Dagenham Nominees Pty Ltd v Shanks

[2011] SADC 81

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

DAGENHAM NOMINEES PTY LTD v SHANKS

[2011] SADC 81

Judgment of Her Honour Judge McIntyre

2 June 2011

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - CONSTRUCTION AND INTERPRETATION OF CONTRACTS - IMPLIED TERMS

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - ONUS OF PROOF

DAMAGES - GENERAL PRINCIPLES - MITIGATION OF DAMAGES

On the afternoon of Saturday 3 February 2001 Doctel-Rager, a 56 foot sailing vessel, was owned by the defendant who was sailing in a race conducted by the Cruising Yacht Club of South Australia in St Vincent’s Gulf off Outer Harbour.  During the course of the race - Rager's mast broke.  The plaintiff designed, supplied and installed the mast and associated rigging. The plaintiff issued these proceedings seeking payment for that work. The defendant resisted that claim and counter-claimed for damage to the yacht on the basis that the mast was not fit for its purpose.

Held: It was an implied term of the contract that the mast be fit for its purpose and the plaintiff has not discharged its evidentiary onus to demonstrate that the mast was fit for it's purpose. The plaintiff's claim therefore fails. 

The defendant suffered loss as a result of the failure of the mast and has not failed to mitigate that loss.  He is therefore entitled to damages assessed in the sum of $69, 643.21.

Emery v Johns (1989) 152 LSJS 210; S, DJ v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2009] SASC 6; Robertson v Territory Insurance Office [2005] NTSC 74; Makita Pty Ltd v Sprowles (2001) 52 NSWLR 705; Clough v Tameside & Glossop Health Authority [1998] 2 All ER 971 at 977, considered.

DAGENHAM NOMINEES PTY LTD v SHANKS
[2011] SADC 81

Introduction:

1. On the afternoon of Saturday 3 February 2001 Doctel-Rager, a 56 foot sailing vessel, was owned by the defendant who was sailing it in a race conducted by the Cruising Yacht Club of South Australia in St Vincent’s Gulf off Outer Harbour. Rager rounded the windward mark completing the first portion of the race in second place. Rager was headed downwind towards the second mark in pursuit of the leading yacht. To reach the second mark it was necessary to change direction. The defendant decided to do this by performing a gybe.  This did not go well. Rager broached and, during the course of this, the mast broke. 

2. The plaintiff designed, supplied and installed the mast and associated rigging. The plaintiff issued these proceedings seeking payment for that work.  The defendant resists that claim and counter-claims for damage to the yacht on the basis that the mast was not fit for its purpose. For the reasons that follow I find that the defendant is entitled to judgment in the sum of $69,643.21.

   Issues

3. In order to determine whether the mast was fit for its purpose it is necessary to make findings about a number of issues:

   1What did the plaintiff design and construct? 

   2How was it installed? 

   3Did the mast fail because of some action or inaction by the defendant?

   Background

4. Rager is a 56 foot sailing vessel used for off shore yacht racing including the Sydney to Hobart Yacht race. Rager sailed in the 1997, 1998, 1999 and 2000 Sydney to Hobart Yacht races.

5. The plaintiff carried on a business which included the design, supply and installation of masts and associated rigging for yachts. During the year 2000 and January 2001 the defendant engaged the plaintiff to carry out work including the design, supply and installation of a mast and associated rigging on Rager. 

6. The plaintiff held itself out as a qualified and competent builder and designer of masts and associated rigging. It is agreed that the plaintiff was obliged to properly and skilfully design, construct and install a mast and associated rigging for the defendant that would be fit for purpose, in particular for Rager to sail in conditions such as those experienced in the Sydney to Hobart Yacht races.

7. The mast built, supplied and installed by the plaintiff on Rager featured three levels of spreaders constructed of T-6 temper aluminium.  The first level of spreaders contained reinforcement welded to the inboard end of the spreader.

8. It is agreed that under normal sailing conditions the mast would be expected to bend but the plaintiff says that there was little movement in the mast, it did not move to a significant amount and that it was not weakened by that movement.[1]  It is further agreed that under normal sailing conditions the rigging would be expected to stretch but the plaintiff says that there was little stretch in the stays that held the mast, that they did not stretch a significant amount, and that the mast and spreaders were not weakened by that stretch.[2]

   [1] Plaintiff’s Reply to Notice to Admit para 3

   [2] Plaintiff’s Reply to Notice to Admit para 4

9. A gybe is a commonly used method to manoeuvre racing yachts. It is agreed that during a gybe, Rager became caught in a broach. A broach is said to be a sudden change in direction of a yacht such that it turns broadside to the wind, becomes unbalanced and flounders.

10. It is helpful to set out a brief chronology of the undisputed events which occurred prior to the mast failure:

March 2000	Rager was damaged near Port Lincoln when it was grounded on a reef. The keel sustained some damage and the yacht lost its mast.
April 2000	Rager went to Peter Bolton for repairs. The plaintiff was engaged to construct a new mast and rigging.
22 October 2000	Rager was relaunched.
19 December 2000	Rager left for Sydney to participate in the Sydney to Hobart Yacht Race.
26 December 2000	Rager started the Sydney to Hobart Yacht Race but did not complete the race owing to the forestay shearing off. These proceedings originally included a claim for damages by the defendant in respect of that issue which has been resolved.  No claim is pursued in relation to this issue in this retrial.
29 January 2001	The plaintiff replaced the forestay.
3 February 2001	The mast broke.

1. Contentions

2. The defendant says that the mast and associated rigging designed and constructed by the plaintiff was not fit for its intended and known purpose. The defendant says in particular that the first starboard spreader was undersized and fixed at the inner end. He contends that the first starboard spreader broke and, in consequence, the mast suffered a bending failure to port.

3. In its pleadings the plaintiff says that the mast and associated rigging was properly designed, constructed and installed and was fit for the purpose for which it was required. It denies that the mast broke because of inadequate strength and says it broke because of misuse of the mast and rigging by the defendant. The plaintiff contends that the defendant has not established why the mast broke and says that this is fatal to his claim. The plaintiff denies that the first starboard spreader broke before the mast. The plaintiff says that the spreader fractured immediately following the broach when the boat was incapacitated due to excessive sail area set accompanied with adverse wind speed and sea conditions.[3] 

   [3] Plaintiff’s Reply to Notice to Admit para 7

4. The plaintiff’s written submissions raise two further arguments that are not pleaded.  First, the plaintiff argues that another possible cause of the mast failure is attributable to the fact that the IMS certificate supplied to the plaintiff by the defendant substantially understated Rager’s true weight and thus its righting moment which is a critical factor in mast design. It is said that this is a factor that the plaintiff could not know and should not be held liable for.[4]  Second it is submitted that the defendant’s:

   …..failure to install and use runners constitutes misuse of the mast which either exonerates the plaintiff from any liability or makes him a major contributor to the loss.[5]

   [4] Plaintiffs first submissions para 102

   [5] Plaintiff’s second submissions p20

5. It is my view that these two matters ought to have been pleaded.  Notwithstanding this I have considered both arguments and for the reasons that follow I have rejected them.

   Proceedings

6. This matter proceeded as a retrial with evidence taken from 2 August 2010 until 24 August 2010. The matter was then adjourned. Oral submissions were made on 7 October 2010 to supplement written submissions filed by both parties.  Further written submissions were subsequently filed by the plaintiff following an application by the plaintiff’s counsel on the basis that he had not had time to consider and respond to the written submissions tendered in court by the defendant in answer to the plaintiff’s submissions on 7 October 2010. I gave leave on the basis that the further submissions should be restricted to responses to matters that were not raised in oral submissions. The document filed by the plaintiff did not so confine itself as is apparent from the section of the document entitled “Extra Comment”. One of the matters raised is the assertion concerning the use of runners that I have indicated ought to have been pleaded. On 29 April 2011 the plaintiff supplied a 22 page document of transcript changes suggested by the defendant. Some are agreed by the plaintiff, some are not. I found it difficult to decipher some of the comments. However, most were not of consequence.  The agreed changes are reflected in this judgment where relevant, and identified by footnote.

7. The defendant was dux litis by agreement. He gave evidence. He called three lay witnesses who were onboard Rager the day the mast broke; Charles Wall-Smith, Mark Wilson and Gary Sinton. In addition the defendant called two expert witnesses Andrew Dovell, a naval architect, and Christopher Mitchell, an engineer who specialises in mast design and construction. The defendant served a Notice to Admit which resulted in a number of agreed matters.

8. The plaintiff called three witnesses who were participating in the yacht race on the day Rager’s mast broke; Richard Fidock, Peter Bolton, who was the boat builder who repaired Rager following the Port Lincoln grounding and Graham Williams.  A director of the plaintiff, Kenneth Banwell, gave evidence along with an employee, Kym Davis, concerning the design and construction of the mast.  In addition the plaintiff called three expert witnesses; Lindsay Doherty, a civil engineer, Graham Powell, a metallurgist, and Howard Peachey, a naval architect. 

   Preliminary issues

9. There are two significant problems with the manner in which this matter has been conducted. 

10. First, the agreement that the defendant be dux litis has led to a lack of clarity about the issues and confusion about who bears the onus of proof in respect of the various issues.  The agreement was made in the earlier proceedings and was not of itself problematic. Rather, it is the effect of the agreement that is of concern. 

11. If this agreement had not occurred, there is no doubt that the plaintiff would first have had to establish its entitlement to payment for the work it performed under the contract.  The defence to that claim, simply put, was that plaintiff was in breach of the implied contractual term of fitness for purpose. The counter claim by the defendant is for damages for the breach of contract. 

12. There is no dispute that it was an implied term of the contract between the parties that the plaintiff properly and skilfully design, construct and install the mast and associated rigging suitable for its intended purpose or that the plaintiff knew the intended purpose of the mast and rigging.  The plaintiff bears the onus of establishing that it had satisfied that implied term in order to successfully enforce the contract.[6]  The agreement that the defendant be dux litis does not change that position.[7]

    [6] Emery v Johns (1989) 152 LSJS 210

    [7] S, DJ v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2009] SASC 6; Robertson v Territory Insurance Office [2005] NTSC 74

13. The plaintiff is critical of what it says is the defendant’s failure to identify the cause of the mast failure. Indeed it says that this is fatal to the defendant’s claim.  I do not agree.  This is a contract case not one brought in tort.  In one sense the cause of the failure of the mast is not relevant. The key question is whether the mast was fit for its purpose. The mast failed shortly after the plaintiff replaced the forestay.  If it cannot be shown that the defendant caused the mast to fail then the plaintiff has not discharged its evidentiary onus to show that the mast was fit for purpose.

14. Even if I am wrong about this, for the reasons that follow, it can be seen that I accept the defendant’s case that, on the balance of probabilities, the mast broke in consequence of a failure of the lower starboard spreader and that the cause of the failure of the spreader was that it was not adequate to meet the loads that would be placed upon it.

15. The second problem relates to inadequate discovery by the plaintiff and in particular to inadequate discovery of the material provided to the experts.  There is a lack of information concerning what precisely the plaintiff designed and built.  The only material in evidence, generated prior to the construction of the mast, is what Mr Banwell described as a crude workshop drawing[8] and a computer print-out which has some of Mr Banwell’s handwriting on it. Mr Banwell concedes that these documents do not reflect the dimensions of the mast and spreaders as constructed.[9]  The remaining documents that purport to indicate the dimensions and method of construction of the mast and spreaders were prepared by Mr Banwell following the mast failure from a combination of his memory, the workshop drawing[10], the computer printout with handwritten notes[11], three photographs of the mast in construction[12] and the remains of the mast left in the boat. 

    [8]  Exhibit D6

    [9]  Exhibit P23

    [10] See note 1

    [11] See note 2

    [12] Exhibits D4, P25 and P26

16. Leaving aside for the moment whether these post construction documents are accurate, it became apparent during the course of the hearing that, notwithstanding this matter has been on foot for many years, additional material had been supplied to the plaintiff’s experts that was not made available to the defendant’s experts. This appears to have come about through Mr Banwell instructing the plaintiff’s experts direct rather than through the plaintiff’s solicitor.  Information was conveyed orally that was not recorded and additional documents were supplied which were not provided to the defendant.  This is an entirely inappropriate and unhelpful procedure that failed to comply with both the spirit and the letter of the Rules.  It placed the defendant’s experts at a considerable disadvantage when commenting upon the plaintiff’s evidence.  It had significant implications in relation to some of the expert evidence and the conduct of the trial. 

