Dagenham Nominees Pty Ltd v Shanks
[2007] SASC 242
•29 June 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
DAGENHAM NOMINEES PTY LTD v SHANKS
[2007] SASC 242
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Sulan and The Honourable Justice Vanstone)
29 June 2007
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION - ADEQUACY OF REASONS
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT
Appellant contracted to perform work on respondent's yacht - appellant claimed for unpaid accounts - respondent filed defence and counterclaim alleging mast and rigging supplied by appellant not of adequate strength and not fit for purpose - trial judge found for respondent - whether trial judge failed to adequately analyse evidence and give reasons for findings - whether findings open on the evidence - whether judge was required to resolve other disputed matters - whether judge was required in the circumstances to resolve expert evidence. Held: appeal allowed, judgment set aside, matter remitted to District Court.
Dagenham Nominees Pty Ltd v Shanks [2003] SASC 219, discussed.
DAGENHAM NOMINEES PTY LTD v SHANKS
[2007] SASC 242Full Court: Nyland, Sulan and Vanstone JJ
THE COURT: This appeal arises from a dispute relating to work done by the appellant upon a yacht named Doctel Rager, sailed by the respondent. As there has been an extensive history of litigation relating to this matter it is necessary to set out the background to this appeal in some detail.
The respondent is a medical practitioner and experienced yachtsman. He purchased the fifty-six foot Rager in September 1997. At that time the yacht was about ten years old. According to the respondent it was bought specifically for Sydney to Hobart racing.
In March 2000, while sailing back from Port Lincoln, the yacht collided with a reef and suffered serious damage. The respondent engaged Mr Banwell, a principal of the appellant company, to do the necessary work to rebuild the yacht. This included the design, sale, supply and installation of a new mast and associated rigging. The yacht was re-launched in October 2000.
The respondent planned to compete in the 2000 Sydney to Hobart yacht race. Prior to the race there was a compulsory rig inspection by the race organisers and the respondent was notified that all the halyards (the ropes used for hoisting sails) including that for the spinnaker were too small. They were then replaced by a Sydney firm.
The race started on Boxing Day 2000. The respondent was the “skipper”. On 28 December, as the yacht was near Wineglass Bay on the north-east side of Tasmania, the forestay – the length of wire giving fore and aft support to the mast – broke and the yacht retired from the race.
The yacht was returned to Adelaide in January 2001 following which Mr Banwell replaced the forestay.
On 3 February 2001 the yacht was engaged in a race of about 20 to 30 miles from off North Haven to off Glenelg and back (“the North Haven race”). Again the respondent was in control of it. During this race, the mast of the yacht broke. It broke in a position within its first panel – that is the first section above the deck – and just below the first “spreader”, which divides the first and second panels. The spreader is the horizontal structure which holds wire shrouds connected to points much higher on the mast and which, because of the angles those make, provides side to side (or athwartships) stability to the mast. The break occurred while the yacht was in what was referred to as a broach (that is, a sudden change in the direction of the yacht such that it turns broadside to the wind, becomes unbalanced and flounders). The circumstances in which this occurred are discussed later in these reasons. Whether the mast broke due to poor design or manufacture and whether it was, when supplied, of adequate strength and fit for the purpose for which it was to be used are the critical issues on this appeal.
Accounts rendered for work on Rager by the appellant remained unpaid, and the appellant commenced proceedings in the Magistrates Court. He claimed the sum of $9,870, particularised as being the costs associated with the manufacturing of various items of steel fabrication and rigging, carried out for the Rager at the express request of the respondent.
The respondent filed a defence and counter-claim. He admitted that the appellant had carried out work on the yacht in 2000 and in January 2001 including the design, sale, supply and installation of a mast and associated rigging.
The respondent pleaded that the mast and associated rigging was to be supplied for the purpose of offshore yacht racing, including the Sydney to Hobart yacht race and it was an implied condition of the contract that the mast and rigging provided would be fit for that purpose. The respondent pleaded that it was not so fit. He asserted that the mast was “inappropriate” and inadequate in strength, the halyards were of inadequate strength, the gooseneck (the attachment in the nature of a hinge or universal joint between the mast and the boom) was inadequate and that the forestay was too short.
On a like basis the respondent asserted misleading and deceptive conduct.
The respondent also filed a counter-claim. He claimed for loss and damage suffered in replacing the halyards and repairing the defective gooseneck prior to the Sydney to Hobart race; for his forced retirement from the Sydney to Hobart race due to the defective forestay shearing and for the cost of that forestay. He further claimed that during the North Haven race the mast supplied by the appellant “broke due to its inadequate strength” and that costs were incurred in replacing it. The respondent also claimed damages for the time in which the Rager could not be sailed whilst under repair.
In total the respondent counterclaimed $176,830 together with interest.
The appellant filed a reply and defence, denying all allegations of inadequacy of goods supplied and loss caused to the respondent. In particular, the appellant denied that the mast broke on account of its inadequate strength and pleaded that it broke due to the misuse of the mast and rigging by the respondent. The particulars as to the misuse of the mast and rigging included an allegation that the respondent overloaded the mast and rigging of the yacht by “hoisting a spinnaker” when the wind was too strong.
The respondent denied the allegations of misuse.
The first trial
At the commencement of the hearing in the District Court there was no dispute as to the quantum of the appellant’s claim. The real issues arose on the defence and counterclaim. It was therefore agreed that the respondent would be dux litis in the proceedings.
The respondent gave evidence at the trial in support of his various claims. That included his version of what had occurred in the course of the North Haven race in which the mast broke. His evidence was supported by Mr Garry Sinton and Mr Marc Wilson, both of whom were members of the respondent’s crew on that day.
The respondent’s case on the events leading to the loss of the mast is summarised adequately for present purposes by reference to the evidence of the respondent, Dr Gary Shanks. This account is taken mainly from his evidence at the first trial.
The respondent told the Court that he was 45 years of age and had been sailing, and indeed racing, since he was aged seven years. He had competed in the last five Sydney to Hobart yacht races on the Rager. The yacht was purchased in September 1997 by a trust, of which he was a controller. The respondent said he had learned in recent times that the yacht had a history of mast failures, but the mast which was in the boat at the time of purchase was “probably five or six years of age”. He competed with that mast in the 1997, 1998 and 1999 Sydney to Hobart yacht races. Dr Shanks said that during the summer months the yacht was involved in regular racing including some longer, off-shore races in South Australian waters.
In the middle of March 2000 the yacht was sailed in an Adelaide to Port Lincoln race. On the way back from that race it came into collision with a reef and was seriously damaged. There was significant damage to the hull and the mast was lost, as were numerous fittings.
The appellant company was engaged to build a new mast and provide new rigging. Mr Banwell already had some knowledge of the yacht through positions he had held in the Australian Yachting Federation which gave rise to his having certified the mast and rigging for earlier Sydney to Hobart races. The appellant said that Mr Banwell had certain information about the dimensions of the previous mast. His brief was to provide a replacement mast for this ocean-racing yacht.
Subsequently the boat competed in the Sydney to Hobart race. In the event, there were difficulties. First the bowsprit broke, punching a hole in the port side of the hull to the extent of about three inches. After repair the yacht continued in the race. However, in a position off Wineglass Bay the split pin, which was part of the arrangement by which the forestay was attached to the deck, was sheared off. That led to loss of the plates to which the forestay was attached. That resulted in the retirement of the yacht from the race.
It was Mr Banwell who supplied a new forestay and attended to the mechanism attaching it to the deck. That work was completed in the week leading up to the North Haven race.
Dr Shanks described that race as a mid-range coastal race of about 20 or 30 miles in length. It commenced at a marker about eight or ten miles off shore from North Haven and the route was roughly south towards the waters off Glenelg, then to a marker off Outer Harbor and then in an easterly direction towards the shore. It commenced at about 1.00 pm at which time the breeze was south-westerly at about 18 to 22 knots. He said the breeze had been building from about midday.
The respondent said that the first leg involved tacking across a line which was more or less into the wind. The second leg took the yacht almost directly down wind. To achieve some angle with the wind the respondent, as captain, chose a port tack, with the wind coming over the port side and the main boom on the starboard side. On this leg the area of the mainsail was reduced in size by being wound down to the extent of one reef position, or “reefed”. In addition, a masthead spinnaker was flying. That was attached to a point very close to the top of the mast.
