Dagenham Nominees Pty Ltd v Shanks

DAGENHAM NOMINEES PTY LTD V SHANKS
[2003] SASC 219
Full Court: Debelle, Nyland and Lander JJ

DEBELLE J: I agree with the substance of the reasons of Lander J and with the orders he proposes.
NYLAND J: I agree with the reasons of Lander J and the orders proposed by him.
LANDER J: This is an appeal and a cross appeal from a decision of a Judge of the District Court in which the appellant was plaintiff and the respondent was defendant. I will refer to the parties by their titles on this appeal.
The appellant brought proceedings in the Magistrates Court against the defendant claiming the sum of $9,870.04 together with interest and costs being for “the costs associated with the manufacturing of various items of steel fabrication and rigging carried out to the defendant’s yacht ‘Rager’ at the express request of the defendant”. The costs were particularised by reference to invoice numbers and date. The last invoice (No. 676) was dated 29 January 2001 and was in the sum of $4,913.07.
The respondent filed a defence and counterclaim. In his defence the respondent claimed that he had entered into the contract as trustee of the Shanks Family Trust. He asserted that the work to be performed by the plaintiff included the design, sale, supply and installation of a mast and associated rigging: Para 3 of the Defence. He said that he had made known to the appellant the particular purpose for which the mast and associated rigging was to be supplied “namely, off shore yacht racing including the Sydney to Hobart Yacht Race” (the purpose): Para 5 of the Defence. He pleaded that it was an implied condition of the contract that the mast and associated rigging would be fit for the purpose and an implied term that the appellant would properly and skilfully design, construct and install a mast and associated rigging for the yacht ‘Rager’ fit for the purpose: Paras 8 and 9 of the Defence. He claimed, in his defence, that the mast and the rigging supplied by the appellant and installed in the yacht was not fit for that purpose. Particulars were given. He claimed that the appellant was guilty of misleading and deceptive conduct and sought an order avoiding so much of the contract as between the appellant and himself as might otherwise require payment in accordance with the invoices referred to in the appellant’s statement of claim.
The respondent also counterclaimed in respect of four different claims. First he claimed that the appellant supplied defective halyards as a consequence of which costs of $3,706.91 were incurred: Para 22 of the counterclaim. Halyards are used to reinforce the mast. Secondly he claimed that a defective ‘gooseneck’ was supplied by the appellant which needed to be repaired at a cost of $60: Para 23 of the counterclaim. Thirdly he further claimed that as a result of the appellant’s supplying an inadequate forestay the forestay plates sheared during the 2000 Sydney to Hobart Yacht Race whilst the respondent’s yacht was off the coast of Tasmania near Wine Glass Bay and as a result the yacht had to retire from the Sydney to Hobart Yacht Race. The forestay is part of the reinforcing of the rigging of the mast and usually is attached at one end to the top of the mast and the other to the deck. The respondent claimed that matter gave rise to a loss of $29,452.61. Fourthly the respondent claimed that, on 3 February 2001, whilst in the course of a Cruising Yacht Club (SA) Club Race the ‘mast supplied by the appellant broke due to its inadequate strength’. He claimed the replacement costs of a mast rigging and a sail in the sum of $101,383.28. He claimed costs wasted in holding the vessel for seven months during the time when the broken mast was repaired in the sum of $42,227.50.
The total amount claimed was $176,830.30 and interest.
The respondent’s damages as pleaded were:
“       Cost of halyards  $3,706.91
Cost of repairs to goose neck  $60.00
Costs wasted in respect of Sydney to Hobart Yacht Race        $29,452.61
Replacement mast and rigging and sail repair  $101,383.28
Wasted holding costs of vessel for 7 months at $6,032.50
          per month.  $ 42,227.50
Total:  $176,830.30   ”
The counterclaim therefore raised five issues.
1. Whether the appellant supplied defective halyards;
2. Whether the appellant supplied a defective gooseneck.
3.Whether the forestay plates supplied by the plaintiff were of an inadequate strength as a result of which the forestay broke on 29 December 2000;
and
4.Whether on 3 February 2001 the mast broke due to its inadequate strength;
and
5.What damages, if any, were suffered by reason of any of the four matters to which I have referred.
The trial Judge awarded the appellant the sum of $4,893.97 in respect of its claim against the respondent for the cost of the manufacture of the mast. He disallowed the sum of $4,913.07, being the sum comprised in invoice No. 676, of $4,913.07 of the appellant’s claim because the work comprised in that invoice was remedial work which was made necessary by the appellant’s own breach of contract. The breach was the failure to supply a forestay of adequate length.