    Was the mast fit for its purpose?

17. Two witnesses gave evidence about the design, construction and installation of Rager’s mast, Mr Banwell and Mr Davis.  Mr Banwell is a director of the plaintiff.  The trading name of the plaintiff is Banwell Marine Services.  The principal work of the plaintiff involves fabrication of yacht parts and a key aspect of its work was the design and fabrication of masts for yachts.   Mr Davis was an employee of the plaintiff at the relevant time and assisted Mr Banwell in the construction and installation of Rager’s mast.

18. Mr Banwell has no formal qualifications in mast design and construction but has undertaken an apprenticeship as a special purpose vehicle builder in the U.K. This included relevant fields of instruction. After migrating to Australia he bought a commercial fishing licence for a crayfish boat and simultaneously started working as a fabricator of parts for boats.  He worked for Duncanson Yachts for a period of 5 years and was involved in the fabrication of yacht masts.  Subsequently he worked for Binks Yachts as principal rigger.  In about 1975 he set up Banwell Marine Services to build and construct yacht masts.  He was appointed by the Australian Yachting Federation as an inspector to examine masts and spars.  He is the only inspector for South Australia.  Accordingly it can be seen that he has extensive experience in the yachting industry and in the design and construction of masts.  In addition he is himself a sailor with considerable sailing experience. 

19. I found Mr Banwell’s evidence very confusing and discursive to the extent that I was forced to consider whether he was deliberately obfuscating.  After reflection I came to the conclusion that he was not.  Rather he was so convinced of the fact that he had made no error in the design, construction and installation of Rager’s mast that he could not agree to any proposition that cast doubt upon his work and was forced to some rather circuitous and often contradictory reasoning in order to justify various positions that he adopted.

20. There is no contemporaneous record of what the plaintiff actually built and only limited records of what it intended to build.  The plaintiff contends that:

    Mr Banwell gave evidence about the dimensions of the mast.  None of that has been contradicted.  There is no cross-examination of him to suggest that his dimensions were wrong.  It is submitted that Mr Banwell’s evidence on that topic should be accepted.[13]

    [13] Plaintiff’s first submissions para 91

21. I reject that submission.  Mr Banwell’s evidence about the as built dimensions of the mast was most unclear.  This lack of clarity extends to the placement of reinforcing in the mast and spreaders, the angles of the spreaders, the lengths of wires in the rigging and the loads placed on the wires.  Much of Mr Banwell’s evidence about these matters was a reconstruction based on limited documentation, past practice and speculation.  I have no confidence that his reconstruction was accurate.

    Quotation

22. Mr Banwell said that he first inspected Rager’s mast at the request of Dr Shanks some time before the events in question.  He gave Dr Shanks a report.  Dr Shanks engaged the plaintiff to rectify the problems identified by Mr Banwell.  That work was carried out.  Mr Banwell said that when he did this work he took measurements of the rig that was in the boat at the time.  He opened a file for Rager.  That was produced as exhibit P22.  Exhibit P22 is a file cover with writing on it.  There are no contents.  The notes on the cover are obscure.  Mr Banwell did little to clarify them and their relevance is not obvious.

23. Subsequently Mr Banwell became aware that Rager lost its mast near Port Lincoln.  He was asked by Dr Shanks to prepare a quotation to design, supply and install a new mast.  Mr Banwell said that he prepared the quotation for Dr Shanks following a discussion as to whether he would continue with the existing rod rigging or whether he would change the nature of the rigging for the boat.  Mr Banwell said that Dr Shanks was shocked at the cost of the maintenance of rod rigging and the fact that the insurance company charged an extra fee for insuring a boat with rod rigging.  This was never put to Dr Shanks.  His evidence was that he accepted the quote as provided by Mr Banwell.  In any event this is a non-issue.  The plaintiff designed and costed the mast with wire rigging.  The plaintiff’s quote was accepted by the defendant.  There appears to be no suggestion nor on the evidence any basis for a suggestion, that the change from rod rigging to wire rigging was, of itself, causative of the subsequent mast failure.  The only issue arising from that change is a weight saving and whether the plaintiff was required to take account of that factor in the design of the mast.

    Design Process

1. Mr Banwell explained that after the quote was accepted, he went about constructing a mast in accordance with the quote.  He did some calculations using a computer programme designed by a naval architect Scott Jutson.   He has used the Jutson programme on many occasions. 

2. The Jutson programme calculates loadings on various components of the mast so that these components can be manufactured to withstand those loads.  The programme requires the entry of information including information from the IMS certificate.  This certificate is issued by the Australian Yachting Federation and sets out information and measurements concerning the boat in question including the results of inclining tests which measure the righting moment at particular angles of heel.  There is a contentious aspect to the IMS certificate which I will come to but for present purposes it is sufficient to note that the IMS data, including the results of the inclining tests, was entered by Mr Banwell into the programme. In addition he entered dimensions for various components of the mast including lengths for the four mast panel lengths and the lengths of each spreader.  The programme then calculated the loads that are likely to be placed upon the various components of the mast. 

3. There were a number of iterations of the Jutson programme calculations for this mast.  Some had handwritten notations by Mr Banwell.  It was not clear which of these, if any, was actually used to design or construct the mast.  The plaintiff tendered exhibit P23 which was said to be the original Jutson programme calculations dated 6 July 2000.  Mr Banwell’s evidence about exhibit P23 is as follows:

   QLooking at the document that is now produced to you, is that a copy of the program run that you did on 6 July 2000.

   AThat’s the actual document, yes.

   QThe handwriting on that document, is that your handwriting.

   AYes.

   QIs that the document that you used to assist you in the fabrication of the mast that was installed by you.

   AYes.  If I can qualify that and say there were several mast programs, but I think because I have scribbled all over it, this is the actual one I was using.

   QIs it the case that you might run the program several times before you finalised a particular method of construction.

   AWell it’s just that I would run different programs to get different information.  If I was unsatisfied with something or I couldn’t remember it when I was – you know, I hadn’t brought this home with me, or the folder, I would do another one at home and then take it to the workshop.

   QSo essentially it was possible that it might be a number of runs of a particular program.

   AYes.[14]

   [14] Transcript Line 13-36 p918

4. Accordingly exhibit P23 did not represent the only series of calculations. Different calculations were performed on other occasions.  It became apparent that Mr Banwell was not sure whether exhibit P23 was the final printout or not.[15]   Even if P23 was the set of calculations used, it appears that the dimensions of the various mast components input to the program did not necessarily reflect what was actually built.

   [15] Transcript p926

5. Mr Banwell said that the Jutson programme was “pretty basic – it gives us the strength required, but it does not give us the length of wire rigging”.[16]  This is something he needed to “draw up and calculate” himself.  This latter process was also fraught with uncertainty and, to add to that uncertainty, there were no drawings made or other records kept of this design and calculation process.  It took place as part of the manufacturing process. 

   [16] Transcript p927

6. In addition to the Jutson calculations Mr Banwell said that Kym Davis drew up a plan of the mast.[17]   

   [17] Exhibit D6

7. He was then asked:

   QAnd so from that plan you could get lengths and dimensions of the mast in question.

   AYes.  This is, I guess, it’s pretty crude.  It’s a workshop drawing.  It was never meant for publication.

   QBut that drawing showed the mast section and the contemplated reinforcing within the mast section.

   AYes, indicative I’d say.

   QWas it the case that the section that you chose needed to be strengthened in the first panel to operate in a serviceable way.

   AYes, it was.

   QIs the process that you achieve that by putting a sleeve up the first panel on the inside.

   AYes, we sleeve the first panel to account for the thrust of the boom, the gooseneck.

   QSo that there is what’s called a very strong offset load at the gooseneck caused by the boom pushing against the mast.

   AYes.

   QAnd the mast has to be strengthened at that point.

   AYes, it does.

   QAnd then you taper the reinforcing from that point upwards so that there is not a sudden cut-off.  It eases out; is that right.

   AThere are two requirements for the mast.  Firstly, it stays upright.  The second one is that it’s the right shape to suit the sails.

   QSo you decided in the construction of this mast to place reinforcing at the gooseneck level, tapering off as it went up the mast.

   AYes, it was.[18]

   [18] Transcript – Line 3 p928 – p929 Line 24

8. It is apparent from the whole of Mr Banwell’s evidence that exhibit D6 was indeed a crude workshop drawing and that the dimensions of the various components of the mast in that drawing did not match either the dimensions input to the various iterations of the Jutson programme nor can they be said to be an accurate reflection of what was ultimately built by the plaintiff.

   Mast construction

9. Mr Banwell was unable to give any description of the construction of the spreaders.  He said Mr Davis did that.[19]  Mr Davis did not however give any evidence of the manner in which he constructed the spreaders.  The only evidence on that topic is three photographs, in effect snapshots, which show the mast in the process of construction.  In addition there was a model spreader and some diagrams purporting to show the construction of the spreaders. The model and diagrams were however prepared by Mr Banwell following the failure of the mast and are, for reasons I will deal with shortly, of very limited assistance. 

   [19] Transcript p1024

10. It is agreed that the inner ends of the spreaders were welded to a collar which was then mechanically fitted to the mast.  The effect of this and it’s relevance to the failure of the mast is the subject of some contention.  For present purposes it is sufficient to note that this was the fixing method and that it occurred in the workshop as part of the mast construction. 

11. Mr Banwell explained how he and Mr Davis set the mast up in the workshop.[20]  The mast was a discontinuous rig which meant that there were four lengths of wire from the deck to the top of the mast.  For example, there was one length of wire between the deck and the first spreader, another length of wire between the first and second spreader and so on.  Mr Davis and Mr Banwell used a crane and other devices to bend the mast to the amount of pre-bend required after the spreaders had been attached.  Mr Banwell said this tended to bring the spreaders together and that he would then “very accurately” measure the length of each wire to go into the mast. 

    [20] Transcript p937

12. Mr Davis’ workshop plan indicated that the spreaders would be 3 degrees up from the horizontal.  Mr Banwell’s evidence suggested that the 3 degree angle is the angle required when the yacht is sailing rather than at dock side.  In order to achieve this result he said it is necessary to cut the relevant wires shorter which will then lead to them pulling the spreaders up to a greater angle than is shown on the drawing.[21]  Mr Banwell said that this process makes allowances for the expected stretch after various loads have been applied specifically the initial jacking load at dockside and the loads imposed by sailing.[22] 

    [21] Transcript p1132

    [22] Transcript p1136

13. Mr Banwell said that when he was calculating the lengths of the wires he would use three inputs - the 10 tonnes jacking load exerted at the dock, the righting moment of the boat at 30 degrees of heel and the breaking strain of the wire he was using.[23]  He was then asked how he would account for the manner in which the jacking strain was taken up by each particular wire – in other words how he determined how much of the 10 tonnes was borne by any particular wire.  This too required a number of different inputs – he needed to know the length of the spreaders, the angle of the wires to the mast and the position of the base of the wires relative to the mast.[24]

    [23] Transcript p1144

    [24] Transcript p1147

14. Mr Banwell said he was aware from the Jutson programme of the anticipated loads that each wire would be placed under but said that Mr Davis tensioned the diagonals when the boat was rigged.  He did not check this.[25]  Mr Davis would check to ensure that the spreaders were straight but did not do anything to check the angle of the spreader to the mast once “we have tightened the thing up”.[26]

    [25] Transcript p1180

    [26] Transcript p1193

15. He was also aware that the wires would stretch.  He utilised a card index system that gave him the amount of stretch in a particular type of wire under a specific load.  He used this to work out what length to cut each wire.  The card index system was eaten by white ants and is no longer available.  No record was made or kept of the length of any of the wires that Mr Banwell cut.  He has not retained any record of any of his calculations. 

