Dagenham Nominees Pty Ltd v Shanks (No 2) - [2005] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DAGENHAM NOMINEES PTY LTD v SHANKS (No 2)
Judgment of His Honour Judge David
23 September 2005
CONTRACTS
Claim for work on yacht – counter-claim for breach of contract – implied condition that work done on installation of mast and rigging was such that mast would be fit for purpose of offshore ocean yacht racing – mast broke in race in South Australian waters – whether cause of failure due to breach of implied condition – question of whether yacht was sailed and rigged adequately on day of accident – held – breach of implied condition to design and install mast for purposes for which it was to be used – such breach caused mast to break – yacht adequately sailed and rigged on day of accident.

DAGENHAM NOMINEES PTY LTD v SHANKS (No 2)
[2005] SADC 129
Introduction and Background

On the 19^th December 2002 I gave judgment for the defendant in this matter in the sum of $69,662.31. The plaintiff successfully appealed to the Full Court of the Supreme Court of South Australia against my judgment. The Full Court ordered that the matter be remitted to me for further trial in accordance with their reasons.
The original claim by the plaintiff was for work done in respect of a yacht owned by the defendant involving a contract for the design, supply and installation of a mast and associated rigging. The plaintiff claimed the sum of $9,870.04 which was the balance said to be owing under the contract. The defendant counter‑claimed the sum of $176,830.30 being damages for breach of contract. The defendant pleaded that there was an implied condition in the contract that the mast and associated rigging would be fit for the purpose of offshore yacht racing.
At the original trial it was alleged by the defendant that on two separate occasions the equipment supplied by the plaintiff failed causing damage to the defendant. The first part of the defendant’s counter‑claim involved the failure of part of the rigging of the mast which the defendant claimed caused the yacht to retire from the 2000 Sydney-Hobart yacht race. I found in my original judgment that no such claim could be made out and that judgment was confirmed by the Full Court.
The defendant also claimed that on the 3^rd February 2001, whilst the yacht was engaged in a coastal race from North Haven to Glenelg and back, the mast broke and this resulted in damages being the cost of the replacement of that mast. In my original judgment I did not allow all of the damages that the defendant claimed. That part of my decision was confirmed by the Full Court.
On an original reading of the decision of the Full Court, it appeared that the Full Court sent the matter back to me specifically for the purpose of giving more detailed reasons as to why I preferred the expert evidence adduced by the defendant to the expert evidence adduced by the plaintiff. I was required to make specific findings as to the design, construction and installation of the mast. The Court also held that I should make findings as to the incident of the 3^rd February 2001 (the day the mast failed) and also make findings as to whether the sails which were carried on the yacht and the manoeuvres which were carried out were capable of causing the mast to break. However as matters developed, in order to clarify the situation, the matter was taken back to the Full Court. I was instructed that both sides could call fresh evidence and the findings that I had already made were open to review in the light of the further evidence. It has also been agreed between the parties that all the evidence called at the original trial is before me for the purposes of the present trial. Several extra witnesses were called at the second trial, as were a number of witnesses recalled. That fresh evidence is to be considered with the original evidence which was called at the first trial.
Although the background to the incident on the 3^rd February 2001 is set out in the judgment of the Full Court and my original judgment, it is important to refer to that background again.
It is undisputed that the defendant, a medical practitioner, purchased a large 10 year old yacht called Doctel Rager in September 1997. The defendant is an experienced yachtsman, having competed in many Sydney-Hobart yacht races on Doctel Rager. The yacht was purchased specifically for Sydney-Hobart yacht racing.
On the 31^st March 2000, while sailing the yacht back from Port Lincoln to Adelaide, it collided with a reef and was seriously damaged. Steps were taken to rebuild it. This included the manufacture and fitting of a new mast. The defendant obtained a quotation from the plaintiff, Mr Banwell, for the manufacture and installation of a new mast and the appropriate rigging. He engaged Mr Banwell because in 1997, 1998 and 1999 he was the person designated by the Australian Yachting Federation to do compulsory annual rigging inspections on yachts competing in the Sydney-Hobart yacht race.
He commenced work in April of 2000 and completed it on the 22^nd October 2000. The defendant gave evidence that he had no input into the manufacture, design and installation of the mast. He left that to the plaintiff who was an expert in that area. The defendant competed with Doctel Rager in the Sydney-Hobart yacht race which commenced on Boxing Day 2000. I will not go into the details of that as that part of the claim is now irrelevant.
As can be seen from the original judgment, the yacht was in an accident during that race because of a broken forestay. It was eventually brought back to Adelaide and after correspondence between the parties it was eventually fixed by Mr Banwell. On the 3^rd February 2001, something like three months after the new mast had been installed, it broke whilst the yacht was engaged in a coastal race of about 20 to 30 kilometres from North Haven to Glenelg and back.
The defendant counter-claims that the mast and rigging supplied by the plaintiff and installed in the yacht in October of 2000 was not fit for the purpose for which it was supplied and that such lack of fitness was the cause of its failure.
The plaintiff argues that the mast was fit for the purposes for which it was supplied and that it broke because of bad boat management on the day in question or because of some other unforeseen reason, such as the failing of equipment, which was not the responsibility of the plaintiff. It is argued by the plaintiff that, whatever the cause of the failure it was not due to a breach of the implied condition that it was fit for the purpose for which it was supplied.
It was agreed at the original trial that as the bulk of the claim was being made by way of counter‑claim the defendant should be dux litis and that procedure was followed at the re-trial. It was also agreed that much of the evidence which was called at the first trial would not be repeated. However additional witnesses were called, for the purposes of, the further arguments made necessary by the Full Court decision.
In my original judgment I found that the mast broke on the day in question due to weakness at the point of fracture due to lack of reinforcing. I also concluded that the way the yacht was sailed on the 3^rd February 2001 in the conditions on that day was not the cause of its failure. Both of those findings are now subject to further evidence and are open to review. Before turning to the question of the design and strength of the mast I wish to revisit the evidence both in the original and second trials of the accident of the 3^rd February 2001, in particular as to whether the boat was sailed in such a way as to cause the mast to break.
