Farriss v Axford (No 3)

[2022] NSWSC 20

Supreme Court

New South Wales

Medium Neutral Citation:

Farriss v Axford (No 3) [2022] NSWSC 20

Hearing dates:

30 – 31 August, 1, 2, 3 and 6 September 2021

Date of orders:

28 January 2022

Decision date:

28 January 2022

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1) Judgment for the defendants.

(2) I order the plaintiffs to pay the defendants’ costs. I grant liberty to apply should any other costs order be sought.

Catchwords:

NEGLIGENCE – Breach – Accident on a boat – Inconsistent versions provided by the plaintiff – Version offered at hearing rejected – Reasonable precautions

TORTS – General principles – Damages – Assessing economic loss - Tax

Legislation Cited:

Civil Liability Act 2002 (NSW)

Competition and Consumer Act 2010 (Cth)

Cases Cited:

Coles Supermarkets Australia Pty Ltd vBridge [2018] NSWCA 183

Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Husher v Husher (1999) 197 CLR 138; [1999] HCA 47

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Laresu Pty Ltd v Clark [2010] NSWCA 180

Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90

Port Macquarie Hastings Council v Mooney [2014] NSWCA 156

Roads and Traffic Authority of New South Wales v Dederer and Another (2007) 234 CLR 330; [2007] HCA 42

Sibraa v Brown [2012] NSWCA 328

State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

The Commonwealth of Australia v Amann Aviation Australia Pty Limited (1991) 174 CLR 64; [1991] HCA 54

Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320

Category:

Principal judgment

Parties:

Timothy William Farriss (First Plaintiff)
Montana Productions Pty Ltd (Second Plaintiff)
John William Axford (First Defendant)
Jill Mary Axford (Second Defendant)
Church Point Charter and Shipping Pty Ltd (Third Defendant)

Representation:

Counsel:
A Williams with S Blackman (Plaintiffs)
J Turnbull SC with J Sleight (Defendants)

Solicitors:
LG Parker & Co (Plaintiffs)
McInnes Wilson Lawyers (Defendants)

File Number(s):

2018/23640

Publication restriction:

Nil

Judgment

Background

How did the accident happen?

Other evidence

The evidence of John Thorogood

Daniel Littlepage

Video of the inspection of the boat on 12 March 2015

The evidence of Mr Axford

The evidence of Mr Storaker

The expert evidence

Conclusion as to circumstances of the accident

Was the accident caused by a failure of the defendants to take reasonable care?

The plaintiff’s case

The defendants’ position

Risk of harm

Section 5B CLA

Induction, instruction or warning

Failure to maintain, repair, replace or redesign

The claim pursuant to the ACL

Damages

Non-economic loss

Economic loss

The plaintiff’s claim

The defendants’ position

Assessment

Cost of replacement labour

Claim for loss of increased royalties

Orders

Judgment

1. The first plaintiff, Timothy William Farriss, alleges that he sustained injuries to the fingers of his left hand in an accident on a boat on 24 January 2015. He says that the accident was caused by the negligence or failure to comply with guarantees under the Australian Consumer Law by the defendants.

2. The first plaintiff and his wife, Mrs Bethany Farriss, are the directors of the second plaintiff, Montana Productions Pty Ltd (“Montana”), a company which receives income through the plaintiff’s creative endeavours.

3. The first plaintiff is one of the founding members and lead guitarist in the band known as INXS. I will refer to the first plaintiff as the plaintiff for the purposes of this judgment.

4. The first and second defendants were the owners of the boat, a Clipper 34 motor cruiser, which was known as Omega (“the boat”). The third defendant acted as the agent of the first and second defendants in hiring out the boat to persons such as the plaintiff.

5. The proceedings were heard over 6 days during the period 30 August to 6 September 2021. Adrian Williams appeared with Samuel Blackman on behalf of the plaintiff. John Turnbull SC appeared with James Sleight on behalf of the defendants. The defendants were jointly represented and the issues were fought on their behalf jointly, albeit, if they are found liable, they might be found liable on different bases.

6. There is no dispute that:

1. the plaintiff sustained an injury to his left hand as a result of an accident on the boat. He underwent surgery at Royal North Shore Hospital on 24 January 2015;

2. the plaintiff sustained injury when the fingers of his left hand became caught or jammed between the anchor chain and the gypsy of the boat; and

3. the disability from which the plaintiff suffers in his left hand is such that he could not perform in a band again and, in particular, not perform as part of INXS again.

7. Other than that, most matters are in dispute.

8. There is a significant dispute as to the circumstances of the accident and whether, irrespective of precisely how the accident occurred, there was any failure to take care on the part of the defendants.

9. The matters for determination may be divided into the following issues:

1. how did the accident occur?

2. were the injuries sustained by the plaintiff caused by any failure to take care on the part of the defendants?

3. was the plaintiff guilty of contributory negligence?

4. does s 64 of the Competition and Consumer Act 2010 (Cth); Schedule 2 – Australian Consumer Law (“ACL”) apply?

5. what amount is the plaintiff entitled to for pain and suffering?

6. what amount is the plaintiff entitled to for economic loss?

Background

10. The first defendant had owned the boat since purchasing it in April 1992. It operates under power rather than by sail. I include a photo of the boat:

11. He made it available for charter through the third defendant, who acted as his agent in organising such charters. It was advertised on a website as being available for charter. There is no evidence of any earlier accidents or safety issues involving the boat, although the plaintiff maintains that the sort of problems that he experienced could not have been unique to him.

