Dagenham Nominees v Shanks No. DCCIV-01-1259

DAGENHAM NOMINEES v GARY SHANKS
[2002] SADC 169
Judge David
Civil Jurisdiction

The defendant in this matter is the owner of an ocean racing yacht called Doctel Rager. The plaintiff was contracted to do work on that yacht including the design, sail supply and installation of a mast and associated rigging. The plaintiff in this action claims the amount of $9,870.04 which represents outstanding accounts for work done and goods supplied in carrying out that contract. That amount is represented by seven separate invoices. The defendant counter‑claims the amount of $176,830.30 being damages for breach of contract in that there was an implied condition that the mast and associated rigging would be fit for the purposes of offshore yacht racing. It is alleged by the defendant that on two separate occasions the equipment failed causing subsequent damage to the defendant which he now claims.
It was agreed between the parties that is there was no real dispute about the quantum of the plaintiff’s relatively small claim and the real issue was whether the counter‑claim had been proved. It was therefore agreed the defendant would be dux litis.
The Defendant’s Counter-claim
Background
It is undisputed that the defendant, a medical practitioner, purchased a large ocean racing yacht called Doctel Rager in September of 1997. The defendant is a very experienced yachtsman having competed in the last five Sydney‑Hobart yacht races on Doctel Rager. When the yacht was purchased in 1997 it was approximately 10 years old and it was bought specifically for Sydney‑Hobart racing.
On Friday, 31^st March 2000 while sailing the yacht back from Port Lincoln it collided with a reef and was seriously damaged. As a result of that accident 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 used Mr Banwell to do the job because he was the designated person from the Australian Yachting Federation to do compulsory annual rig inspections on Doctel Rager before it could compete in the Sydney‑Hobart yacht races for 1997, 1998 and 1999.
Work was commenced in April of 2000 and the yacht was officially relaunched with work completed on the 22^nd October 2000.
The defendant gave evidence that he had no input into the manufacture and design and installation of the mast. He left that to the plaintiff whom he considered to be an expert in the area and he relied upon that expertise. The defendant gave evidence that he was planning to compete in the Sydney‑Hobart race which commenced on Boxing Day 2000 and he intended to depart from Adelaide for Sydney on the 9^th December. In the meantime he had to assemble and train a crew. Between the 22^nd October and the 9^th December he gave evidence that he had a concern about the forestay. The forestay is a cable which goes from the top of the mast to the deck and is part of the reinforcing rigging of the mast. His concern was that the forestay cable did not go from the top of the mast completely down to the deck but was a little short and the distance between where the forestay ended and the deck was completed by a number of stainless steel plates that were attached to the deck. Evidently the plaintiff cut the forestay too short. It was that forestay that broke during the Sydney‑Hobart yacht race and is the subject of part of the counter‑claim.
Sydney-Hobart Yacht Race 2000
The defendant gave evidence that when Doctel Rager arrived at Sydney for the Sydney‑Hobart yacht race of 2000 the rig inspector in Sydney reported that the halyards were too small and would need to be replaced. This was done in Sydney and the cost of the replacement halyards of $3,706.91 is part of the defendant’s counter‑claim. However there is no evidence of the fact that the original halyards were inappropriate other than the fact that the authorities in Sydney said they had to be changed. The defendant gave evidence that when the race started on the 26^th December conditions on the way to Hobart were light with 20 to 25 knot breezes from a southerly direction. By the 28^th December the yacht got as far as a place called Wineglass Bay which is a bay on the coast of Tasmania on the north‑east side. It is about 10 hours sailing from Hobart. When it was off Wineglass Bay the forestay broke causing them to retire from the race. The defendant’s description of how the forestay broke is as follows (evidence page 56):-
"QWhy did you only get as far as Wineglass Bay.
ABecause these plates that – well, the plates didn’t fail but the little split pin that goes through the pin at the bottom there (INDICATES) sheared off.
QLooking at the Exhibit D3, you refer to a split pin and between the two plates at the moment is a solid stainless steel pin which then has through one end of it what is commonly known as a split pin, is that what you meant by a split pin.
AThat’s correct, yes.
QYou told us before that that was the arrangement which attached the plates to the foredeck.
AThat’s correct.
QDid something happen in relation to that arrangement which caused you concern.
AIt failed.
QWhich part of it failed.
AThe split pin here (INDICATES) was sheared off by one of these arms, these extension plates.
HIS HONOUR
QIt burst through it, did it.
AYes.
XN
QAnd so that in effect means we have got the plates moving apart, as it were; is that right.
AWell, that’s right. There’s a gap between them that allowed them to do this.
QAnd the split pin sheared off, and did the plate at the end of where the split pin had been come off the pin.
AYes.
QOff the solid pin.
AYes. One plate came off and then the other plate bent – it’s been straightened subsequently – but was bent, and the pin fell out of the so-called deck cleat that it hangs on to and the forestay was then flapping off in the breeze with the jib attached to it.
QRight; so what was holding the mast up.