When the yacht reached the next marker it had to “gybe” in order to change direction and to head more in the direction of the shore. That required a right-hand turn resulting in the wind moving behind the boat to then come over the starboard side. He said what is supposed to happen at that point is that the captain waits for an appropriate time to undertake the manoeuvre, avoiding any oncoming wave action. Then the yacht is supposed to slide slowly into the arc movement, at which point the mainsail will flop to the other side, the spinnaker will be pulled around and reset with its pole on the other side of the boat and the main boom will swing across smoothly. The pole holding one corner of the spinnaker is released and then taken to the other side of the boat and joined on to the other corner. During that manoeuvre the two ropes holding the spinnaker corners are held. The spinnaker is meant to remain full of air as the boat, in effect, steers under it to the extent of about 60 degrees or whatever the angle is.
On this occasion there was a difficulty in reconnecting the spinnaker pole. The yacht broached; that is, it rounded up into the breeze with a loss of steerage and heeled over to the extent of about 40 or 45 degrees. The respondent said that after seven to ten seconds in that broach position, the mast folded and fell into the water. At that point the crew were able to pull in the spinnaker but the mainsail was allowed to become disengaged and the greater part of the mast, above the point of the break, was lost at sea.
The effect of the evidence of each of Mr Sinton and Mr Wilson was that there was nothing about the conditions during the North Haven race or the way in which the yacht was sailed which should have resulted in the loss of the mast.
Anthony Pearce, an engineer, was called as an expert witness and gave his opinions as to the loss of the forestay at Wineglass Bay and of the strength of and cause of the breaking of the mast. In essence, he expressed the opinion that the mast was insufficiently strong in the second panel. He based that opinion on his experience as a designer and manufacturer of masts, booms and rigging generally and on his learning, as applied to the dynamics of yachts. He had information on the Rager including the plans for the mast and spreaders and the sail sizes. He also expressed the view that the first spreader was of insufficient strength. This evidence will be examined later in these reasons.
The appellant’s case commenced with Kenneth Banwell, who manufactured the mast using a program he had purchased from Scott Jutson, a naval architect. Mr Jutson did not give evidence at the first trial. Mr Banwell was an experienced mast builder of very good reputation. He said that the respondent gave him an outline of what he wanted, which included improved performance in low winds. That would require a lighter mast. (The respondent disputed that he made any such request. Indeed he claimed he told Mr Banwell he wanted the mast to be as strong as possible. No finding was made on this issue.) Mr Banwell said that he set out to build the lightest structure he could, but with adequate stiffness.
Mr Banwell explained that there are no standards for mast building. There is always tension, he said, between the ideal of a light flexible mast which promotes speed, suitable for racing, and a heavy rigid mast which will never fail. He said he had previously used Mr Jutson’s design program with good results.
Data relevant to the Rager was put into the program and it performed the required calculations. Then Mr Banwell prepared a plan for the mast and spreaders. Reinforcing was added to the mast. That is not unusual. It is the strength of a mast, as reinforced, which must meet the design criteria. Mr Banwell said that in some respects the mast, as built, was stronger than as stipulated by the Jutson program.
Mr Banwell maintained that there was no deficiency in the mast he manufactured. He considered that the loss of the mast was due to poor sailing and/or the failure of another component.
Howard Peachey, also a naval architect, gave evidence that the mast was of adequate strength. Kym Davis, a welder who had worked on the mast and manufactured the spreaders and sleeves within the mast, and Alexander Hayter, a sail maker who had manufactured the spinnaker for the yacht, also gave evidence for the appellant. The appellant called two witnesses to the incident on 3 February 2001, being Richard Fidock and Craig Williams, who were competing on different yachts in the same race and who gave evidence as to their observations of the way in which Rager was sailed on that day.
Overall, the focus of the evidence was upon the cause of the forestay breaking in the Sydney to Hobart race and, as to the North Haven race, the weather conditions on the day, the manner of sailing of the respondent and the cause of the mast breaking.
In summary, the appellant’s case at both trials as to the mast was that it was designed in accordance with the brief, it was strong enough and that its failure was due to a number of factors. They included the inappropriate alteration to the rigging made by the respondent, the inappropriate setting of the sails in the prevailing conditions, the unacceptable loads placed on the boat by poor sailing leading to the broach and the failure to recover the broach within a reasonable time frame.
The appellant contended that because of the uncertainties about what led to the mast’s failure – whether it might have been precipitated by the failure of another component – and the imprecision of the evidence about the broach itself, added to the loss of the major part of the mast and its rigging, it was impossible to be clear as to the chain of events. However, the appellant maintained that the mast was not shown to be defective or deficient in any way.
The judge delivered his judgment in December 2002. His Honour was not satisfied that the original halyards were too weak and rejected the claim for the cost of repair to the gooseneck. He also rejected the claim for costs and time wasted in respect of the Sydney to Hobart yacht race. However, regarding the North Haven race he found that the cost of replacing the mast and damaged equipment was compensable on the basis of breach of the implied condition to properly and skilfully design, construct and install the mast and associated rigging.
The judge assessed the quantum of the respondent’s damage and offset that amount against the appellant’s claim for outstanding invoices for work done. His calculations resulted in judgment in favour of the respondent in the sum of $69,662.
The first appeal
The appellant then appealed to this court. The appeal was restricted to the finding that the appellant was in breach of contract in relation to the claim relating to the mast. The principal complaint was that the judge erred in accepting the evidence of Mr Pearce, the expert witness of the respondent, in preference to that of the appellant and Mr Peachey as to the strength of the mast.
The respondent filed a cross-appeal which concerned findings and orders of the judge with respect to the incident in the Sydney to Hobart race.
In August 2003 the Full Court upheld all the findings relating to the Sydney to Hobart race: Dagenham Nominees Pty Ltd v Shanks [2003] SASC 219. That left the claim with respect to the mast.
Lander J (with whom Debelle and Nyland JJ agreed) observed that it was not disputed that the mast and associated rigging were to be supplied for the purpose of competing in offshore yacht racing including the Sydney to Hobart yacht race. He found, however, that the trial judge was obliged to, but had not, made findings as to the merchantability and fitness for purpose of the mast. In particular, the judge was obliged to determine whether the mast was of adequate strength for the specified purpose. This was a matter which depended upon expert evidence. If there was dispute between the experts, the judge was obliged to choose between them. That included making findings as to the facts inherent in their opinions, as a prelude to determining if their opinions had relevance.
Lander J also observed that the judge had not expressed reasons as to why he preferred the evidence of Mr Pearce, which he described as the “most reliable”. In addition the judge was obliged, if he were to reject Mr Peachey’s evidence, to explain why he did so.
Lander J considered that the judge should have made findings as to the circumstances surrounding the loss of the mast in the North Haven race, including as to the manner in which the Rager was rigged and sailed on that day.
Lander J concluded that due to the lack of findings on important factual issues and because of the failure to explain why the evidence of Mr Pearce had been preferred, the judge’s conclusions could not stand. The court decided that it could not determine the issues on the papers and that it was necessary to remit the matter to the trial court for “further hearing”.
On 10 September 2003 the matter came back before the Full Court for clarification of what was meant by “further hearing” and particularly as to whether the parties were entitled to call further evidence. The court indicated that the parties were at liberty to call further evidence as they saw fit.
The second trial
The matter then came on for further hearing before the same judge. By that stage all the claims which related to the Sydney to Hobart race had been resolved. The outstanding matter was the claim with respect to the broken mast. It was agreed at the second trial that all of the evidence called at the first trial was before the trial judge.
For the appellant, Mr Banwell, Mr Peachey and Mr Davis gave further evidence. In addition, some new witnesses were called. Scott Jutson, the naval architect, gave evidence about his design, upon which Mr Banwell had initially relied in building the mast. Lindsay Doherty, a civil engineer, gave evidence directed to the possibility of a break in the forestay having led to loss of the mast.
Peter Bolton, a shipwright and experienced sailor, was part of the crew on the Rager during the 2000 Sydney to Hobart race. He had sailed the yacht back to South Australia for repair. During the North Haven race he was skippering the Dr Feelgood. His evidence was directed to the weather conditions and the manner in which the Rager was sailed.