16. Mr Davis did most of the fabrication work.  He did not give any evidence about how he constructed the spreaders or the mast.  Mr Davis gave evidence about the workshop plan that he drew up.[27]  He appeared to be suggesting that the main use of the plan was to “determine the angle of the spreaders”.[28]  He said that he welded the spreaders to the collars which would then go around the mast. He said that the angle of the spreaders was set at the time the spreaders were welded to their collars and fixed to the mast.  The angle conformed to his workshop plan. The plan showed the angle as 3 degrees.  He was asked whether, after rigging the mast, he would do anything about checking the angle of the spreader to the mast.  He said “we already know that the angle spreaders – spreader angles are correct” and the reason he gave for knowing that was “we make them”. Further he said that they moved slightly but “not enough to worry”. [29]  This is inconsistent with Mr Banwell’s evidence that the 3 degree angle is the angle required when sailing rather than in the workshop or at dockside.

    [27] Exhibit D6

    [28] Transcript p1495

    [29] Transcript p1489

17. Mr Davis gave evidence in chief about the wires as follows:

    QIs it the case that you have to cut that wire to certain lengths.

    AYeah, the wire is cut to lengths that were determined off the plan and also from the actual finished project.

    QIs it important to get those lengths right.

    AAbsolutely.

    QIn cutting the lengths do you make an allowance for stretch.

    AYes, the length of stretch is calculated from a chart that is provided by the wire supplier and depending on the length of the stay itself is how much stretch is determined or elastic stretch is determined.[30]

    QIs that factored in at the time you actually cut this wire.

    AAbsolutely, yes.[31]

    [30] Amended in line with agreed transcript changes

    [31] Transcript p1487

18. During cross examination on this topic it became apparent that Mr Davis had little understanding of the intricacies of stretch in wire.  In particular he appeared to have no understanding of the concept of construction elongation as opposed to elastic stretch.[32]  It is impossible to have any confidence from Mr Davis’ evidence that any account was taken either of stretch or construction elongation when cutting the rigging wires to the appropriate length.  His conclusion was that:

    “Ken may have worried but I wasn’t.  That is not part of my need to know”.[33]

    [32] Transcript pp1491-3

    [33] Transcript p1494

19. It is also apparent from Mr Davis’ evidence that the workshop plan does not record the actual length of the various wires.  The process adopted was to manufacture the mast components, set up the mast in the workshop and then take the measurements off that.  What was built might be entirely different to what was on the plan.  Accordingly it is plain that Mr Davis’ plan does not remedy the problem associated with Mr Banwell’s failure to make and retain records of the wire lengths that he cut or his calculations.

    Installation of the mast

20. Mr Banwell said that once the manufacturing process was completed in the workshop they would then take the mast with the appropriate wires down to the boat for installation.  He did not recall specifically what they did on this occasion, whether the mast was transported complete or whether it was packed up in some way. 

21. The mast was installed in Rager in late 2000.  Mr Banwell said that, after some preliminary work, the mast was placed into the boat using two jacks.  He said the wires were attached and then the mast was jacked up taking out most of the pre-stretch.  A spacer was inserted beneath the mast and then this started to take the loads into the wires.  They then leaned the mast back to the appropriate rake and scribed the area around the mast with a gauge indicating the angle which the mast base has to be shaped to.[34]

    [34] Transcript p941

22. The forestay required replacement after the 2000/1 Sydney to Hobart Yacht race.  This occurred on 29 January 2001.  Mr Banwell said that on this occasion they set the mast rake up to 1.2 metres, scribed the mast base and reshaped it.  They did not have to alter the alignment of the mast or any of the rigging above the first spreader but they lowered the mast by taking a small splitter from the bottom of the section.[35]  Once they had set the rigging up he described the process as follows:

    A…..Once we had set the rigging up, the last check the guy does is that if he comes down from the top of the mast is to look or sight along the spreaders.  This is to tell him that there is no residual stress in the spreaders.  They are usually straight or sometimes slightly downwards to the base, but usually we try for straight.  This is checking along the back as the spreaders if sighted towards the mast section itself.  So the guy comes down, swings out on the bosun’s chair, glances down the spreader and at the same time does a quick visual check of the split pins and other exterior equipment that is hanging off.[36]

    QSo is it the case that someone has to actually go right up to the mast to carry that out.

    AYes.

    QDo you recall if you did it or someone else.

    AI’m not sure but I think Kym would probably have done it.[37]

    [35] Transcript p946

    [36] Amended in line with agreed transcript changes

    [37] Transcript p947

23. Mr Davis’ evidence on this topic was that he went up the mast in a bosun’s chair and looked down along the edge of each spreader to check for any bow or deformation in the spreader.  He did not check the angles of the spreader to the mast as these were, on his evidence, fixed in the workshop.[38] 

    [38] Transcript p1489

24. After the new forestay was installed Mr Banwell said that they went for a test run.  He described Dr Shanks “over pressing the boat” but said that this enabled him to see the mast perform under what he described as “extreme stress”.[39]  The clear inference from his evidence is that, despite poor sailing on the part of the defendant and his crew including on this occasion another poorly performed gybe, the mast performed well. 

    [39] Transcript p943

25. I should also refer at this stage to a contention made by Mr Banwell, and repeated in the plaintiff’s submissions, that the defendant had been “fiddling with the mast” by adjusting the side stays after the mast was set up by the plaintiff.[40]  The plaintiff refers to evidence of Mr Wilson and Mr Wall Smith to support this contention.  This evidence does not however support the proposition that the defendant adjusted the side stays.  Mr Wall Smith’s evidence was that he was not aware of anyone touching or adjusting the rigging and that he had no intention of touching it himself.  The only person he referred to as dealing with the rigging was an expert that adjusted rigs when they went in the Sydney-Hobart race.[41]  It was not clear on his evidence if this had happened prior to the 2000 Sydney-Hobart but even if it had this appears irrelevant to the mast failure following replacement of the forestay given that Mr Banwell says he re-adjusted the rigging at that time.  Dr Shanks specifically denied adjusting the rigging himself saying he would not know what to do.[42]  I accept this evidence and find that the defendant did not adjust the side stays as asserted.

    [40] Plaintiff’s first submissions para 63. 

    [41] Transcript pp134-5

    [42] Exhibit D14

    Mr Banwell’s models and plans

26. Mr Banwell produced a large number of drawings subsequent to the failure of the mast which purported to be precise drawings of the mast construction.[43]  It is my view that these drawings are unhelpful.  They are reconstructions with a suspect foundation.

    [43] Exhibits P13, P16, P24, D6, D15, P63

27. Mr Banwell also provided information to various experts instructed on behalf of the plaintiff including manufacturing a spreader for testing by Ancon Beton and a drawing of the mast with associated data to Mr Doherty.[44]  This has proven to be highly problematic. Mr Banwell’s evidence about the placement of the reinforcing, the dimensions of the mast, length of wires and the like appear to be no more than educated guesses.  There is no record and no clear evidence from either Mr Banwell or Mr Davies of what was actually built.

    [44] MFIP59

28. It is difficult to reconcile Mr Banwell’s inability to give evidence about the manner in which Mr Davis constructed the spreaders with his ability to produce detailed diagrams of the spreaders.  He prepared diagrams dated 10 October 2003[45] and 8 July 2009.[46]  These diagrams contain different versions of the spreader construction and the placement and dimensions of the reinforcing.  By way of example, there is no consistent indication of the length of the first spreader, which is the spreader in contention. In exhibit D9 it is said to be 2070mm long whereas in exhibit P13 it is described as being 2055mm long.  The workshop drawing indicates that it is 2070mm long.[47] Exhibit P23, one iteration of the Jutson program calculations, contains two different length measurements for the first spreader – a “proposed” length of 1.8m and an “actual” length of 1.8m.  In Mr Banwell’s handwriting on the same exhibit it is said that the actual length is 2070mm.  In exhibit P37, another iteration of the Jutson program the proposed and actual length of the first spreader is stated to be 1.85m. 

    [45] Exhibit D9

    [46] Exhibit P13

    [47] Exhibit D6

29. No proper explanation has been given for this variance.  Mr Banwell described the measurements as “fluid”.[48]   He appeared unable to give any evidence of what the measurements were when constructed and I must say I found his evidence most confusing and unsatisfactory.  When asked about the difference between D9 and P13 Mr Banwell said:

    AYes. This one, as we look at it – that’s MFI P13 – has been drawn in scale, whereas the other one is just indicative.  It is just drawn more or less with a ruler and a pen.

    QSo, of the two drawings, which is the more accurate in relation to the spreader.[49]

    AThe one drawn to scale.

    QWhich is MFI P13.

    AThat’s right.[50]

    [48] Transcript p1014

    [49] Amended in line with agreed transcript changes

    [50] Transcript p1020

30. It is stating the obvious that this exchange does not explain the difference in the dimensions.  This is not an isolated discrepancy.  I am uncertain what dimensions were used for the model Mr Banwell produced for testing by Ancon Beton – no evidence was given on that topic and the Ancon Beton reports do not indicate the dimensions of the model that was tested.

1. Exhibit P13 also contains more detail than D9 concerning the reinforcing.  The basis of this appears to be Mr Banwell’s analysis of the three snapshots of the mast in construction rather than his recollection of the process.  Kym Davis constructed the spreaders and fixed them to the mast.  Mr Banwell gave evidence about the manner in which the spreader was attached to the mast as follows:

   QOkay, what type of welding did you use?

   AThat would have been tig welding, I would think, I would imagine.  That would have been tig welding I would imagine, because it is 8mm in thickness and that’s capable of being done by a tig welder.[51]

   [51] Transcript p1022

2. It is not clear to me how he came to the conclusion that the welding was 8mm in thickness but in any event this evidence is clearly speculative.  Mr Banwell simply does not know what type of welding was used.  Accordingly the diagram is likewise speculative. 

3. The lack of precision in Mr Banwell’s diagram is further demonstrated by this exchange concerning the attachment of the reinforcing to the spreader:

   QSo the top plan you have drawn what appears to be welding going out along the spreader shaft.

   AThe centre of the spreader shaft, yes.

   QSo it actually is in the region of the curve to the base spreader section where the ring is, and that’s where the reinforcing is attached to.

   AYes, and that’s shown on the other page, on the second page of P13, which shows where the end stops at the outer reinforcing.  That’s the black line where it seems to be over the top of the original section.

   QYou can’t say exactly where those welding lines were installed. 

   AIt would be up to the guide of major spreaders like Kym Davis made the spreaders.  And I think we have got photographs of the original mast and they would show up on the photograph as slightly darker in some lights and slightly lighter in other lights.  It depends on the reflection.

   QLooking perhaps at P25, you can see sort of a little strip of bulgy material running out along the spreader.

   AYes.

   QIs that the welding process.

   AYes, they would have been the tacks that I referred to.  There is actually four tacks, tacks of 500mm.[52]

   [52] Transcript pp1024-25 – Plaintiff says “tacks” should read “tap“. Defendant does not agree. The difference is inconsequential.

4. Again it is not clear how Mr Banwell assesses the length of these tacks from the photographs.  What is however abundantly clear to me is that these diagrams and measurements represent no more than a best guess by Mr Banwell and are of very limited assistance in determining what the plaintiff built and whether it was fit for purpose.

5. As with the spreaders, there is no contemporaneous diagram of the reinforcing on the mast nor is there any clarity about the dimensions of either the mast or the reinforcing.  Mr Banwell prepared a drawing on 18 September 2003 which he said described the basic structure of the mast at the point where it fractured and at the point of the first spreader.  There were two iterations of this diagram.  The first was tendered as exhibit P16.  The second exhibit, P24, was P16 altered by the deletion of a line.  Mr Banwell said he made the alteration based upon an enlargement of one of the three photographs of the mast in construction.[53]  He explained that, because the mast was anodised, the plug welds that were used to place the reinforcing on that part of the mast showed as slight discolorations on the enlargement which he said enabled him to show the shape of the reinforcing as it is on exhibit P24 rather than the other possible shape drawn on exhibit P16.  The discolouration’s are very difficult to see and I found this evidence most unconvincing.[54]

   [53] Exhibit P25

   [54] Transcript pp932-35

6. Mr Banwell then said that exhibit P16 had markings representing plug welds but they don’t represent the precise position of those plug welds.  The plan was only indicative.[55]  The same must be true of the amended plan.[56]

   [55] Transcript p935

   [56] Exhibit P24

7. The dimensions of the mast panels vary from exhibit to exhibit and, as with the spreaders, there is no clear evidence of what was actually built.  By way of example I take the length of the first panel of the mast.  It is described in different exhibits as follows:

   ·P23 - proposed length 5.432; actual length 5.43m.

