inadequate strength of the mast and spreaders.
This meant, as the Judge noted, that Dagenham did not lead any evidence from its engineering expert to the effect that the designed strength of the mast and spreaders was adequate, nor evidence that the deficiencies identified by Mr Mitchell and Mr Dovell were not present, but only evidence that computerised modelling did not suggest that the mast and spreader would break in a range of different scenarios: reasons at [88].
The Judge rejected Mr Doherty’s opinion for a number of reasons. First, Mr Doherty had relied for the inputs into his computer modelling on a plan of the mast provided to him by Mr Banwell, (Exhibit D14). The Judge found that this plan was based upon Dagenham’s workshop drawing (Exhibit D6) but that it contained detailed coordinates added by Mr Banwell after February 2001. Further, a copy of Exhibit D14 had not been discovered by Dagenham and accordingly had never been considered by Mr Dovell or Mr Mitchell. The existence of the document which became Exhibit D14 became known only during the course of Mr Doherty’s evidence, which was after Messrs Dovell and Mitchell had completed their evidence.
Secondly, as previously noted, the Judge said expressly that she had no confidence that the detail in Mr Banwell’s reconstruction of the mast and rig as supplied to Mr Dovell was accurate.
Thirdly, the Judge considered that even if Mr Banwell’s reconstruction was accurate, Mr Doherty had misunderstood the precise nature of the coordinates entered by Mr Banwell on Exhibit D14. In entering the coordinates on the copy of the workshop drawing, Mr Banwell had worked on the basis of the forces which would be exerted on the rig as a result of the jacking strain of 10 tonnes placed on it at the time the mast was installed together with a righting moment at 30 degrees.[22] However, Mr Doherty had understood that the coordinates were those which applied when Doctel Rager was sitting upright with the mast vertical.[23] In those circumstances, the Judge found that Mr Doherty had proceeded on a flawed set of assumptions: reasons at [140]-[141].
[22] T1144-45, 1148.
[23] T1386-92.
Next, the Judge considered that Mr Doherty’s computerised modelling had not taken account of the possible shock loads to which the mast may be subject. In his evidence, Mr Doherty accepted that shock loads cause forces over and above those taken into account in a static analysis.[24] This had the effect, so the Judge concluded, that the fact that Mr Doherty’s computerised modelling did not explain the failure of the mast and did not, by itself, mean that the mast was properly designed: reasons at [143].
[24] T1403.
Finally, the fact that Mr Doherty’s computerised modelling could not explain the break of the mast raised issues about its utility. The fact of the matter was that the mast had broken as a result of the forces to which it and the rigging had been subject.
The Judge’s Conclusions concerning the Strength of the Mast and Spreaders
As noted earlier, Mr Dovell’s conclusions, based on his comparative analysis, were hardly contested at the trial. Nor was there any suggestion that Mr Mitchell’s recommendations involved a degree of over-engineering, or special purpose design. Mr Scragg’s submissions on appeal did not indicate any error by the Judge in her conclusion that the spreader and the mast as constructed by Dagenham were well below the strength which was appropriate.
The Judge’s conclusion appears in the following passages:
[87]… Both Mr Dovell and Mr Mitchell said that in particular the second panel of the mast was substantially under strength compared to Mr Mitchell’s calculations as cross checked by Mr Dovell. Mr Dovell said it was only 57% of the strength proposed by Mr Mitchell. Mr Dovell indicated his opinion that the most likely cause of mast failure was the failure of the first spreader on the starboard side. He said this was consistent with the photograph of damage of the remains of the mast.
[88]The plaintiff did not call any expert evidence, beyond that given by Mr Banwell, on the topic of the strength of the mast or spreader. Despite the content of the Arup Water report there is no evidence from Mr Doherty that the designed strength of the mast or spreader was adequate. This was not his approach. He worked on the basis that his modelling did not suggest the spreader or mast should have broken given a range of different scenarios. Of course he was working on different data to that provided to Mr Mitchell and Mr Dovell a topic to which I will turn shortly.
[89]Neither Mr Dovell nor Mr Mitchell’s evidence on this topic was shaken in cross examination and I accept it.
Although the notice of appeal alleges 26 separate errors by the Judge, it did not include any complaint concerning the Judge’s findings contained in these passages.
At the trial, Dagenham devoted much time to its challenge to the opinions of Mr Dovell and Mr Mitchell that there should not be rigid fixation of the spreader at its inboard end and that the rigid fixation meant that the spreaders had to be considerably stronger. This involved leading evidence as to the forces to which the spreader may be subject in a variety of configurations.
Mr Banwell undertook a photographic survey of mast and spreaders attachments on various boats in November 2009 which indicated, he claimed, that it was not industry practice to have some form of pivot at the inner end of a spreader. The Judge regarded Mr Banwell’s photographic survey as of limited value as the tendered photographs did not display adequately the fixation method, the size of the boats or the construction of the various spreaders: at reasons [104].
The Judge did not consider it necessary to resolve whether fixation or non-fixation of the inner end of a spreader was industry practice. She was satisfied, in any event, that if a spreader is fixed rigidly to a mast then it must be considerably stronger in order to accommodate the eccentric forces to which it may be subject. On this topic the Judge accepted the following passage from Mr Dovell’s report of 22 October 2009:
If a column with one fixed end is to have the same load capacity in buckling as a column with both ends pined, then according to Euler’s theory of buckling, the column will require only half the section moment of inertia as for the column with both ends pined.
However this assumes that the fixed end is fixed directly in line with the column and the buckling load.
If the fixed end is not fixed exactly in line with the buckling load, then the column will act more like a column of twice its length with both ends pined with a small offset at its mid-point.
It is my opinion that it would be virtually impossible to tune a rig that has spreaders with fixed inboard ends such that the applied load at the outboard end of the spreader is directly in line with its fixing at the base for all critical load cases as the side rigging stretches differing amounts for each load case, and offsets with time. Which means that the spreader tip will not always be directly in line with the base fixing.[25]
Mr Mitchell expressed similar views.
[25] Exhibit D5A at [2.3]-[2.6].
At trial, Dagenham made a number of criticisms of the evidence of Messrs Dovell and Mitchell in this respect. The Judge rejected these criticisms, saying:
[118]The theoretical principles applied by both Mr Mitchell and Mr Dovell are supported by the evidence of Mr Doherty. Mr Doherty also said that if the spreader broke it was likely to break where it did about 300 millimetres or more out from the mast. This is consistent with Mr Mitchell’s view and Mr Wall-Smith’s evidence about the location of the break.
[119]I accept the evidence of Mr Mitchell and Mr Dovell that the fact that the spreader was fixed at the inner end meant that the spreader needed to be considerably stronger than a spreader that would pivot in order to cope with the high flexural stressors that would be imposed upon it. There is no evidence that the plaintiff appreciated this or made allowance for it in its design and construction.
Mr Scragg made a number of submissions concerning the possible movement of the tip of the spreaders and in particular the direction and extent to which they could move. He submitted that it would be impossible to get sufficient movement at the tip as illustrated by Mr Doherty’s calculations. This was part of his criticism of the opinion of Mr Mitchell that the spreader was not strong enough because it was fixed to the mast. However, as Mr Scragg acknowledged, this proposition was not put to Mr Mitchell.
On our approach much of the evidence about the suggested uncertainty as to the details of the mast and spreader construction as built, and the evidence about the rigging and fitting of the mast, is not of any great overall importance. The crucial findings to which we have referred are sufficient to support the Judge’s conclusion, and they do not depend upon the outcome of this particular dispute.
Mr Scragg referred to the strength of the spreader at various places as calculated by the experts and submitted that the point at which the spreader failed was in fact stronger than Mr Mitchell had assessed as the required strength. He said Mr Mitchell accepted this proposition.
This submission does not accurately reflect Mr Mitchell’s evidence. That evidence was given in response to questions from Mr Scragg in which Mr Mitchell was expressly asked to ignore, for the purposes of the question, that the spreaders were fixed at one end.[26] Mr Mitchell made it plain that the important factor was the rigid fixing of one end of the spreader to the mast and that because of that fixation the strength of the spreader was insufficient. He said that the spreader broke at the very place which one would have predicted because of rigid fixation. This evidence was not seriously challenged. Indeed, Mr Scragg conceded that the Judge’s finding that the spreader was not strong enough because it was fixed rigidly to the mast was a finding which was open on the evidence.
[26] T677-8.
The Judge addressed this contention by Dagenham at [81] of her reasons and went on to say:
[82]There are two difficulties. First the plaintiff cannot say with precision what was built. Second, Mr Mitchell did not concede that the spreader was stronger than his recommendation at the point where the spreader broke. The plaintiff relies on Mr Mitchell’s evidence at page 678 of the transcript for this proposition. I reject this proposition. When read in context it is clear that in this passage of cross examination Mr Mitchell was dealing with the reinforced spreader section as shown in exhibit D9. It is not at all clear that the spreader broke in a reinforced section because the location of the reinforcing is not established. Further, there is no evidence that the spreader was constructed as shown in exhibit D9. In fact, as outlined above, Mr Banwell appears to contend that it was not. In any event, Mr Mitchell’s evidence about the position of the break in the spreader was that:
The properties of the spreader are doubled at the embedded end right where it connects to the mast and then they drop away substantially over that first 300 to 600 mm. That’s precisely where I would have expected it most likely to break.
We see no reason to interfere with this assessment of the evidence. As the Judge went on to find, Mr Mitchell’s evidence is consistent with the position at which the spreader broke as described by Mr Wall-Smith: reasons at [83].
In summary, on the critical question concerning the strength of the mast and the spreaders, the Judge accepted the evidence of the experts called by Dr Shanks, which evidence was given on the basis that the mast and spreaders had been constructed in the manner claimed by Dagenham. The Judge rejected the criticisms made by Dagenham of that evidence. We consider that on these critical matters Dagenham has not demonstrated error by the Judge nor any other circumstance warranting this Court’s interference.
Other Submissions on Appeal