AWe have got a habit of running the halyards forward, almost like temporary in case there’s a failure of any description – you have got the halyards were all that were holding the mast up.
QYes; so the halyards are the ropes that you use to pull the sails up, and when you say you sailed with them run forward, they’re attached to something on the deck; is that right.
AThey are attached to clips alongside the deck.
QAt the bow or –
AAt the bow, very close to this sort of arrangement.
QRight. So that, in effect, when the forestay – if the forestay gives way, those ropes are there to supply some support for the mast.
AThey stop the mast failing down immediately basically.
QYes.
ABut it goes very sloppy.
HIS HONOUR
QOtherwise the mast would crash backwards, would it.
AWell, it would go back – well, on this occasion we were on starboard; it would crash over the side and towards the back if you are going upwind.
XN
QAnd on the model we have got there, there is also what I might describe as a inner forestay – that is, a shorter one – from the deck; was that also in place.
AThe inner forestay was in place, yes.
QBut that, of course, wouldn’t support the top of the mast.
ANot all by itself, no.
QNow, perhaps if you could just tell us a little more about how it first came to your attention that there was a problem with this pin shearing off.
AIt happened all of a sudden.
QRight. Well, did you see it happen, or did someone shout to you or –
ANo, I didn’t see it happen. I was on the off watch. The people on the deck at the time it happened obviously screamed out that the forestay had failed, and we tightened up on the halyards that had been run to the bow of the boat and we went about securing the jib so we didn’t lose the sail, and securing the boat and getting the loads out of the rig completely so as we could – well, we had to motor to shore.
QYes. So that with the forestay going it effectively means you are not going to sail again, or not going to continue sailing.
ANo, you can’t.”
After the accident the yacht was eventually brought back to Adelaide and after correspondence between the parties was eventually fixed by Mr Banwell, the plaintiff. When he fixed the forestay he did not use the plates at the end of the forestay but it went down to the deck and was attached in the normal way.
The defendant gave evidence that the expenses which he incurred because of the early retirement from the race were costs wasted in the amount of $29,452.61. That included getting the yacht to Sydney, competing in the race, getting into the race and getting the yacht repaired especially to get it back home. A very small part of that part of the claim is for the actual repairs to get the yacht home (evidence page 88). There is no dispute that the bulk of the amount of that part of the claim was money that would have been spent anyway whether the yacht had retired from the race early or not. From my reading of the invoices which were tendered (Exhibit D9) it appears that $350.00 only represents damages as a result of the failure of the forestay. The balance of the costs are those which I have described as being applicable whether the yacht retired early or not.
Accident of the 3^rd February 2001
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 going into the wind. While travelling in that direction there was one reef in the mainsail. That means the mainsail is shortened so that the triangle becomes smaller. The defendant said when sailing Doctel Rager they usually do that at about 18 knots. As I understand the evidence the stronger the wind the more reefs there would be thus exposing less sail. Having got to a mark somewhere off Glenelg the yacht went around that mark and when sailing with the wind the masthead spinnaker was used. As an explanation as to what a masthead spinnaker is the defendant gave the following evidence (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 wave 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 page 70).
He then described what a “broach” is. He gave the following evidence on that topic (evidence 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 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 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.”
After the mast broke a firm called Whale Spars was engaged to build a new mast. The mainsail needed to be replaced and there was damage to the deck and side rails. That is all included in that part of the claim which is $101,383.28 (Exhibit D10). The defendant also gave evidence that part of his claim is for $6,032.50 per month for seven months holding costs for the vessel before it could be repaired and used again. He gave evidence that that was calculated from February when the mast broke until it was able to be replaced and installed by a new mast. That took about seven months. He gave evidence that those costs comprised of financing costs for the vessel and the mooring of the vessel. The defendant concedes that these costs would have been incurred whether the yacht was being used or not and also it is conceded that there was no economic loss due to the fact that the yacht was not being used as it was owned merely for recreational purposes.
In cross-examination the defendant conceded that the mainsail that was used and damaged on the day that the mast broke was in fact a used mainsail and not the best mainsail. The defendant has claimed an amount of $30,177.00 for the replacement of the lost mainsail with a new mainsail. He was unable to put a value on the old mainsail. I will deal with that further when I come to the question of damages if appropriate.

The defendant called three 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 sailer. 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 a heavy wind 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 on what is known as a port tack and as I understand it that is a term for sailing at an angle to the left heading out to sea but nevertheless still basically travelling in a northerly direction. They then had to make a right hand turn to travel to the east. As I understand it that turn is known as a “gybe”. He gave a description of what is to be done when executing a gybe (evidence page 296). He then gave the following evidence (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 the forestay broke causing them to retire from the race. He could not give any other evidence as to why it broke. 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 round the mark 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 up. When the yacht was sailing downwind it made a port tack. Having been on a port tack the yacht had to make a manoeuvre to the right to get to the next mark. That right hand turn is known as a gybe. When that is done the spinnaker pole, or boom, is changed from one side of the yacht to the other. 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 (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.