He found for the respondent on the counterclaim and he assessed the respondent’s damages on the counterclaim as follows:
“  $
Replacement of the mast  67,115.93
Damage to wind equipment  123.75
Staunchions  831.60
Hull damaged by the mast  3,135.00
Hanks  350.00
Replacement of sails  3,000.00
$74,556.28        ”
Having assessed the respondent’s damages he set off the amount of the appellant’s claim against the sum assessed and entered judgment for the respondent in the sum of $69,662.31 together with interest of $5,200.00. He ordered the appellant to pay the respondent’s costs.
In his assessment of the respondent’s damages the trial Judge allowed nothing for the defective halyards and nothing for the defective gooseneck. He allowed only $350.00 in respect of the third claim for the loss caused by the forestay breaking free. He allowed $74,206.20 out of the claim of $143,610.78 in respect of the fourth claim arising out of the broken mast on 3 February 2001.
The appellant’s grounds of appeal are:
“1.That the learned Judge erred in law and in fact in accepting the evidence of the respondent’s expert over the evidence of the appellant’s director and the appellant’s expert in particular as to the strength of the mast and the extent of reinforcing.
2.The learned Judge should have found that the mast, as constructed by the appellant, was of a merchantable standard, of sufficient strength, and fit for the purpose for which it was designed.
3.The learned Judge erred in exercising his discretion in ordering costs to the defendant and should have made no order in respect of costs on account of the fact that the defendant was largely unsuccessful in respect of the bulk of the defendant’s claim and led expert evidence on alleged defects which ultimately the defendant abandoned, particularly as to the strength of the spreaders supporting the mast.”
The appellant’s grounds of appeal are directed only to the finding that the appellant was in breach of contract in relation to the fourth claim. Moreover no complaint is made about the assessment of damages in respect of that claim.
The respondent’s grounds of appeal on the cross appeal are:
“1.That the learned Judge erred in awarding damages of $3,000 in respect of the mainsail destroyed and ought to have awarded $30,177 in respect of the said sail being the proven cost of the replacement sale.
2.The learned Judge erred in failing to award damages for the loss of use of the vessel whilst repairs were undertaken.
3.The learned Judge erred in finding that he could not compensate the defendant for loss of the enjoyment of use of the vessel.
4.The learned Judge erred in failing to compensate the defendant for costs wasted in respect of the Sydney to Hobart Yacht Race.”
The respondent’s grounds of appeal complain about the trial Judge’s failure to award any more than $350 in respect of the third claim and the trial Judge’s assessment in respect of the fourth claim.
Neither party seek to re-agitate the first or second claims.
The respondent is a medical practitioner, and a very experienced yachtsman, who purchased the yacht, then 10 years old, “Doctel Rager” in September 1997 specifically for racing the yacht in the annual Sydney to Hobart races.
The “Doctel Rager” suffered serious damage when it came into collision with a reef in March 2000 and as a result required significant rebuilding.
As part of the rebuilding it was necessary to fit a new mast. The respondent approached Mr Banwell, who is the principal of the appellant seeking a quotation for the manufacture and installation of a new mast with appropriate rigging. Mr Banwell had previous experience with “Doctel Rager” and he carried out compulsory annual rig inspections in the years 1997, 1998 and 1999.
The re-building work commenced in April 2000 and completed in October 2000. It was the respondent’s intention to compete in the 2000 Sydney Hobart Yacht Race which commences each year on 26 December.
The respondent took Doctel Rager to Sydney for the 2000 year race and the yacht was subject to a compulsory rig inspection by the race organisers. The rig inspector reported that the halyards were too small and had to be replaced. The respondent arranged for that to happen at a cost of $3,706.91.
That sum formed part of the respondent’s counterclaim but the trial Judge refused to award any amount in respect of the replacement of the halyards because there was no evidence that the original halyards were inappropriate, the only evidence being that the rig inspector required them to be replaced.
There is no complaint by the respondent about that finding or the trial Judge’s refusal to award any amount in respect of the halyards.
The respondent claimed that the gooseneck attached to the mast should have been bolted to the mast rather than welded. The trial Judge rejected the claim for $60 because he found there was insufficient evidence to establish that the appellant’s method of attachment was wrong. There is no complaint about that finding.