It was not always easy to follow Dagenham’s submissions on the appeal. Many were at a level of generality; others seemed to focus on matters of peripheral detail; others were made without reference to the evidence; and others were bald assertions appearing to take the form of evidence from the bar table.
General Submissions as to the Strength of the First Panel
One general submission made by Mr Scragg was as follows:
The mast is divided into a series of panels for the purpose of engineering assessment. The first panel is that part of the mast between the deck and the first spreader. The first panel was strong enough as it survived the incident undamaged. It remained perfectly straight which shows that it did not yield and therefore was strong enough. The first panel has to be the strongest. As the other panels use the same mast section they were therefore also strong enough. This contradicts the conclusions of the respondent’s experts.[27]
This submission cannot be accepted. It is based on a false premise because the break in the mast occurred in the first panel, approximately 400 mm below the spreaders. Even if the premise for the submission had been correct, Mr Scragg did not point to any expert evidence indicating that the fact that one part of the mast remained sound indicated necessarily that the whole of the mast was of sufficient strength.
[27] Written Summary of Argument at [3].
Rejection of Mr Doherty’s Opinion
Dagenham was critical of the Judge’s rejection of Mr Doherty’s evidence. However, as the Judge noted, Mr Doherty’s computerised modelling could not provide any scenario explaining the break of the mast, even though it was an undisputed fact that the break had occurred. By itself this undermined the validity of Mr Doherty’s approach.
Mr Scragg submitted that the Judge had erred in understanding that the coordinates which Mr Banwell entered on Exhibit D14 were other than those applicable to the Doctel Rager sitting upright in the dock with its mast vertical. The submission, as we understood it, was that those coordinates did reflect the position assumed by Mr Doherty.
This was an example of a submission being made in general terms but without reference to the evidence. We have ourselves checked the evidence. It is not easy to find a clear statement in Mr Banwell’s evidence of the basis upon which he calculated the coordinates which he entered onto Exhibit D14. There are passages in the evidence in which it appears to have been assumed that the coordinates represented the basis reflected in the Judge’s finding. However, the position is not clear.
This does not mean that Dagenham’s criticism of the Judge’s finding should be upheld. It was of course for Dagenham to establish the basis for Mr Doherty’s opinions. To the extent that that basis rested upon calculations prepared for Mr Doherty by Mr Banwell, the basis for the calculations had to be proved through Mr Banwell. That did not occur. Part of Dagenham’s difficulties in this respect arises from the fact that the existence of the document which became Exhibit D14 became known only during the cross-examination of Mr Banwell. That is to say, Dagenham had not established in the evidence-in-chief of Mr Banwell, as was required, the proper basis for Mr Doherty’s opinion.
Accordingly, we do not consider that this is a basis upon which the Judge’s finding should be disturbed.
No Reliable Dimensions of the Mast and Spreaders as Constructed
Mr Scragg criticised the Judge’s finding that there was no reliable evidence as to the dimensions of the mast as actually constructed. He submitted that an analysis of the evidence shows that the mast had been built more or less according to the specifications set out in Exhibit D6 (the workshop drawing to which Mr Banwell had added some details after the failure of the mast). Mr Scragg submitted that any discrepancies were so minor as not to be material. He further submitted that the issue of whether the mast was built according to D6 was not really contentious during the trial.
Mr Scragg relied on a document known as an IMS certificate. He referred to the data which is contained on the certificate. He submitted that the certificate establishes the exact dimensions used in the construction. He submits that the IMS certificate covers all the measurements of the mast array. Mr Scragg concedes that there is no evidence specifically in relation to the significance and reliability of the certificate but submits that this was not a matter in contention at the trial.
The IMS certificate is explained in the glossary of terms agreed by the parties. It states:
The initials stand for International Measurement System. The system was devised to enable yachts of different size, weight and age to race evenly within this handicap system. Part of this process is to produce a certificate for rating purposes of the handicap system. The system allows for the yacht owner to revalidate the certificate without the necessity of a full re-measurement of the yacht.