12. On 23 January 2015, the plaintiff hired the boat through the third defendant for the purposes of cruising around Pittwater during the Australia Day long weekend. The only persons who would be on the boat were the plaintiff and Mrs Farriss.

13. There is an issue as to the plaintiff’s experience. Having regard to the content of his evidentiary statements, he presented as a person with little experience in boats.

14. The defendants put to the plaintiff that he had more experience than referred to in his evidentiary statement. Indeed, it turned out that he had owned a cruiser for a brief period. Further, he had hired boats previously.

15. He liked fishing. He purchased his cruiser back in 1989 but he said that he used to have a skipper operate the boat for him. It may be no coincidence that the purchase of the boat and the use of a skipper was in the “heyday” of INXS.

16. The fact that he may have hired a boat in the past from time-to-time and even owned a boat in the circumstances to which I have referred does not necessarily mean that he had extensive experience in operating a boat. Ownership of a boat for a period does not necessarily equate with expertise and familiarity with all aspects of its operation.

17. I accept the plaintiff’s description of his experience level.

18. Having said that, it does not seem to me that his level of experience is particularly critical to the outcome of this matter as, for the purposes of hiring the boat, it was not necessary that a person such as the plaintiff pass some test or demonstrate a certain level of experience.

19. In any event, the plaintiff plainly felt experienced enough to operate the boat.

20. During the short period prior to the plaintiff sustaining injury, he was attempting to drop the anchor and secure the boat in Akuna Bay.

21. I include a photo of the anchor system, including the gypsy:

22. During the process of “playing with” the anchor to ensure that it was correctly set, he observed that the chain was rusty and prone to kinking, possibly both as it came over the roller on the bowsprit and when the chain fed into the stowage bulkhead.

23. At least on one occasion, the winch motor stopped even though he had his foot on the up button on the deck. He took his foot off the up button and pulled the chain up and over the gypsy with his left hand to unkink the chain. When he put his foot back on the button, there was no response. After trying to get the system to work without success, he contacted the third defendant and was told about the circuit breaker.

24. Having reset the circuit breaker, he decided to raise the anchor and move the boat closer to the marina at Akuna Bay. He went to the area near the gypsy and placed his foot on the up button. The anchor winch worked and the chain started to come in. However, it kept kinking. He stopped the winch by taking his foot off the up button and manipulated the chain with his left hand forward to the gypsy so as to straighten it. Again, he placed his foot on the button and the motor again worked causing the chain to again be pulled forward over the gypsy.

25. He may have done this a number of times, that is, he would take his foot off the up button and manually adjust the chain so that it would flow smoothly over the bowsprit, through the gypsy and down into the spurling pipe and the stowage area below.

26. It is not in dispute that the plaintiff sustained injury to the fingers of his left hand when his hand was jammed between the anchor chain and the gypsy.

27. The windlass raises and lowers the anchor chain. The gypsy is attached to the right side of the windlass. It grips the chain when being lowered and raised. The anchor chain rotates around the gypsy. The windlass and the gypsy are attached to a shaft which operates under power. The gypsy can be operated manually.

28. The dispute between the parties is not whether the plaintiff sustained injury to his fingers as a result of his fingers being jammed in the gypsy but how that might have occurred.

29. On the plaintiff’s case, as set out in the plaintiff’s opening submissions, his hand was pulled into the gypsy because the chain started moving unexpectedly without him pressing the foot button on the deck. In his opening submissions his Counsel explained that this occurred because whilst he was attempting to free some chain that had bunched between the deck and the anchor winch with his left hand, the chain spun or freewheeled out pulling the plaintiff’s left hand up into the gypsy.

30. The plaintiff relied on an expert opinion from a Professor David Lyons, suggesting that this (that is the chain and hand being pulled up into the gypsy) was caused by the clutch disengaging and the gypsy freewheeling out. The plaintiff says that he did not disengage the clutch but his expert Professor Lyons says that the clutch disengaged due to wear from the continuous load placed on it due to the absence of an allegedly required chain stripper (which would have decreased the load on the gypsy). The plaintiff maintains that he did nothing which might have caused the chain to move unexpectedly. He says that the anchor system was not working properly; it was unsafe and defective; and could and should have been fixed or improved to guard against the risk of injury which eventuated. He should have been given proper instructions about the use and problems with the anchor chain.

31. The defendants maintain that the system was working as it was intended and that the chain moved because the plaintiff must have trod on the up button on the deck. There was no danger to anyone trying to unkink the chain provided that no one pushed one of the switches whilst the person had a hold of the chain.

32. There are only two switches which could be used to deliberately cause the chain to move backwards and through the gypsy, being the foot switch on the deck on the right-hand side of the gypsy and another switch at the helm. There is no suggestion that the switch at the helm was operated by anyone at the time.

How did the accident happen?

33. The plaintiff’s version of events is set out in the Amended Statement of Claim filed on 28 August 2019. He then filed an evidentiary statement and later an affidavit which he expressly identified as being a clarification of his earlier statement. That affidavit was prompted by the service of a Notice to Admit Facts and ambulance records by the defendants the effect of which was to suggest that the plaintiff was the author of his own misfortune because he trod on the deck button/switch which caused the anchor chain to move.

34. He gave oral evidence.

35. In his first statement he described the event which led to his injury as follows (after describing the issues he was having with kinking and the circuit tripping):

“57. At this point, the anchor was partly retrieved and the boat was at risk of drifting and running aground or into other vessels moored nearby, I thought the kinking would trip the circuit breaker again and I would be left with insufficient chain to hold the boat in position.