Two other new witnesses called by the appellant were Manfred Zockel, a mechanical engineer, and Graham Powell, a materials engineer. The latter asserted that any weakening effect of the plug welding on the mast could effectively be discounted as a consideration in its failure. Dr Zockel inspected the fractured surface of the mast. The object was to determine whether the forces causing the mast to break were simple compressive forces leading to buckling, or were contributed to by failure of another component of the rigging. He concluded that the failure was “predominantly a torsion failure due to a twisting moment being applied about the axis of the mast”, but could not identify the cause of the torsion forces. He explained that the mast was also in compression because it was exposed to bending forces by the rigging, but there was no evidence that these compression forces caused buckling of the mast. The respondent’s position was that the failure resulted from both compressive and torsion forces.
The respondent gave further evidence at the second trial, but called no new witnesses.
The additional evidence called by each side tended to highlight some of the issues a little more, but the central position of each side remained much as it was at the first trial.
The second judgment
In his second judgment on the dispute the judge began by summarising the background of the matter.
He then summarised the evidence of those witnesses who took part in the North Haven race. Those witnesses included the new witness, Mr Bolton. He did so without expressing any preference for any particular witness. The judge observed that there was nothing in the evidence to indicate that the breaking of the mast was caused by anything inappropriate in the way in which the yacht was sailed. He referred to the evidence to the effect that the halyards which had replaced those originally provided had a breaking load twice that of the originals, but discounted that fact as having had any role in the loss of the mast. He then found that there was:
… no evidence to contradict the evidence at both trials called by the defendant that the use of a masthead spinnaker in the conditions on that day was appropriate.
Specific complaint about that finding is now made. The judge went on to say that a broach is a part of offshore yacht racing and should not have led to the loss of the mast. He said that in his view there was no real conflict between the witnesses on the topic of the broach. He rejected the argument that the mast broke because of the way in which the yacht was sailed on that day. We shall refer to these findings as the first stage of the reasoning.
The judge then turned to consider the new evidence of Mr Jutson, designer of the program which Mr Banwell used. The judge focussed particularly on a passage of evidence given by Mr Jutson, which he reproduced in his judgment. The judge treated Mr Jutson’s evidence as, in effect, an admission that a mast built in accordance with this particular design was not suitable for the conditions which prevailed and the manner in which the boat was sailed in the North Haven race.
In this passage, and indeed elsewhere, Mr Jutson was extremely critical of the use in “30 knot plus” winds of a large masthead spinnaker, made of heavier than usual fabric, controlled by a halyard which, after replacement, had twice the breaking strength of those specified and originally supplied. Mr Jutson observed that:
If you increase the load of a halyard by a factor of two it’s an assumption that you are increasing the applied loads by two, and that was well beyond the intention of the mast design. The fact that it broke does not surprise me whatsoever. The fact it broke in that place; yes, that surprises me. If there was a doubler or a tripler [extra reinforcing], in that [place] I suggest it would have broken elsewhere. The entire size, local reinforcements throughout the rig would have to be reconsidered. If it was my client and the client had advised me of his intention at the design stage it would not have been the same mast that we would have produced with our standard software which is designed for standard racing masts in standard usage. Give me a different brief, I’ll design a different mast.
The witness said that this did not mean that his design was not suitable for a boat intended to be sailed in the Sydney to Hobart Yacht Race. It was the particular use of the masthead spinnaker of which he was critical: specifically the strengthening of its fabric and its halyard and the use of it from the masthead in what he called “all conditions”.
As we observed, the judge treated this evidence as an acknowledgment by Mr Jutson that the mast supplied was not fit for the purpose for which it was intended. Against that finding the judge considered he did not need to go on to resolve the issues between the various experts who disagreed as to what were the required strengths, or moments of inertia, at various points of the mast and spreaders. We refer to this analysis as the second stage of the reasoning.
The third stage of the judge’s reasoning considered the cause of the mast’s failure and whether it could have broken for some extraneous reason. He dismissed the appellant’s argument that the loss of the forestay could have preceded and precipitated the mast’s failure. He summarised some of the evidence on that point and concluded that there was no positive evidence to prove that the forestay had broken at all. He described that contention as “at the very best, speculation”. Again, specific complaint is now made of that finding.
Having excluded other possible causes the judge concluded that the cause of the mast breaking was that it “was too weak at the point of rupture for purposes for which it was designed”. In other words, he reasoned from the fact of an otherwise unexplained failure to a conclusion of inadequate strength. Therefore he found that the mast was not fit for the purpose for which it was to be used.
He entered judgment for the respondent in the sum of $69,662.
The second appeal
The appellant again lodged an appeal. The notice of appeal contained numerous grounds, many of which fell away or were subsumed into others. Some of the complaints were reiterations of complaints upheld by the Full Court after the first trial. The principal arguments put were as to what we have called the first stage of the judge’s reasoning, the failure to analyse adequately the relevant evidence and to account for his findings. Then, the judge’s interpretation of Mr Jutson’s evidence, as outlined above, was the subject of a particular ground of appeal. Reference was made to the failure to undertake an examination and evaluation of all the expert evidence going to the adequacy of the mast. In terms of the third stage, there was complaint about the exclusion of other possible causes for the failure without careful analysis and consideration of the significance of the absence of the greater part of the mast and rigging.
The respondent filed a cross-appeal complaining of the level of the costs order in his favour. The respondent also filed a notice of alternative contention to the effect that the judgment should be upheld, if not for the reasons given by the learned trial judge, then on the ground that upon the whole of the evidence Mr Pearce’s opinions ought to be preferred.
We return then to those of the appellant’s arguments which focus on what we have called the first stage of the judge’s reasoning.
First stage
Weather conditions
The appellant complained that the trial judge failed to make specific findings as to the prevailing weather conditions and wind speed at the time of the mast breaking. This was said to be necessary in assessing the appropriateness and safety of the captain’s decisions regarding the setting of sails. In particular, the appellant pointed to the respondent’s own evidence that he would not have used a masthead spinnaker in winds greater than 30 knots. The appellant contended that in light of this evidence, a finding as to the actual wind speeds on the day became important.
It is clear that there was a significant amount of wind on the day, but there was conflicting evidence as to the exact wind speeds. As mentioned, the respondent said at the first trial that the wind speeds at the start of the yacht race were 18 to 22 knots. When presented with wind data from a beacon at Outer Harbour he accepted that the beacon had recorded wind speeds of 27 to 29 knots, gusting to 33 to 35 knots, during the race. (There was no evidence of the reliability of these measurements in terms of wind conditions at the stretch of water where the race took place. Furthermore, an adjustment to the readings for daylight saving needed to be made. At trial it appeared that the adjustment to central standard time to take account of daylight saving time was made in the wrong direction. That matter was clarified upon the appeal. The effect was to make relevant other, lower readings at Outer Harbor.) But the respondent also said that the measurements from the instruments on the Rager suggested an average of about 24 knots, and a range of from 22 to 27 knots. At the second trial the respondent gave further evidence that the boat’s speed of 18.8 knots suggested a wind speed of 25 to 30 knots.
The respondent’s crew member, Gary Sinton, was an experienced sailor, having been sailing since he was about twelve years old. He had participated in six Sydney to Hobart races and other major races. Mr Sinton sailed on the Rager for about four years, including two Sydney to Hobart races. Mr Sinton said that the wind speeds at the start of the race were 18 to 20 knots. It was not clear whether that was based on instruments on the Rager or his own estimates. He did not accept that the wind speed was 28 to 29 knots as the Rager approached the second or windward mark in the race.
Mr Wilson was another experienced sailor, also aboard the Rager. He was a veteran of many long range voyages and of four Sydney to Hobart races on the Rager. He gave evidence of wind speeds during the race of 17 to 22 knots, with gusts between 25 and 30 knots. He did not accept that there was a steady breeze of 28 knots gusting up to 34 or 35 knots, although he acknowledged that he did not actually look at the instrumentation on board.
Further evidence on the weather conditions was given by the appellant’s witnesses, Mr Fidock and Mr Williams, who were aboard other yachts. Richard Fidock was a sailor of 45 years experience. He had taken part in seventeen Sydney to Hobart races, generally in 35 to 40 foot yachts. Craig Williams had been racing keel boats for the past eleven years. Both witnesses reported that their boats’ instruments recorded a wind speed of 28 knots. Mr Fidock described gusts up to 31 knots, whilst on Mr Williams’ evidence the gusts went to 30 knots.