Mr Scragg relied on the IMS certificate as indicating the specifications and dimensions of the mast as constructed. We agree that the IMS certificate may provide some evidence in that respect. However, that does not assist Dagenham in overturning the Judge’s finding that, even if built in the manner for which it contended, the mast and rigging were of insufficient strength. Very simply the experts accepted by the Judge said that even if the mast and spreaders were constructed in accordance with Exhibit D6, they were not strong enough. The experts gave their reasons for that. We have dealt with that evidence earlier.
It is not necessary to engage in a detailed consideration of Mr Scragg’s submissions on this topic. That is because the case was decided against Dagenham on the basis that the mast had been constructed in the manner which it had itself put forward.
Weight and the Righting Moment
Many of Dagenham’s submissions were directed to the righting moment of Doctel Rager. Mr Scragg submitted that Dr Shanks had misinformed Mr Banwell about the true weight of Doctel Rager when retaining him to design and construct the mast and rigging, by understating significantly its weight. The effect was that the righting moment which Mr Banwell had used when preparing the design had also been underestimated. Dagenham’s case was that if Mr Banwell had been correctly informed as to Doctel Rager’s weight, he would have known that a stronger mast was necessary. That is so because, as the weight of a boat and its righting moment increases, so also does the required strength of the mast.
As we understand it, the righting moment of a boat is a measure of the force necessary to “right” the boat to an even keel position from an athwartships tilted position. That force is affected by a number of factors including the weight of the boat and the distribution of the load on the boat.
It was common ground at the trial that the weight of a boat does affect its righting moment. In any event this was confirmed by the evidence Dagenham led from an engineer, Mr Peachey, who had made precise calculations of the righting moment of Doctel Rager on certain assumptions, including different estimates of its weight.
It also seemed to be common ground at the trial that Dr Shanks had misinformed Mr Banwell about the true weight of Doctel Rager. As we understand it, the weight which Dr Shanks conveyed to Mr Banwell was 11,870 kg whereas Dagenham contends Doctel Rager’s true weight was 15,480 kilograms.
There seem to have been at least three issues at the trial concerning the weight and righting moment of Doctel Rager. The first was whether the underestimate of the weight had led to an understatement of Doctel Rager’s true righting moment in two IMS certificates and, in particular, in the IMS certificate dated 14 November 1994[28] upon which Mr Banwell had relied when preparing his design.
[28] Exhibit D4, AB 39.
The second was whether Mr Banwell had, in any event, miscalculated the righting moment in preparing his design.
The third was whether Mr Banwell had taken into account in his calculation of the righting moment that the mast and spreaders which Dagenham was designing and constructing would weigh 30 per cent less than the mast and spreaders which they replaced.
As to the first of these issues, the Judge found that the righting moment on the relevant IMS certificate had been derived from a physical test carried out on Doctel Rager itself. Accordingly, the righting moment reflected the actual weight of Doctel Rager rather than some weight provided by Dr Shanks. The Judge’s findings appear in the following two paragraphs:
[98][T]he plaintiff has not established that the weight difference affects the righting moment as indicated in the IMS certificate. Whilst plainly Mr Peachey’s evidence indicates the weight does affect a calculation of the righting moment he does not say anything about the righting moment data on the IMS certificate other than to say he used it in his calculations. He said that he extrapolated from that data assuming a greater displacement and assuming all the data on the certificate were correct.
[99]Mr Mitchell gave uncontested evidence that the righting moment figures on the IMS certificate are the result of inclining tests which measure the righting moment of the boat at different angles of heel. In other words, the figures on the IMS certificate are actual measurements which incorporate the actual weight of the boat whatever that might be. Mr Peachey gave evidence after Mr Mitchell. He was not asked to comment.
The only challenge which Mr Scragg made to these findings was that the Judge had referred to Mr Mitchell’s evidence on the topic as “uncontested”. However, Mr Scragg did not point to the evidence of any witness who had given evidence on the topic which differed from Mr Mitchell’s. It is true that Mr Scragg, in submissions, challenged the evidence of Mr Mitchell and purported to give evidence from the bar table as to the manner in which the righting moment in the IMS certificate had been obtained. It was of course appropriate for the Judge to disregard that “evidence”. This is an example of a submission made by Mr Scragg without reference to any supporting evidence.