Accident of the 3^rd February 2001
The bulk of the evidence on this topic was given at the original trial. There was only one extra witness at the re-trial. That was Mr Peter Bolton who was called by the plaintiff.
It is clear from the evidence of the defendant that the purpose for which the mast was to be used was for offshore ocean racing of a vigorous kind. When the mast was installed it was just before a Sydney-Hobart yacht race and there can be no doubt that its purpose was to cope with the most difficult of offshore racing.
I summarise (as I did in my earlier judgment) the evidence led at the first trial about the accident of the 3^rd February 2001. That evidence is by agreement still before me in addition to the evidence of Mr Peter Bolton.
The defendant gave evidence that the mast broke on the 3^rd February 2001 while the yacht was engaged in a coastal race of about 20 to 30 kilometres from North Haven to Glenelg and back. The race started on a Saturday afternoon at 1.00 p.m. and according to the defendant there was a south-westerly breeze of about 18 to 22 knots and the day was fine.
The defendant gave evidence that at the start of the race, the yacht was sailing in a south to south‑westerly direction close to the wind. While travelling in that direction there was one reef in the mainsail. That means the mainsail is shortened so that the area of the sail is reduced. The defendant said he often sailed Doctel Rager in such a breeze. As I understand the evidence, the stronger the wind the more reefs there would be, thus exposing less sail area. Having got to a mark somewhere off Glenelg the yacht went around the mark and steered in a northerly direction. The wind was then behind the yacht. At that time the masthead spinnaker was used. As an explanation as to what a masthead spinnaker is the defendant said the following (evidence first trial at page 69):-
QThe masthead one is I take it the biggest, it’s at the mast.
AWe do have bigger spinnakers than masthead spinnakers and the one we were using that day. Then there’s a series of pound spinnakers which come out – their exit point is lower down which are smaller again, depending on what you’re trying to do with the spinnaker as to what you pick.
QThe one you chose on this day was not your largest spinnaker.
ACorrect.
QWho made the selection about what sail you would use.
AI make the sail selections.
QWhy did you choose that spinnaker.
ABecause it’s fast. It wasn’t likely to break. It seemed appropriate for the day. There wasn’t much of a wave action going so there wasn’t a risk of the boat nose diving or coming to a sudden halt which would tear a sail to pieces because it loads up. So it was the sail for that race.
QDid it in fact seem to be working as you –
AIt was working beautifully.
On that day, according to the defendant, there was a 4ft swell and the yacht was handling well. He did not think there was too much sail and gave evidence that there are indications in the handling movements of a yacht which indicate when there is too much sail. He said “If the boat is difficult to steer downwind, if it’s starting to broach or broaching mostly it means you’ve got too much mainsail up. That’s the triangle that will drag you up whereas the balloon will tend to keep you down with it. The boat was balanced and, as I say, going fast. It was just an ordinary Saturday afternoon sailing with a moderate afternoon sea breeze and not much of a wave action” (evidence first trial at page 70).
He then described what a “broach” is. He gave the following evidence on that topic (evidence first trial at page 71):-
QYou mentioned also a broach which can happen. What’s a broach.
AA broach is when the boat rounds up into the breeze. You want to be running down wind with it but it’s forced up and rounds up into the breeze. Often that’s, as I say, because you’ve got too much triangle mainsail up and you get a gust or whatever the breeze takes over where the boat’s going to go and you lose your steerage. Generally that’s what happens. Sometimes you can get it with converging wave actions. It might pick the stern of the boat up and flick it around. That’s what a broach is. It rolls up. There are varying degrees of broaching. You might go almost head to wind and lie flat, or you might be just temporarily out of control where you’ve got to bring the boat back, you’ve got to steer it down to bring it back.
He said that Doctel Rager had broached on many occasions prior to the 3^rd February 2001 and that such an event is not unknown. He said he would describe a broach as a “recoverable event”. While sailing downwind it was the defendant’s intention for Doctel Rager to “gybe”. He explained what is supposed to happen when a yacht gybes (evidence first trial at page 73):-
QIn fact I will withdraw my question about what did happen, can you tell us what is supposed to happen; what is the routine you go through on –
AWhat is supposed to happen is that you slide slowly into the arc movement and the sails flop to the other side and you pull the spinnaker around and reset it with the pole, the spinnaker pole on the other side of the boat and the boom swings across smoothly.
QWhen you say the boom in that case it’s the boom for the mainsail.
AThe boom for the mainsail swings across and the spinnaker is let float and it goes with the breeze and you basically steer the boat from one side of the spinnaker to the other side of the spinnaker through an arc of maybe 60 degrees or whatever.
QAnd the spinnaker itself has a pole which holds one corner of it and something has to be done with that to get it on the other side of the boat.
AIt has to be released from one corner and then taken across and joined on to the other corner.
QWhen that’s happening of course the corner spinnakers still have to be restrained in some way. How is that done.
AThe two ropes that are holding the spinnaker corners are held and, as I say, essentially the wind is pulling this balloon forward and all you are doing is changing the angle of steering. You are steering under the balloon. Then you just wrap it all in and sail off when you want to sail off.
QSo this spinnaker can stay filled with wind and drawing the boat along without having the pole attached to either corner.
ACorrect.
QAnd so the process is it, tell me if I’m wrong, is to keep that spinnaker drawing nicely, as it were, pulling nicely with the ropes from either bottom corner, take the pole off one corner, move it across, clip it onto the other corner without the sail collapsing or doing anything untoward.
AThat’s exactly what we try to do, yes.
QAnd then when you’ve got the pole on the new corner you just adjust your ropes a bit again and continue on.
AThat’s right.
He then gave the following evidence as to what happened on this particular day (evidence first trial at page 74):-
QOn this day what happened.
AWe got through the jib, the spinnaker was still filling. For whatever reason the pole end hadn’t connected to – had swapped corners and connected on the brace, is what it’s called, it fell out of the brace. That in its own right is not an issue, just do it again. The boom went through and so we jibbed and the wind filled into the mainsail and then the stern of the boat on the starboard corner, I felt a kind of lift and then boat just slipped into a broach, the spinnaker was still filling and in the space of 7 to 10 seconds while we were trying to recover from that broach, the mast broke and fell down.