   ·P37 - proposed length 5.552; actual length 5.42m.

   ·D6 - 5.7 m.

8. Mr Banwell’s evidence did not clarify these discrepancies as can be seen in this exchange following the tender of exhibit P37 the Jutson calculations dated 29.3.2008.[57]

   [57] Exhibit P37

   QFor the sake of clarity, the rig dimensions in that you’ve maintained the same.

   AYes they are

   Her Honour:    The same as what?

   QP23, I think it is.

   AI’ll have to look at P23 because at the stage P23 was put before – as I’ve said before and I’ll repeat again – measurements were very fluid.

   QCan I ask the question differently. The rig dimensions that you’ve used in P36 are the actual rig dimensions of the boat.

   AThe rig dimensions would be absolutely correct.  No, I’ll have to look, because at that stage I believe he altered the I measurement and I’ll have to check.[58]

   [58] Transcript p1014

9. It transpired that the measurements in P37 were substantially different from those in P23. 

   What do the experts say about the mast?

10. The limitations of the material supplied to the various experts causes significant problems in assessing their evidence. 

    The basal principle is that what an expert gives is an opinion based on facts.  Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact upon which the opinion is based.  If other admissible evidence establishes that the matters assumed are “sufficiently like” the matters established “to render the opinion of any values”, even though they may not correspond “with complete precision”, the opinion will be admissible and material.[59]

    [59] Makita Pty Ltd v Sprowles (2001) 52 NSWLR 705 at para 64

11. In this case not all of the matters on which the experts have given their opinions are clearly established on the evidence. The apparent precision of some of the expert evidence is undermined by the lack of precision about the design construction and set up of the mast and rigging. Material available to some expert witnesses was not made available to the others. 

12. The defendant called two expert witnesses to support his contention that the mast and rigging was not fit for purpose. The defendant contends that the lower starboard spreader supplied by the plaintiff broke and that the consequence of that breakage was inevitably the destruction of the mast.  It is the defendant’s case that the cause of the breakage of the spreader was its lack of strength coupled with the method by which it was fixed at its inner end and the degree of strength or stiffness of the mast section. 

13. The plaintiff says that the mast and spreaders were designed and constructed to be of appropriate strength. The plaintiff relies on three expert witnesses and in particular upon some computer modelling prepared by Mr Doherty. 

14. In its submissions the plaintiff attacks the conclusions reached by the defendant’s experts and says:

    The failure of the defendant’s experts can be explained by the quality and detail of their assessment.  Against their assessment, the plaintiff has provided thorough, very complex and detailed information provided by Mr Doherty with a direct assessment of what loads were actually placed on the mast.  Opposed to that, the defendant has used the rule of thumb assessments based on various types of Euler’s formula.  The plaintiff’s expert witnesses’ assessments are far superior.  These assessments show that in all foreseeable circumstances the mast should have survived. [60] 

    [60] Plaintiff’s first written submissions para 87

15. Leaving aside the obvious fact that the mast did not survive, the fundamental problem with this contention is that the “thorough, complex and detailed information” cannot be related in any meaningful way to what the plaintiff actually constructed.  The paucity of evidence on this topic precluded the defendant’s experts from undertaking the detailed analysis that the plaintiff contends they should have embarked upon. They were forced back to first principles such as that comprised in Euler’s Formulae. I prefer the evidence of the defendant’s witnesses precisely because their opinions were based on first principles and also because they were not adversely affected by reliance on the defective material supplied by the plaintiff. My more specific reasons for preferring their evidence is set out in the following discussion.

    Were the spreader and mast sufficiently strong?

16. As discussed above neither Mr Banwell nor Mr Davis were able to give evidence as to the construction of the mast and spreaders other than to identify the materials, the fact that reinforcing was used for both, the rough dimensions and the approximate method of construction. 

17. Mr Mitchell said that he had been briefed by both Mr Dovell and Mr Banwell to calculate the rigging elements and the mast strength of Rager.  He was not aware at the time of these instructions that it was the same boat.  He achieved similar results for each inquiry.  The information he was provided on each occasion was based on Mr Davis’ workshop plan. 

18. The defendant contends that, if one assumes the spreader was built as suggested by Mr Davis’ workshop plan, it was only 60% of the recommended strength compared with the design of Mr Mitchell.[61]  The plaintiff says that, at the point where the spreader was said to have broken, the spreader was significantly stronger than the strength of the spreader specified by Mr Mitchell and contends that:

    The greater strength suggests that the spreader would not have broken where it allegedly failed by being overloaded but broken somewhere further out away from that position, in the area where it was not reinforced.  In fact one of the propositions put forward by the defendant was that the witnesses observations of where it broke was wrong and that it in fact broke further out.

    To deal with the problem created by the fact that at the point of failure the Banwell spreader is a lot stronger than the spreader recommended by Mr Mitchell, it is said that the spreader should not be treated as strong as what the Arup Water analysis of its strength states it was (as set out in exhibit P56) and therefore the fact that it broke where it was reinforced was not significant. This is the conceptual purpose behind the Dovell/Mitchell theory in relation to the welding acting as a stress raiser.  This theory is negated by exhibit P65.[62]

    [61] Exhibit D5 p50

    [62] Plaintiff’s first submissions para 7-8

19. There are two difficulties.  First the plaintiff cannot say with precision what was built.  Second, Mr Mitchell did not concede that the spreader was stronger than his recommendation at the point where the spreader broke. The plaintiff relies on Mr Mitchell’s evidence at page 678 of the transcript for this proposition.  I reject this proposition. When read in context it is clear that in this passage of cross examination Mr Mitchell was dealing with the reinforced spreader section as shown in exhibit D9. It is not at all clear that the spreader broke in a reinforced section because the location of the reinforcing is not established. Further, there is no evidence that the spreader was constructed as shown in exhibit D9.  In fact, as outlined above, Mr Banwell appears to contend that it was not.  In any event, Mr Mitchell’s evidence about the position of the break in the spreader was that:

    The properties of the spreader are doubled at the embedded end right where it connects to the mast and then they drop away substantially over that first 300 to 600 mm.  That’s precisely where I would have expected it most likely to break.[63] 

    [63] Transcript p627

20. This is consistent with the position of the break described by Mr Wall Smith who was on board Rager at the time of the break. 

21. The plaintiff refers to the Arup Water Analysis dated 23 April 2002.[64]  The author of that report is Mr Doherty.  The report is based upon material provided by Mr Banwell in a facsimile dated 22 April 2002 and suffers from the same difficulty as other reports based upon Mr Banwell’s documents in that it is not possible to say whether the dimensions provided to Arup Water are accurate in terms of what was actually constructed.  Their analysis appears precise but its basis is not.  Arup Water were not analysing the same information as that provided to Mr Mitchell. 

    [64] Exhibit P56

22. In examination in chief Mr Mitchell explained the extent of the difference between what it appears the plaintiff built, assuming that this was in line with the workshop plan[65], compared with his recommendations. In particular the recommended figure for the vertical strength in the middle of the spreader was 41.3 whereas the actual strength, once the reinforcing was passed, was 27.7. Mr Mitchell said this difference was significant:

    It’s actually quite a way below what I recommended and I think that the way that the spreader is fixed would increase my requirements, not decrease them, so I think there is a deficiency in the spreader in the region of that end of the reinforcement.[66]

    [65] Exhibit D6

    [66] Transcript p863

23. Mr Dovell prepared an annexure (annexure 4A) to his report of 7 December 2007[67] which compares the specifications outlined in the workshop plan, which at that stage he understood were the as built specifications, to those recommended by Mr Mitchell (AES) and incorporating his cross check calculations.  He stated in his report:

    4.2     It is of note that almost all of the strength specifications for the as built mast,    spreaders, and standing rigging are significantly under those specified by AES.

    4.4     Most notable are the specifications for the first spreader and the second panel of the mast, both of which are less than 60% of the minimum strength specification     recommended by AES.

    [67] Exhibit D5, Tab 1

24. The same applies to the strength of the mast assuming it was built in accordance with the workshop plan.  Both Mr Dovell and Mr Mitchell said that in particular the second panel of the mast was substantially under strength compared to Mr Mitchell’s calculations as cross checked by Mr Dovell.  Mr Dovell said it was only 57% of the strength proposed by Mr Mitchell.[68]  Mr Dovell indicated his opinion that the most likely cause of mast failure was the failure of the first spreader on the starboard side.  He said this was consistent with the photograph of damage of the remains of the mast. 

    [68] Transcript p182: Exhibit D5 p5, para 5.9

25. The plaintiff did not call any expert evidence, beyond that given by Mr Banwell, on the topic of the strength of the mast or spreader.  Despite the content of the Arup Water report[69] there is no evidence from Mr Doherty that the designed strength of the mast or spreader was adequate. This was not his approach.  He worked on the basis that his modelling did not suggest the spreader or mast should have broken given a range of different scenarios.  Of course he was working on different data to that provided to Mr Mitchell and Mr Dovell a topic to which I will turn shortly.

    [69] Exhibit P56

26. Neither Mr Dovell nor Mr Mitchell’s evidence on this topic was shaken in cross examination and I accept it.

    Righting moment & the weight of the boat

27. Mr Dovell said that the spreader and the mast were under strength due to a miscalculation of the righting moment.  The righting moment is critical to the design of the mast and spreaders.  It appears common ground that the greater the righting moment the stronger the mast has to be. Mr Dovell contended that Mr Banwell miscalculated the righting moment due to a combination of two factors.

28. First, the Jutson programme assumes that the IMS righting moment data includes the effect of the crew sitting on the windward side of the yacht when in fact the IMS righting moment data assumes that crew to be on the centre line. 

29. Second, Mr Banwell did not account for the effect of the weight saving he anticipated in the redesign of the mast and rigging in the order of 30%.

30. On 7 July 2009 there was a conference of the experts called to give evidence in this matter. Mr Doherty, Mr Dovell, Mr Mitchell and Mr Peachey which resulted in agreement as to the following matters relevant to the righting moment.

    1.Agree that it is our joint interpretation of the evidence that the righting moment data used by Ken Banwell for the design of the mast was based on the IMS righting moment data presented in the IMS certificate for the boat prior to the re-fit dated 22 June 1994, (that is with the crew weight located on CL).  Lindsay Doherty withholds comment on this matter as he does not feel it is his area of knowledge.

    2.Agree that the righting moment data used to design the rig should have included the additional righting moment created by the crew sitting on the rail.

    3.Agree that the RM for the vessel post the re-fit was 3% greater than for the vessel prior to the re-fit.

    4.Agree to use the righting moment at 30°, (RM30) for all comparisons of righting moment during these proceedings.

    5.Agree that the righting moment data that was used by Banwell, (utilising the Jutson mast design program per the users manual), had an RM30 of 10575 kg*m.  Lindsay Doherty withholds comment on this matter as he does not feel it is his area of knowledge.

    6.Agree that the righting moment data used to design the rig should have had an RM30 of 11950kg*m; (this includes the crew weight positioned on the weather rail per IMS assumption). This value was established by this group during this meeting.

    7.Agree that the righting moment data for the boat post the re-fit had an RM30 of 12225kg*m; (this includes the crew weight positioned on the weather rail).  This value was established by this group during this meeting.

    8.Agree to disagree that Banwell should have taken into account the effect on righting moment of the changes that were made during the re-fit.

31. It seems from these agreed matters that Mr Dovell was correct in his first contention concerning the Jutson program. The re-fit changes were not the subject of evidence and accordingly the significance of the matters agreed in items 3 and 8 is not evident.

32. The plaintiff contends that the weight of the boat as set out in the IMS certificate given by the defendant to the plaintiff is significantly different from the true weight of the boat.  This is not disputed. What is contentious is the consequence of this disparity. 

33. Mr Peachey, naval architect, was called by the plaintiff to give evidence concerning the calculation of the righting moment.  Three reports were tendered from Mr Peachey.[70]  His evidence can be summarised by saying that an increase in the weight of a boat or its displacement will affect the righting moment.  For example he calculates that a 10% increase in displacement makes a 19.78% increase in the righting moment.[71]  The plaintiff contends that the weight increase would cause a significantly greater increase in displacement than 10% and says that Mr Peachey’s assessment of the effect of the weight variation.