The defendant called an expert witness Anthony Thomas Pearce. Exhibits containing all the expert witness’s reports were tendered in evidence (Exhibits D20, D21 and D22). Mr Pearce is a Bachelor of Mechanical Engineering. He gave evidence that his practices in engineering included drafting and designing hulls for the Ian Murray Group in the 1987 America’s Cup campaign. After the 1987 America’s Cup he was part of a team that designed an 80ft maxi‑yacht in Sydney. He designed and helped manufacture the mast and boom and rigging and spreaders of that yacht. After that he was part of a group that set up the business of Whale Spars. That business continued from 1988 to 1999. The business manufactured and installed yacht masts and Mr Pearce’s role in that was as engineer doing all the design work. He is at the moment working from Western Australia as a consultant engineer in that business.
Early in 2001 Mr Pearce was contacted by Mr John Denton of Whale Spars and informed that the rig of Doctel Rager had been lost. He was asked to give a quote for the replacement of the mast and the rigging. He was given dimensions and details of the mast that had failed and came to the preliminary view the mast that had failed was of insufficient strength. He has done further work on that topic including visiting the plaintiff’s business premises and seeing the lower section of the mast which survived the breaking of the mast. He has also been provided with a copy of the plan of the mast drawn by Mr Kym Davis for Banwell Marine Services (Exhibit D23). Mr Davis was a witness for the plaintiff and I will refer to his evidence later. Both in his reports and in his evidence the gist of Mr Pearce’s opinion is that the mast failed because it was of insufficient strength in the region from the first spreader up to the second spreader. It was in that area that the mast broke. He was also of the view that the first spreader itself was of insufficient strength and if that spreader failed the mast would break. He was also asked to give an opinion on the adequacy of the forestay in that it was too short and had to have metal strips added to it to make up its length. His opinion was that this temporary extension would have caused problems because the two plates would come adrift under the impact of the waves and the forestay would break. Mr Pearce was of the view that the plaintiff should have made the forestay after the mast was in the yacht and therefore made it to the appropriate length and thus prevented this problem. Not to do so was using unworkmanlike methods.
In his evidence the witness explained the role of spreaders on the mast which are basically to transfer the load from the top of the mast to the deck. By spreaders pulling the wires from the top of the mast sideways it effectively reduced the overall compression on the mast. He gave evidence that if the spreaders are too weak and bend or break the mast would fall down.
He was also of the opinion that a mast which is new and has just been fitted into a yacht as Doctel Rager it should not break under sailing conditions off Adelaide in under 3½ months. Indeed even allowing for the vagaries of the weather conditions he would expect it to last 10 to 15 years. He gave further evidence in relation to spreader number one that the calculations for the required strength made by Mr Banwell were 59% short of what it should have been. When looking at a photograph of the mast spreaders (Exhibit D24) he was of the view that that showed signs of reinforcing of spreader number one. That reinforcing did not go anywhere like to the middle of the spreader and would therefore not be effective in achieving the purpose of adequate strengthening of that spreader.
The witness examined the remains of the mast and on looking inside of the end where it broke there appears to be a sleeve. He compared that sleeve with the sleeve that was shown on Mr Davis’ plan (Exhibit D23). He was of the opinion that this sleeve seen on the broken part of the mast was about 200 to 300 millimetres short of the sleeve shown in the plan. He said the reinforcing started to taper just below the goose neck which is below the first spreader. He said where the mast broke there was virtually no reinforcing sleeve at all. In his opinion there should have been and at that point the mast was too weak and was not in accordance with the plan.
Mr Pearce also gave evidence that the description of events as given by Dr Shanks in evidence (Mr Pearce as an expert witness was sitting in Court) is the type of event that a proper mast should be designed to survive. On comparing Mr Banwell’s figures with his own, the witness 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. The strength of the third panel is adequate and the fourth and fifth panels were more than adequate (evidence page 191). He then gave the following evidence (page 192):-
"QYou have been sitting in court while evidence has been given; are you able to express a view about how and why the mast broke.
AMy view is that the mast was not strong enough at the point that it broke and contributing to that may have been the first spreader which was I believe not strong enough for the conditions that the boat was under at the time.
QThose conditions were they within what you would expect to be designed for.
AYes.”
In relation to the forestay he gave the following evidence (page 193):-
"QWe have also heard evidence that the forestay of the mast as fitted was supplied with two metal tangs which were connected to the forestay and then to the bow of the boat utilising clevis pins with split pins through the ends. What is your view of that method of fixing as an appropriate method for affixing the forestay to the vessel.
AThe use of such link plates is a very common occurrence in the yachting industry, a lot of suppliers do use the clevis pin but I have never considered that to be a safe method of attachment of the link plates. I would prefer to use a nut and bolt with a split pin through the nut to stop it undoing.
QThat would involve a bolt through where the pin goes in effect.
AYes.
QThen –
AA nut on –
Q– a nut on the end of the bolt instead of the split pin through –
A– and a split pin through the nut.