QAt the stage when that is happening you told us earlier in respect of broaches that you can have a broach where you end up on your beam ends in effect, that the mast goes right over. In this broach how far did the yacht heel over.
AIt heeled over a fair way, it wasn’t beam ends. The spinnaker was still filling, the spinnaker didn’t touch the water until the mast broke. So I guess in terms of the actual angles that probably 40 degrees or something like that, 40, 45 degrees.
QI suppose as – when we say the yacht is heeling over, it will be heeling over in effect pushed by the mainsail from what you’ve described to me, is that right.
AThat’s right.
QSo that will be going towards the water.
AYes.
QAnd in fact the boom will also therefore be going towards the water as the boat heels more and more.
AThat’s right.
QAnd eventually, I suppose, they actually hit the water and fill with water.
AWorst case scenario if the boat lies flat that could happen.
QWhich will then have an effect, indeed, on holding the boat down.
AIt would, yes.
QDid it get anything like that.
ANo, the only time the beam or mainsail hit the water and the spinnaker hit the water was when the mast broke.
QAnd when was that then that the mast broke. You’ve told us how you felt the stern of the boat slipping out.
AWe’d completed the jib but the pole end that was not attached to the other side of the spinnaker and the mast broke whilst we were in this broaching position.
QWhat was the first you knew about the fact that the mast was broken.
AIt makes this weird crunching noise, it’s hard to explain. It’s a bit like twisting a beer can, sort of thing.
QIt’s not a noise that you would want to hear again.
AYou don’t want to hear it, that’s right.
QI take it you looked to see what was happening.
AI looked up to see what was happening.
QWhat did you see.
AThat the mast folded – it folded here and fell over there (INDICATES). I wasn’t sure what the mechanism for failure was here in terms of which squished which first.
At the first trial the defendant called two other witnesses one of whom was on the Doctel Rager on both occasions namely the Sydney‑Hobart yacht race of 2000 and when the mast broke on the 3^rd February 2001. The other witness was on the Doctel Rager on the day the mast broke.
Gary William Sinton gave evidence that he is a qualified marine engineer and is an experienced sailor. He has done six Sydney‑Hobart yacht races and three Melbourne‑Hobart yacht races. He has sailed on Doctel Rager for 3 or 4 years including a number of Sydney‑Hobart yacht races on that yacht. He did not sail in the Sydney‑Hobart yacht race in December of 2000. He gave evidence that he sailed on Doctel Rager on the day the mast broke namely the 3^rd February 2001. He gave evidence that when the yacht rounded the mark to sail with the wind a masthead spinnaker was put up. He said the wind at that time had picked up to about 20 to 25 knots. He did not consider that heavy bearing in mind the size of the boat. The mainsail had a reef in it and there were no other sails up. They were sailing with a south-westerly wind in a north-westerly direction on what is known as a port tack. As I understand it, that is a term for sailing at an angle to the wind with the wind coming over the left side of the yacht. They then had to make a right hand turn to travel to the east. The turn is known as a “gybe”. As already explained it is a manoeuvre whereby a yacht changes direction by moving its stern into the wind with the result that the sails are moved from one side of the yacht to the other. He gave a description of what is to be done when executing a gybe (evidence first trial at page 296). He then gave the following evidence (evidence first trial at page 297):-
QYou just tell us what happened.
AAlright. Well, we went into the gybe as normal, we sort of got everyone – everyone’s – we did a usual – to make sure everybody knew what their position was, knew what was going to happen, and the crew had sailed together often so we pretty well knew what we had to do, it wasn’t anything – there weren’t too many new chums on the boat. Standard procedure which, you know, load up the winches for the gybe, the spinnaker was floating, you know, floated to the front of the boat and drop the pole off went through, and then I guess the boom went across. I think we got hit by a – a wave lifted the bum of the boat up and the boat just – just went over into a broach. As soon as it started to broach I knew the sheet off, ease the sheet, which is standard practice. You know, get the kite to, you know, take the pressure off the kite, which it did. You know, the kite collapsed, it probably, you know, just flapped a few times. The boat was still on its side a little and then it all fell down.

He considered that during the broach the boat heeled over to about 45 degrees. He said that a yacht “broaching” is generally not an unusual occurrence and he has never seen a broach cause a mast to break before. He said that during the broach the person on the bow lost the brace as the yacht went over and the spinnaker was flapping and he was scared it was going to tear up. He was waiting for the yacht to right itself as normally happens in a broach when the wind goes out of the sails but instead the mast just came down having broken.
In cross-examination he said that he wasn’t concerned at any stage during the broach until the mast actually broke. He said that you will often see yachts broaching on a 20 knot day.
Marc William Wilson is an engineering technician and is also a yachtsman of great experience having competed in five Sydney‑Hobart yacht races. He has done four of them on Doctel Rager. He has been a regular crewman on that yacht since 1998 and has sailed on about every position on the yacht since that time. He gave evidence that he sailed on the yacht in the Sydney‑Hobart yacht race for the year 2000. He gave evidence that he sailed on the yacht on the 3^rd February 2001 when the mast broke. He gave evidence that it was a standard Saturday afternoon race. He said the conditions were a fairly typical Saturday afternoon with a fairly typical Saturday afternoon sea breeze that was building. He said the sea breeze was nothing out of the ordinary. He said the wind would have started at 17 to 22 knots with gusts up to 25 to 30 knots at times during the race. When the yacht sailed around the southern mark of the racecourse it travelled in basically a northerly direction with the wind. The spinnaker was put up. Mr Wilson gave evidence that a spinnaker on that yacht can be supported from different points on the mast. The first point is around three quarters of the height of the mast and the second point is at the top of the mast known as the masthead. If the spinnaker is flown from the masthead there is a range of sizes of spinnakers flown from that position. On this day the small masthead spinnaker was put up after rounding the northerly mark. When the yacht was sailing downwind, the wind was on the side and to the rear of the yacht. The yacht had to change direction by gybing to go to the next mark. When that was done the spinnaker pole, or boom was changed from one side (the port side) of the yacht to the other (the starboard side). It involves an adjustment of ropes controlling the sail. When the gybe was commenced on that day the yacht “broached”. I set out his description of what happened (evidence first trial at page 329):-
QWhat happened then.