    …clearly demonstrates that the defendant has not made full and frank disclosure and that the failure to make that disclosure is very material and directly impacts upon the mast array the plaintiff built and exonerates the plaintiff from any failure.[72]

    [70] Exhibits P68, P69 and P70

    [71] Exhibit P70

    [72] Plaintiff’s first submissions para 86

34. There are two flaws in this contention.  First the defendant, Dr Shanks, in evidence said that the boat was weighed by the IRC measurer in about 2003-2004 and that this showed that the boat was heavier than when it was launched in 1987 and thus heavier than shown on the IMS certificates provided to the plaintiff. This evidence was not contested and it is difficult to see how the defendant could be criticised for failing to disclose something he was unaware of at the time the plaintiff was instructed to design the mast. 

1. Second, and more fundamentally, the plaintiff has not established that the weight difference affects the righting moment as indicated in the IMS certificate.  Whilst plainly Mr Peachey’s evidence indicates the weight does affect a calculation of the righting moment he does not say anything about the righting moment data on the IMS certificate other than to say he used it in his calculations.  He said that he extrapolated from that data assuming a greater displacement and assuming all the data on the certificate were correct.[73]

   [73] Transcript p1478 and p1484

2. Mr Mitchell gave uncontested evidence that the righting moment figures on the IMS certificate are the result of inclining tests which measure the righting moment of the boat at different angles of heel.  In other words, the figures on the IMS certificate are actual measurements which incorporate the actual weight of the boat whatever that might be.[74]  Mr Peachey gave evidence after Mr Mitchell.  He was not asked to comment. 

   [74] Transcript p375, p412 and p788

3. Mr Dovell’s second point about the weight saving of 30% identified in the plaintiff’s quotation is that this would affect the measurement of the righting moment as indicated in the IMS certificate.[75]  This evidence was not contested other than by Mr Banwell indicating that the quotation contained an error and that he meant to indicate a weight saving of 30 kilograms although even this was not entirely clear on his evidence. [76]  It is not clear if Mr Banwell did make any allowance for this weight saving whatever it might have been.

   [75] Transcript pp163-4

   [76] Transcript pp913-14, pp1199-1200

   What is the effect of fixing the spreader at the inner end?

4. Although it is now uncontroversial that the inner end of the spreader was welded to a fitting or collar which was then mechanically fixed to the mast, this lack of controversy came rather late in the piece. Mr Mitchell and Mr Dovell did not come to this understanding until after the photographs of the mast in construction came to light.  In preparing their earlier reports and calculations, both Mr Mitchell and Mr Dovell had assumed that the inner end of the spreader was not rigidly fixed to the mast.

5. In his report dated 22 October 2009 Mr Dovell said:

   Subsequent to the expert meeting of 7 July 2009 it is my clear understanding that the spreader specifications set down in the rig plan prepared by Chris Mitchell are based on the assumption that the spreaders will be installed on the mast per industry standard, that being with an effective pivot at the inboard end about the fore/aft axis, allowing the spreader to stay in column as the outboard end moves vertically slightly with changing rig load.[77]

   [77] Exhibit D5, p623

6. In his report dated 12 October 2009 Mr Mitchell said:

   During the visit to Adelaide, I became more aware not of the mast and spreader section properties that we already knew, but actually how they were manufactured and assembled.  I was aghast that the spreader section (extrusion) was welded directly to the mast section.  I consider it a totally unsuitable and unsafe practise to weld the spreader section rigidly to the mast on a 56’ sailing yacht.  This is because as the rigging stretches and the mast bends, the spreader has to articulate to suit.  By rigidly welding the spreader to the mast this will produce very high flexural stresses into the mast and spreader.  I believe that this alone could have caused a spreader failure.[78]

   [78] Exhibit D5, p621

7. In an apparent effort to counter the suggestion that it was not industry practice to fix the inner end of a spreader, Mr Banwell undertook what he described as a photographic survey of masts and spreader attachments in November 2009.[79]    This was of very limited value as the photographs did not adequately display the fixation method, the size of the boats or the construction of the various spreaders.  The exercise was therefore highly speculative and unhelpful.  The plaintiff also tendered two spreader attachments.[80]  There was some controversy whether at least one of these allowed some degree of pivot but again these exhibits were unhelpful. 

   [79] Exhibit P5

   [80] Exhibit P5 and P7

8. The question as to whether the fixation method used by the plaintiff is or is not in accordance with “industry standard” does not require resolution.  The key question is the effect that the method of fixation used by the plaintiff, whatever that may be, had upon the calculations as to the appropriate strength for the spreaders. 

9. Mr Dovell said that generally a spreader is fixed to a mast so as to allow a degree of pivot in the order of three degrees.  The manner in which the spreader was affixed in this case did not allow for this.  This, in his view, reduced its capacity to about 20% of what it would have had if the three degrees of pivot was allowed.   If the inner end is fixed intentionally to avoid any degree of pivot then he said that it is necessary to make the spreader between 4 - 5 times stronger than a rigidly fixed spreader.[81] 

   [81] Transcript pp201-2

10. The reason for this is that the method of fixing changes the nature of how the spreader acts as a column.  Mr Dovell said that the capacity of a column to handle buckling loads is very much a function of its end conditions.[82]  The effect of his evidence is well summarised in his report dated 22 October 2009[83] as follows:

    If a column with one fixed end is to have the same load capacity in buckling as a column with both ends pinned, then according to Euler’s Theory of Buckling, the column will require only half the section moment of inertia as for the column with both ends pinned.

    However this assumes that the fixed end is fixed directly in line with the column and the buckling load. 

    If the fixed end is not fixed exactly in line with the buckling load, then the column will act more like a column of twice its length with both ends pinned with a small offset at its mid point.

    It is my opinion that it would be virtually impossible to tune a rig that has spreaders with fixed in board ends such that the applied load at the outboard end of the spreader is directly in line with its fixing at the base for all critical load cases as the side rigging stretches differing amounts for each load case, and offsets with time.  Which means that the spreader tip will not always be directly in line with the base fixing.

    [82] Transcript p194

    [83] Exhibit D5 Volume 2 Tab 10

11. Mr Mitchell expressed very similar views to those of Mr Dovell.  Mr Mitchell said that the first spreader reinforcement was welded to the spreader band at the inboard end providing an enormous amount of strength at the inboard end.  This, Mr Mitchell said, made the structure significantly more rigid than it otherwise would be.[84] Mr Mitchell said that the consequence of fixing the inner end of the spreader is that any movement of the outer end is likely to lead to eccentric forces being applied to the spreader.  Mr Mitchell said:

    Just a tiny amount of eccentricity throws out the critical buckling load by a long way.[85]

    [84] Transcript p735

    [85] Transcript p577

12. Mr Mitchell said that this imposes high flexural stressors.  He said that it in effect operated as a cantilevered beam which is a much more difficult design situation than the pin ended design that he originally thought was in place.  He also rejected a suggestion by Mr Banwell that welding at the inboard end added sufficient flexibility or ductility to the spreader to accommodate bending or eccentric loads.[86]  

    [86] Transcript pp718-20

13. The conference of experts on 7 July 2009 concluded as follows on this topic: 

    …

    13.Agree that the physical testing carried out by Ancon Beton agrees very well with Euler buckling theory for a column with one fixed end and one pinned end.  Back calculations imply an Euler coefficient of 2.27 as compared with the theory of 2.05.

    14.Agree that the end conditions for the actual spreader as built are more complex and will reduce the compressive capacity of the spreader in place.

    15.Agree that if further testing of the first spreader were to take place, it should be of a combined, realistic load case.

14. Mr Banwell constructed a model spreader for testing by Ancon Beton.  Their reports were tendered by consent.[87]  Ancon Beton positioned the model within an 1800kN Baldwin Universal testing machine.  The testing machine was set to give a constant load rate of 6kN/M to failure.  The specimen was loaded until failure was recorded at 91.3kN and visual examination showed the bend at 36%.  This evidence is unhelpful for two reasons.  First, it is not clear that the model spreader tested was the same as the spreader on the boat and second, because of the manner in which it was tested.  All of the experts agreed that the scenario for the spreader in sailing conditions was a much more complex scenario than the testing implied.

    [87] Exhibit P71 and P72

15. The plaintiff criticises certain calculations undertaken during the course of the trial by Mr Mitchell as to the strength of the spreader:[88]

    39.There is an error in Mr Mitchell’s belated calculations because they assume that the properties of the beam are continuous and uniform and are the only properties of the base spreader section.  Both the spreaders manufactured by the plaintiff and those contemplated by Mr Mitchell have tapering past the midpoint.  Mr Mitchell acknowledges that it is proper to taper the outer end of the spreader (T 663 1-2).  That means the spreader is not a uniform beam and could not impose the pressures that Mr Mitchell theorises.

    40.Bending would impose less pressure because of the tapering towards the outer end.  The tapering has the effect of reducing the strength and stiffness of that part of the spreader (Banwell exhibit P13 and Mitchell exhibit D12).  That has the effect that the postulated loads at the spreader base as suggested by Mr Mitchell would be significantly less.  Mr Mitchell does not make any allowance for taper.

    [88] Plaintiffs first submissions

16. The criticisms are not, in my view, supported by the evidence.  Further they ignore the fact that Mr Mitchell prepared the calculations in order to illustrate the extent to which movement of the tip of the spreader affected it’s capacity to withstand loads placed upon it and to put into context his reservations about the Ancon Beton testing in which the spreader remained in alignment throughout.

17. The plaintiff contends that the evidence of Mr Dovell and Mr Mitchell is simplistic relying as it does on Euler’s formula and a description of the spreader as a sway or cantilever beam.  I reject this.  Mr Dovell and Mr Mitchell were forced back to first principles in order to give an opinion because of the lack of clarity about what the plaintiff constructed.  They applied these principles to the one thing that they knew about the spreader which was that it was rigidly fixed to the mast.  Any other course of action would have resulted in speculation.

18. In relation to Mr Dovell the plaintiff contends:

    Mr Dovell purports to have confidence in relation to assessing the capacity of the spreader but when questioned about why he used a different Euler’s constant for contemplating the strength of the mast as opposed to that of the spreader, being a far less conservative estimation, he professed to have no competence in relation to the mast structures[89] but claimed to retain his expertise in relation to spreaders.[90] He was unconvincing on that point because prior to that time he appeared to be prepared to discuss the capacity of both the mast and the spreader.  It is only when his ridiculously conservative application of Euler’s theory [91] was asserted to be inconsistent when dealing with a mast as opposed to a spreader that he suddenly retreated and conceded the field to the expertise of Mr Mitchell.[92] Prior to that he had made statements about alleged inadequacies in relation to the mast.[93]

    [89] Transcript p394 and p396

    [90] Transcript p396

    [91] Exhibit D5 p295 diagram B

    [92] Transcript p394

    [93] Plaintiff’s first submissions para 47

19. This submission misrepresents Mr Dovell’s evidence.  He did not say that he had no competence in relation to mast structures rather he deferred to the greater expertise of Mr Mitchell and was making the point that he was not going to comment on the detail of Mr Mitchell’s analysis.  Further, Mr Dovell limited his consideration when he was asked to make assumptions in relation to comparing the overall mast column with various theories of beam analysis.[94]

    [94] Transcript p395

20. Further criticisms of Mr Dovell’s evidence are outlined in paragraph 48 of the plaintiff’s first submissions.  Mr Dovell’s evidence is again misrepresented in the submission.  Mr Dovell gave evidence, which was uncontested, that the Euler theorem is only used to forecast the onset of bending.  Once bending has commenced different considerations apply.[95] 

    [95] Transcript p272

21. The theoretical principles applied by both Mr Mitchell and Mr Dovell are supported by the evidence of Mr Doherty.[96]  Mr Doherty also said that if the spreader broke it was likely to break where it did about 300 millimetres or more out from the mast.[97] This is consistent with Mr Mitchell’s view and Mr Wall-Smith’s evidence about the location of the break. 