This challenge to the Judge’s finding accordingly fails.
As to the second issue, the Judge’s finding, although expressed circumspectly, was that Mr Dovell was correct in his contention that Mr Banwell had made inappropriate use of the righting moment shown in the IMS certificate: reasons at [94]. We consider that this finding was both open and appropriate.
The Jutson Design Program used by Dagenham required inputs of data from the IMS certificate relating to Doctel Rager, including the righting moments at various degrees of boat tilt (heel). In a letter of 1 May 2002 to Mr Banwell (Exhibit D10), Mr Jutson made it plain that his computerised program was based on the assumption that the IMS certificate data reflected the effect of the crew weight on the boat’s rail, as would be the case in actual sailing conditions. He said:
These values are determined by the IMS program using the vessel’s actual hull form and measured centre of gravity. As these are actual sailing moments the values also reflect the addition of crew weight on the rail as well as weight added to the vessel to simulate the effect of sails and crew gear that would be loaded on the vessel in actual racing mode.[29]
[Emphasis in original]
However, the IMS explanatory document indicated that the righting moments at the various degrees of heel are taken “with all crew on the yacht’s centre line”.[30]
[29] Exhibit D10.
[30] Exhibit D5A p64.
Mr Dovell expressed the view that this misunderstanding in the calculation of the righting moment had led Mr Banwell to underestimate by 15 per cent the loads to which the mast and rig would be subject. This in turn had led to “a 15 per cent under-specification of the strength of each and every component of the mast and standing rigging”.[31]
[31] Exhibit D5A at [2.14].
This means that the Judge’s finding had a proper basis in the evidence. It is, however, understandable that the Judge expressed her finding with some circumspection. The Judge was provided with a list of the matters which the experts (Messrs Dovell, Mitchell, Peachey and Doherty) had discussed and agreed upon in a conference of experts before giving their evidence. Item 6 of the agreed matters was as follows (see reasons at [93]):
Agree that the righting moment data used to design the rig should have had an RM30 of 11950kg*m; (this includes the crew weight positioned on the weather rail per IMS assumption). This value was established by this group during this meeting.
[Emphasis added]
As can be seen, the agreement of the experts on this item appears to reflect an understanding that the IMS certificate contemplated the crew weight being on the weather rail of the yacht. Given the clear statement to the contrary in the IMS documentation and Mr Dovell’s reliance on that statement, this item may not have accurately recorded the expert’s agreement or alternatively, may have indicated some misunderstanding by them as well of the IMS documentation. In either event, it was appropriate for the Judge to express her conclusion in the way which she did.
As to the third issue, the Judge considered that the effect of the reduced weight of the mast designed and installed by Dagenham on the righting moment had not been the subject of evidence and, accordingly, considered that it was not possible to make findings on that topic. We did not understand Dagenham to make any complaint about the way in which the Judge dealt with this issue.
It is appropriate to refer to one last submission of Mr Scragg on this general topic. As noted earlier, it seemed to be common ground that Dr Shanks had misstated the true weight of Doctel Rager to Mr Banwell when retaining Dagenham. The Judge found that Dr Shanks had done so innocently: reasons at [97], and said that it was “difficult to see how [Dr Shanks] could be criticised for failing to disclose something he was unaware of at the time [Dagenham] was instructed to design the mast”. We agree with Mr Scragg’s submission that innocence of Dr Shanks misstatement of the weight was immaterial to the question of whether the mast and rigging were reasonably fit for the purpose for which they were supplied. As we understand Her Honour’s reasons, this issue had no bearing on the outcome.
Dr Shanks’ Manner of Sailing
In addition to the underestimate of the weight and righting moment for which it was said that Dr Shanks was responsible, Dagenham submitted that it was Dr Shanks’ manner of sailing of Doctel Rager on 3 February 2001 which caused the mast to fail. The submission was that when all the evidence was analysed there was agreement that the yacht was being sailed at its limits or “on the cusp”, as Mr Scragg put it. It is a known risk in sailing that a mast will break and this risk was increased by Dr Shanks’ method of sailing.