AWhat happened then was we – as we were rounding we came up into the wind somewhat. We broached – what we call a broach – where the boat heels as it comes up and it tends to bear – pull itself right up into the wind, where it broached, and we started to depower sails as the boat broaches and the boat lifts up again it will start to right itself again, whereabouts we get some more steerage on the boat and in this instance we’ve broached a second time and whereby on the return of that broach was when the rig broke.
Mr Wilson then gave evidence that he had been in a broach before on Doctel Rager and indeed had been in a broach where the mast went down and touched the water. He added that that was with the old mast. Even in that situation the yacht on that occasion righted itself. He gave evidence that the broach on the day in question was not a severe broach as far as the yacht going over is concerned and he did not think that the angle that the yacht heeled was greater than 45 degrees. Mr Wilson gave evidence that during the broach he heard the mast breaking and then saw the rigging collapsing off the side of the yacht.
In cross-examination it was put to Mr Wilson that he had never been involved on Doctel Rager in an event as extreme as the incident which broke the mast. However he said that he had in fact been on Doctel Rager during events that were more extreme and the old mast survived. He also said in cross-examination that the yacht had a number of broaches during Sydney‑Hobart yacht races.
At the previous trial the plaintiff called two witnesses and tendered a statement from another witness. All of those witnesses observed what happened to Doctel Rager on the day the mast broke from positions in other yachts that were competing in the race.
Richard Fidock has been sailing in all types of boats for over 45 years. He was sailing in a yacht called MRX on the day that Doctel Rager broke its mast. He said the breeze was about 28 knots but there were gusts in excess of 30 knots. He gave evidence that when Doctel Rager was sailing downwind she had a big spinnaker at the masthead. He also noticed that there was a reef in the mainsail. He gave evidence of his observations as to what happened to Doctel Rager as she was sailing downwind. He did not see her gybe and he was too far away to make really close observations except that he saw the spinnaker flogging from the masthead and it was well out from the top of the mast. He did not see the mast actually come down. He was of the opinion that putting up a big spinnaker was taking a big chance. He said in cross-examination that he did not think that the yacht was overpowered by the fact that a large spinnaker was put up because obviously she carried out a gybe. He was of the opinion that the danger in this situation arose during the gybe when the yacht broached. He added however that that is always a dangerous time.
Craig Kingsley Williams gave evidence that on the day that Doctel Rager broke its mast he was sailing on his family’s yacht called Prime Example. He said that at the time that his yacht got to and rounded the windward (southerly) mark, the breeze was quite strong touching up to 30 knots.
When his yacht came downwind it was on a port tack and he noticed that Doctel Rager had put up a masthead spinnaker. He said Doctel Rager was going much quicker than his yacht and in fact passed his yacht. He then noticed that Doctel Rager had difficulty when it was time to gybe downwind. He said that the gybe was not completed properly and the spinnaker caught the wind and tipped them over on their port side. From his observations the keel of the yacht was close to being horizontal. He was approximately 300 metres from Doctel Rager when he noticed that. He saw the spinnaker halyard shoot out. He said that every time the yacht laid over and came back up the wind would pull it back down again because the spinnaker was filling up with air. He said this happened for about 5 or 6 minutes and then the mast broke.
He was cross-examined on his estimation of Doctel Rager being in difficulty on the broach for 5 to 6 minutes. There was a suggestion made in cross-examination that there was animosity between Mr Williams and the defendant and that on a previous occasion they had an altercation. It was also put in cross-examination that, while in the broach, Doctel Rager did not go beyond 35 or 40 degrees. That was denied by the witness. It was suggested that because he was 300 metres away sailing his own yacht he could not be so precise about the time of the broach or the extent of it.
At this trial the plaintiff also called Peter Bolton. He gave evidence that he has been a shipwright for about 18 years and is a very experienced yachtsman. He has sailed in about eight Sydney-Hobart yacht races and he is very familiar with the yacht Doctel Rager. He gave evidence that he had sailed on that yacht in two Sydney-Hobart yacht races. He was also involved in the rebuilding of the yacht when it was retrieved from the Yorke Peninsula as part of the retrieval team. He sailed on the Doctel Rager when it attempted the Sydney-Hobart yacht race in 2001 when it had a new mast on it which is the subject of this action. His opinion of the mast was that “it was light, the rig itself seemed okay” (evidence second trial at page 352 line 29 - 30). He was on another yacht when the accident happened on the 3^rd February 2001. However although he saw the yacht he didn’t actually see it lose its mast but saw it roll over. He said the wind conditions on the day were probably between 20 to 30 knots gusting up to 30. In cross-examination he said that a broach although not a desirable thing was not an unusual thing to happen in a yacht race. He said that on the day in question his yacht which was smaller was using a masthead spinnaker. He had no criticism of the fact that a masthead spinnaker was used on Doctel Rager although he was of the view it would be better if it was combined with a full mainsail.
Also on the question of the way the yacht was sailed on the day of the accident, I heard evidence from a witness new to this trial namely Scott Hollis Jutson. Mr Jutson is a Naval Architect and it was his mast design which was used by Mr Banwell to build the mast in question. He gave evidence on the nature of the design and the question of strength which I will turn to later. However in relation to how the yacht was sailed on the day of the accident in cross-examination he gave the following evidence on that topic (evidence second trial at pages 119-121):-
QComing to the usage of the yacht, masthead spinnakers are very common, aren’t they.
AThey are very common, yes.
QThe use of them in 25 knots is common.
AIn a few rare classes of vessels that are designed specifically for that purpose, it is as common as sailing in 25 knots is common.
QThere are quite a few limitations in that answer.
ANot every boat on the water is capable of sailing at 25 knots just because they can buy a masthead spinnaker is what I’m saying.
HIS HONOUR
QDo you say this boat is not capable of sailing 25 knots and shouldn’t have been sailed in 25 knots.
ANo, what I’m saying is that the use of a masthead spinnaker in 25 knots of true wind speed needs to be considered in the design of the mast.
QDo you think in this case it should not have been done.
AI believe it should not have been done in this case and in fact in previous attempts the equipment had failed, and it continued to be reinforced until such point as the sale and the halyard could survive. I might add that I think the answer is actually 25 to 34 knots.