    [96] Transcript pp1351-56

    [97] Transcript p1309 and p1401

22. I accept the evidence of Mr Mitchell and Mr Dovell that the fact that the spreader was fixed at the inner end meant that the spreader needed to be considerably stronger than a spreader that would pivot in order to cope with the high flexural stressors that would be imposed upon it.  There is no evidence that the plaintiff appreciated this or made allowance for it in its design and construction. 

    What is the effect of the manner in which the plaintiff constructed the rigging and undertook the dock tune?

23. The plaintiff contends that the rigging would have restricted the movement of the tip of the spreader and thus the likelihood that the spreader would be eccentrically loaded as contended by the defendant’s experts.  It is not possible to ascertain precisely how the plaintiff constructed and set up the rigging.  There is no evidence as to the actual lengths of the various rigging elements and no common position on the part of Mr Davis and Mr Banwell as to what they were attempting to achieve. 

24. Mr Mitchell said that the proper practice for setting up the rigging would be to shorten each of the stays during the set up so that they were able to take account of the forces which would be encountered during sailing.[98]  Mr Banwell appears to agree with this proposition but contends that there was only limited movement in the stays and in particular the V1 which attached to the first spreader.  Mr Davis does not agree.  He said that the elastic stretch was calculated from manufacturer’s information and taken into account at the time the wires were cut.  He did not suggest that any other factors were taken into account.  Likewise he said that the angle of the spreaders was set at the time they were welded to their collars and fixed to the mast.  He did not therefore check them at dock side.  He appeared to have no understanding of the significance of movement in the spreader tip. 

    [98] Transcript p845

25. There are two possibilities on the plaintiff’s case.  Either the boat was set up perfectly in the workshop, as appears to be contended by Mr Davis, in which case no account was taken of construction elongation, or it was set up in the workshop as Mr Banwell contends with shorter wires to take account of construction elongation and adjusted when the jacking load was placed upon it at dockside.  It is not possible to say which of these scenarios is the case given this disparity.

26. Mr Doherty did not express a view on this topic as it was not within his area of expertise but he did make some assumptions about the forces that were applied to the rig when it was at the dock.  Specifically he assumed that all of the wires are appropriately tensioned and that the rig was set up with appropriate skill.[99]  His evidence as a whole indicates that in his opinion the tensioning of the wires is a critical feature of the mast construction.  This is consistent with the views expressed by Mr Dovell and Mr Mitchell. 

    [99] Transcript pp1349-51

27. I find that it is likely that there were problems with the rigging because of the differing approaches by Mr Banwell, who made the relevant calculations, and Mr Davis who largely set up the rigging.  Any problems associated with the rigging would it appears have exacerbated the problems with the under strength spreader and mast panel making it more likely that the spreader would be subject to excessive loading and thus more likely to fail.  However, it is not necessary to reach a firm conclusion on this issue.  

28. I find the plaintiff has not established that the stays restricted the movement of the spreader tip as it contends. 

    How did the mast break?  Was it a tearing or bending failure?

29. Mr Dovell and Mr Mitchell say that the consequence of the second mast panel being under strength increased the probability that the ends of the spreader would be eccentrically loaded.  That is, if there was movement in the mast this added to the problems associated with the rigging and the lack of pivot in the spreader. 

30. Mr Dovell and Mr Mitchell were fortified in their view that the first spreader failed because of the manner in which the mast broke.  Mr Dovell said that once the first spreader failed there was an immediate loss of lateral support above the first spreader putting extreme bending stress on the mast at and around the attachment of the spreader.  The mast failed at the weakest point in the area of high bending moment just below the attachment of the spreader because there was no apparent reinforcing in that area.  Again, there is a difficulty in assessing this issue because of the lack of certainty about what precisely the plaintiff constructed.  Both Mr Dovell and Mr Mitchell said that the mast would have failed in bending immediately after the spreader broke.  This is consistent with the descriptions of the breaking of the mast given by some of the lay witnesses.

31. Later in these reasons I examine the lay evidence in more detail and I find that the clearest description was given by Mr Wall-Smith.  He described the mast as crumpling and bending over still attached to its stump at the point of failure.[100]  He was clear that initially the mast was still attached to the bottom section of the mast.[101]  He said that the mast was working “quite a bit” where it had been crumpled and it had split through on the starboard side.  He said it was still attached on the portside of the crumple and then it was torn free.[102]  The mast then went over the side with the main sail still attached. 

    [100] Transcript p64

    [101] Transcript p66

    [102] Transcript p68

32. The plaintiff relies on the evidence of Dr Powell a metallurgist who has been examining fractured surfaces for approximately 55 years.  He said there were two types of fracture – tensile fracture or shear fracture.  His analysis of the fracture site was that the fracture surfaces indicated a failure by shear as a result of torsion.  He said a tensile fracture was a pulling fracture and that a shear failure occurs by torsion or twisting.[103] 

    [103] Transcript pp1424 and 1454

33. It is unfortunate that the terminology used by counsel lacked precision.  Mr Powell preferred to use the word ‘fracture’ rather than ‘failure’.  He made the point that failure can occur by mechanisms other than fracture.  Mr Dovell and Mr Mitchell were clearly referring to failure by another mechanism - specifically failure in bending.  Much of the cross-examination and examination used the words ‘failure’ and ‘fracture’ interchangeably and so there was a lack of clarity about the questions that were put.  In cross examination however it became clear that Mr Powell was limiting his attention to the fracture of the mast rather than its failure.[104]  He saw no evidence of yield or tension at the fracture site.  Mr Wall-Smith’s description matches the explanation given by Mr Mitchell for the likely method of collapse of the mast and it is also consistent with Mr Powell’s evidence that the parting of the aluminium surfaces was a tearing or torsion fracture.  In other words, the mast fell over whilst partially attached, worked back and forth with the movement of the boat and then tore free.

    [104] Transcript p1454

1. He agreed that what he said in 2001 about his recollection from the instruments would have been correct.  

   Wind speeds

2. The plaintiff points to a meteorological record of the wind conditions recorded at Beacon 6 on the day in question.[143]  Beacon 6 is at the entrance of Outer Harbour adjacent to the northern breakwater and is the closest weather beacon to the location where the mast was lost.  The plaintiff says that the Beacon 6 readings are an independent record of wind conditions and that the accuracy of the readings cannot be in question.[144]  It is surprising in view of this contention that more effort was not made to clarify the time at which the mast broke. 

   [143] Exhibit D4 Tab 6

   [144] Exhibit D4 Tab 6

3. The letter from Flinders Ports that accompanies the Beacon 6 readings indicates that the wind speed is an average over the previous 5 minutes from the recorded time and that the wind gust is the maximum wind gust recorded over the previous hour from the recorded time.   It also states that the times on the Beacon 6 readings must be adjusted to reflect daylight saving time.  It was agreed at trial that the effect of this was that it was necessary to add one hour to the recorded time.  In other words, to assess the wind speed at 1300 hours it is necessary to look at the wind speed recorded at 1400 hours.

4. My finding is that the race started at 1 pm at which time the wind speed recorded at Beacon 6 was 25.6 knots with a maximum wind gust up to 30.8 knots.  I also find that the mast broke somewhere between 3 pm and 3.30 pm.  The wind speed recorded at Beacon 6 at 3 pm was 28.1 knots with a maximum wind gust up to 35.4 knots and at 3.30 pm 28.9 knots with a maximum gust up to 35.4.   For completeness I note that the wind speed recorded at 4 pm is 28.4 knots and the maximum gust 35.9 knots and at 4.30 pm the wind speed is 26 knots with a maximum gust of 35.9 knots.

5. The plaintiff submits:

   It is interesting to note that the defendant’s witnesses claim that the readings were too high and in actual fact there was less wind.  This is important as the defendant’s witnesses have to explain why they behaved in the way that they did by attempting to gybe in extreme heavy weather conditions. They are attempting to excuse their conduct by saying that it was not as windy as recorded. 

   By implication that shows that if it was as windy as recorded, that their actions were risky and what they were doing amounted to over use of the boat.  Otherwise there would be no objection to the wind speeds put forward by the plaintiffs.

   The common acknowledgement of all concerned was in those conditions there was a possibility of the rig being taken out of the boat, which in fact happened.[145] 

   [145] Plaintiff’s submissions para 176

6. I reject the contention that the defendant’s witnesses claimed that the Beacon 6 readings were too high or that they attempted to minimise the wind speed.  Dr Shanks agreed that wind readings at Beacon 6 are a guide to what was happening or potentially happening on the boat but said the more accurate readings come off the boat instruments.   Mr Wall-Smith accepted the reading at 1500 hours was 25.6 knots gusting up to 30.8 knots but said he wasn’t aware it was that strong.[146]  Mr Sinton agreed that Beacon 6 wind readings would give an accurate view of the wind conditions.[147]  The Beacon 6 readings were not specifically put to Mr Wilson but wind speeds were put to him in line with the readings and he did not disagree with those.

   [146] Transcript p86

   [147] Transcript p504

7. The weather conditions as recorded by the Bureau of Meteorology are not inconsistent with the evidence given by either the defendant’s witnesses or those called by the plaintiff.  The whole of the evidence, including that of the plaintiff’s witnesses, is in the range 20 to 30 knots of wind per hour with the wind speed developing over the course of the race.  All witnesses conceded there may have been higher gusts.  The issue is whether the manner in which Rager was being sailed failed to take account of the weather conditions. 

   Sea State

8. Wind speed is not the only component of weather conditions.  The other issue is the sea state.  Ultimately the plaintiff made no detailed submissions about the sea state.  There is the reference to the conditions as “extreme heavy weather conditions” quoted above although in context this appears to be a reference to the wind speed.  There is a further reference to “the whole of the surface of the sea in which they were operating was covered with waves, all of which had the capacity to knock the boat off course”.[148] 

   [148] Plaintiff’s first submissions para 176

9. The plaintiff criticises paragraph 122 of the defendant’s submissions dated 21 September 2010 relating to “limited fetch” but does not make any positive assertion in relation to that issue.  This criticism arises from defendant’s response to the plaintiff’s tender of the Beaufort Scale of Wind Force.[149]   This document was tendered during the cross-examination of Mr Wall-Smith.  Mr Wall-Smith agreed that he was familiar with the Beaufort Scale.  He was taken to portions of the scale and the following propositions were put to him:

   [149] Exhibit P3

   QYou can see that with a wind speed of 22-27 knots, that the height of the waves would have been 3 m high, is that right?

   A3m?

   QLook at the scale.

   AYes.

   QAnd when the wind gets up to 28-30 knots, the waves rise to 4 m high?

   AYes.

   QAnd in addition to the height of the waves their height is accentuated by the background swell, isn’t it

   AYes, I’m not sure that there was much swell that day.

   QI ask you to accept on that day that there was one and half metres worth of swell.

   AYes.

   QSo the height of the waves can be up to 6 m high that you were experiencing, is that right?

   AThat’s pretty high.[150]

   [150] Transcript p83

10. In re-examination Mr Wall-Smith said that the Beaufort Scale applied to the ocean rather than somewhere like St Vincent’s Gulf and further said that he did not see any 6 metre waves on the day in question.[151]  None of the other lay witnesses were asked to comment on the Beaufort Scale although, as outlined above, a number did make comment about the sea conditions. 

    [151] Transcript p137

11. Mr Dovell was asked about the Beaufort Scale and the development of a sea state.  Not only did Mr Dovell have qualifications and experience as a naval architect, he is also an experienced sailor who has participated in numerous yacht races including the Sydney to Hobart on a number of occasions. I found Mr Dovell to be a very clear and impressive witness on this and other topics.