The yacht entered the race and left Sydney on 26 December with the respondent as the skipper. On 28 December the yacht was near Wineglass Bay off the North East coast of Tasmania about 10 hours sailing from Hobart. The forestay was attached to forestay plates which were in turn attached to the deck. The forestay broke when the pin which attaches the forestay to the forestay plates sheared off. That pin is called a split pin. One of the forestay plates came off and the other bent. When the pin sheared the forestay was left flapping in the breeze with a dupe attached to it. The mast was still held direct by the halyards. However the loss of the forestay itself left the mast unstable. The yacht was immediately retired from the race.
The appellant subsequently repaired the forestay by attaching the forestay down to the deck rather than to the plates.
The trial Judge accepted the evidence of Anthony Pearce, an expert witness called by the respondent, and found:
“that it was faulty workmanship in not attaching the forestay directly to the deck of the yacht rather than using the plates. I agree with the opinion of Mr Pearce that if the forestay had been made after the mast was in the yacht this would have avoided the problem of being too short and therefore have avoided the problem of creating the necessity for these plates to be inserted.”
That is the sum total of the trial Judge’s findings in relation to the third claim in the respondent’s counterclaim.
I am relieved from considering whether that finding can stand because the appellant does not complain of the trial Judge’s finding of breach on this claim.
The only aspect of the third claim relevant on the appeal is the respondent’s claim of the inadequacy of the damages.
I shall deal with that immediately.
It was the respondent’s case that as a result of the yacht’s forced retirement from the race he incurred losses of $29,452.61. That sum included the cost of transportation of the yacht to Sydney, entering the race and preparing the yacht to allow it to return to Adelaide.
I set out the particulars of that claim:
“ 27/11/00  RYCT  Nomination Diners  50.00
   16/11/00  CYCA  Nomination Diners  2,200.00
   06/10/00  OAKFORD                  Tasmania accom Diners                  2,220.00
   07/10/00  OAKFORD                  Sydney accom Diners  600.00
   15/12/00  QANTAS  Airfare CMS Diners  403.70
   02/01/01  QANTAS  Airfare VMS Diners  403.70
   27/12/00  OAKFORD                  Sydney accom Diners  446.60
   03/01/01  OAKFORD                  Tasmania accom Diners                  5,479.00
   16/10/00  ANSETT  Airfare EDS Diners  696.74
   16/10/00  ANSETT  Airfare GS Diners  474.54
   30/01/01  BROWN  Spinnaker repair  99.00
   23/12/00  SYDNEY RIGGING       Halyards     SFT  3,369.92
   31/12/00  STATION 12                Satellite phone calls  Diners   472.41
   23/12/00  STURROCKS               Hooks, clamp Cash  41.95
   08/01/01  P STEVENS                  Provisions    SFT  1,520.80
   04/01/01  MOBIL SORELL           Fuel-> Coles Bay  BSA   53.05
   21/12/00  G BASCOMBE             Delivery charges SFT  1,417.50
   15/11/00  BLUE SKY                  Motor spares for delivery               SFT 223.20
   22/12/00  CYCA  Mooring fees Diners  110.88
   15/01/01  BOLTON  Delivery expenses  Cash   850.10
   31/12/00  FRASER SAILS             Sail repairs Dr G  1,594.00
   10/11/00  GIBSON INSURANCE     Syd-Hob Insurance  Dr G   1,758.13
   23/12/00  JAVELIN MARINE        Sail repairs   SFT  1,095.00
   18/01/01  NORTH HAVEN MARINE Parts for repairs  SFT 30.80
   24/11/00  R McCANCE                Airfare       SFT  163.80
   06/12/00  CASH & CARRY          Delivery provisions  294.68
   05/12/00  COLES  Delivery provisions  83.60
   08/12/00  BIG W & COLES          Delivery provisions  324.52
   08/12/00  COLES, BUTCHER        Delivery provisions  122.90
   21/12/00  PORTLAND EXPENSES Delivery provisions  371.26
   02/01/01  RBR REFRIGERATION   Fridge repairs Dr G  251.68
             TELSTRA  0417 828 893  167.20
  0418 818 520  408.11
  0418 823 697  152.86
  0418 835 480  43.43
29,452.61 ”
The Judge found that the only sum expended by the respondent as a result of the failure of the forestay was $350. The further amounts which were claimed were, in the trial Judge’s opinion, expenses which would have been incurred in any event.