Mr Scragg submitted that there were gale force conditions on the afternoon of 3 February because there were gusts of 35 kilometres per hour. He referred to wind measurements taken by the Bureau of Meteorology and to the Beaufort Scale, a recognised scale of wind force. This indicated that winds in the range of 22-27 knots are categorised as “strong breeze” and winds in the range of 28-33 knots as “near gale”.
Several witnesses gave evidence as to the strength of the wind on the day in question. The estimates varied from as low as 20 knots up to 30 knots. It was suggested also that there may have been gusts in the area of 35 knots.
Mr Scragg relied on the fact that the Beaufort Scale of wind force indicates that at a wind speed of about 35 knots, there are likely to be six metre waves. However, no witness saw waves amounting to that height or anything like it. Accordingly Mr Scragg’s submission does not have an actual, as opposed to theoretical, basis.
Several witnesses, all experienced in sailing, agreed that winds of about 25 knots were quite normal conditions for the Gulf in February at that time of year. Mr Wilson actually went into the water after the mast broke to disconnect the rigging. He said that the sea state was reasonable and that he could swim. He said that the swell was only about one to one and a half feet with three or four foot waves.
Dr Shanks said that the south westerly breeze was blowing at 20 to 25 knots and that was normal for the Gulf.
Mr Williams, who was on another boat, said that the recordings of wind speeds during the afternoon were between 20 and 26 knots.
Mr Scragg’s contention was that the gybing of the yacht with a masthead spinnaker flying in 30 knots of wind was the cause of the mast breaking.
However, the Judge has evidence that some other boats were being sailed in a manner which was similar to Doctel Rager:
[188]Mr Fidock said that all of the boats who took the same path as Rager had to perform a gybe to lay the mark, in other words to change tack to get to the beacon. He noticed that Dr Feelgood gybed successfully but that Rager had problems. He said that Dr Feelgood had a masthead spinnaker as did Rager. One performed the gybe successfully and the other did not. His boat, Sea, gybed after that. He elected to hoist the jib and remove the spinnaker before performing the gybe. They used the heavy top sail and put the main across making his boat more manoeuvrable. He was asked his opinion of using the masthead spinnaker in the prevailing conditions and replied:
A      It’s a very contentious point among yachtsmen at what stage they will give up racing and start being seamen. On the day in question Mr Williams and ourselves decided to be seamen. I believe as to the other boats, I admire their competitiveness, but I was not prepared to risk the boat and the crew by setting too big a sail.
Q      What were the risks that would be taken if you did so.
A      The risk is with the big spinnaker up, the boat can lurch about much more and you are in danger of losing the crew overboard. The second thing is we all knew that we had to gybe to get to the next mark and we were more confident of undertaking that gybe with a smaller sail than a larger sail. The risks in our view were higher than we would want to take, but I admire the fact that the others elected to fly.
The Judge was entitled to regard as significant the fact that the crew on at least one other yacht in the race performed the same manoeuvre as Doctel Rager with a masthead spinnaker. In any event, the Judge did not regard the weather conditions to be so extreme as to take Dr Shanks’ method of sailing outside the range of what could reasonably be anticipated.
The Judge’s conclusion concerning the weather conditions and Dr Shanks’ method of sailing was as follows:
[219]The conditions were not extreme and in my view there is no evidence that the conditions were such that Rager should not have been handled in the way that it was. Rager was being sailed in a competitive even aggressive manner. It was in a race. The defendant was not alone in performing a gybe or indeed a gybe with a masthead spinnaker. Even those witnesses who were not prepared to gybe in that manner themselves said that a gybe performed with a masthead spinnaker was not an inappropriate manoeuvre for a boat such as Rager. The gybe was not performed well. Clearly a crew man failed to fix the brace to the end of the spinnaker pole. This error seems to have been contributed to by a small wave. Whatever the cause it led to a broach. The plaintiff says that this was a “remarkable event”. I reject this proposition. A broach is an expected event on a racing yacht such as Rager. A broach should not have been a catastrophic event in the circumstances. It should not have led to failure of the mast. The plaintiff should have anticipated such an event and should have catered for it in the design and construction.