Peter Bolton was also on another yacht. He had worked in the ship industry for about eighteen years and had done a significant amount of yachting in that time. At the time of the second hearing he was about to sail his ninth Sydney to Hobart yacht race. He had also competed in other ocean races and voyages around Adelaide. Mr Bolton had previously sailed on the Rager. He gave evidence of 22 to 30 knot winds, gusting to 30 knots on the day. Again it was unclear whether he had instruments to assist in that estimate.
Inasmuch as it would seem that the weather conditions were challenging and required that a great deal of care and skill be brought to bear on management of all vessels in the race, the differences between the respondent’s description of conditions as against, for example, Mr Fidock’s were significant and needed to be analysed and resolved to whatever extent was possible.
The judge did not make an express finding as to the prevailing weather conditions. Nor did he discount any of the witnesses mentioned or their evidence. Therefore, on the basis of all this evidence it seems reasonable to conclude that the wind speeds must have been within a range encompassing the various figures given: somewhere from 22 to 30 knots, probably in the higher end of that range, with gusts of 30 or perhaps 31 knots. (Being more specific would be very difficult due to the discrepancies between the witnesses’ accounts.) Had such a conclusion been reached, it would have underlined the fact that the masthead spinnaker was being employed in conditions at the outer limit of its safe use. So much flowed from the respondent’s evidence that beyond 30 knots he would employ a smaller spinnaker (and quite probably fixed from the lower “hounds” position) as well as from the evidence of the onlookers Mr Fidock and Mr Bolton. It is also consistent with Mr Banwell’s and Mr Jutson’s opinions.
In our opinion the judge should have and did not make findings as to the weather conditions.
Manner of sailing
This issue is closely allied to the determination of the weather conditions. The appellant took issue with the judge’s statement that there was nothing in the evidence to indicate that the breaking of the mast was caused by the Rager being sailed in an inappropriate manner. The appellant submitted that in fact there was evidence to this effect, and that it was not analysed or dealt with adequately by the judge. The respondent, on the other hand, submitted that this should be treated as a conclusion which was justified by the evidence.
The appellant pointed to the following evidence. Mr Banwell criticised the way in which the Rager was sailed. He suggested that a possible cause of the mast breaking was an overzealous choice of sail power. Mr Banwell considered that the spinnaker used was too large and was in the wrong position. He accepted that a broach with a large spinnaker in 28 knot winds is not so unusual. However he expressed the opinion that ultimately the loss of the mast must have come down to crew error and the way the boat was sailed in the conditions on the day.
Mr Peachey gave evidence that broaching is not uncommon. He indicated that he would not expect a mast to break simply because a crew member initially failed to refix the brace to the spinnaker pole as happened here, but that if the boat broached, there might be some danger.
Mr Fidock gave evidence that setting a very big spinnaker in the conditions was taking “a big chance”. He questioned the choice of spinnaker on the grounds of the yacht’s handling, indicating that he would have opted for a smaller spinnaker. Mr Fidock described the conditions on the day as being, in effect, challenging. However he did not believe that the Rager was “overpowered”. Rather he considered that the danger arose on the gybe (a change of course when the boat is running before the wind, as opposed to a tacking manoeuvre), which he said was always a dangerous time.
Mr Bolton had sailed on the Rager many times. He described the rig provided by Mr Banwell as a “good race boat rig … a light rig … [which] needs looking after”. He observed the Rager’s sail configuration from his boat. He, also, considered that using a masthead spinnaker and reefed mainsail was “extremely risky” and when the masthead spinnaker went up the reaction on his boat was that the Rager’s captain was “mad”. He said that had the mainsail been fully up rather than reefed, the mast would have enjoyed more support and the boat would have been easier to control. He described a broach as an undesirable event, but not particularly unusual.
Mr Williams gave evidence as to his observations of the Rager during the broach. He said that the Rager was tipped over almost to the horizontal. His observations were that the spinnaker was filling with air and “pumping quite a bit”, pulling the yacht back down each time it righted itself. He said that the episode lasted for about five or six minutes and then the mast broke.
The respondent led evidence from various sources to the effect that the manner of sailing on the day was appropriate. His own evidence was that it was not unusual for the Rager to use a masthead spinnaker. He stated that the sail was appropriate on the day and was working well. The respondent said that the boat would perform very well with a masthead spinnaker in winds less than 30 knots downwind. At higher wind speeds it would be prudent to reduce the mainsail, and if the winds had been over 30 knots, he would have used a smaller, “hounds” spinnaker. As mentioned, the respondent said that the broach lasted only seven to ten seconds before the mast broke. His evidence was that the yacht was heeled over at about 40 to 45 degrees during the broach, and that the spinnaker did not touch the water until after the mast broke. He did not accept that the broach was a serious one. He considered that a gybe was not a dangerous manoeuvre in the circumstances.
His crew member, Mr Sinton, also said that the yacht heeled over to about 45 degrees during the broach. He thought that the spinnaker did not touch the water. Mr Sinton said that the broach lasted about 20 seconds before the mast came down. He considered that the masthead spinnaker had been flown on the Rager in similar conditions previously. According to Mr Sinton, such winds were not extreme for that setting, although 35 knot winds would be significantly different. Mr Sinton said that a broach was not an unusual event in a race and that boats often broach, even on 20 knot days.
Mr Wilson, also on the Rager, did not consider the Rager’s broach a serious one. He said that he had been on boats that had broached and put the mast flat on the water. But the situation on the day of the race was nowhere near as extreme and the Rager heeled only to about 45 degrees. He stated that the Rager had broached in a similar way on previous occasions whilst flying masthead spinnakers, and that it was not normally necessary to have to “drop the halyard” (to relieve pressure on the mast). Mr Wilson was unsure as to whether the halyard had been released on this occasion. He did not see the spinnaker touch the water at any point during the broach, and considered that the time from the beginning of the broach to the mast being in the water was between one and two minutes. Mr Wilson recalled more extreme events on the Rager in the past, with the old mast.
Mr Pearce’s opinion was that there was no problem with using a masthead spinnaker with a reefed mainsail. He said he would expect a mast to be strong enough to withstand the force from a large spinnaker filling and collapsing for long enough to recover the boat or release the sail completely. Mr Pearce’s conclusion was that a properly reinforced mast would not have broken under the circumstances.
The judge did not descend into detail in comparing the evidence of the various witnesses as to the manner in which the Rager was sailed. He made no explicit findings as to the duration or severity of the broach, nor as to whether the spinnaker touched the water (which would lead to the possibility of it filling with water). He found that a broach was a normal part of offshore yacht racing, such that a properly designed mast should have withstood the episode. He concluded that there was no evidence to contradict the respondent’s evidence that use of the masthead spinnaker was appropriate on the day. The judge expressly rejected the argument that the mast broke due to the manner of sailing on the day.
On the evidence at both trials there can be little doubt that the judge was correct insofar as he found that a broach can be an incident of offshore racing. However, it was not accurate to say that there was no evidence to contradict the respondent’s evidence that use of the masthead spinnaker was appropriate. Both Mr Bolton and Mr Fidock said in evidence that they considered this risky, although they did not expressly state that it created a danger of the mast collapsing. Mr Peachey acknowledged that there might be some danger to the mast if the yacht broached.
Additionally, the duration and severity of the broach could also be of some importance in the context of Mr Pearce’s evidence that the mast should be strong enough to withstand the force from the spinnaker long enough to recover the boat or release the sail. If the Rager remained in the broach for an extended period, such as the five to six minutes mentioned by Mr Williams, Mr Pearce’s evidence becomes less helpful for the respondent.
In our view it was critical for the judge to give explicit reasons for his findings on this topic and that in doing so he deal specifically with the evidence telling against his conclusions. His reasons were not adequate.
The other aspect of the manner of sailing not dealt with by the judge was the assertion on the appellant’s case that the spinnaker fabric was not as supplied by the respondent but rather was a heavy weather fabric. This is linked with the substitution of halyards of twice the original breaking strength prior to the Sydney to Hobart race, which we have already touched on. It is convenient to expand upon this issue now.