It was, of course, for the respondent to establish damages for breach of contract. In this case damages would be awarded to put the respondent in the position the respondent would have been if the contract had been performed. The respondent therefore would be entitled to be compensated for the losses and costs occasioned by reason of a forestay which was too short. In due course the forestay was repaired by the appellant itself and the Judge disallowed the cost charged by the appellant for the repair of that forestay. The Judge refused the appellant’s claim on invoice No. 676 dated 21 January 2001.
The disallowance of the appellant’s claim for the repair of the forestay would compensate the respondent for the cost of the repair of the forestay.
The respondent has not, in my opinion, (which was also the trial Judge’s) proved any loss in relation to the breach by the appellant in relation to the design and installation of the forestay.
The sum of $3,369.92 for the Halyards has been dealt with separately. The claim for the sail repairs does not relate to the shearing of the forestay plates or the shortness of the forestay itself.
Some of the claims are patently absurd. There are claims for accommodation in Sydney and Tasmania both before and after the race. The cost of accommodation two months before the race is claimed. The respondent has also claimed for airfares two months before the race. The respondent has claimed for all meals expenses and sustenance apparently incurred during the race.
The appellant did not establish the relationship between breach and expense.
In my opinion, the respondent has not established, that if the contract had been performed those costs would not have been incurred.
Most of the items and the significant item relate to the race itself. If the contract had been performed those costs would still have been incurred.
In my opinion, the trial Judge was right to reject the respondent’s claim in that respect.
The fourth claim which comprised the major part of the respondent’s counterclaim and the Judge’s award occurred on 3 February 2001.
As I have already indicated, the respondent’s defence to claim and counterclaim in relation to the events of 3 February 2001 was rather cryptically pleaded. It was merely asserted that the mast supplied by the appellant broke due to the mast’s inadequate strength. It was claimed that the mast was replaced by the respondent as soon as possible but the replacement mast could not be fitted and the Yacht commissioned until June 2001.
The appellant filed a reply to the respondent’s defence and a defence to the respondent’s counterclaim.
In respect of the respondent’s fourth claim the appellant pleaded:
“10.The (appellant) denies that the mast broke on account of its inadequate strength. That (appellant) says that the mast broke due to misuse of the mast and rigging by the (respondent).
PARTICULARS BY THE (RESPONDENT’S) MISUSE OF THE MAST AND RIGGING ON THE 3^RD OF FEBRUARY 2001
The (respondent) overloaded the mast and rigging of the yacht by hoisting a spinnaker for the downwind leg of the race in question. The wind strength was too strong to fly the sail in question.
The (respondent):
(a)     allowed the yacht to broach wildly out of control;
(b)    released the rope constraints on the spinnaker allowing it to flog wildly;
(c)    released the bracer rope from the spinnaker pole;
(d)    allowed the brace holding the spinnaker on the windward wide to rise and place perpendicular pressure on the forestay at about its midpoint;
(e)    set the rigging with the main sail reef permitting the top of the mast to bend further forward and what it would have otherwise been able to do;
(f)     allowed the middle of the mast to move at an arc out of column causing a compression failure from the tension of the rig.”
Two matters are raised in that plea. First, a general denial to the respondent’s claim that the mast failed due to its inadequate strength thereby putting the respondent to proof on that matter. Secondly, a positive plea, on the appellant’s part, that the respondent had misused the mast’s rigging in accordance with the particulars given.
The respondent filed a further pleading being a reply to the appellant’s defence to counterclaim and in respect of the positive plea in the appellant’s defence to the respondent’s counterclaim the respondent pleaded in its reply:
“3.In relation to the allegation contained in paragraph 10 of the (appellant’s) defence to counterclaim the (respondent):
3.1does not know what the (appellant) means by his allegation that the (respondent) allowed the yacht to broach wildly out of control and says that such allegation is embarrassing to plead to and ought to be struck out and says further that the yacht did broach but that the broach although not deliberate, was not out of the ordinary in ocean racing;
3.2says that the respondent did not release the rope constraints on the spinnaker allowing it to flog wildly and the spinnaker did not flog;
3.3says that the respondent did not release the brace from the spinnaker pole and says further that the brace pin in the pole failed under load during the broach;
3.4says that the respondent did not allow that the windward brace to rise and placed perpendicular pressure on the forestay about its midpoint but that in the course of the broach that the brace did rise after leaving the pole end;
3.5says that the respondent did not set the rigging so as to permit the top of the mast to bend further forward and says further that the forward movement at the top of the mast was controlled by the backstay which was said as advised by the “appellant”;
3.6says that the plea in paragraph 10 (f) of the (appellant’s) defence to counterclaim is ambiguous and embarrassing to plead to in that it does not specify in what direction and to what extent it is alleged the mast moved in an arc out of column and the (respondent) says further that the tension of the rig was set advised by the (appellant);
3.7says that the (respondent) did not overload the mast and rigging by hoisting a spinnaker and that the spinnaker hoisted was appropriate for the conditions which existed and says further that the wind speed at the time was 22-27 knots averaging around 24 knots and that spinnaker used was appropriate for conditions up to 30 knots.”