QThen a split pin through the nut and the bolt.
AYes.
QWhy is that better.
ABecause it is less likely to fail.
QI think you have also viewed the exhibits P12, that’s the photographs from the video and indeed the video itself D7 and portions which seem to show a view of the metal plates joining the forestay to – on the deck.
AYes.
QHave you formed a view as to whether there was a bolt of a clevis pin in place on those pictures.
AViewing the video I would say that it was a clevis pin. The photo taken off the video is too blurred to accurately say either way.
QYou have said that it is a common practice to use such plates. If installing a new mast and forestay is it a proper practice in your view to use such plates.
ANo.
QWhy not.
AOne endeavours to get the forestay the right length when one installs the mast in the yacht.”
Mr Pearce was cross-examined in great detail by counsel for the plaintiff and the opinions of Mr Banwell and Mr Banwell’s expert, Mr Peachey were put to him. In particular an explanation given by Mr Peachey as to how the mast must have failed was put to this witness. I set out the following evidence on that topic (page 252):-
"QIn the break you’ve had an opportunity to hear Mr Peachey give an explanation as to how he says the mast failed.
AI have.
QCan you relay that to his Honour.
AMr Peachey is suggesting that the mast was bowed sideways – to the forward port quarter. Partly because as a mast is compressed and it bows, it’s lowest stay –
QThe starboard lower stay.
A– the starboard lower – is actually slackened a little and it allows a little bit of deflection. He says that under the loads, the mast at this point has twisted, which has twisted the spreader and the spreader has broken and then that has resulted in the mast falling, because there’s – nothing’s being supported any more. That’s what Mr Peachey is saying.
QOnce the spreader breaks, that’s the end of everything; isn’t it.
ABasically, yes.
HIS HONOUR
QNo matter how well designed a mast is, if the spreader breaks, it’s gone; would that be right.
ANot always but usually.
XXN
QNow do you agree that that’s a possible explanation.
AIt’s possible.
QDo you know the difference between possible and probable. (NOT ANSWERED)
HIS HONOUR
QNo, that’s a silly question. It’s a legal concept.
XXN
QI’m saying, ‘Possible’ in the sense that it could have happened that way.
AIt could have happened.
HIS HONOUR
QThat explanation that’s been given by Mr Peachey, if it happened in that way, would it be a fault of the design.
AIf there’s – enough material had been in there and the spreader a little bit stronger, like I’m saying it should have been, it would have resisted that a lot more.
QAnd is that event, as was explained to you by Mr Peachey, an unusual event or something that should be catered for in the design or what.
AI would allow it to be catered for; yes.”
It was established also in re-examination that Mr Pearce was clearly of the opinion that the mast broke at a point where there is no sleeve and at that point there should have been a longer sleeve to properly reinforce the mast (evidence page 274).
The defendant’s case is that the very nature of the accident in which the mast broke was such that a properly designed mast that was only 3½ months old should have survived. On the defendant’s case that argument is supported by the expert evidence of Mr Pearce firstly that the first spreader was not strong enough and at the point where the mast was broken it was not properly reinforced. I now turn to the plaintiff’s case.
The Plaintiff’s Case
The plaintiff gave evidence and called two technical expert witnesses, a Mr Peachey and Mr Davis. He also called evidence from a number of witnesses who were on adjoining yachts and who saw Doctel Rager either during or prior to the accident.
Mr Kenneth Banwell is the Director of the plaintiff’s company. He was trained as a lecturer in welding in the early 60’s in the United Kingdom and in the 70’s came to Australia and eventually started in the marine industry. His work has been entirely in the fabrication of masts and fittings for boats. It involved almost exclusively dealing with aluminium and stainless steel. At the moment he has two people working for him one of whom is Kym Davis who was also called as a witness. Mr Banwell gave evidence that he was approached by the defendant to rebuild his mast after the mishap off Yorke Peninsula. The plaintiff agreed that he entered into a contract with the defendant for the design, sale, supply and installation of the replacement mast and associated rigging and agreed the purpose for which the mast and associated rigging was supplied was for offshore yacht racing including the Sydney‑Hobart yacht race. However both by his evidence and the pleadings he denies that the supply and installation of the mast and associated rigging was not fit for that purpose.
He gave evidence that he purchased a program from a naval architect called Jock Scott Jutson. He said that he has used that program to construct other masts and he gave evidence that this was the first mast that had fallen down. He then gave evidence as to how he went about programming the construction of the mast. A set of calculations were prepared in August of 2000 to use as a basis to construct the mast (Exhibits P37 and P38). Tendered in evidence were photographs of the mast in the course of fabrication (Exhibit D24). He gave evidence that the spreaders are fabricated separately. He described in detail how he went about manufacturing the mast. That detail is clear on the transcript and I will not set it out in this judgment.
Mr Banwell gave evidence that the lower part of the mast was reinforced with sleeving but that reinforcing did not continue to the spreaders. As I understand Mr Banwell’s evidence the reason why it did not was because in his opinion the pressure on the mast increases at the lower part of the mast.