Halyards
The appellant contended that the substituted spinnaker halyard and the masthead spinnaker were simply too strong. According to the appellant, the increased strength of these components relegated the mast to position of weakest component of the rigging. That meant that when the yacht was placed in adverse conditions, the mast would be most vulnerable. The appellant contended that the correct approach to mast design would ensure that the mast would be the strongest component, and the weakest would be the halyards or sails which could be replaced more readily if damaged. These contentions supported the appellant’s claim that the respondent should not have used these rigging components in the North Haven race.
Mr Jutson’s evidence supported this approach. In his report of September 2004, Mr Jutson explained that the use of masthead spinnakers on yachts was “increasingly popular” to improve performance in light wind. Mr Jutson stated that every racing yacht would carry a variety of spinnakers to optimise performance: a light wind spinnaker, made of light cloth and flown at the masthead or the lower “hounds” position, and moderate and heavy wind spinnakers, which would be flown from the hounds and would be made of progressively heavier cloth.
Mr Jutson explained that he would recommend a breaking load for the hounds spinnaker halyard of 3632 kilograms, based on the sail area provided. He was of the opinion that the halyard originally supplied by Mr Banwell, which would have broken at 3000 kilograms, conformed to his design methodology. He said that had the original halyard been used, the mast would have been protected even if the sail was being used in wind strengths beyond its limits, as the halyard would have broken first.
For the masthead spinnaker halyard, Mr Jutson again recommended a breaking strength of 3632 kilograms. However, he said that the masthead spinnaker should only be flown in lighter wind conditions. Mr Jutson was of the opinion that using a masthead spinnaker made of heavy cloth and using a halyard which would break only beyond 6000 kilograms allowed the potential load on the mast to increase well beyond that contemplated by the design. It meant that neither the halyard nor the masthead spinnaker would give way, even in extreme conditions. Mr Jutson stated that if a yacht owner wished to use such an unusual rigging configuration, it should be specified and taken into account at the design stage.
Mr Pearce disputed that the heavier halyard and sail could have been relevant to the sequence of events. He said that he had calculated the “potential forces the sails and rig will exert when under pressure”, but that these forces would only in fact be exerted if they could be counteracted by the righting moment of the vessel. That is, the righting moment would provide a measure of the maximum forces the rigging would need to withstand.
It is first necessary to explain the term “righting moment”. A “moment” can be thought of for present purposes as a rotational force, or a force causing the rotation of an object. (It is an entirely different concept from the “moment of inertia” which will be examined later.) In simple terms, the righting moment of a yacht is the amount of rotational force required to return the yacht to an upright position from a given angle of heel, or vice versa. It is calculated by multiplying a force – here the weight of the yacht – by the distance between the point at which the moment is calculated (sometimes called the fulcrum) and the point at which the force is applied. We understand the righting moment to relate to the stability of the yacht.
In a supplementary report, Mr Pearce took two approaches to considering the load on the masthead spinnaker halyard at the time of failure. First, he considered the load by reference to the righting moment. (He acknowledged that in so doing, he was becoming what Mr Jutson would describe as “a very brave engineer”. Mr Jutson in his report of 10 June 2004 disputed that the righting moment could ever be used to represent accurately the load generated by a sail.) Mr Pearce calculated the horizontal force required to pull the mast down to 45 degrees as being approximately 790 kilograms. But this value could be reduced to the extent that other forces were contributing to the “heeling” of the yacht, for example, force from the mainsail. If these forces were assumed to equate to approximately 5 per cent of the righting moment, then on this calculation the maximum load on the halyard would be approximately 672 kilograms.
Mr Jutson squarely disputed the validity of this method. Apart from disagreeing as to the true value for the righting moment, he also argued that the methodology using it was not of any value. He said the comparison of the calculated load of 672 kilograms with the recommended breaking strength of the halyard (3632 kilograms) was like “apples and oranges”.
Mr Pearce’s second set of calculations to determine the load on the spinnaker halyard were as follows. Mr Pearce assumed that the area of the spinnaker was 2800 square feet, and reduced this by twenty-five percent to take account of the sail ballooning with the wind. He assumed a wind pressure corresponding to a wind speed of 30 knots. Mr Pearce then multiplied the wind pressure by the area of the sail to determine the load on the sail. That gave him 2723 kilograms. Then he adjusted the load to 1925 kilograms, on the assumption that the sail was at an angle of 45 degrees to the vertical, in effect reducing the area of sail. As there were three corners to the sail, Mr Pearce then divided the load by three to conclude that the load on the halyard (which would be at one corner of the sail) would be only 641 kilograms. Mr Pearce was of the opinion that the presence of the mainsail and the hull of the yacht (which was heeled over) would have reduced the load to even less than this value.
Mr Pearce was of the opinion that the figures he calculated using the two methods were “in reasonable agreement”. He drew comfort from their apparent correlation. Therefore, on his analysis, the load on the spinnaker could not have come anywhere near the breaking strength of either the original or replacement halyard. This represents the respondent’s position on this issue.
Mr Jutson disputed Mr Pearce’s second approach too. He said it assumed a constant wind speed with the boat also moving at a fairly even rate. However, once the boat broached the situation was quite different. For instance, the spinnaker was now described as “pumping” or “flogging” – filling with wind and then emptying – as the boat lifted and dropped. Mr Jutson said that in this situation the boat was now all but stationary and “the wind speed is squared in the load equation”. He said “that is why things become far more dangerous when the boat broaches, the loads do increase enormously”.
The judge made the following findings relating to the relative strengths of the halyards, spinnaker and mast:
I cannot find anything in that evidence which indicates that the breaking of the mast was caused by anything inappropriate in the way in which the yacht was sailed on that day. In particular the evidence of Mr Jutson that the halyard for the masthead spinnaker was designed to have a breaking load of 3000 kilograms instead of 6000 kilograms would have made no difference to whether the mast broke on that day. As I understand the situation at the breaking strain of the halyard the spinnaker would be released thus taking pressure off the mast. However I find that it is clear in this case that the strain on the mast which broke it was not nearly as much as 3000 kilograms or to be more precise 3632 kilograms being that recommended by Mr Jutson (evidence second trial at page 56 line 20). There is evidence from Mr Pearce, an expert called by the defendant, that the force which came from the spinnaker was no more than 641 kilograms on the day in question (evidence second trial at pages 463-464). There is no evidence to suggest there was a force on the spinnaker in the vicinity of 3632 kilograms. In other words the halyards would only break and release the spinnaker by a force far greater than the force which caused the mast to break.
However the judge failed to consider the differing approaches taken by Mr Jutson and Mr Pearce in their calculations relating to the strength of the halyards and spinnaker. He did not treat Mr Pearce’s calculations in the rather guarded way they were presented, nor deal with the assumptions on which they were based. He did not consider the issue of whether such calculations were applicable in a broach situation. Nor did he question how the halyard could ever act as a “safety valve” if the force acting on it could only ever amount to about a quarter of its breaking strength.
The reasoning of the judge is also, in some respects, unclear. The judge considered that because the breaking force of the halyard, even as proposed by Mr Jutson in his design, was greater than the force which actually caused the mast to break, the halyards would not have broken first even in the design that Mr Jutson proposed.
However, the judge could only have reasoned in this way if he had proceeded from an assumption that the force on the halyards was equal or directly comparable to the force on the mast. There was no evidence that these forces were directly comparable and no satisfactory estimate of the force on the mast. On the contrary, the experts were unanimous in the view that the forces acting on a mast are derived from an extremely complex array of static and dynamic loadings and that those forces cannot be calculated with any precision at all.
Further, the reasons of the judge referred to the force on the spinnaker and the force from the spinnaker (presumably, the force from the spinnaker which acted on the mast). Again, there was no evidence that these were directly comparable forces in the manner which appears to be implicit in the judge’s reasons. As noted above, it was clear that the forces on the mast are complex and come from a variety of sources. Further, even the calculations of Mr Pearce demonstrate that the force on the spinnaker is not equal to the force on the halyard. Mr Jutson said that it was not correct to assume that all the load on the sail was exerted through the halyard.
In our view the appellant’s arguments as to the potential significance of substitution of much stronger halyards was not adequately dealt with by the judge.