XXN
QWhat are you talking about.
AThe actual wind speed on the previous day.
QWhat are you saying about a previous attempt.
AHadn’t the boat made –
HIS HONOUR
QForget about previous matters; they are a matter of evidence in this court. But when you designed that mast, are you saying that that mast is not meant to have masthead spinnakers sailing in 25 knots.
ANo, what I’m saying is the mast was designed to have a masthead spinnaker with a breaking load of 3,000 kg and that’s the way it was provided to the owner. You then –
QDoes that preclude being sailed with a masthead spinnaker in 25 knots.
ASo in the event of error, in the event of a squall, in the event of negligence, whatever, the sail and the halyard will part their ways and prevent the boat or the mast from getting further damaged. It’s a common safety method. In this case that halyard which was provided with the boat was later changed to a halyard with a breaking strength of 6,000 kg, a factor of two, and the sale was made out of a cloth weight only suitable for heavy‑weather spinnakers. This was done after the boat had been sailing – I don’t know exactly what time it was done but it was done outside the original supply and scope of the mast. What I’m saying is that had I been briefed or had anyone been briefed on that intention, the answer is yes, boats can do that; yes, masts can be designed to withstand this; yes this mast could, but if it is not common practice and if the mast builder is not briefed then he has no way have knowing that the unusual usage of the boat is going to happen.
I cannot find anything in that evidence which indicates that the breaking of the mast was caused by anything inappropriate in the way in which the yacht was sailed on that day. In particular the evidence of Mr Jutson that the halyard for the masthead spinnaker was designed to have a breaking load of 3000 kilograms instead of 6000 kilograms would have made no difference to whether the mast broke on that day. As I understand the situation at the breaking strain of the halyard the spinnaker would be released thus taking pressure off the mast. However I find that it is clear in this case that the strain on the mast which broke it was not nearly as much as 3000 kilograms or to be more precise 3632 kilograms being that recommended by Mr Jutson (evidence second trial at page 56 line 20). There is evidence from Mr Pearce, an expert called by the defendant, that the force which came from the spinnaker was no more than 641 kilograms on the day in question (evidence second trial at pages 463-464). There is no evidence to suggest there was a force on the spinnaker in the vicinity of 3632 kilograms. In other words the halyards would only break and release the spinnaker by a force far greater than the force which caused the mast to break.
In my view there is nothing in the evidence called by the plaintiff to dispute the defendant’s case that the way the yacht was being sailed on that day was not such that a normally and properly constructed mast for the purposes of offshore racing would break. There was no evidence to contradict the evidence at both trials called by the defendant that the use of a masthead spinnaker in the conditions on that day was appropriate.
I find that a “broach”, although undesirable, is a part of offshore yacht racing and that a properly designed mast should not have broken as a result of the broaching which occurred on the day in question. In my view there was no real conflict between the witnesses on that topic and I reject the argument that the mast broke because of the way in which the yacht was sailed on that day. That however is not an end to the matter.
The plaintiff pleads and indeed argues that even if the manner in which the yacht was sailed on the day did not cause the mast to break, nevertheless the defendant still has to prove that the mast was broken due to the fact that it was not designed and built for the purpose for which it was supplied namely to be used in vigorous offshore racing. It is argued by the plaintiff that not only has it not been proved that it was not fit for that purpose but there is open on the evidence other explanations as to why the mast broke which have now been raised at this trial.
Design of the Mast
There is clear evidence from both trials that the mast broke in the area from the first spreader up to the second spreader. The stump of the mast was recovered but that part of the mast along with the rigging which broke away was lost at sea and not recovered. It has always been the defendant’s case that that part of the mast at which the break occurred was not adequately reinforced by inner sleeving and was therefore improperly designed for the purposes for which it was built.
At the first trial I heard evidence from two experts namely Anthony Thomas Pearce who was called by the defendant and Howard Frank Peachey who was a Naval Architect who was called by the plaintiff. In addition at the first trial the plaintiff gave evidence himself about his construction of the mast and called one of his employees a Mr Davis who is a welder. Their evidence was dealt with in my original judgment. They were called again to give further evidence at this trial. Also at this trial the plaintiff called Mr Jutson, Mr Lindsay Dougherty who is a Civil Engineer and two witnesses who gave evidence of their inspection of the area of the break. Both of those witnesses gave evidence firstly that the break indicated that it failed because of a twisting motion and they also gave evidence about the effect that welding on the mast would have on its strength. These are new topics that have arisen at this trial and were not agitated at the first trial.
When considering the design of the mast and the purposes for which it was designed it is important to examine the evidence of Mr Jutson who was not called at the previous trial.
In his evidence by way of tendered reports (Exhibit P59) and oral cross-examination Mr Jutson gave evidence that his role is to provide a plan for the building of a mast and it was up to the actual builder to implement that plan. In this particular case he gave clear evidence that he was of the opinion that the mast failed due to it being overloaded. I point out the following passage in cross-examination (evidence second trial at pages 50-52):-
QJust pause there, it is your opinion – and this might be too simple a question to answer and I will not butt in any more – but is your opinion, being asked a question as to what caused this mast to snap, whether it is overloading or faulty design or faulty workmanship or whatever, you can’t answer that question because you haven’t got enough material, namely the rest of the mast being recovered.
AIt is my opinion the mast failed due to being overloaded. And I stated that. But the precise sequence of events, in other words, what was the first action to cause the failure, I can’t say because there is a complete lack of evidence because it is lying on the bottom of the bay somewhere. Not complete lack of evidence, there is only partial evidence.
QI see, so you can say, even though you haven’t got the bulk of the rig above the first spreader, even though you haven’t got that, you can still say the cause is due to it being overloaded.
AThat’s correct.
QSo when you say here, No.1, at p.101 ‘There is no way an accurate conclusion of the cause of failure of this mast can be made without access to the bulk of the rig after the first spreader’ that’s what you mean.
AThat’s correct.
QAs I read that, that could mean you just don’t know what caused it.
AWell, I guess there is the application of the load and then there is the outcome of that application. So the mast failed, there is no question about that, it failed in a set of conditions which most everyone seems to agree on, but the actual aspect of the – when the mast did fail the actual sequence of events and there is particular – I mean it could have been a small –
QJust pause there, I accept that.