In our opinion, these conclusions were well open and justified on the evidence. Mr Scragg’s submissions amounted to no more than a re-agitation of the same factual issues which he canvassed before the Judge. He did not demonstrate any error, nor any other ground warranting this Court’s interference with the findings.
Did the Spreader Break First?
Mr Scragg argued that the Judge’s finding that the spreader broke first was not justified on the evidence.
The only direct evidence of the spreader breaking was given by Mr Wall-Smith, a crew member on Doctel Rager. The Judge accepted him as a careful and observant witness. Mr Wall-Smith gave evidence as to the sequence of events. He described how the mast crumpled and bent over but still remained intact in that the top section remained attached to the bottom section until, after a while, it split through on the starboard side.
Mr Wall-Smith also gave evidence of observing the spreader with a break in it approximately one foot from the end which was fixed to the mast. He was the only witness who made this observation.
The finding of the Judge at [132] is that:
… on the balance of probabilities that the mast failed in bending following the break in the spreader and ultimately fractured in the manner described by Mr Wall-Smith.
Her Honour also found at [205]:
I accept Mr Wall-Smith’s evidence that the lower starboard spreader broke about a foot out from the mast, that the mast crumpled and was still attached to the stump at the point of fracture for a brief period of time. His evidence is consistent with the other lay evidence and the expert evidence.
The Judge was influenced in her finding by comparing the most likely sequence of events from the expert evidence with the eyewitness account of Mr Wall-Smith.
Mr Scragg submitted that the fact that no other witnesses saw the break in the spreader made the Judge’s reliance on Mr Wall-Smith’s evidence inappropriate. We do not accept this submission. As the Judge found, the flurry of activity and the tenseness of the situation on board Doctel Rager in the minutes after the mast failed made it understandable that other crew members did not observe the broken spreader: reasons at [197].
The Failure to Mitigate
After the mast broke Dr Shanks attempted to save the mast but when that proved impossible he ordered that it be cut free. The mast then sank. Dr Shanks gave evidence of making a GPS marking of the position at the time. However, several later attempts to retrieve the mast were unsuccessful.
Dr Shanks tried for half a day the following weekend to find the mast. He then gave the co-ordinates he was using to Mr Banwell. Another person also tried unsuccessfully to locate the mast.
Dagenham contended that Dr Shanks had failed to mitigate his loss by marking accurately the position at which the mast had been cut adrift so that it could be retrieved subsequently, and parts of it used in the repair. It submitted that in addition to the GPS marking, a float could have been tied to the mast before it sank, thereby providing a physical marker of its position.
The Judge rejected Dagenham’s contention concerning Dr Shanks’ failure to mitigate.
Mr Scragg repeated on the appeal his submissions that Dr Shanks should have precisely identified the position where the mast was cut loose so that it could have been retrieved. The submission was that the mast was a valuable piece of equipment which warranted retrieval and, as we understood the argument, that the costs of repair would have been reduced if it had been retrieved.
It is not certain why an exact position could not have been identified by way of GPS. The water was only approximately 30 feet deep at the point where the mast broke and, had the position been marked with any degree of accuracy, it should have been possible to recover the mast.
The Judge found at [224]:
Given the circumstances of the mast failing and concerns for crew safety I do not consider it unreasonable of the defendant not to have taken further steps to more precisely locate the area in which the mast was jettisoned by attaching a marker or other device.
As a result the Judge concluded at [225]:
I do not think in any relevant sense it can be said that the defendant failed to mitigate.
We have reviewed the evidence as to the steps taken to mark the position at which the detached mast was cut adrift. Despite our concerns, the evidence which the Judge accepted justified her findings. We do not consider that this Court is justified in interfering with them.
Mr Swan submitted that it was highly unlikely that any of the broken mast could have been used in the reconstruction and repair. That is because the mast had been proven to be of insufficient strength. However, this is an issue that does not seem to have been explored at trial.
The evidence as to the amount which could be saved is in any event uncertain. It seems limited to Mr Banwell’s assessment that there may have been a saving in costs for materials of $8,356.79. However, as the Judge found at [221], presumably those savings would have been offset by the costs of labour and of retrieving the mast. No other evidence was called by Dagenham on this aspect.
We consider that the evidence justified the Judge’s finding with respect to the alleged failure to mitigate.
Summary of Conclusions
We summarise here our conclusions. It is necessary to bear in mind, as we have said, that in this case the focus is on the strength of the mast, and on the strength of a particular spreader.
The Judge heard a considerable amount of evidence, and made detailed findings about, what happened during the race. As we have mentioned, Dagenham alleged that the failure of the mast was attributable to Dr Shanks’ mishandling of Doctel Rager on the day in question. Dagenham alleged that in conditions of a high wind and high seas, Dr Shanks overloaded the mast by hoisting a spinnaker, that he should not have attempted a gybe at all, or at least with the sails that were set, that he mishandled the gybe and that this caused the spreader to fail followed by the mast.