58. I stopped the winch by taking my foot off the ‘up’ button. While the winch was stopped, I manipulated the chain with my left hand forward of the gypsy to straighten it. I withdrew my left hand and pressed the button again with my foot and the winch operated again, but only for a second or so.

59. The winch stopped again by itself and the chain kinked. I took my foot off the ‘up’ button and put my left hand down and manipulated the chain again by straightening it.

60. I then activated the ‘up’ button with my foot. At this stage my left hand was poised near the chain between the gypsy and the bowsprit roller. The winch motor operated and the chain appeared to kink again at the point where the chain fed into the boat below deck.

61. The winch stopped again even though my foot was still activating the ‘up’ button. I tried the ‘down’ button, but it did not work either. I tried to straighten the chain again with my left hand and then moved my hand away again. I reactivated the ‘up’ button, but the winch was still not working.

62. My left hand was near the chain towards the bow of the boat, near the gunnel rail to ensure the chain did not come off the gypsy towards the left. The winch suddenly, and to my surprise, started to work again and the chain grabbed my hand and pulled it between the chain and the gypsy.

63. My left hand sustained severe lacerations to my left hand and I thought that my fingers had been cut off. I called out to my wife who was on the flybridge where she was beside the controls with the engine idling.

64. With my left hand caught in the winch at a very awkward angle, I managed to pull the anchor chain with my right hand to get enough slack to free my left hand. My wife Beth called out ‘What happened' and I replied, ‘It's taken my finger off!’”

36. In his later affidavit he described the event as follows:

“5. As described at paragraphs [60]-[61] of my evidentiary statement, in the moments before the accident, I was attempting to retrieve the anchor by using the anchor pedals on the right (starboard) side of the bow. When the anchor winch stopped working again (and for the last time), I could see that the chain was twisted and kinked both before and after the gypsy winch.

6. After attempting to reactivate the up button (as described in the last sentence of paragraph [61] of my evidentiary statement), I moved to the left (port) side of the boat. I did this as I did not want to accidently activate the deck buttons as I attempted to free the chain. I could see that the chain had a lot of tension on it and I believed this was because the anchor was off the sea floor and its full weight was on the chain. I was concerned that the boat was at that moment drifting and we were not far from rocks.

7. While on the left (port) side, I positioned my body close to the winch and leaned forward to reach my right hand out in front to try and lift the anchor chain, so it would release some tension on the anchor chain.

8. While I was doing this, my left hand was trying to unkink the anchor chain. This is what is described in the first sentence of paragraph [62] of my evidentiary statement. I was doing this partly by feel and partly by sight.

9. At the moment of the accident, I was not looking at my left hand as I was looking forward. I remember that I had moved my left hand, by feel, from in front of the winch (as described in the first sentence of paragraph [62] of my evidentiary statement) to after the winch; between the anchor winch and where the chain fed into the deck below. I remember that my arm/hand was under my chin at about my chest height. I did this to attempt to free the chain which had bunched between the winch and where the chain fed into the deck.

10. Suddenly I felt my left hand being pulled or dragged into the anchor winch.”

37. There are some significant differences between his statement and his later affidavit. These were highlighted during cross-examination.

38. The first difference relates to where the kinking occurred. In his statement he suggests that the kinking of the chain happened as it came over the bowsprit (being at the very front of the boat) whereas in his affidavit, he states that the kinking occurred as the chain was going into the deck, being after it had passed through the gypsy.

39. During cross-examination he settled on the latter version, although he suggested that it was hard for him to remember, it being such a traumatic event and that it may be that it could have kinked anywhere.

40. The second difference is where he was standing when his fingers were caught.

41. There is nothing in his statement which might have revealed that at some point in the sequence of events he moved from where he was standing, adjusting the chain on the right side of the gypsy (looking forward) to the left side of the winch. Yet in his affidavit, he states that, after attempting to reactivate the up button (that is, it would not work) he moved to the left side and continued adjusting the chain from that side, specifically to avoid standing on the deck buttons which were positioned on the right side of the gypsy.

42. At least according to his affidavit, he had been working on the chain and operating the deck buttons from the right side but at some point in the immediate period before the accident, he decided quite deliberately to move to the left side to avoid standing on either deck button.

43. Of course, this is what the defendants say occurred, that is, he stood on the deck button. This was put directly to him in cross-examination. The plaintiff was adamant that this did not occur.

44. Yet when asked why he had not simply closed the caps on the deck buttons if he was concerned about inadvertently standing on them he gave the following evidence:

“Q. You did that because you were worried about the buttons; stepping on the buttons accidently?

A. Yes.

Q. Tell me, why didn’t you just close the caps on the buttons?

A. That would have - that would have meant taking my - my concentration and - and focus away from what was actually happening with the boat and the winch and the chain and everything, and closing the - closing the buttons just didn’t - it would have - it would have - it would have been an extra thing to do. I didn’t - it didn’t occur to me to close the buttons because I’d - I’d moved - I was conscious of where my foot was.

Q. But you’d moved away because you were concerned about stepping on the buttons?

A. Yes.

Q. That’s right, isn’t it?

A. Yes.

Q. You could have just as easily, instead of moving away, closed the caps on the buttons?

A. Correct. I could have easily have just moved away from the whole anchor winch itself and the bow of the boat.”

45. It is difficult to accept his explanation that closing the caps (which would have taken a second or two) was something that would have distracted him from his focus or concentration as he suggests.