AYes.
QSo when you have given that opinion you are saying that even though you don’t have the rest of the mast you can still exclude any other explanation other than it being overloaded.
AI am assuming that it would only fail due to excessive loading.
QAnd not having the rest of the mast to examine, you don’t need that for the purposes of that opinion, is that what you are saying.
AThat’s correct. What it is based on is that we are assuming that the cause of failure is a weakness in the surviving elements of the mast. There must be in the surviving elements of the mast or at the portion where the major break actually occurred, must be the – all analysis or potential reasons for failure must revolve around that point. And I am saying without certainty because the rest of the mast doesn’t exist, that there are a myriad of other potential scenarios that could have occurred and it is not inherent that it is a weakness at the points of the surviving elements of the mast.
QAnd the things that could have occurred had to be due to overloading, or could they be due to other things.
AWell, I think components – well there is a possibility that something just came unscrewed or this, that and the other, but I would say that that is unlikely. I mean, most things are pretty locked in place.
QBut you would be able to be certain about that if you had the rest of the mast, wouldn’t you.
AAbsolutely, and I think this whole situation would be a lot easier if we could examine the whole mast. It might be, within two minutes of pulling it off the bottom of the ocean you will see there is a rigging element that has snapped halfway through its span and then you could re-focus your arguments on whether that rigging element was this, that or the other.

It was also established of course that in talking of overloading that in a sense begs the question because if the yacht was being sailed properly on the occasion in question and the rigging was not inappropriate overloading simply means that the mast was not strong enough to withstand the legitimate load that was placed upon it. That indeed was the defendant’s case. His opinion in the matter is really summarised in his report (Exhibit P59 page 101):-
1.There is no way an accurate conclusion of the cause of failure of this mast can be made without access to the bulk of the rig above the first spreader.
2.There are no standards for the design of racing yacht masts, there are only opinions. As well, because we are dealing with a racing yacht where performance is the reason for existence it cannot be assumed that ultimate life time reliability is an expected outcome of any component on the vessel.
3.By making a minor component (the sail and halyard) stronger than that intended by the original designer is a high risk strategy since it potentially shifts the weak link from a non-critical component to a critical component, ie., the mast.
4.Mr Pearce, over the duration of his testimony, has both been both inconsistent and inaccurate. His opinion on what makes a suitable mast for this vessel has become progressively more conservative with time and brings a question mark over his objectivity and professionalism.
He gave evidence he was not of the opinion that the mast broke at the point where it did because of lack of reinforcing. In answer to a question from me I point out the following evidence (evidence second trial at pages 96-97):-
QIs it possible that that could have been broken at that point where it physically seemed to be severed off. It was broken at that point, wasn’t it.
AYes.
QIs it possible that that was due to it not being reinforced at that point.
AIn my view it would be highly unlikely because, even though we are providing, and all the various mast designs are providing a general view of how that panel should be constructed. It’s also clearly understood, and we mentioned this earlier when we were referring to welding; not only is there welding in that area, there is also various mast fittings, tangs, spreader supports, there are a lot of holes put in that area as well, there’s even more at the hounds where there is halyard exits and sheaths, below that point there are slots cut. These numbers are really simplistic in some ways because they don’t apply to every square millimetre of the mast. It’s understood that in a mast design you have a certain leeway when you get near to ends of the column and that leeway varies as anywhere from 15 to 50% of the strength value. Over these base requirements you can reduce the actual panel capabilities in that area by some amount which allows you to make allowance for the addition of fittings and a reduction in reinforcement. We have a book on that, if you would like to have a look at it.
QSo what you are saying is you cannot say what caused it to snap at that point without recovering the rest of it.
AThat’s correct. That is absolutely correct.
He went on to say that he accepted there was reinforcing of the mast at the gooseneck level (that is below where the break occurred) and that reinforcing continued to a point well short of where the mast broke. He agreed that if there was reinforcing the mast would obviously be stronger and would therefore be less likely to break at the level where in fact it broke (evidence second trial at page 97). However his opinion seemed to be that the conditions and the way it was sailed on the day were such that that was not what his design was meant for. I point out the following passage of evidence (evidence second trial at pages 116-117):-
QWhen you say that at the point of the break that reinforcing is not required- you are saying that, aren’t you.
AThat’s correct.
QAre you, therefore, saying that you are of the opinion that the break is not due to lack of reinforcing, that it really makes no difference.
AMy opinion is that the mast failed due to being overloaded and by having components beyond the original intent and design of the mast.
QSo whether there was reinforcing or not would make no difference.
AIf you go above the spreader this far (INDICATES) you would find it’s not reinforced at all. Only on the weak points of the mast.
QAre you saying that the lack of reinforcing, if that is so at the point of the break, the overload was so much that it would make no difference whether there was reinforcing or not.
ANo, I’m not saying that. I said at the beginning today that if the owner had come in and said he wanted to apply heavy masthead spinnakers at 30 knots plus we would reinvestigating the design of the mast and it probably would be a different mast. That’s the absolutely summation of my point of view.
QWhat you are saying is that you go back to the halyards situation; if they were going to have the weak halyards, you would have suggested a different design of the mast.
AI wouldn’t use the term ‘weak halyards’. I would say, if they used the correct specifications that the mast was intended for, if the owner had briefed the mast maker of his intention, instead of modifying it without addressing the original design, I don’t believe this could have occurred because additional reinforcement would have been considered and the additional loads would not have caused the mast to fail. If you increase the load of a halyard by a factor of two it’s an assumption that you are increasing the applied loads by two, and that was well beyond the intention of the mast design. The fact that it broke does not surprise me whatsoever. The fact it broke in that place; yes, that’s surprises me. If there was a doubler or a tripler, in that case I suggest it would have broken elsewhere. The entire size, local reinforcements throughout the rig would have to be reconsidered. If it was my client and the client had advised me of his intention at the design stage it would not have been the same mast that we would have produced with our standard software which is designed for standard racing masts in standard usage. Give me a different brief, I’ll design a different mast.
QIf this boat is meant to sail in the Sydney to Hobart Yacht Race you would give that design but you would reinforce.