By looking at the remains of the mast which was broken and recovered and also two photographs of that area (Exhibit P41) the plaintiff gave his opinion as to what must have happened as the mast failed. He gave the following evidence on that topic (page 406):-
"QDo you have an opinion as to what happened to that mast as it failed.
AYes, it’s an unusual one. The mast shows definite signs of permanent deformation going off to what would have been the windward side.
QThat is to starboard, is it.
AThat is to, yes, the starboard. Yet it finally went over to port. It seems to have travelled through a sort of angle and gone across. Rather than fold, it’s gone across in this. It’s sort of skewed and gone across in that sort of direction (INDICATES).
QSo the mast is rotated clockwise.
AYes, it is located clockwise.
QAnd moved to port.
AMoved to port, no moved to starboard, the whole mast has gone round like that and come over this way. The track shows permanent deformation. In other words, it’s reached its yield point. Then it appears that something happened, because it’s crumbled as if it was going to go over to windward side, and then it’s gone back over and finally finished up being torn off forward onto the port side.
QYou formed that opinion based on the shape of the track and the shape of the section.
AYes. The track showed, exhibited around the track edge and we can see it on that photograph.
QWhich one is that.
ANo. 9 – that it had a marked lip on the lip, on the back of the track, which shows that the mast not actually, not only went to weather or to starboard, but also went forward, so the whole process has gone like that (INDICATES) Do you want me to continue?
HIS HONOUR
QIf someone was on the boat and saw this, your reconstruction, looking at the damage would be what they would see. Is this skewing movement to the right, half right, is that right.
AThat’s correct.
QThen coming back again over and breaking to the left.
ALeft. Well, depending on how observant they were.
QIt would be pretty obvious, wouldn’t it.
AIt’s very difficult to watch a mast. You don’t see it too often. Not on mine anyway. It happens, usually quite a bang, gone, because the yield point –
QI just want to understand that in a perfect world, if you had a movie of the whole thing, a helicopter above it, what we would see is this rotation to half right.
AThen the mast followed.
QThis back to the left.
ATo the left over the port side, and I would say it went through at approximately that sort of angle.
WITNESS INDICATES ABOUT 20 DEGREES FORWARD OF THE
ATHWART SHIP AT THE POINT OF THE MAST.”

The plaintiff also gave evidence as to why he constructed plates instead of constructing a length of wire for the forestay which was exact. He gave the following evidence on that topic (page 410):-
"QWhat was the purpose of constructing those plates, instead of making a wire which was exactly the right length without those plates.
AI guess it was being a bit self-opinionated. What happened is that I believed that I was correct that the rake would eventually finish up in or around 1.2 metres, whereas I was asked to stand the mast at a two‑metre rake. Now the problem I faced was that the adjusters, or the rigging tension device, at the bottom of the forestay was imported and, if I swaged the fitting on at the longer measurement, with the rake two metres aft, I could not accommodate any movement forward – or limited movement forward. So, the idea was that we would work out the management of a two‑metre range, which we did. We set the mast at a two‑metre rake. We went down and measured the mast at a point on the forestay at a two‑metre rake. We then came back and, with a calculator, worked out the difference between a two‑metre rake and a 1.2‑metre rake. We deliberately cut the forestay, form memory, 280 millimetres short.”
He said that after the yacht had come back from the aborted Sydney‑Hobart yacht race the forestay was reset in January of 2001 and the plates were discarded.
Mr Banwell was asked by his counsel his opinion of the failure of the mast on the day in question. I set out his evidence on that topic (page 454):-
"QJust dealing finally with the failure of the mast itself, have you got an explanation for the failure of the mast.
AYes, it appears to me, in examining the stump, that the mast was compressed and the only way, as I see it, that that could have occurred is that someone, or some load was applied to the forestay. Because the forestay already has a considerable load on the wire, when you apply or move the wire towards the mast, or to apply any weight on the wire, it magnifies the force on that wire considerably. This is usually calculated simply, you could say, by the amount of depression divided into half the length of the wire will give you the weight of the increase of the wire. So if we move it 100 millimetres or 200 millimetres, if you divided 200 millimetres into the length of the wire you would find that it would increase it by that, or roughly that amount. So, if the 200 divides into 10 metres, what, 200 times, the weight applied at that point would be 200 times greater than actually the weight applied. It would be transferred to –
QMagnified 200 times.
AMagnified.
QIn actual fact we don’t know how much the forestay deflected, but if you accept some of the evidence, are you aware of an event that would have caused the forestay to deflect.