46. The third difference relates to the positioning of his hands. Again, he seemed uncertain and gave inconsistent evidence about his hands including whether his left hand was between the bow and the gypsy and was pulled into the gypsy or whether his hand was between the gypsy and the deck such that his hand was pulled upwards into the gypsy. His Counsel opened the case on the basis that this hand had been pulled into the gypsy from behind the gypsy, explaining that this must have happened because the gypsy freewheeled out. His expert based his opinion on that sequence of events.

45. Indeed, in the plaintiff’s closing submissions he accepted that his evidence was confused on this issue. In his statement he said that his hand was pulled into the gypsy by the anchor chain moving inwards. In his affidavit he said that his hand was between the deck and the gypsy and pulled upwards (meaning the chain would be going out) and into the gypsy.

46. In cross-examination he settled on the former version, although he ended up saying:

“A. I - from memory - it's very hard to remember, as I said, it was a long time ago, it was a traumatic event for me - but it is possible that it was kinking in front of the - the gypsy as well. It was - it - well, it came up very fast, and it was surprisingly quick to me, and I - it's quite possible that it was - it kinked - could've kinked anywhere.”

49. He was cross-examined as follows, in particular, in reference to para [9] of his affidavit:

“Q. Yes. ‘At the moment of the accident, I was not looking at my left hand as I was looking forward.’ That’s what it says.

A. Okay.

Q. That’s true, isn’t it?

A. That’s what it says, yes.

Q. Is it true?

A. If that’s what I said I have to assume that’s what I could remember at the time.

Q. Mr Farriss, you swore this affidavit on 1 December 2020, about eight or nine months ago.

A. Right.

Q. Has your memory deteriorated significantly - of these events - between then and now?

A. It has somewhat, yes.”

50. He was also cross-examined on whether or not the motor was working at the time when the chain moved as follows:

“Q. So, the motor of the winch had to have been working, didn't it?

A. Evidently.

Q. And what happened was that you accidentally stepped on the up button, didn't you?

A. No.

Q. Are you quite sure about that, Mr Farriss?

A. Yes, I'm positive. There's - there's no way I would've accidentally - I made sure that my feet were nowhere near it. I was conscious of doing that.”

51. Again his acceptance of the proposition that the anchor must have been working was contrary to the case outlined on his behalf and the explanation given by Professor Lyons.

52. Further, he seemed uncertain as to what problems he had actually been having. There appears to be no dispute that the circuit had tripped, perhaps on more than one occasion. It may be likely that this was caused by some kinking in the chain but it was put to him that he had really only identified one problem in the following exchange:

“Q. And apart from that one occasion that you've mentioned in paragraph 43, the system operated correctly?

A. Yes. My memory is not - is very - is not very - I don't recall it actually working very correctly at all, but then, when I - you know, it seemed to - the basic functions, down seemed to send it down, and up seemed to bring it up. But every time I tried it, there seemed to be problems.

Q. Well, you've only identified up to paragraph 45 one problem, though, haven't you? And that is that it - I withdraw that. You firstly identified the problem of it coming off the gypsy?

A. Yes.

Q. Then you activated the windlass on a number of occasions without incident before it bunched up at the rear?

A. Okay. Yes.

Q. That's right, isn't it, Mr Farriss?

A. Possibly. Once or - two or three times at the most.”

53. It is understandable that the plaintiff expressed some uncertainty as to where it was kinking and might be vague about how many times the problem had arisen. It does not seem to me that any vagueness about the kinking and any earlier problems reflects adversely on his evidence.

54. However, the differences between his written and oral evidence as to where he was standing and precisely what he was doing are more difficult to understand.

55. The problem is that other than being adamant that he was standing on the left-hand side and away from the buttons, he accepted in cross-examination that aspects of what he said in his affidavit were incorrect.

56. For example, the following exchange occurred as to where he placed his left hand:

“Q. What you've said in the affidavit, paragraph 9, ‘I remember I moved my left hand by feel from the front of the winch to [after] the winch’, that's not true, is it?

A. I don't remember. I don't know why it’s - that's completely--

Q. It's not true, Mr Farriss, is it? You didn't put your hand behind the winch before you go it caught? Behind the gypsy?

A. My left hand?

Q. Yes.

A. No. No, okay.”

57. He was asked how the chain had grabbed his hand. He explained:

“Q. How did the chain grab your hand?

A. It- as it came - as it came - and this was something that quite surprised me with this winch - as it came up over the bowsprit roller, it - it came with quite a lot of speed, and - and not in a fluid motion, and it would - it would come up like - like - almost like it had slack sometimes. It wasn't - it was never, like, just solid thing coming like that, it was jumpy. So, I can only assume it - it grabbed my hand, which was poised near the chain in case it started to kink again, and I had to - to get it back onto the gypsy so that it wouldn't kink again, or come off the gypsy, somehow, it's grabbed my hand. But I wasn't expecting it to even work, because my feet were nowhere near the switches.

Q. Your hand is positioned near the chain, is that right?

A. Yes. Yes.”

58. He was then cross-examined about his positioning, that is, either on the left or right side of the gypsy. He disagreed that the closest side to reach the chain would have been from the right side. It was put to him that he stood on the left side where he would have to lean over the white box to access the chain. He said:

“Q. In answer to your question; because you’ve got to lean over the white box to access the chain, don’t you?

A. Yes, but my hand - my left hand - was caught in underneath the - the gypsy, so I lent over to grab the chain.

Q. Sorry, so were you on the left‑hand side, what, the whole time you were trying to set the anchor and this happened?

A. Yes.”

59. Following further cross-examination as to the positioning of his hands and the chain, the following exchange occurred:

“Q. But the impression you sought to give in paragraphs 8, 9, and 10 of this affidavit, your second statement, was that your hand was pulled into the gypsy from behind the gypsy, wasn't it? That's the impression?