AIf the intention of the client was to fly masthead spinnakers in all conditions then we would take a different approach to if he used it in the normal way which is gradually using the spinnaker size and the point at which those spinnakers are to that lower more hound position.
In summary the evidence of Mr Jutson appears to be that in using his design appropriate adjustments have to be made for the purposes for which the yacht is going to be used. His evidence seems to be that in the conditions on the day of the accident and the way the yacht was rigged was not catered for by the design of his mast. If that is so then the design of itself is not appropriate for the use for which the defendant needed the yacht namely vigorous offshore racing. However adjustments were made by the plaintiff by putting sleeving within parts of the mast (although not in that part where it snapped). The question to be decided is whether that lack of reinforcement bearing in mind the purposes for which the mast was built and bearing in mind the conditions on the day in question was adequate for the use that the yacht was to be put.
Was the Mast of Adequate Strength in the Appropriate Area?
The defendant claims that in the lower panel of the mast where the breach occurred it was not strong enough for the purposes for which it was required because it was not adequately reinforced.
The plaintiff and the expert called by the plaintiff, Mr Peachey, argued to the contrary. The further argument of the plaintiff is that either the defendant has not proved that it failed due to its lack of reinforcing in the lower panel or alternatively there is a positive explanation put forward by the plaintiff that the mast broke because the forestay broke not because of lack of reinforcing in the lower panel. There is no doubt that if the forestay broke that is a weakness in the rigging and is no fault of the plaintiff.
At the first trial, as in this trial, there was a direct conflict between the evidence of Mr Pearce and Mr Peachey as to the required strength of the mast in the first panel. On the question of the appropriate strength of the first panel the difference between the evidence of Mr Peachey and Mr Pearce seems to be that Mr Pearce is of the opinion that the first two panels of the mast are not strong enough. There is no dispute that the break in the mast occurred in the first panel. Mr Peachey at the first trial gave his opinion as to why the mast broke (evidence first trial at page 578). He was unsure as to whether the breach could have been prevented by a continuation of the reinforcing up to the point of the breach. The two experts disagreed as to the methodology to be used at arriving at the required strength required for the first panel. Mr Pearce (the defendant’s expert) put the minimal requirement at 1136 units and Mr Peachey (the plaintiff’s expert) at about 960 units. There is also a difference between the two as to how they apply “Euler’s” formula. As I understand it in the equation which is used to work out the adequate strength of the mast Euler’s formula is a constant figure which is used in that equation. The constant figure and how it is arrived at depends on whether either of the ends of the mast upon which the load is placed upon are fixed or not. As I understand it if both ends are fixed then the mast can take a heavier load. In arriving at Euler’s formula Mr Peachey treated the point where the mast joined and was attached to the deck as being a fixed position whereas Mr Pearce did not. Mr Pearce gave a more conservative value as to what load the mast could hold because he was of the opinion that where the mast joined the deck it is not to be regarded as totally fixed because it goes through to the bottom of the yacht and there is a certain amount of pivoting at deck level. Therefore that effected his opinion as to the amount of load the mast could take.
I am of the view that I do not have to decide these technical differences of approach between two experts. In my view the evidence is clear that reinforcing the sleeve at the point where it broke instead of having it tapered off would have strengthened the mast. There is no disagreement about that. It appears clear from the evidence of Mr Jutson already referred to, that for the type of vigorous sailing that was indulged in on the day of the accident was not adequate for that purpose. And to that extent it was not fit for the purpose of vigorous offshore racing. I have already found that the yacht and rigging were not misused on the day and that a “broach” is not an unusual occurrence. Therefore in the absence of any other evidence which would indicate some other reasons as to why the mast broke I find that it has been proved on the balance of probabilities that it broke because of the lack of reinforcement at the area where it snapped. I turn to the question whether there is any substance in the argument of the plaintiff that it was not the lack of reinforcement which caused the breach but because there was a failure in the rigging namely the forestay broke.
Did the Forestay Break?
If the breaking of the mast was due to the breaking of the forestay there is no dispute that would not be the fault of the plaintiff. This was raised for the first time at this trial although that fact does not weaken the evidence or the submission. On that topic Mr Banwell gave the following evidence (evidence second trial at pages 182-183):-
QAnd you say ‘The pulpit exhibited no new damage’, is that right.
AYes.
QThe pulpit is the piece of metal which is on the front of the boat, isn’t it, above the deck level.
AIt is the tubular structure of the fence.
QLooking at the appeal book, p.949, you can see above the hand in the first photograph is the pulpit structure, is that right.
AThat’s correct.
QAnd in the bottom photograph, above the deck is the pulpit structure, is that right.
AThat’s correct.
QAnd the little metal thing sticking up at the very front of the boat is the forestay.
AThat’s correct.
QAnd that’s the point where the forestay wire reaches the boat, where this front wire, the forestay, is attached to the front of the boat.
AThat’s correct.
QAnd the pulpit extends behind that on both sides of the boat.
AForward and each side.
QForward and back behind each side.
AThat’s correct.
QWhat you are saying is you are saying that that was not damaged when the mast came down.
AThat’s right, yes.
QWhat you are saying is that if the mast had fallen by the compression failure, it would have gone sideways and this wire, the forestay, coming down, would have done damage to the port side pulpit rail.
AYes, it would have acted like a cheese cutter, the old wire cheese cutter.
QYou know that it was not damaged by reference to the report of K. Tech Marine, which is at p.69 of the booklet, is that right.
AThat’s correct.
QThe author of that report describes the area of damage, is that right.
AThat’s correct.
QThat is consistent with the possibility that the forestay was broken because if it was broken, it would obviously not damage the pulpit.
AThat’s right.
Also the following evidence (evidence second trial at pages 185-186):-
QIf you look at the photograph on p.64, that’s a photograph of the base of the mast that you built in Rager.
AYes, that’s correct.
QAfter the mast had broken.
AYes.
QYou make the comment that the masthead has moved forward from its original position; is that right.
AYes.
QIf you look at the photograph, on the right-hand side is the front of the boat and the left-hand side is the back side of the boat, towards the back; is that right.
AYes.
QLooking at the photograph the mast base is moved from left to right.
AYes.