AYes, we had the brace, or the lazy brace or the sheet, whichever name you would like to give it, was over the forestay. The boat, as I understand it, from witnesses I have spoken to, was lying side‑on to the wind with the wind blowing directly across the starboard side. The kite, as I also understand it from the witnesses was exploding with and pulling the boat down and pinning the boat down at an angle of 45 degrees as a minimum. Some say more, some say less, but they say at least 45 degrees. When that occurred, it was being held down by a force, we have got to accept that. Something was holding it down, and it would not have been the mainsail, because the mainsail had already gone past centre. It was around the boom pulling out towards the water, as we have heard the evidence and the wind would be skating straight across it, so there was no or little assistance from the mainsail to hold the boat down. So we must assume, therefore, that the spinnaker had enough power to pull the mast over at 45 degrees and, therefore, caused the vessel to go at that same angle. If we accept that, then we can start to assume that we had considerable force on the brace going across the wire.
QThe forestay.
AThe forestay. If you have got considerable force on there, the chances are the mast would be squirming under compressional load. This would be further exaggerated by the weight being pulled on that, tightening the wires on this side (INDICATES).
QThe starboard side.
ABy the stays, by increasing them to probably their maximum load, which would then increase the weight being transferred down the mast (INDICATES). So, like the foundations of a house, it is only as good as the foundations. As the loads came down and were transmitted through the mast, I would think that that would be the suspect area (INDICATES), because it being the last in the line of compressional loads.
QThat is just below the first spreader.
AYes, this is again borne out when I have looked at the mast section. The mast, contrary to what was being pulled on the top, had gone the opposite way to such an extent that it had permanent deformation across that way towards starboard (INDICATES). In order for that to be permanently deformed or bent, it must reach the aluminium yield point. The yield average is a 276, the braking point is 310. There is not that much difference. So, not only that, but also the – not only had it gone off to the opposite way one would expect, but there was a curve in the spar (INDICATES), towards the back. So, I believe the mast moved in a directional – what would that be – to starboard. Forward and to starboard. And this has caused the failure.
QThe source of the generation of that failure is.
AAgain the weight on the forestay.
QBy the spinnaker.
ABy the spinnaker or a rope that was attached.
QAt 30 knots of wind what sort of pressure is applied to the spinnaker.
AWe have a scale, but I would estimate that the weight on the sail would be in excess of seven tonnes.
QThat is if the sail was fully set.
AIf the sail was fully set. It would be worse if it wasn’t fully set and it was actually busting open, because you would get seven tonnes plus the shock load, plus it would be further exaggerated by the fact that it was going round the corner (INDICATES). That puts on a load of 150%, 151% of the load that is on the rope.
QSo it magnifies the load by half again.
AIt magnifies the load.
QIf the spinnaker is flying off to the leeward side to port on this occasion, that would make it even more damaging to the structure.
AThe further round it went the worse it would become.
QWould the oscillation of the spinnaker cause problems as well, if the halyard was extended.
AYes, that might tend to, sort of, make the rig shake and it would pant the wires.
QWhat does that mean, when you pant the wires.
AIt is shock loading. Under normal circumstances, that wouldn’t have worried. I mean, it would not have concerned me if I saw the boat turn over if the beak – if the rope was in the beak. It would survive quite easily. It is shaky, yes, sure it would rattle around, but they bend and move quite considerably before they break.”
I suppose it would not be unfair to summarise the plaintiff’s position on the cause of the breaking of the mast as a series of circumstances which created such a force that any reasonably manufactured mast in the circumstances would have broken.
In cross-examination the plaintiff did not dispute that the internal sleeving could have been extended above the first spreader instead of being tapered off. He said however that even if that had been done it still could not have withstood the situation that happened on that day. When challenged in cross-examination about the reinforcing aspect of the mast at the point where it broke he was of the clear opinion that no matter how strong the mast was it would have broken.
The plaintiff called Mr Howard Frank Peachey who was a naval architect and has been practising as such since 1986. His opinions in these matters are also contained within Exhibits D20, D21 and D22. He gave evidence of his experience and expertise in the area of designing yachts and commercial vessels. He was consulted about the design of the mast on Doctel Rager after it had failed. He prepared calculations in relation to the lower part of the mast which broke particularly in that area of spreader one where he understood the mast failed. He examined the drawing of the mast done by the plaintiff (Exhibit P29) and he inspected the broken mast section. His opinion was that the mast broke because of the combination of circumstances that happened on the day during the broach (evidence page 578). He also gave evidence that in his opinion where the mast broke it had enough inertia or strength. He was asked if it had been reinforced at that point would it still have cracked bearing in mind the evidence he heard about the situation on the day in question. He said he was not sure. He gave the following evidence on that topic (page 590):-
"QWhat you’re saying is that at the point where this mast cracked it had enough inertia. Is that what you’re saying.
AIn my opinion it did, yes.
QDespite that it cracked because of other things that you’ve told us about.
AYes.
QTell me this. If it had been reinforced at that point would it have cracked, do you think. Do you think it would have cracked anyway.
AI’m not sure. It depends on a lot of things. It may or it may not. I would think if the mast hadn’t cracked there at that point it would have gone further up anyway, because at this point here it’s the same section as it is there, (INDICATES) still unsupported.