A. No. That's not - that's not the impression I meant to give.

Q. No. Because what you didn't say in there was, I moved my left hand back to in front of the gypsy?

A. Okay.

Q. It doesn't say that anywhere, does it? Not in your first statement, not in your second statement?

A. No.

Q. Are you sure that happened?

A. Yes.

Q. So, at that stage, are both your hands near the chain in front of the gypsy?

A. Not both my hands in front of the gypsy, no. I don't think so. I don't recall.

Q. Let's concentrate on your left hand. Was that in front of the gypsy?

A. From memory, yes.

Q. So, your right hand had been holding the chain in front of the gypsy, hadn't it?

A. At some point, yes.

Q. And without looking, you put your left hand behind the gypsy, didn't you? Or not?

A. I don't recall.

Q. I'm sorry?

A. I don't recall.

Q. Well, sir, on 1 December 2020, you swore to that fact, that your left hand moved by feel from in front of the winch to after the winch.

A. Yeah, it's possible that at that time, that's what I remembered. But I don't remember that now.”

60. The cross-examination of the plaintiff on the circumstances of the accident was extensive. I have provided a snapshot. Having said that, it is clear from the whole of the cross-examination that:

1. the plaintiff is adamant that he was standing on the left side of the windlass when the chain started to move unexpectedly;

2. the chain started to move inwards, that is, pulling the anchor up (contrary to what the plaintiff said in his affidavit and the plaintiff’s opening outline);

3. he had his left hand between the bowsprit and the gypsy and his hand was dragged into the gypsy from that position (also contrary to his affidavit and outline);

4. he did not do anything to cause the motor to suddenly start to operate and the chain to move;

5. there were errors or inaccuracies in his initial statement which must be taken to include the direction in which the chain moved and where his hands were and where the kinking was; and

6. he did not stand on either of the switches on the deck. He did not tell the ambulance officers that he did so.

61. It is most difficult to understand why there were these errors or differences in his statement and affidavit. He put it down to the trauma of remembering the event and the length of time since the event. However, he also said that his memory deteriorated between the time of the affidavit (December 2020) and giving evidence in August 2021. It is difficult to accept that suggestion (that is, memory deterioration over 9 months) as a reason for the inconsistencies in his evidentiary statements.

Other evidence

62. In support of his version of events, the plaintiff adduced evidence from Mrs Farriss, as well as from two other witnesses being John Thorogood and Daniel Littlepage.

63. Both the first defendant, Mr Axford, and a director of the third defendant, Mr Niels Storaker, also gave evidence and their evidence is, at least to a certain extent, relevant in forming a view as to how the accident occurred.

64. Mrs Farriss recalled the plaintiff going back and forward into the cabin complaining that the chain kept stopping or something wasn’t working. She recalled that he had to try and fix things a few times.

65. She said that, at one point, he asked her to go upstairs and push the lever forward just to move the boat forward a little bit when he said to do so. However, the plaintiff was quite adamant that he did not ask her to do this.

66. She could see the plaintiff going back and forward between the cabin and the anchor as she was on the flybridge. She remembers him being on the left side of the boat leaning forward with his right hand stretching towards the water with his hands on the chain trying to untwist the chain. His left hand was obscured by his back and his head.

67. Suddenly, there was a sound and she heard him turn and say “It’s taken my finger”. She remembered seeing his body and feet on the left side of the winch when this happened. She said there was no way he could have had his feet in the area where the buttons were.

68. In cross-examination, it was put to her that there might have been things that the plaintiff had told her since the accident that she remembered, rather than her having an independent recollection. She said “the memories of mine are burnt into my retina, basically, the – just the specific moments.”

69. Ultimately, it was put to her that her recollection of the precise events all these years later might be mistaken but she disagreed saying:

“A. No, it’s burnt into my brain. I will never forget the moment, because that’s moments before it happened and I will never forget looking down upon him when it happened and - and him turning around to me, turning from the left to the right and turning around to me and showing me his hand. I - I won’t ever forget it.”

70. According to Mrs Farriss, she had not seen the plaintiff on the right side of the post and winch at any time while she was on the flybridge waiting for instructions from him to operate the lever to move the boat. Her recollection as to precisely where the plaintiff was standing and what he was doing in the seconds before his accident is consistent with the version the plaintiff proffers for the purposes of these proceedings except that:

1. her suggestion that she had not seen the plaintiff on the right side of the post and winch at all would be inconsistent with the plaintiff’s version; and

2. her statement that the plaintiff had asked her to go to the controls to move the boat forward is contrary to the evidence of the plaintiff who denied that he sent her up there in order for her to operate the boat. He specifically stated that he did not send her up to operate any controls and he was not relying on her to put the motor into gear and move forward if the boat started drifting. Mrs Farriss says she was up on the flybridge for that very reason hence providing an explanation as to why she happened to be up on the flybridge looking down at the plaintiff at the time. The plaintiff says that this is not so, albeit she may have been on the flybridge. It is impossible to reconcile this evidence.

The evidence of John Thorogood

71. The plaintiff adduced evidence from John Thorogood, a boat owner who was also anchored in Akuna Bay at the time of the plaintiff’s accident.

72. Mrs Farriss called out to him after the accident. He swam across to the Omega and climbed on board. He saw blood covering the gunnel (side of the boat). At the time, Mrs Farriss was on her mobile phone to emergency services. He understood that she had already tried to start the engine without success. He saw that Omega was moving a lot and swinging close to his boat.