12. His evidence about the Beaufort Scale was that it was relevant to know how long the wind had been blowing and over what body of water it had been travelling.  He said that the Beaufort Scale applied to a fully developed sea state in open water conditions and that fetch and depth were important to the development of a sea state.[152]  He said that the limited fetch in the Gulf meant that there would be lesser waves due to shallow depths.  He said that it would be difficult to get 6 metre waves in 30 feet of water being the estimated depth of that area of the Gulf.[153]  This is the evidence that the plaintiff criticises in its first submissions asserting that:

    The fetch is from the northern shores of Kangaroo Island which is approximately 70 nautical miles from the entrance of Outer Harbour and over 68 nautical miles from where the incident occurred.[154]

    [152] Transcript pp258-9

    [153] Transcript p260

    [154] Plaintiff’s first submissions para 179

13. Leaving aside the fact that there was no evidence that this is in fact the case, Mr Dovell was asked to assume these facts and comment upon that issue in cross-examination.  He said:

    Okay, but I think that it’s still not altogether an unlimited fetch.  The time that it takes to develop a full sea state at 25-30 knots is quite some time and the depth of the water is probably one of the key factors.  It limits the size of the waves from growing very large.  I mean, the fact is that waves on the Spencer Gulf are not as big as they are on Western Australia on the beach in the same wind condition.  It’s the bottom effect that kills it.[155]

    [155] Transcript p425

14. I accept Mr Dovell’s evidence, and that of Mr Wall-Smith, that the Beaufort Scale has limited value in this matter given that mast broke in St Vincent’s Gulf rather than on the open ocean.  The proposition apparently sought to be advanced by the plaintiff in cross examination, but not its submissions, as to 6 metre waves further does not appear to be supported by the Beaufort Scale.  A mean wind speed of 30 knots or a range of wind speed between 28-33 knots gives according to Exhibit P3, a probable wave height of 4 metres and a probable maximum wave height of 5.5 metres.  In any event, as can be seen from the summary of the evidence as to the sea state, not one of the witnesses described six metre waves.  The only estimate of wave height came from Mr Wilson who put them at 3-4 feet.

    Conclusions on Prevailing Weather Conditions and Sea State 

15. On the basis of the lay evidence and the recordings taken at Beacon 6, I find that the wind speed, at the time of the failure of the mast, was in the order of 25 to 30 knots with maximum gusts up to 35 knots. I find that the sea state was in no way remarkable.  The preponderance of the evidence indicates that these were typical conditions for the Gulf at this time of the year.  There was no evidence that the sailing conditions were out of the ordinary and I reject the plaintiff’s submission that these conditions were “extreme, heavy weather conditions”. 

    Defendant’s Manner of Sailing

16. Notwithstanding my rejection of the proposition that the prevailing weather conditions and sea state were extreme it remains possible that the mast broke due to misuse of the boat or a failure to sail within the constraints of the prevailing conditions as is contended by the plaintiff.   It is therefore necessary to consider the lay evidence of what actually happened that day, and examine this in the context of the expert evidence in order to determine whether the plaintiff has established its contention on the balance of probabilities. 

17. It is common ground that, after rounding the windward mark, the yachts headed towards the fairway beacon in a generally northerly direction.  Dr Shanks said that he set a course on Rager travelling down wind at an angle in order to take best advantage of the wind.  Rager was travelling on a port tack out to sea.  They set their masthead spinnaker.  This would eventually require that the boat change direction.  His intention was to undertake a gybe. The gybe proceeded normally until after the main boom had changed sides.  Dr Shanks said there was a kick in the back starboard corner of the boat caused by a wave which in turn caused the boat to change angle across the breeze, lose steerage and broach.  He said the boat heeled to about 45º and shortly after the mast fell down.[156]

    [156] Transcript pp518-23

18. Mr Wall-Smith said that the boat was travelling down wind at 18 to 20 knots and was well under control.  During the gybe he described the change of the spinnaker pole from port to starboard.  The forward hand had to connect the brace to the outer end of the spinnaker pole.  Before that occurred Mr Wall-Smith said that a wave got under the starboard rear quarter of the boat causing it to heel to port.  This resulted in the spinnaker running up the forestay with the consequence that the forward hand failed to get the brace into the end of the spinnaker pole.  He described the boat turning to starboard, the spinnaker flogging a couple of times and the boat heeling over.  He said there was a bang and the mast ended up in the water.[157]

    [157] Transcript p64

19. Mr Wilson said that during the gybe the boat headed up to windward and broached.  Shortly after that he heard a crack and then a large portion of the mast fell over to the left hand side of the boat.[158]

    [158] Transcript pp442-6

20. Mr Sinton gave similar evidence saying that they were sailing in about 30 feet of water.  When they performed the gybe a kick from a small wave pushed the boat around a bit quicker and the boat fell over and heeled.  He was sitting on the rail quite comfortably at the time and said that he was not concerned about being tipped off the boat. He did not consider the broach severe enough to change his position. He said that, when the boat righted itself, the mast fell over the side.[159]

    [159] Transcript pp469-83 and p485

21. Mr Fidock said that all of the boats who took the same path as Rager had to perform a gybe to lay the mark, in other words to change tack to get to the beacon.[160]  He noticed that Dr Feelgood gybed successfully but that Rager had problems.[161]  He said that Dr Feelgood had a masthead spinnaker as did Rager.  One performed the gybe successfully and the other did not.[162]  His boat, Sea, gybed after that.  He elected to hoist the jib and remove the spinnaker before performing the gybe.  They used the heavy top sail and put the main across making his boat more manoeuvrable.[163]  He was asked his opinion of using the masthead spinnaker in the prevailing conditions and replied:

    AIt’s a very contentious point among yachtsmen at what stage they will give up racing and start being seamen.  On the day in question Mr Williams and ourselves decided to be seamen. I believe as to the other boats, I admire their competitiveness, but I was not prepared to risk the boat and the crew by setting too big a sail.

    QWhat were the risks that would be taken if you did so.

    AThe risk is with the big spinnaker up, the boat can lurch about much more and you are in danger of losing the crew overboard.  The second thing is we all knew that we had to gybe to get to the next mark and we were more confident of undertaking that gybe with a smaller sail than a larger sail.  The risks in our view were higher than we would want to take, but I admire the fact that the others elected to fly.[164]

    [160] Transcript p888

    [161] Transcript p889

    [162] Transcript p901

    [163] Transcript p889-90

    [164] Transcript p896; Amended in line with agreed transcript changes

22. Later in cross-examination he was asked about using a masthead spinnaker.  He said that boats varied and agreed that larger boats can generally set larger sails and that some boats are designed to be more stable going downwind.  He agreed that Rager was a fast downwind boat and, commenting upon the fact that Rager broached during the course of the gybe, said:

    I think it’s not the setting of the spinnaker; it’s the gybing of it that was the problem.[165] 

    [165] Transcript p900; Amended in line with agreed transcript changes

23. Later he said:

    My comment is that it was the actions of the crew in gybing the boat which caused the problem.[166]

    [166] Transcript p901; Amended in line with agreed transcript changes

24. Peter Bolton was the skipper of Dr Feelgood.  He described seeing Rager get into difficulty as it performed a gybe. He described what happened as follows:

    QWhat did you observe when Rager got into difficulty and when did that occur.

    AWell, from what we could see it appeared that he had to gybe the boat, and when the spinnaker crossed the boat to the other side he laid it over so the boat was laying right over on its side.  It was laying in the water for a number of seconds, I think it was a fair while but I can’t remember, I can’t recall exactly how long.  And then the spinnaker appeared to be let out from the top of the mast about – it appeared to be 8 to 10m and the halyard was let go and it stopped.  And it stayed there on its side for a long time with the spinnaker slightly filling and then collapsing, filling and then collapsing again.  And then after that we didn’t see much because it fell over, the mast broke.

    QIf the mast broke would the visibility of the boat change[167].

    AThe boat came upright.  We were in the process of sailing our own boat at the time.

    QWhat sort of sea was running.

    ANot that big.

    QWould the hull of the boat disappear if it had no mast from time to time in that sea.

    ADisappear, like from visibility?

    QFrom your view

    ANo.  It was only, say, half a mile in front at the most.[168]

    [167] Amended in line with agreed transcript changes

    [168] Transcript pp1250- 1251; Amended in line with agreed transcript changes

25. Mr Bolton indicated that Dr Feelgood had a masthead spinnaker and took a line from the windward mark similar to that of Rager and that he had to gybe to get to the next mark.  He said that he did that with the masthead spinnaker and the full main sail and good crew work.  He said they did not have any problems.  His recollection of the wind speed at this time was in the order of 25 knots plus and gusting more.

26. Mr Williams was sailing Prime Example the first boat around the windward mark.  He said Rager was working further out to sea and travelling somewhat faster than Prime Example on the down wind leg.  He said Rager is a bigger boat and designed to go downwind very fast. Mr Williams then described what happened as follows:

    AOkay.  He attempted to engage in a gybe.  It became immediately obvious that he was going to get into trouble and that was shown by the fact that he went through the gybe rapidly and was not in control of the boat.  He then came back on the other gybe, the original gybe that he was on, and I noticed then that the spinnaker, which was a very large spinnaker had come down from the top of the mast, perhaps six to eight feet.  And that, of course, made the situation even worse for him because the mast and spinnaker was now swaying from the masthead and took over control with the weight of the wind that was in the sail and gybed him back onto the other gybe, on the one that he was attempting to get to, and the boat was very much out of control.  He gybed, he attempted to gybe back, he attempted to drop the spinnaker further.  It didn’t seem to want to be dropped and at that stage he then was flattened down to the water on the starboard tack. [169]

    QThat meant the boat lay over to port, is that right, onto its port side.

    AYes, I suppose so.  You are quite right.  But there is a large sail in the water, there was, I think his spinnaker pole also had, because he had gybed back again, into the water on the same side, and just flattened the boat down to the water, and the whole rig then just fell down.

    QWhen this is happening, you began overtaking him, did you.

    AWhen his mast fell down, yes.

    QAs he was in this situation where his boat is on its side, was your boat going faster than his boat at that time.

    AI don’t know.

    QHow far away were you when you made these observations.

    AI would think no more than 100 metres.[170]

    [169] Amended in line with agreed transcript changes

    [170] Transcript pp1465–66 Line 15

27. In cross-examination Mr Williams was asked about the topic of the mast being horizontal to the water and the spinnaker filling with water.  This exchange is as follows:

    QThis concept that the boat Rager, when you observed it, was flattened down to the water, and by that I take it you mean the mast was right down to the water.

    AAbout horizontal to the water from my recollection.

    QHorizontal to the water, that suggests the boat has turned through a full 90 degrees with the mast stretched out over the water.

    AYes.

    QIt would then be no more than half a deck width above the water.

    AYes.

    QThat is what you are postulating, is it, that is what you tell us happened.

    AYes.

    QAt that stage you say the spinnaker was down in the water.

    AYes.

    QI suggest to you that is not correct, and that your evidence on that is not correct, and at no stage was Rager at an angle of heel, where its mast was horizontal to the water.  That is right isn’t it.

    AThat is what I said.

    QNo, I am putting to you what you said is wrong and that at no stage was the mast horizontal to the water, that is correct, isn’t it.

    ANo, I don’t believe so.

    QI suggest to you that the spinnaker did not fill with water at any time before the mast broke.  That is right, isn’t it.

    AI can’t answer the question because I didn’t see the boat at that stage.  I had problems of my own.

    QWhat were your problems.

    AI had a 52-foot boat which was under 30 knots of breeze running before, I had to make sure I didn’t do any damage to my boat and had to decide what we were going to do, so I didn’t turn back and look, apart from the fact that we did give him a radio call to see if he was all right or if he needed assistance.[171]

    [171] Transcript pp1469 – 70

1. There is limited evidence about the manner in which the mast broke.  It can be seen from the descriptions already given by the witnesses that Rager broached and then the mast broke.  The clearest description of these events was the evidence of Mr Wall-Smith that I have already referred to.  He also saw the lower starboard spreader broken some distance out from the mast.  He estimated the distance out from the mast as a foot or so.[172]  He said the inner portion of the spreader which remained was firmly attached at the point he described as its shoe adjacent to the mast section.[173]

   [172] Transcript pp64-5

   [173] Transcript p65

2. Mr Wall-Smith is the only witness who describes seeing the broken spreader.  The plaintiff says:

   It seems inconceivable that even though the crew had to cut the rigging free and that the spreader was in a prominent position no-one else reported seeing the broker spreader yet they claim to have notice the halyards trapped within the mast fracture. (T459 5-9).  The fracture occurred only 400 mm from the broken spreader.  None of these witnesses say that they saw a broken spreader. (T473 5-9, T504 4-5, T546 8-9).[174]

   [174] Plaintiff’s first submissions para 4

3. I do not consider that the fact that other crew members did not take note of the broken spreader is a basis for not accepting Mr Wall-Smith’s evidence.  Mr Wall-Smith impressed me as a careful and observant witness.  He was arguably in the best position to observe the mast break.  In any event the breaking of the mast occurred in a relatively short space of time.  It created a situation of considerable hazard for Rager and her crew.  They were required to take remedial action.  Mr Wilson described checking the crew for injuries, restraining loose equipment, cutting away halyards, removing pins and ultimately jumping in the water.[175]  As Mr Wall-Smith said “there was a lot of action”. It is unsurprising that other crew members failed to observe the broken spreader.