At best from the respondent’s viewpoint, altering the spinnaker weight and halyard must have had some deleterious effect on the balance of the rig. As Mr Jutson observed, doubling halyard strength implies the application of greater loads not contemplated in the design of the mast. On the evidence it was, in our view, difficult to exclude this as a factor having some role during the broach, and as a factor to be added to the others in considering why the mast failed.
Second stage
As we outlined a little earlier, the judge treated Mr Jutson’s evidence as an acknowledgement that the mast supplied was not fit for its intended purpose. We have referred to this as the second stage of the judge’s reasoning. The respondent submitted that the judge was entitled to view Mr Jutson’s evidence in this way.
We consider this approach was flawed. In our view the difficulty with it is that Mr Jutson’s opinions were based on certain assumed facts, which facts were not those found by the trial judge. The judge had already found that there was nothing inappropriate in the manner of sailing of the boat in the conditions. Mr Jutson’s views directly contradicted that finding. Plainly Mr Jutson had gleaned knowledge of the race and the incident from various sources, which were not to be known to the judge. His opinions as expressed were not based on facts put to him in the witness box. He came to the witness box with his own (extremely critical) view of the way in which the Rager had been sailed on this day and he was not prepared to abandon it. Plainly his view was that the yacht had been misused in a way which no mast builder would anticipate. He was not saying that no mast could be designed to cater for such abuse; only that if a mast builder were told that a yacht were to be used in a manner quite outside normal bounds, then the mast and rigging would have to be specified and constructed in a way which was commensurately unorthodox.
Accordingly, we do not consider that the judge was able to avoid resolving the question of the competing expert opinions of Mr Pearce versus those of Mr Peachey and Mr Jutson by reference to this evidence of Mr Jutson. We shall attempt that task a little later in these reasons. This misinterpretation or misuse of Mr Jutson’s evidence tends to underline again the fact that there was significant difference in the way in which the witnesses described and interpreted the weather conditions and at no time did the judge attempt to reconcile their evidence.
Third stage
Balance of mast and rigging
We move then to consider the appellant’s arguments in respect of the judge’s analysis of why the mast broke and his conclusion that causes apart from the mast’s strength could be discounted. The appellant contends that the trial judge erred in not finding that the cause of the mast failure could only be accurately determined by inspecting the portion of the mast and rigging above the fracture. That part was lost at sea. According to the appellant, the inability to inspect the balance of the mast and rigging precluded the respondent from establishing that the mast failed through fault of the appellant.
Mr Jutson gave evidence in the second trial that it was impossible to say what caused the mast to snap at the point it did, without examination of the rest of the mast. He expressed the opinion that the mast probably failed due to being overloaded (almost a truism) but only by examining the whole of the rigging would it be possible to determine the precise sequence of events and cause of the failure.
Mr Pearce did not go this far. He implicitly accepted that the absent rigging would have provided more information, but did not ultimately feel impeded in forming opinions. He acknowledged in the first trial that he did not know what else failed (other than the mast), because he could not examine the balance of the mast and rigging. He said that a spreader, or a shroud or stay would have broken first, that in turn leading to the failure of the mast. But that did not, in his view, detract from his opinion that the mast and first spreader were deficient in strength.
It seems clear that having access to the remainder of the mast and rigging would have assisted the expert witnesses in analysing the events of the day. However, it does not necessarily follow that the inability to inspect the rest of the mast and rigging precluded the discharge of the respondent’s burden of proof.
This argument has to be evaluated in context. If upon proper analysis of the expert evidence the judge had found that the mast as manufactured was insufficiently strong in the area where it failed, then that finding, coupled with findings that the weather conditions and manner of sailing were unexceptional might have rendered the loss of the greater part of the mast and rigging less important. It was really a matter of degree. But in order for the absence of the balance of the rigging to be dismissed, the findings about the mast’s deficiencies had to be extremely strong, which they were not.
Use of the fact of the break
The judge’s reasoning at [53] was that given his finding that the way the boat was rigged and sailed in the conditions which prevailed on the day was unexceptional and there being no other demonstrated cause of the loss of the mast, the very fact of the break proved that the mast was not strong enough and was, therefore, not fit for purpose.
That process of reasoning not only necessitated a keen evaluation of the evidence which tended to disparage the manner in which the boat was sailed in the conditions, but also required clear elimination of other possible causes of the mast’s failure. That latter brought into sharp focus the potential significance of the altered halyards and the inability to ascertain by examination of the lost rigging what other components might have failed prior to the mast.
This puts into context the appellant’s complaint about the judge dismissing the broken forestay theory as “unsupported speculation”. The appellant argued that although there was no positive physical evidence to support the theory (as opposed to appearances on the yacht which would be consistent with it) nor did anything positively exclude it.
If the judge were to reason from the very fact of the break, then an apparently credible theory such as this was, had to be eliminated. This process of reasoning also brought into focus the difficulty in interpreting the significance of the position of the break and of its nature being, on Dr Zockel’s evidence, a result of torsion rather than compression. In terms of the judge’s analysis, any uncertainty in any of these areas had to tell against a conclusion of a simple lack of strength being the root cause.
In this context it can be noted that the mast did not fail in panel two where Mr Pearce found it was weakest. Nor did it break at what might be the expected area of weakness in panel one, being nearer the centre. The judge did not mention these apparently curious aspects of the event. In addition, in at least one part of the second judgment the judge wrongly located the site of the break at panel two [42]. That repeated an error made in the original judgment [26]. Thereby the judge wrongly treated the site of the break as bearing out Mr Pearce’s opinions.
The respondent’s case was not pitched so as to rely so heavily on the mast’s failure. Rather he called his expert to prove that the mast was, when manufactured, too weak. His defence to the appellant’s claim was not dependent on proof that the mast failed. He treated the failure as an incident of the mast’s proven deficiency, but was not reliant on proof of its cause. His Notice of Alternative Contention repeats the reliance on Mr Pearce’s evidence. But, as we have shown, the judge’s conclusion was not based on that expert evidence. And, as will be seen, we have found it impossible to reach a view as to which body of expert evidence is to be preferred.
The appellant is left in a position where significant issues of fact are still unresolved and important arguments mounted by it are rejected without adequate reasons being provided.
Therefore, in summary, we do not consider that the judge was entitled to use the fact of the break in the way he did. His conclusion based on his chain of reasoning is not substantiated and cannot therefore be sustained.
Summary of expert opinions
The following summary of the competing positions of the experts is taken from their evidence at both trials (where applicable) and from their reports. It has been necessary, though, because of the state of the material, to include a certain amount of deduction and extrapolation and, at times, to resort to first principles of physics.
There was conflicting expert opinion as to whether the mast as constructed was sufficient. The experts’ opinions were based on their calculations of the moment of inertia of the mast cross-sections in each of the panels, and in particular, panel one (between the deck and the first spreader) where the mast actually broke.
The term “moment of inertia” was used frequently by the expert witnesses. The moment of inertia is a property that indicates, among other things, how the mast will behave in bending. The moment of inertia of the mast was also referred to as its stiffness, and on occasion was denoted by the terms “Ixx” or “Iyy”, particularly in the written reports.
The moment of inertia or stiffness is a property of the cross-section of the mast. It is calculated using the geometric properties of the cross-section, without reference to the properties of the material from which the mast was constructed. The value will be different in the fore and aft direction from that in the athwartships direction, because the mast cross-section is not symmetrical.
The experts differed in two respects. First, there was some dispute as to the actual stiffness of the mast as it was constructed. This was because there were conflicting views between the parties as to the extent of the reinforcement in the mast, and whether the reinforcing was properly attached. However, calculations of the stiffness were provided by Mr Doherty of the University of Adelaide based on various levels of reinforcement. The parties did not dispute the accuracy of these calculations, but put different positions as to the actual extent of the reinforcement in the mast at the point of failure.
Secondly, and more significantly, there was a great divergence of opinion between the experts on the question of what the stiffness of the mast should have been. (For simplicity, we shall refer to this as the “required stiffness” as distinct from the “actual stiffness”). The reason for this difference was grounded in the design philosophies of each of the experts. It meant that they ultimately arrived at different numerical conclusions.
It appeared that there were three main steps taken by both Mr Pearce and Mr Jutson. First, they determined the righting moment of the yacht.
Next, they calculated the maximum compression force in the mast panels using the righting moment. We shall refer to this maximum compression force as the “design compression force”, as distinct from the actual compression force which might have been acting on the mast on the day of the incident.