73. His partner, Ben, came across. He told Ben to drive the boat while he lifted the anchor. He says that he tried using the electric winch but he could not get it to engage. He could hear the winch motor turning but it wouldn’t engage with the gypsy to bring in the anchor chain.

74. He called out to his partner who came down to help. They both tried to engage the winch’s clutch without success. They then started lifting the anchor manually. However, they were only able to lift it about three kinks. They took it in turns to manually operate the winch and drive the boat forward to remove the load on the chain. After about three turns each, he tried to engage the electric winch by tightening the clutch with the handle. Having done that, the electric winch engaged and lifted the anchor.

75. Mr Thorogood was cross-examined. He agreed that what he meant when he said that the electric winch wouldn’t engage was that although he was pressing on the deck buttons and could hear the motor, the gypsy wasn’t going around. That is, the clutch was not engaging.

76. He then used the handle as a lever to tighten the clutch. He said:

“Q. So you found that, though, the clutch engaged, you activated the up button, and the chain came up, and down into the locker without drama?

A. Yeah, that’s exactly what happened…"

77. The defendants suggest and the experts tended to agree that this means that once the gypsy was tightened, the clutch engaged and the system worked, raising an issue as to why it needed to be tightened at the time. It was put to the plaintiff that he must have disengaged the clutch at some time before the accident.

Daniel Littlepage

78. The plaintiff also relied on a statement from Daniel Littlepage filed on 10 October 2018. Although he was required for cross-examination, he apparently did not or would not attend. After some further discussion and some objections Mr Turnbull withdrew the request for cross-examination. His evidence adds little to the evidence of Mr Thorogood.

Video of the inspection of the boat on 12 March 2015

79. The solicitor for the plaintiff attended an inspection of the boat on 12 March 2015 in company with Mr Geoff Grosskretuz and Mr Mike Bird, a marine captain and marine surveyor. He took photos and videos during the inspection. Mr Axford was on the boat at the time. He demonstrated the way in which the anchor could be released and pulled up. During an attempt to pull up the anchor, the anchor chain kinked. Mr Axford is heard to be explaining that the chain was rusty because the boat had not been used since the accident, as if to explain why the kinking was taking place. This does seem to be somewhat of a coincidence.

The evidence of Mr Axford

80. The defendants relied on a statement of John Axford dated 11 December 2019. Mr Axford provided background material and details of the service and maintenance of the boat as well as the operation of the anchor winch. He provided details of the circumstances surrounding the hire.

81. He attended the boat on being informed of the accident. His evidence bears on the circumstances of the accident only in two respects being:

1. as far as he was concerned the anchor winch and electrical circuitry was working as it should have been prior to the hire; and

2. when he attended after the accident he looked at the winch and saw that the manual winch mechanism was jammed solely in the forward position and the anchor chain could not be moved. There was enormous tension in the system that had jammed the ratchet which made it very difficult to release the clutch. He managed to release the pressure but found there was no power to the winch. He checked the circuit breaker and found that it had tripped. He says that he reset the circuit breaker and the winch operated as normal.

82. Mr Axford was cross-examined extensively on matters relating to negligence and the contract which I will come to later in this judgment. The video of him demonstrating the accident and observing that it had bunched or kinked was also played to him. It was put to him that he had used his fingers to reposition the chain whilst standing over the controls. He agreed but said his feet were well clear of the controls. Someone had said “Watch your fingers”. He was taken to his explanation as to why it was bunching being that it had not been out for a while and was a bit rusty. He agreed that it was obvious that it was bunching up. It was put to him that he had experienced that before the accident. He disagreed.

The evidence of Mr Storaker

83. Mr Storaker’s evidence related mainly to the instructions he provided at the time of hire. He also confirmed the text messages relating to the circuit breaker tripping and providing instructions to the plaintiff as to how to reset it. He says that apart from the incident involving the plaintiff there have been no problems by hirers experiencing anchor winch difficulties on the boat.

84. He says that the boat was hired out again on 2 February 2015 and there were no problems reported by the hirer at that time. He also says that there had been no difficulties or defects of any part of the anchor winch and any hirers since. He says the boat has been chartered about 200 times since the date of the accident.

The expert evidence

85. Both parties relied on expert evidence. The plaintiff relied on reports of Professor David Lyons, a naval architect, dated 13 and 15 November 2018 and 16 December 2020. The defendants relied on an expert report from Dr Robert Casey, a mechanical engineer, dated 8 April 2019.

86. The experts met and prepared a joint expert report dated 2 July 2021. The experts gave concurrent evidence and were questioned on behalf of the parties.

87. The expert evidence was particularly relevant to two issues being:

1. understanding how the accident might have occurred; and

2. whether there were measures, that is modifications to the boat, which might have prevented the accident.

88. Both experts provided helpful explanations as to the componentry and circuitry on the boat, particularly relating to the operation of the winch.

89. I extract from the joint report dated 2 July 2021 a diagram showing the electrical circuitry:

90. There was a difference of opinion between the experts on the slipping of the clutch and the operation of the circuit breaker. Dr Casey explained that the only way to trip the circuit breaker is if the current becomes excessive. The thing that trips the circuit breaker is the gypsy being prevented from rotating.

91. However, in the end, both experts agreed that if the chain kinks and jams and prevents the gypsy from rotating, this will be accompanied by the tripping of the circuit breaker. It seems apparent that this must be what occurred when the circuit breaker tripped at some point before the accident.