In relation to the fourth claim the pleadings raise two factual issues. First, whether the mast broke because of its inadequate strength. The evidential onus in that regard was upon the respondent. Secondly, whether the mast broke due to misuse of the mast and rigging by the respondent. The evidential onus in that regard was upon the appellant.
In the end result, of course, the legal onus was upon the respondent to establish, on the balance of probabilities, that the appellant was in breach of its contract with the respondent but it could only do so by establishing that either the design, supply or installation of the mast resulted in a mast which was insufficiently strong to withstand the purpose referred to in para 5 of the respondent’s defence and counterclaim namely off-shore yacht racing off the coast of South Australia and in the conditions known to exist for the Sydney to Hobart Yacht Race.
The onus was also upon the respondent to establish if there be a breach that damages are necessary to put the respondent in the position the respondent would have been if the contract had been performed.
Whilst it was the appellant who initiated the proceedings in the District Court, the trial Judge and the parties, sensibly, in my opinion, treated the respondent as dux litis.
The respondent gave evidence of the circumstances surrounding the Sydney Harbour Yacht Race and the incident of 3 February 2001.
He called, in support of his case, three other witnesses. Mark Wilson is an experienced yachtsman who was part of crew on the Sydney to Hobart Yacht Race in the year 2000. Mr Gary Sinton is a qualified marine engineer and was part of the crew on the Doctel Rager on 3 February 2001.
The evidence of the respondent and his two witnesses was that there was no misuse of the yacht. In particular Mr Sinton’s evidence was that there was nothing untoward about the sails or the events of 3 February 2001 before the mast broke.
The respondent called, as part of his case, an expert witness, Mr Anthony Pearce, who gave evidence of the construction of the mast and why, in his opinion, the mast had failed. Essentially his evidence was that the first spreader was of insufficient strength. It was also his opinion that the reinforcing of the mast was not extensive enough and finished 200 to 300 mm short.
He was examined in relation to the way in which the yacht had been sailed on 3 February 2001 and he was asked these questions:
“QYou have been sitting in Court while evidence has been given; are you able to express a view as to how and why the mast broke.
AMy view is that the mast was not strong enough at the point that it broke and contributing to that may have been the first spreader which was, I believe, not strong enough for the conditions that the boar was under at the time.
QThose conditions were within what you would expect to be designed for?
AYes.”
In my opinion, that first question was impermissible. It is not appropriate to examine an expert witness by reference to the whole of the evidence which the expert witnesses heard. Such a question does not allow the Court to understand the assumptions upon which the expert is basing his or her opinion: Hillier and Carney v Lucas (2002) 81 SASR 451 at 494 [352].
The appellant gave evidence. He detailed the design and construction of the mast and in particular its reinforcing. He offered an explanation as to why the mast had failed.
The trial Judge summarised his evidence:
“I suppose it would not be unfair to summarise the plaintiff’s position on the cause of the breaking of the mast as a series of circumstances which created such a force that any reasonably manufactured mast in the circumstances would have broken.”
The plaintiff’s evidence was supported by an expert, Mr Howard Peachey, a naval architect. He expressed the opinion that the mast broke because of the combination of circumstances which occurred on the day during a sailing manoeuvre. He also expressed the opinion that the point at which the mast broke was of sufficient strength.
The appellant also called one of his employees who manufactured the spreaders and the sleeve which reinforced the mast.
Two other witnesses were called who witnessed the incident of 3 February 2001 and the mast breaking. Mr Fidock did not actually see the mast come down but noticed that the yacht was overpowered because it was carrying a large spinnaker which was still up when the yacht carried out a jybe.
Mr Craig Williams described the circumstances in which he witnessed the mast come down on Doctel Rager.
I do not understand that either witness said that the yacht was being sailed dangerously. I understand their evidence to be that the yacht was being sailed hard.