Finally they used the design compression force to calculate the required stiffness in each of the mast panels. Mr Pearce and Mr Jutson differed in their approaches at each of these steps.
We note that neither Mr Pearce nor Mr Jutson provided a detailed set of calculations. Both experts provided computer printouts showing the input values and the results, and then explained particular aspects of their calculations. We shall identify the differences in approach between the experts at each stage of the design.
The Jutson program used the righting moment based on 35 degrees of heel, calculated from measurements provided in what was referred to as the IMS certificate. That stands for International Measurement System. We gather that the IMS certificate provides a set of standard measurements for a particular yacht, including righting moments. In Mr Jutson’s view, the IMS values should be treated as making allowance for the effect of the crew weight, sails and other equipment on the vessel.
Mr Pearce, on the other hand, calculated the righting moment using a combination of what he described as the actual righting moment of the yacht (calculated at 40 degrees), an allowance for the weight of the crew, and an additional factor based on the history of the yacht and the use to be made of it. Mr Pearce explained that he had taken into account the fact that the Rager had an earlier history of mast instability.
Mr Pearce agreed that the figure for the righting moment used by Mr Banwell in applying the Jutson program corresponded to that at 35 degrees. Mr Pearce agreed it was the industry standard to use the righting moment at 35 degrees although he noted that this was not the maximum righting moment, and its use was not a “hard and fast rule”. However, he stated that the IMS value was only for a yacht in “fixed static conditions” and that it was necessary to make allowances for sailing conditions.
Mr Jutson considered that reducing the complex effects of loading to a mere righting moment was inappropriate. He said that was not its purpose. Other inputs were to be used to determine the compressive load on the mast. He said he used the IMS value because it was derived from actual measurements, and could be supplemented to determine actual loads. Further, Mr Jutson stated that the use of factors of safety at a later stage would cover any deficit in his approach here.
We understand the term “safety factor” as used by the experts in this case to mean a value used in calculations which has the ultimate effect of increasing the required stiffness of the mast (in the present context), for the purpose of allowing for loads which cannot be calculated or cannot be predicted. For example, if a safety factor of two were used in determining the design compressive force on the mast, the designer would calculate the compressive force and then multiply it by two, to allow for contingencies such as the addition of further loads, or dynamic rather than static loading. In this case, the experts made clear that the safety factors they used were selected based on their experience in designing masts, and were not standard or fixed values that would be used uniformly.
The difference between the parties at this stage of the calculation was therefore the use that could be made of the IMS righting moment. Mr Pearce assumed that other variables, such as the weight of the crew and other equipment, had to be accounted for separately in calculating the righting moment. Conversely, Mr Jutson assumed that the IMS figure was the correct figure to use for the purpose of determining righting moment, but added further loads in the second stage of the calculations to determine the design compressive force in the mast. As a consequence, in using the Jutson program Mr Banwell used a figure for righting moment of 12,330 units, whereas Mr Pearce used a figure of 16,000 units. (It should be noted that the figure for the righting moment also assumed significance in other aspects of the experts’ opinions; for example, as seen, Mr Pearce used the righting moment in assessing the suitability of the halyards.)
In the first hearing, Mr Peachey did not explain how his calculations were performed. However, he suggested, in answer to Mr Pearce’s criticism that the IMS values were static, that factors of safety allowed for the extra forces when the vessel was at sea. In the second hearing, Mr Peachey calculated that the maximum righting moment was 15,000. However, it is not clear whether or in what way he used this value in the calculations presented at the first trial.
At the second trial, Mr Pearce provided a report showing the results of various other methods for calculating righting moment. The results differed, but there were some results which accorded with Mr Pearce’s earlier result and some that accorded with Mr Jutson’s result. Mr Jutson suggested that this showed the folly of isolating particular aspects of a calculation and that it was preferable to compare the overall method and results.
We turn to the second step in the calculation being determining design compressive forces in mast panels.
Mr Jutson explained that his program calculated the design compression forces by adding the force induced by the righting moment to the compressive forces induced by other rigging elements, including, for example, the halyards. This “summed load” was then multiplied by a safety factor of 1.65 to determine the final design compressive force in the panels of the mast. Mr Jutson stated that the summed loads were not exhaustive, and that they represented a static loading condition. He stated that the use of a factor of safety allowed for the undefinable loads and for dynamic conditions.
Mr Pearce did not explain how he determined the design compressive load on the mast. However, it appeared that it was determined directly from the righting moment. Mr Pearce calculated the potential forces that could be exerted by the sails and rigging. However, he stated that these would not be borne by the rig unless they could be opposed by the righting moment. According to Mr Pearce, the righting moment he calculated for the Rager was less than the potential forces exerted by the sails and rigging. On his calculations, the righting moment was 14.6 per cent less. (He referred to this value as “XSF”). He said that consequently the design compressive forces on the sails and rigging components could be reduced by 14.6 per cent.
Mr Pearce stated that Mr Jutson’s approach did not take account of forces from the forestay and permanent backstay. Consequently the design compressive force used by Mr Jutson was lower than it should have been. Mr Pearce attributed to Mr Jutson a factor of safety of only 1.29, which he considered was insufficient to account for the “excluded loadings”.
Mr Pearce calculated a greater righting moment than Mr Jutson. Further, Mr Pearce was of the view that the compression force on the mast was greater than that calculated by Mr Jutson.
In his report of November 2001, Mr Peachey did not explain how he had arrived at the figure for the required stiffness. However, he stated that he had used a safety factor of 3 in calculating the compression force in the mast.
The third stage of the calculations was determining required stiffness.
Once the design compression force on the mast is known, the mast designer can calculate the required stiffness or moment of inertia of the mast cross-section and select a mast section accordingly. “Euler’s formula” is used to determine the required properties – in this case, the stiffness – of a column in compression. Euler’s formula can only be used to determine the properties required to resist failure by compression or buckling, and does not determine what properties might be required to resist failure by some other mechanism, such as torsion.
Mr Jutson, Mr Peachey and Mr Pearce all employed Euler’s formula. However, the experts differed in their approaches at this stage of the calculation also. To calculate the stiffness using Euler’s formula requires several variables to be input. Because of their differing approaches there were three respects in which the experts differed in their use of Euler’s formula and the results of their calculations – the required stiffness of the mast – were therefore different.
In addition, in one instance there was a difference in the assumptions made. Euler’s formula requires the input of the length of the column under consideration – in this case, the length of the mast panel. It was the appellant’s contention that Mr Pearce had used incorrect lengths. Mr Pearce conceded this. On the appellant’s case, Mr Pearce’s error had increased the required stiffness of the mast by just over 10 per cent.
We turn to the differences in the experts’ approaches. First, Euler’s formula requires the input of a value denoted as “f”, which is a safety factor. The value selected for f could be applied at the stage of determining design compressive force, or it could be applied directly into the formula itself. The greater the value of f, the greater the required stiffness of the mast. Mr Pearce used a value of 2.02. Mr Jutson, as seen, applied the value at the earlier stage, and used 1.65. Mr Peachey used 3. Mr Pearce provided calculations to demonstrate how he arrived at the figure of 2.02, saying that this figure made allowance for dynamic load, torsional load and loads from the halyard and the boom. Mr Peachey agreed that these factors affected the value of f, but preferred to use a factor of 3. Mr Jutson did not explain how he arrived at his figure. However, he claimed that Mr Pearce’s use of a safety factor here was unnecessary, given that he had already added in safety factors in the course of calculating the righting moment.
Secondly, Euler’s formula requires the input of a value called “Euler’s constant”, denoted as “k”. Euler’s constant is a factor that enables the designer to take into account the way in which a column is fixed at each end. In this case, a mast that was completely fixed at the deck level would have a different k value (and ultimately a different required stiffness) from a mast that was able to flex or move at deck level.
Despite the term, the value given to Euler’s constant by each expert differed. The judge dealt with and explained these differences in his reasons. The greater the value of Euler’s constant, the less the required stiffness of the mast. Mr Pearce used a value of 1.4, Mr Peachey used 2 and Mr Jutson used 0.7. Mr Pearce claimed that Mr Jutson had in fact used a k value of 1.153 and that consequently, even on Mr Jutson’s own methods and values, Mr Jutson had erred in determining the required stiffness.