92. Thus, one explanation for the problems which the plaintiff was experiencing and his call to Mr Storaker was that the chain was kinking and not flowing smoothly into the deck below. This resulted in the gypsy not rotating properly, the current increasing and the circuit breaker tripping.

93. As the experts explained, one way of stopping the kinking between the gypsy and the spurling pipe leading into the deck would have been to install a chain stripper. This is a tube that extends up between the spurling pipe towards the gypsy. It reduces the amount of free space between the gypsy and the point at which the gypsy shreds the chain down through the chain stripper. Professor Lyons explained that it assists in ensuring the clean passage of the chain from the point it departs the gypsy and travels downwards through the first of the two spurling pipes.

90. As identified by Dr Casey, the next problem that can arise when drawing up the anchor is that the chain can fall off the gypsy altogether. As he explained, when the anchor is drawn up and over the bow roller at the front of the boat, there can be an issue with the shank. As the anchor has been pulled up, the shank sticks up in the air and it can lean to one side or another. If it leans to one side, it can flip the chain off the gypsy altogether. Dr Casey says that this can occur on all boats. It can also occur when chains are being let out as chains will often sway from side to side.

91. The longer the distance between the shank of the anchor to the gypsy can increase the sway and the risk of the chain falling off the gypsy.

92. As both experts explained, there are two switches that can be operated to bring the anchor up or allow it to go down. There is a switch at the helm which gives the operator at the helm the ability to interrupt anchor raising and lowering. There are then the deck switches which are buttons next to or to the right of the winch.

93. As set out in the electrical circuitry plan above, there are two wires which go from the helm switch and the winch motor. There is a third wire travelling from the deck switch which switches back to the battery.

94. In order for the winch motor to operate, that is, to cause the anchor chain to be pulled up, there needs to be electricity coming from the battery. Each of the start relay, the circuit breaker and the helm switch must be closed. Further, one of the black buttons on the deck must be closed. Those buttons are spring operated. A person needs to press down on the button to keep the connection closed. Once the pressure is taken off the button it will spring back and open up thereby preventing the current from flowing.

95. Put simply, the winch motor does not operate unless someone is applying pressure to one of the two switches on the deck (assuming the switch at the helm remains closed).

96. Further, the deck buttons work in a simple on/off way. Pressing the button slightly does not control the speed at which the chain might be pulled up and through the gypsy.

97. There is no suggestion that anyone had touched the helm switch. Thus, according to the experts, if the circuity and motor is operating properly, the current could not flow and the winch motor would not operate such that there could be no power to enable the anchor to be pulled up unless a deck button was activated.

98. That really leaves only two alternatives being either that there was some form of defect or malfunction in the componentry and the circuit or someone depressed the foot switch on the deck causing the circuit to close.

99. Both Professor Lyons and Dr Casey carried out an inspection of the electrical circuitry and found no evidence of any electrical malfunction. Further, Dr Casey carried out an inspection of the clutch and found no evidence of damage to the clutch. As Dr Casey said, if the clutch was not operating properly, the gypsy would not rotate. Further, if the clutch is disengaged and the anchor is pushed over the front of the boat, then the anchor would just run out, there being nothing to prevent its flow. This is what Professor Lyons said happened having regard to his instructions that the accident happened when the plaintiff was letting the anchor out.

100. In the end, the effect of the oral evidence from both Professor Lyons and Dr Casey was that because of the electrical circuitry the winch motor could only have commenced to operate and cause the anchor chain to be pulled through the gypsy if the deck switch was in the closed position. It could only be closed through someone depressing the button on the deck.

101. During the joint evidence I asked Professor Lyons and Dr Casey to provide an explanation for what caused the chain to move, having regard to what I understood to be the plaintiff’s version of events in his oral evidence (that is, that he was on the left side of the gypsy and did not depress the deck button and his hand was pulled into the gypsy from in front of it rather than pulled into it from below it). They gave the following answers:

“WITNESS LYONS: I - if - if the chain is coming in, I cannot explain that.

HIS HONOUR: Dr Casey?

WITNESS CASEY: I agree with what Professor Lyons just said.”

Conclusion as to circumstances of the accident

106. The plaintiff’s attempt at “clarification” of his statement was in direct response to the suggestion that he had trod on the deck button immediately before the chain moved. His clarification must have been intended to make three things clear being:

1. immediately before his left hand was pulled into the gypsy he was holding onto the chain with his left hand at a point after the chain had gone over the gypsy, that is, between the point where it goes below the deck and the gypsy;

2. he was standing on the left side of the gypsy and thus there was no possibility that he could have activated the winch by standing on either the up or down buttons; and

3. as his left hand was between the deck and the winch, it must have been pulled into the winch by reason of the chain mechanism operating to lower the anchor.

107. Whilst the plaintiff describes his affidavit as a clarification, at least in respect of the position of his left hand and the movement of the chain, it seems to me that it was rather more of a change than a clarification.

108. True it is that the plaintiff did not identify precisely where he was standing immediately before his hand was caught in the winch in his first evidentiary statement but nor did he state that he had moved from the right side to the left side immediately before the accident.

109. He specifically identifies in his affidavit why he felt it necessary to clarify his first statement. In para [34] he refers to a Notice to Admit Facts which had been served upon him by the defendants. The defendants asked the plaintiff to admit that the chain on the anchor winch commenced operating because the plaintiff pressed or stepped on one of the two foot switch pedals. In para [35] the plaintiff denies that allegation, maintaining that he was on the left side of the boat at the time.