QNow there is a piece of aluminium with holes in it, an almost parallel piece of aluminium with holes in it.
AYes.
QAcross that there is a piece running perpendicular; is that right.
AYes.
QIs it correct to say that the mast was positioned so the back of the mast was right up hard against that piece of aluminium at the time the mast was installed.
AYes.
QSo it’s actually slipped forward something like two inches or so.
AYes, I guess slightly less but, yes, it’s slid forward.
QWhat is the significance of that.
AThe only way that that can go forward is if weight has been applied to the mast going aft. So it’s pivoted around the partners or the deck.
QThe partners are the point where the mast penetrates –
AThrough the deck, that’s right.
QWhat you are saying, if the mast had fallen over sideways you wouldn’t expect the foot to slide forward.
ANo.
QAnd the fact that it’s slid forward means that the mast has actually gone backwards.
AGone backwards.
QThat’s consistent with what a mast would do if the forestay broke.
AYes.
He then went on to say that a consequence of the forestay breaking is that there would be a twisting effect which would cause the mast to break.
In cross-examination on that topic it was put to him that nobody on the yacht saw the forestay break and of course there is no direct evidence of it because the equipment was lost. In reply Mr Banwell explained that you would not see the forestay break because it was encased in a plastic tube which in effect would not break itself and therefore you would see no evidence of a broken forestay because it would still be contained in that tube.
Also in cross-examination he was asked why he now came upon that theory that the forestay broke. He was asked the following questions on that topic in cross-examination (evidence second trial at pages 236-237):-
QYou told us that you first at least gave serious consideration, perhaps I could say, to the question of the forestay breaking after another witness had given some evidence which you got the view was not true. Is that a fair summary of the position.
AYes.
QWhat evidence was it that led you to reconsider the forestay.
ABy the guy or what the evidence the guy said that was untrue.
HIS HONOUR
QWhat you said to me just a moment ago and said to Mr Swan was that the first time you developed the theory of the forestay was after you had a different view of some evidence from the last trial. You remember you told us that.
AYes, that’s correct.
QWe want to know whose evidence that is and what was the evidence about which you had that difference, if you can explain that to us.
AThat was Gary Sinton.
XXN
QWhat did Mr Sinton say which you disagreed with.
AInitially I believe what he’d said when he told us.
QWhat was the topic.
AThat was the forestay was intact and that it – he gave a description of the mast from memory that mentioned no fact that the forestay broke.
QAnd he certainly never changed that story did he in his evidence.
ABut what he did say he said that he could and I believe it was on your prompting become a chief engineer and he was in fact a marine engineer. He is not so.
QSo the sequence is this: Mr Sinton says the forestay didn’t break, that’s the first point and you initially accepted that.
ANo, he didn’t say that. He gave a commentary the way the mast came down and what he was doing at the time. He gave us no indication that the forestay may have broken.
QAnd you initially accepted everything he said about the way it happened.
AYes.
In support of that theory the plaintiff called a Metallurgist Mr Manfred Zockel who inspected the fracture of the mast on the 22^nd December 2004 (Exhibit D88). He was of the opinion that what caused the rupture from his observations was not consistent with buckling under compression but more consistent with torsion or twisting. However he was not called to shed light on the possible causes nor could he. He could not give evidence as to whether the effect of torsion was clockwise or anticlockwise. He said quite candidly that he could not offer any opinion as to what caused the torsional effect. His final position was encapsulated in the following questions (evidence second trial at page 806):-
QIn a nutshell your evidence – please correct me if I’m wrong, but the state of the mast as you see it is consistent with the breakage being due to torsion. What way the torsion went you can’t say on the material presented to you. Would that be summing it up accurately.
AYes, I would say that the loading applied to this mast is too complex to really say which of the various forces that are applied led to this particular failure.
QBut you say it’s consistent with torsion though.
AIt is more consistent with torsion than it is with tension or bending.
The plaintiff also called Graham Leonard Fraser Powell who also examined the remains of the yacht mast and provided a report (Exhibit P92). His evidence was called to answer the defendant’s argument that plug welding on the mast would make it weaker. He examined parts of the fractured surface and was of the opinion that the parts he took from the fractured surface showed no sign of being welded. The end result of that evidence is that I cannot find because there was plug welding down on the mast that that was a reason for the breakage.

Although the evidence of Mr Zockel is that the breakage is in some part due to torsion he also says that the point at which it broke on the part of the mast that has been recovered indicates such a complex tear that he cannot exclude compression and therefore it is too big a leap to say because there is evidence of torsion that would necessarily indicate it was due to a failure of rigging. In my view and I find the theory put forward by Mr Banwell that it was due to a breakage of the forestay which caused the mast to break is at the very best speculation unsupported by any eye witness and unsupported any expert called at the trial.
Conclusion
I have already made my ruling concerning the way the yacht was sailed and rigged on the date of the accident. I find that the fact it got itself into a “broach” is not a reason to say that it was sailed improperly. I also find that the manufacture of the mast for the purpose for which it was required namely vigorous offshore racing should cater for the yacht finding itself in a broach. I have also found that using a stronger halyard than was recommended by Mr Jutson was irrelevant as the mast broke under forces far less than the halyard strength used by the defendant on the day of the accident. That being so in looking at the evidence of the witnesses as to the nature of the design of the mast the evidence of Mr Jutson becomes very important because the basic design of his program would not cater for the rigging that was used in the conditions that existed on that day. That indicates that the program of itself was not appropriate for the use to be made of the mast. I find that the breaking of the mast in an area that was unreinforced indicates that the mast was too weak at the point of rupture for the purposes for which it was designed. I find there is no evidence to support the opinion of the plaintiff that the forestay broke. The technical differences of approach between Mr Pearce and Mr Peachey and Mr Banwell as to the amount of reinforcing that was needed and the calculation of the appropriate strength that the mast could bear in my view is unnecessary to resolve bearing in mind the evidence of Mr Jutson as to the limitations of his design and my findings as to how the yacht was sailed and rigged and the very fact that the mast broke in the area where there was no reinforcing.
Because of those reasons I find that when the mast was manufactured it was not fit for the purpose for which it was to be used.
There will be judgment for the defendant in the sum of $69,662.31.