XN
QThe witness, I think, indicates immediately below and immediately above the first spreader. Could you look at – (NOT ANSWERED)
HIS HONOUR
QIf it was supported at both those places by a sleeve or whatever, would it have cracked.
AI don’t – the propensity would be not to crack – not as much to crack, but you couldn’t – you couldn’t say, it depends on the forces –
QToo hypothetical is it.
AYes.
XN
QIs it the case that the more sleeving you put up the mast, the less stable the boat becomes.
AWell you – I think as Mr Banwell explained, you’re up against this fine point of keeping the weights in the mast down as much as you can, consistent – and then trying to keep the strength as high as you can in those areas, so you’re always – you’re always fighting this – one or the other. You can make a heavy, strong mast that will never break or you can make a lighter mast that will bend and do the things you want, but it may break under certain circumstances.”
In cross-examination it was put to him and he agreed that the mast from the level of the first spreader down if that is compressed will fail at its weakest point. He conceded that a column in compression isn’t just like a house as Mr Banwell said but the compression forces are exerted throughout the column. He conceded that the bottom section of the mast had reinforcing around the goose neck level which he agreed was adequate. He also agreed that it had reinforcing at the actual level of the spreader but that is not where the mast failed. He agreed that at the level where it failed it did not have reinforcing all the way around. He also agreed under cross-examination that by applying normal engineering principles that where it failed was in fact its weakest point (evidence page 612).
He said in evidence that the reinforcing sleeve which had been in place to cater for the forces at the goose neck had been tapered off and had finished its taper at a level below where the break occurred. It would not be surprising that that was where the mast failed. He was then asked the following question (page 612):-
"QHad that reinforcing sleeve been continued up to and past the first spreader level it would have been less likely to break at that point. Do you agree with that.
ALess likely to, that’s probable, yes. We’d have to consider the fact that as the mast is under compression that this portion here is less loaded than this portion just under here due to the fact that this wire here is exerting a downward pull. So the actual compression here is less than what it is there. (INDICATES)
MR SCRAGG: The witness indicates immediately above and immediately below the first spreader.
XXN
QThat of course is a good reason for continuing the reinforcing at least to the level of the spreaders, isn’t it.
AIt can be but not necessarily.
QFrom what you’ve just told us you would expect it to fail just below the spreaders rather than just above them, wouldn’t you.
AIn this situation, yes.
QIn the situation of normal high compressions being applied to the mast.
AYes.
QTherefore if you’re going to terminate the reinforcing anywhere it would be a good design principle to terminate it above the spreaders rather than just below them. That’s right, isn’t it.
AYou could take the reinforcing up to as high as you like. It would be the same thing. It would increase the strength of the mast, wouldn’t it?
QQuite.
AYou’ve got to make a decision at some point as to where you stop the reinforcing and that’s where you consider that the strength below the mast is as good as what’s just above the spreader.
QI’m sorry, I thought you were just telling us it is more likely to break below the spreaders rather than above.
AWhen it comes under that extra compressive stress.
QIf you have in your mind that you don’t want to take the reinforcing all the way to the top because that might add too much weight, and you think that’s a principle that could be applied. Is that so.
AYes.
QSo you have to decide you’re going to terminate it somewhere. What I suggest to you is the sensible and appropriate place to terminate it, given what you’ve told us about the forces, would be above the spreaders rather than just below them.
AOn a strength consideration, yes.”
The plaintiff called Kym Davis who was one of his employees who manufactured the spreaders and the sleeve that went within the mast. He gave evidence that like Mr Banwell he thought that the maximum strength needed to be supplied to the spreader was at the mast end of the spreader. That is contrary to the evidence of Mr Peachey and Mr Pearce who gave evidence that the maximum strength of the spreader is required at its mid point. He agreed in cross-examination that there was no reinforcing at the centre point of the spreader. His evidence was that it did not have to be reinforced at that point.
The plaintiff called two witnesses and tendered a statement from another witness all of whom observed what happened from other yachts that were 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 do a 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 the windward 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.
Conclusion
In the miasma of technical evidence which confronts me I find the evidence of Anthony Pearce the most reliable. Where it is in conflict I prefer his opinions to those of the plaintiff and Howard Peachey. In particular I find that his opinion that the mast broke at its weakest point and that that weakest point was not properly reinforced to be compelling. I accept Mr Pearce’s opinion that a proper design would have resulted in the reinforcing sleeve being extended from the base of the mast up past the first spreader into the area where the mast broke. On the evidence before me there was no reason why this could not have been done. I am also of the view that Mr Pearce’s opinion is supported by other evidence. That evidence is the evidence before me as to what happened on the day the mast broke. I find that what happened was not totally unusual and although Doctel Rager got into difficulties a properly designed and fitted mast should cope with that situation without breaking. The objective fact is that that mast was designed and fitted to a large yacht which was to be used for heavy offshore racing and was meant to cope with conditions far more hazardous than those that were experienced off outer harbour on the 3^rd February 2001. The fact that the mast broke in those conditions only 3½ months after it had been designed and installed in my view clearly supports the opinion of Mr Pearce.