   [175] Transcript p446

4. Mr Wall-Smith’s evidence is consistent, as I have said, with the expert evidence.  Mr Mitchell for example suggested that the location at which Mr Wall-Smith says the spreader broke, a foot or so out from the mast, is “precisely where I would have expected it most likely to break”.[176]

   [176] Transcript p627

5. The plaintiff also says that Mr Wall-Smith was mistaken in his evidence that the mast was still attached to the stump at the point of failure and refers to the evidence of Mr Wilson at page 459 of the transcript and Dr Shanks at page 524 of the transcript.[177]  This evidence does not however support the plaintiff’s contention.  Mr Wilson was asked as follows:

   QWhen the mast fell, as it completed its fall to the point where it hit the water, what happened at the joint where it broke, was it still attached.

   AI believe it was still attached, partially still attached, the alloy portion of the mast was attached, it wasn’t a clean break, as I recall.[178]

   [177] Plaintiff’s first submissions para 113

   [178] Transcript pp458-9

6. He gave the time frame from the gybe to the mast failure as probably 30 – 45 seconds and then from the time the mast fell over to the breaking of the mast a minute or two minutes with the movement of the boat.   This evidence supports the evidence of Mr Wall-Smith.

7. Dr Shanks’ evidence was that the mast “folded and went over the side”.  He then said:

   I heard a sort of tearing noise which made me look up, to see the mast, what was happening, and it essentially tipped over the portside and sort of tore as it went – that’s what it felt like anyway – tore as it went over the side towards the – from the midline back towards the stern, probably half way back.[179]

   [179] Transcript p524

8. He did not give an estimate of the time this took.  Later he described the mast folding and then twisting as it went down.  He said it all happened so quickly but that he thought it fell back over the portside stern quarter and ended up in the back corner of the boat.[180]  It was suggested that the evidence Dr Shanks gave at the first trial on this topic was inconsistent with his evidence at this trial.  I do not consider his evidence to be inconsistent and I reject this contention. 

   [180] Transcript pp542-3

9. Mr Sinton the other witness that was Rager at the time said that he was on the spinnaker sheets after the broach.  He said the spinnaker was flogging.  They sat there for maybe 30 to 45 seconds and then the mast seemed to collapse.  He said it just fell over the side.[181]

   [181] Transcript p483

10. The other witnesses were not on board Rager and had a limited view of events.  None of them were in a position to comment one way or the other on whether there was a break in the spreader or whether the mast remained attached to the boat for a short period of time.

11. I accept Mr Wall-Smith’s evidence that the lower starboard spreader broke about a foot out from the mast, that the mast crumpled and was still attached to the stump at the point of fracture for a brief period of time.  His evidence is consistent with the other lay evidence and the expert evidence.

12. I also find on the whole of the evidence that the time from the broach to the failure of the mast was in the order of 35 – 45 seconds and that the mast parted company with the boat a minute or two later.  I do not accept the evidence of Mr Williams concerning the topic of the mast being horizontal to the water and the spinnaker filling with water.  Those who were on board the boat specifically rejected that proposition and Mr Williams conceded that there were periods of time during the broach that he did not see Rager as he was busy sailing his own yacht.

    Other scenarios put by the Plaintiff

13. The plaintiff takes issue with the defence contention that a broach is a routine sailing event and contends that:

    The definition of a broach is when the boat pivots and allows the spinnaker to collapse.  However in this case the spinnaker did not have an important part of the rigging array in place, being the spinnaker pole.  Therefore this event should be looked on as an inappropriate sail set and not as a normal occurrence.  It has been put by the defence (sic) that it should be regarded as a fairly routine sailing event………..However, Mr Dovell conceded that even a normal broach can take masts out of  boats (T423 24-29).[182]

    [182] Plaintiff’s first submissions para 64

14. This is not an accurate representation of Mr Dovell’s evidence on that topic.  His evidence was as follows:

    QIt’s the case that where you’ve got rough conditions, it is possible that in exercising the change of course by way of a gybe, that there is a risk that the mast will fall down.

    AThere is a risk that the mast will fall down but it’s very low in my opinion.  There is always a risk the mast is going to fall down.  It’s very low.  I wouldn’t have considered that a risk going into that manoeuvre given the picture of the conditions painted to me.[183]

    [183] Transcript p423

15. The plaintiff further refers to evidence of Mr Dovell and Mr Mitchell agreeing that the broach event was significant and that it would create excessive loads upon the mast array.[184]  The portions of transcript referred to do not in fact support that contention.  Their evidence was responding to hypothetical scenarios put by the plaintiff’s counsel which were not subsequently established by the evidence.  In any event, the issue is whether a properly designed and constructed mast should cope with the event in question.  The plaintiff concludes its first submissions by saying:

    The explanation for its failure therefore does not relate to unmerchantability, it simply relates to a remarkable event which Mr Mitchell concedes could have happened.  As he says in his evidence, in those circumstances he would not even know what figures he would begin to put in his computer.[185]

    [184] Plaintiff’s first submissions para 65-69

    [185] Plaintiff’s first submissions para 102

16. Neither Mr Dovell nor Mr Mitchell concluded that a broach was a remarkable event.  Mr Dovell said that a broach was a normal or accepted part of sailing that he would expect an appropriate mast design to cater for.[186]  The plaintiff has failed to establish that this particular broach was a remarkable event.  I consider that the mast should have catered for the broach that occurred here and that its failure to do so reinforces my finding that the plaintiff has failed to establish that the mast was fit for its purpose. 

    [186] Transcript pp224-25

17. The plaintiff put other scenarios forward including that the forestay broke, that the spinnaker used by the defendant was too big, that the defendant should have had running backstays installed and should have used these, and that two poles should have been used on the spinnaker during the gybe.  None of these propositions has been established by the plaintiff. 

18. None of the lay witnesses describe seeing a broken forestay.  The broken end of the remaining lower panel did not indicate a failure in the fore and aft direction as both Mr Dovell and Mr Doherty indicated would be the case if the forestay had broken.  Rather it demonstrated a failure in the athwartships direction consistent with a spreader breaking and consistent with the lay evidence about the manner in which the mast fell.  Mr Dovell also said that there was no reason for the spreader to fracture if the forestay broke since the rigging would go slack and release the load on the spreader.

19. Mr Dovell said that he had never seen the use of two poles with a spinnaker and even if that were done he could see problems that would arise with that.[187]  In any event, the best that could be said about this proposition is that it might have meant that the defendant performed the gybe successfully.  The fact is he did not but I have found that the unsuccessful gybe should not have led to the failure of the mast.

    [187] Transcript p227

20. There was ultimately no evidence that the use of the spinnaker was causative of the mast failure.  Mr Sinton said that there was no significant problem with the spinnaker in question.[188]  At least one other boat was using a mast head spinnaker at the time with no apparent difficulty.  Mr Dovell said that the size of the spinnaker was irrelevant rather the righting moment was the critical issue.  In any event he did not consider it necessary to stop using a mast head spinnaker in less than 30 knots average wind strength. 

    [188] Transcript p487

21. Finally the plaintiff contends in its second submissions that the defendant’s

    ..failure to install and use runners constitutes misuse of the mast array which in the circumstances exonerates the plaintiff from any liability or makes him a major contributor to the loss.[189]

    [189] Plaintiff’s second submissions p20

22. As I have already indicated this was not pleaded.  I will, however, deal with it as it was raised in evidence and specifically put to the defendant. 

23. Mr Banwell said that Dr Shanks decided, in early October when they had just started putting the rigging on the boat, that he would not be using runners.  Mr Banwell said that the mast had been manufactured with a position for runners to be installed.  Mr Banwell said that he told Dr Shanks that the mast would no longer be competitive and that he would have to consider what the minimum requirement of the mast was.  He then said that he got back to Dr Shanks a couple of days later and said that “at 20 knots of breeze or thereabouts he should very seriously consider putting temporary runners at and around the centre spreaders.”[190]  This was put to Dr Shanks in cross-examination:[191]

    "QI also suggest to you that you were told by my client that when the wind got over 20 knots in wind speed, that you should running back stayers.

    ASorry, are you suggesting that he made this claim that I should do that on the rig that he supplied me?

    QYes.

    AIf that was the case, I would never have accepted the rig.  It was strictly, we weren’t using running back stays.  Never intended to.  Makes the boat hard to sail, difficult in pre-start manoeuvres.  We had no intention of ever using running back stays in the replacement rig. 

    [190] Transcript p951

    [191] Transcript p530

24. I prefer the evidence of Dr Shanks to Mr Banwell on this topic.  In any event, the plaintiff has called no evidence to establish that the use of running backstays would have made any difference. I also note Mr Dovell’s opinion that the use of running back stays would have made no difference in this scenario because the use of the masthead spinnaker was perfectly balanced by the fixed back stay.[192]  I accept his evidence.

    [192] Transcript pp225-6

    Conclusion - Was there misuse of the boat by the defendant?

25. The conditions were not extreme and in my view there is no evidence that the conditions were such that Rager should not have been handled in the way that it was.  Rager was being sailed in a competitive even aggressive manner.  It was in a race.  The defendant was not alone in performing a gybe or indeed a gybe with a masthead spinnaker.  Even those witnesses who were not prepared to gybe in that manner themselves said that a gybe performed with a masthead spinnaker was not an inappropriate manoeuvre for a boat such as Rager.  The gybe was not performed well.  Clearly a crew man failed to fix the brace to the end of the spinnaker pole.  This error seems to have been contributed to by a small wave.  Whatever the cause it led to a broach.  The plaintiff says that this was a “remarkable event”[193]  I reject this proposition.  A broach is an expected event on a racing yacht such as Rager.  A broach should not have been a catastrophic event in the circumstances. It should not have led to failure of the mast.  The plaintiff should have anticipated such an event and should have catered for it in the design and construction. 

    [193] Plaintiff’s First submissions para 102

    Quantum & Failure to Mitigate

26. The quantum of the defendant’s claim in respect of the mast has been agreed in the sum of $74,556.78 subject to an offset by judgment for the plaintiff in the amount of $4,873.97 and subject to the plaintiff’s argument that the defendant failed to mitigate his loss by not retrieving the mast. 

27. The plaintiff says that had the mast been retrieved then the cost of repairs would have been reduced by approximately $10,000.00.[194] Mr Banwell has assessed the material costs in the sum of $8,356.79.  Presumably on top of that is the issue of labour and cost of retrieving the mast. The plaintiff tendered no evidence on the topic of the costs of labour or retrieval. 

    [194] Exhibit P45

28. The plaintiff contends that the defendant failed to search for the mast, take precise GPS references at the time the mast was jettisoned or failed to attach some form of marker to the mast when it was jettisoned.

29. There was evidence, which I accept, concerning considerable but unsuccessful efforts made to retrieve the mast by both the defendant and the plaintiff. I accept the defendant’s evidence that the onboard records did record the location of the incident.  The defendant looked in that location to no avail.  These were made available to the plaintiff who gave them to Mr Bolton who was also unable to locate the mast.  I specifically reject the plaintiff’s contention that the defendant may have made up these co-ordinates.  This is an assertion without foundation – one moreover that was not put to the defendant.     

30. Given the circumstances of the mast failing and concerns for crew safety I do not consider it unreasonable of the defendant not to have taken further steps to more precisely locate the area in which the mast was jettisoned by attaching a marker or other device. 

31. I do not think in any relevant sense it can be said that the defendant failed to mitigate. 

32. I consider that the defendant is entitled to his claim as agreed less the plaintiff’s entitlement to offset as agreed, in the sum of $69,643.21.

33. I will hear argument as to interest and costs.