Finally, Euler’s formula requires the use of the design compression force. As we have explained above, the experts differed in their views of what that was.
In summary, and as Mr Jutson suggested, it is difficult to compare approaches directly as each expert had his own approach based on his experience designing masts. In some cases the experts dealt with particular contingencies in different ways. For example, Mr Pearce added additional loads at the point of calculating righting moment, whereas Mr Jutson added further loads at the point of calculating the design compressive force on the mast.
As noted above, Mr Pearce was more conservative in his approach to calculating the righting moment. His higher value for righting moment was carried through his calculations, so that he ultimately arrived at the greatest required stiffness.
In the athwartships direction, Mr Pearce concluded that the required stiffness was 1136 units. Mr Peachey considered that it was 720 units. Mr Jutson was of the view that it was 655 units.
Mr Banwell said that the mast actually had between 931 and 1323 units of stiffness at the point of the break. On Mr Doherty’s calculations the strength of the mast if unreinforced was 746 units, its strength if fully reinforced was 1323 units and if partially reinforced it was 931 units.
The evidence indicated that there was reinforcement from below the gooseneck upwards, but tapering off well before the level of the break. There was further reinforcement at the level of the first spreader. But it was not clear whether that reinforcement extended down as far as the point of the break. The respondent accepted that it might have. Whether there was full or partial reinforcement at the point of the break was in issue. Secondly, the parties disputed whether the reinforcing was appropriately attached. The respondent’s case was that it was not properly attached and therefore not fully effective.
The judge noted that Mr Jutson accepted that the reinforcing had finished tapering well short of the point of the break. However, in the passage of evidence to which the judge referred, Mr Jutson was speaking only of the reinforcing at the gooseneck level. It is not clear, therefore, what the judge’s findings were in relation to the disputed reinforcing at the level of the first spreader and extending to the break. He expressly addressed only the extent of the reinforcing at the level of the gooseneck.
The respondent submitted that the judge’s statement to the effect that there was no reinforcing at the point of the break is correct in substance, as it was open to him to find that because of the tapering of the reinforcing and because it was ripped off when the mast failed, the reinforcing was shown to be ineffective.
Conclusions of the experts
At the first trial, Mr Pearce expressed the opinion that the mast was of insufficient strength in panel two. He concluded that it was insufficient in both directions, but more so in the athwartships direction. He also concluded that the first spreader was insufficient and would probably have failed first, in turn causing the mast to fail because it was unsupported. However, he acknowledged it was also realistic to think that another element of the rigging might have failed first, overloading the mast and leading to its failure.
Mr Pearce was of the opinion that the mast was strong enough in the first panel (where it actually broke), although this was qualified by the view that it was not strong enough to withstand the first spreader breaking.
However, it should be noted that Mr Pearce’s conclusion that the mast had sufficient stiffness in panel one was based on a comparison of his required stiffness of 1136 units with the figure of 1323 units which, according to Mr Pearce’s report, was the figure given by Mr Banwell for the actual stiffness of the mast in panel one. It appeared that the mast only had a stiffness of 1323 units where it was fully reinforced. When it was only partially reinforced, it had a stiffness of 931 units. As noted above, there was dispute between the parties as to the extent of the reinforcing in the mast at the location of the break. Mr Pearce’s opinion that panel one was sufficiently strong is therefore only valid if accompanied by a finding of fact that the mast was fully reinforced in the location of the break. The judge in his reasons appeared to come to the opposite conclusion.
Mr Jutson was of the opinion that no-one could definitely establish the cause of the failure. The position of the break was, to him, surprising. The absence of the rigging meant that it was impossible to express a reliable opinion as to the order of events. Mr Jutson considered Mr Banwell’s design was appropriate.
In his report of November 2001, Mr Peachey calculated the required stiffness in the fore and aft direction in the first panel. His required stiffness was greater than that calculated by Mr Pearce. Mr Peachey did not calculate the required stiffness in the athwartships direction, or in any other panel, or in the spreaders.
Mr Peachey refuted Mr Pearce’s opinion that the first spreader would have failed first. He said if that had occurred, the mast would immediately fall to leeward and show a different pattern of deformation. Mr Peachey gave his opinions on the sequence of events leading to failure based on his observations of the fracture surface. He was of the opinion that the mast buckled forward under extreme compression. Presumably, this was why he only calculated the required stiffness in the fore and aft direction. It should be noted that his interpretation of the failure surface differed from that of Dr Zockel.
Mr Peachey did not explain how he had completed his calculations. He merely said he calculated the mast compression forces “from the IMS certificate and allowing for extra loads contributed by the halyards, running backstays, etc, and a factor of safety of 3”. Mr Peachey also took the view that it was unnecessary to complete calculations beyond the site of the break, namely panel one. On the other hand, Mr Pearce considered it important to analyse the whole mast. In any event, they both considered that panel one was adequate.
Mr Pearce was of the opinion that panel one had not broken first, and that it was the failure of another component – probably the spreader – that preceded it. Mr Jutson commented that failure of a rigging element is usually what precipitates the failure of the mast, but in this case, due to the loss of the rigging, he could not determine the sequence of events that had caused the mast to break. Mr Peachey did not consider the possibility of another component failing first.
Mr Pearce’s response to the suggestion that the mast should have broken in the second panel if weakest there is that it could be accounted for having regard to the fact that the deforming effect on panel two might have been transferred to panel one, particularly where the forces were torsional.
We are not in a position to resolve these issues.
That is partly because of the difficulty of the questions raised. As observed earlier, it was agreed on both sides that there are no standards for mast building. The builder has to reach a compromise between the demand for a light and responsive rig which will promote speed, as against the required strength. There is a good degree of judgement involved. In this case the appellant is an experienced mast builder and utilised – at least as a starting point – the design program of a tried and true mast designer.
Moreover, we have not seen the witnesses and had the advantages of assessing them in the witness box. Whereas in some cases a transcript of a trial can give a firm impression of the reliability of witnesses, this is not one of them.
Furthermore, the nature of the transcript gives rise to its own difficulties, which would have been experienced by the learned trial judge as well.
The manner in which the witnesses were led was such as to allow them to use technical terms without explanation and to lapse into jargon, which to the uninformed audience was as inexplicable as it was imprecise. Furthermore, there was no attempt to establish what assumptions they made in the giving of their evidence. That observation applies as much to the sailors’ opinions as it does to the expert witnesses. As a result, the transcript of both trials is in many areas almost unintelligible. Furthermore it is punctuated with statements and explanations from the bar table which are never verified by evidence. The difficulty of this situation was only exacerbated by the failure to carefully and precisely put each case to the opposing witnesses in compliance with the rule in Browne v Dunn. Often, the issues between the experts were not clearly joined.
Furthermore, no additional assistance is gained from the reports which were furnished. In almost all cases they were piecemeal and in the nature of instructions to the solicitors involved in the case, rather than directed to the court. Again, there was no attempt in them to define the terms used. Absolutely no effort was made to consolidate any of these memoranda into clear and comprehensive reports setting out their positions.
The importance of experts expressing themselves in language capable of being readily understood by judges (and jurors) and the need to reduce difficult concepts to plain English is emphasised by Freckelton and Selby in their work Expert Evidence Law: Practice, Procedure and Advocacy (3rd ed, Lawbook Co, 2005) at 893. The onus of achieving both goals falls upon the advocate.
For all these reasons we are unable to decide the appeal on the basis of the respondent’s notice of alternative contention.
Conclusion
We consider the appellant has made good its principal grounds of appeal as we have outlined them. No adequate reasons have been given for the conclusion reached by the learned trial judge. The judgment must be set aside. It follows then that the cross-appeal (regarding costs) fails.
For the reasons already mentioned, we consider that if the matter is to go to a further trial – which would need to take place before a different judge – then it will require to be prepared all over again, as if for the first time. For this reason we consider there should be no order as to the costs of this appeal. In the event, it is our view that what remains of this action should be mediated, if indeed it is to proceed at all. Too much time and too many resources have been spent on it already.
The orders of the court are:
1.the appeal is allowed;
2.the cross-appeal is dismissed;
3.the orders of the judge, including as to costs, are set aside;
4.the action is remitted to the District Court for retrial;
5.there will be no order as to costs.