I also accept Mr Pearce’s evidence that it was faulty workmanship in not attaching the forestay directly to the deck of the yacht rather than using the plates. I agree with the opinion of Mr Pearce that if the forestay had been made after the mast was in the yacht this would have avoided the problem of it being too short and therefore avoided the problem of creating the necessity for these plates to be inserted.
In relation to the claim for the halyards, the only evidence before me is that when the yacht arrived in Sydney the authorities required to have the halyards replaced. In my view that is not enough evidence to suggest that the halyards that were replaced were unworkable.

In relation to the small claim for the attachment of a goose neck to the mast it is argued that the goose neck should have been fixed mechanically, that is bolted to the mast rather than being welded to the structure of the mast. The plaintiff asserts that the method of attachment by direct welding was appropriate. In my view there was not enough evidence to suggest that the method of attachment by the plaintiff was inadequate and that part of the claim is rejected.
Damages
The defendant counter-claims for costs wasted in respect of the Sydney‑Hobart yacht race in the sum of $29,452.61. It is argued that if they knew that they were not going to complete the race they would not have incurred these costs. The counter-argument is that these costs would have been incurred whether they finished the race or not and are not a compensable loss arising from the plaintiff’s breach of contract. In my view the defendant should not be compensated for that amount. It was a cost that he was going to pay anyway and if he had completed the race or not he would still have had to incur those expenses. It was clear from the evidence that despite the hazards of the journey and the difficulty and skill in sailing the Sydney‑Hobart yacht race that for this crew it was purely an amateur non‑profit making adventure and the only loss in not finishing is one of disappointment. The defendant relied upon the authority of Baltic Shipping Company v Dillon 176 CLR 344. In that case a passenger on a cruise vessel suffered injury when the vessel sank ten days into a 14 day cruise. In her action against the shipowner for damages for breach of contract she was awarded damages which included compensation for her disappointment and distress. In a sense that is what the defendant is claiming in the present case although a specific amount is claimed for that disappointment. However the various Judges of the High Court held that compensation for disappointment and distress as a result of a breach of contract can only be recoverable in limited circumstances. It was held that the general rule is that a plaintiff is not entitled to recover damages for disappointment and distress occasioned by breach of contract however an exception would be where the contract agreed to provide pleasure, entertainment or relaxation or to prevent molestation or vexation. In my view neither the disappointment of not being able to use the yacht while it was in dock having the mast fixed nor retiring from the Sydney‑Hobart yacht race early is covered by that exception.
There is no dispute the cost of replacing the mast was $67,115.93 and additional equipment which was damaged cost $4,090.35. In my view that amount is clearly compensable for breach of the implied condition to properly and skilfully design and construct and install the mast and associated rigging. As a result of the breach of that implied condition the defendant claims $30,177.00 for the loss of the sail. That amount that is claimed is for a new sail. I was told in evidence that the sail that was lost in the accident was a used sail and not a new sail. I cannot see why the plaintiff should have to pay for a new sail when it was an old sail that was fitted and lost. There is very little evidence on the topic but surely there is some trade in second hand sails and it appears to me to be illogical that damage to a used sail should be compensated by the cost of a new sail. I set a nominal amount of $3,000.00 for replacement of the used sail that was lost. The reason I set that amount is that I received no evidence as to how much the lost sail was worth.
The defendant also claims the sum of $42,227.50 for wasted holding costs for the vessel for seven months of $6,032.50 per month. That period represents the time that the yacht was out of action from the time the mast was broken until it was repaired and the yacht was able to sail again. That amount represents the financial burden that the defendant had in paying off interest on the yacht and also other associated fees in keeping the yacht. Similar to my reasoning in relation to the costs wasted in respect of the Sydney‑Hobart yacht race I do not allow that amount. The purpose of the defendant owning and sailing his yacht was purely for non‑profit making sporting and leisure activities. There was no loss of any form of income or finance while the yacht was out of action. If for that seven months the yacht had been sailing every day those costs would still have to be paid. What the defendant complains about is lack of the enjoyment of using the yacht during that seven months. In my view he cannot be compensated for that. I therefore find that the damages which should be paid to the defendant for breach of contract are as follows:-
$
         Replacement of the mast  67,115.93
Damages to wind equipment  123.75
         Staunchions  831.60
         Hull damaged by the mast  3,135.00
         Hanks  350.00
         Replacement of sails   3,000.00
  $74,556.28
That amount should be offset by the plaintiff’s claim for outstanding invoices for work done on the yacht. However the amount of $4,913.07 being the amount towards resetting the mast and the forestay should not be credited to the plaintiff because that was due to work done by the plaintiff in fixing up the consequences of the breach of contract. Therefore the defendant’s award of damages is offset by the amount of $4,893.97. There will be judgment for the defendant for the sum of $69,662.31.
I will hear the parties as to interest and costs.

[2002] SADC 169

19 December 2002