After detailing the evidence of all of the witnesses to whom I have referred the trial Judge expressed this conclusion:
“Conclusion
In the miasma of technical evidence which confronts me I find the evidence of Anthony Pearce the most reliable. Where it is in conflict I prefer his opinions to those of the plaintiff and Howard Peachey. In particular I find that his opinion that the mast broke at its weakest point and that that weakest point was not properly reinforced to be compelling. I accept Mr Pearce’s opinion that a proper design would have resulted in the reinforcing sleeve being extended from the base of the mast up past the first spreader into the area where the mast broke. On the evidence before me there was no reason why this could not have been done. I am also of the view that Mr Pearce’s opinion is supported by other evidence. That evidence is the evidence before me as to what happened on the day the mast broke. I find that what happened was not totally unusual and although Doctel Rager got into difficulties a properly designed and fitted mast should cope with that situation without breaking. The objective fact is that that mast was designed and fitted to a large yacht which was to be used for heavy offshore racing and was meant to cope with conditions for more hazardous than those that were experienced off outer harbour on the 3^rd February 2001. The fact that the mast broke in those conditions only 3½ months after it had been designed and installed in my view clearly supports the opinion of Mr Pearce.
I also accept Mr Pearce’s evidence that it was faulty workmanship in not attaching the forestay directly to the deck of the yacht rather than using the plates. I agree with the opinion of Mr Pearce that if the forestay had been made after the mast was in the yacht this would have avoided the problem of it being too short and therefore avoided the problem of creating the necessity for these plates to be inserted.
In relation to the claim for the halyards, the only evidence before me is that when the yacht arrived in Sydney the authorities required to have the halyards replaced. In my view that is not enough evidence to suggest that the halyards that were replaced were unworkable.
In relation to the small claim for the attachment of a goose neck to the mast it is argued that the goose neck should have been fixed mechanically, that is bolted to the mast rather than being welded to the structure of the mast. The plaintiff asserts that the method of attachment by direct welding was appropriate. In my view there was not enough evidence to suggest that the method of attachment by the plaintiff was inadequate and that part of the claim is rejected.”
There was no dispute that the purpose for which the mast and associated rigging was to be supplied was so that the yacht could compete in off-shore yacht racing including the Sydney To Hobart Yacht Race.
The trial Judge was under an obligation to determine whether or not the mast, which was designed, constructed and installed for the appellant, was suitable for that purpose.
In my opinion, the trial Judge was under an obligation to make findings as to the design, construction and installation of the mast. In particular the trial Judge was obliged to find whether the mast was of an adequate strength for the agreed purpose.
This was a matter which very much depended upon expert evidence and if there was a dispute between the experts as to the adequacy of the strength or otherwise of the mast the trial Judge was obliged to choose between them.
However he could only choose between the experts after he had determined whether the facts and assumptions upon which the expert opinions were based were consistent with any findings he made in relation to those matters. Like in any other trial which depends upon expert evidence the expert’s evidence can only be accepted if the experts expose the facts and assumptions upon which their opinions are based and those facts and assumptions can coincide mainly with the findings made by the trial Judge.
The trial Judge has made no findings in relation to the matters upon which the experts based their opinions. He has not determined appropriate criteria upon which calculations should have been made to determine the appropriate strength of the mast to satisfy the purpose.
He was entitled to prefer the evidence of one expert to another but only if there were reasons for so doing. The trial Judge has expressed no reasons as to why he preferred the evidence of Mr Pearce whose evidence he describes as “the most reliable”. He was also obliged, in my opinion, if he was to reject Mr Peachey’s evidence to explain why his evidence was to be rejected.
He was also obliged to determine whether Mr Pearce’s opinions were based upon assumptions which he had found and that in those circumstances he could accept the opinion.
He should have made findings as to the incident of 3 February 2001 and whether the sails which were carried on the Doctel Rager and the manoeuvres which were carried or were such that could put the yacht under extreme conditions and cause the mast to break.
In my opinion the trial Judge has hardly dealt with any of the matters which were before him and, in those circumstances, his conclusions cannot stand.
This Court is unfortunately not in a position to make the findings which should have been made by the trial Judge. There were significant differences in the evidence given by the various witnesses which, in some respects, required an assessment of those witnesses.
This Court is not in a position to make that assessment on the papers.
Unfortunately, in those circumstances, it is necessary to return this matter to the trial court for further hearing.
I propose the following orders:
1.Appeal allowed.
2.Cross-appeal dismissed.
3.The matter should be remitted to the trial judge for further hearing in accordance with these reasons.
4.No order as to costs.

[2003] SASC 219

14 August 2003