The Judge rejected these criticisms, and some of the evidence on which Dagenham relied. Some of the evidence was common ground.
The Judge found that the wind speed was in the order of 25 knots to 30 knots, with maximum gusts to 35 knots. She found that the sea state was “in no way remarkable”. She found that the sailing conditions were not out of the ordinary and rejected the contention that the conditions were “extreme, heavy weather conditions”: [182]. The Judge accepted that the gybe was not well executed: [211]. The Judge rejected the submission that in the circumstances the broach was “remarkable”: [219]. Significantly, she said that a “broach is an expected event on a racing yacht such as Rager”: [219]. Equally significantly, she found at [219]:
A broach should not have been a catastrophic event in the circumstances. It should not have led to failure of the mast. The plaintiff should have anticipated such an event and should have catered for it in the design and construction.
In our opinion, this finding should stand. It is good evidence that the mast was not fit for its purpose. The mast failed in circumstances that were within the range of circumstances to which it was to be expected that the yacht and the mast would be exposed. A mast fit for its purpose would not have failed in such circumstances. This conclusion provides significant support for the ultimate conclusion that the mast was not fit for its purpose.
The Judge found that the spreader in question and the mast were well below the strength that each of them should have had. The Judge accepted evidence on this topic from two experts called by Dr Shanks, namely Mr Mitchell and Mr Dovell. Each of them was well qualified. Their qualifications were not challenged by Mr Scragg on appeal. Their opinion was based on a “workshop drawing” produced by Dagenham. It was based on the assumption that the mast and spreader were constructed as claimed by Dagenham. The Judge preferred the evidence of Mr Mitchell and Mr Dovell to that of Mr Banwell and Mr Doherty: [88].
In our opinion, it was open to the Judge to accept this evidence from Mr Mitchell and Mr Dovell, and in particular to prefer their evidence to the evidence for Dagenham. It provided good evidence that the mast was not fit for its purpose.
The Judge’s findings on this topic are surrounded by her consideration of a number of subsidiary issues. But the important thing, in our opinion, is the two findings to which we have already referred.
The Judge was critical of Dagenham because it did not produce a detailed and accurate plan of the mast as built. Mr Banwell produced the plan already referred to and described as a “workshop drawing”. Dagenham’s case was that this plan was reliable. The evidence of Mr Mitchell and Mr Dovell, was based on that plan.
The difficulty for Dagenham, on appeal, is that even if the workshop drawing is reliable, the first two findings referred to are not affected. In particular, the finding that the mast and the spreader were under strength is based on evidence from Mr Mitchell and Mr Dovell that is in turn based on data contained in the workshop plan.
Another significant finding by the Judge is that the spreader failed at a point about one foot from the mast, which is where Mr Mitchell said that he would have expected it to fail. It was the failure of that spreader that led, in a matter of minutes, to the failure of the mast. There was much debate at trial, and some on appeal, about the positioning and effect of reinforcing that was part of the spreader, and about the welding of the spreader. But again, as we understand it, Mr Mitchell’s evidence that the spreader failed where he would have expected it to fail, is based on the assumption that Dagenham’s evidence as to the positioning of the reinforcing, and its welding, is accepted.
Mr Dovell said that a miscalculation of the “righting moment” was the, or a, reason for Dagenham constructing the spreader and mast under strength: [90]. The righting moment is critical to the design of the mast and spreaders: [90]. The evidence from Mr Dovell, as well as the documentary evidence, appears to support the Judge’s finding that the righting moment was incorrectly calculated by Mr Banwell: reasons at [93].
The Judge’s findings on this topic provide sound support for Mr Dovell’s evidence that the mast and spreader were under strength. That is the importance of this topic.
This finding was resisted by Dagenham by an argument that Dr Shanks provided inaccurate information to Dagenham about the weight of Doctel Rager. But as the Judge pointed out, the complete answer to this is that weight difference does not affect the righting moment upon which Mr Banwell relied, having regard to the method by which that righting moment was calculated: [98]. There is the further question of whether Dagenham should have satisfied itself as to the weight of Doctel Rager, as part of the process of designing a suitable mast. But it seems unnecessary to decide that issue.
Decision
In our view the appeal should be dismissed. The appellant has not established that the findings made by the Judge should be disturbed. On the key issues we agree that the Judge was correct in finding that the mast and spreaders were not sufficiently strong for the purpose they were manufactured, namely, ocean racing.

[2012] SASCFC 41

26 April 2012

Key Legal Topics

Areas of Law

Contract Law

Negligence & Tort

Civil Procedure

Legal Concepts

Breach

Damages

Duty of Care

Expert Evidence

Negligence

Appeal