110. Further, in para [38], he refers to being shown documents produced under subpoena by the New South Wales Ambulance which had been served by the defendants. He refers to the case description in the ambulance notes as follows:

“57 yo Tim was operating an electric anchor winch at the time of his injury. The winch stopped functioning due to the chain getting tangled. When he tried to untangle the chain manually his foot accidentally touched the switch which operates the winch and his left hand got caught in the chain. He sustained severe injuries to several fingers in the process.”

111. In para [40] he denies that he was operating the winch at the time and says that it is not true that his foot accidentally touched the switch which operated the winch.

112. It seems obvious that if he had been standing on the left side of the winch immediately prior to his accident then he could not have trod on either of the switches on the deck which are on the right side of the winch. He says he moved to the left side quite consciously to avoid the deck buttons.

113. Perhaps as already highlighted there are a number of problems with the plaintiff’s evidence as to what he was doing in the moments before the accident. They include:

1. he has provided differing versions;

2. his attempt at clarification caused more problems than it solved as he admitted in oral evidence that aspects of the affidavit were simply wrong;

3. his suggestions of memory changes explaining the inconsistencies in his evidence is difficult to accept;

4. despite his denials it must have been easier to reach the chain from the right side of the winch. In a sense this was proved by the fact that even on his version he had been unkinking the chain from the right side up to the time immediately before the accident that he says he moved to the left; and

5. if, as he states, his concern was to avoid activating the deck buttons whilst he handled the chain, he could have closed the caps on the buttons. This would have been the obvious thing to do rather than move to a position which necessarily made it more difficult to adjust the chain manually. Even if he stood on a button with the cap on, it would not activate. His response to this suggestion was vague and difficult to accept.

114. It may be that the assertion from the defendants (by way of service of their evidence and the Notice to Admit Facts) came as a surprise to him. He may have firmly believed that he was not standing on the right side and could not have therefore trod on the deck buttons.

115. Yet it must also be said that his evidence goes one step further than merely saying that he did not believe that he was standing on the right side. On his evidence he made a decision to move to the left and reach over from the left side to avoid standing on the deck button. Again, it may be puzzling why he decided to do that at some stage, having seemingly been standing on the right side in the vicinity of the deck button and operating the deck button prior thereto.

116. Having said that, he certainly received support from Mrs Farriss in terms of where he was standing at the time. She said that his positioning was burned into her brain, although she seemingly had no clear recollection of other parts in the sequence of events that led to the accident. Further, on her version, she was up on the flybridge waiting for instructions from the plaintiff to move the boat. The plaintiff specifically denied he ever would or did ask her to do that, which creates a doubt as to what she was doing on the flybridge.

117. I am thus left with a version of events presented by the plaintiff and his wife which contains inconsistencies and changes. I would not necessarily give the account recorded in the ambulance notes much weight as neither ambulance officer was called and the plaintiff specifically denied that he told the ambulance officers that which is recorded. However, the notes are in evidence.

118. Further, and most significantly, neither expert was able to offer an explanation as to how the power could have operated to cause the chain to move in the moments before the accident having regard to the plaintiff’s version of events, that is, if he did not tread on the up button. Professor Lyons had based his written opinion on the assumption that the chain was going out at the time of the accident. The plaintiff expressly disavowed this in cross-examination.

119. There has been a thorough investigation and examination of all the possibilities by both experts. No-one suggested that there could be some explanation that both experts had not considered.

120. For all these reasons, I consider that, at the very least, the plaintiff must be mistaken. The obvious explanation is that he trod on the up button and that caused the chain to move inwards, just as he had a hold of the chain with his left hand in front of the gypsy. His left hand must have been pulled into the gypsy with his fingers being jammed, so as to cause severe lacerations to his fingers. This happened because he trod on the up button rather than any defect in the electrical circuitry.

Was the accident caused by a failure of the defendants to take reasonable care?

The plaintiff’s case

121. The plaintiff pursues causes of action both in negligence and pursuant to the ACL. The parties agree that, subject to my consideration of s 64 of the ACL, it is not necessary to consider the claims under the ACL.

122. The defendants accept that they owed a duty of care to the plaintiff. All duties of care, no matter what their scope or origin, may be discharged by the exercise of reasonable care. ^[1] The first and second defendants were the owners of the boat. The third defendant hired the boat to the plaintiff on their behalf. The scope of the duties of care owed by the defendants may be different but it is not necessary to say anything further about this at this point.

     1. Roads and Traffic Authority of New South Wales v Dederer and Another (2007) 234 CLR 330; [2007] HCA 42 at [43] (Gummow J).

123. The question is whether they were in breach of any duty of care. The particulars of negligence (as set out in para [9] of the Amended Statement of Claim) are many and varied and are essentially identical against the first, second and third defendants, albeit that the scope of the third defendant’s duty of care could not be the same as the first and second defendants as owners of the boat.

124. It is not necessary that I set out each of the many particulars of negligence contained in the Amended Statement of Claim but they may be summarised as follows:

1. a failure to instruct the plaintiff in the proper operation of the anchor system and the boat;

2. a failure to warn the plaintiff of the anchor’s propensity to fail and problems and defects with the anchor system;

3. failing to maintain a working anchor chain and gypsy;

4. failing to repair and replace defective parts such as the corroded anchor chain;

5. failing to redesign the anchor windlass system to use hand controls instead of foot controls;

6. failing to redesign and install components of the system including installing a chain stripper before and after the gypsy, said to be in accordance with the manufacturer’s guidelines, and installing a spurling pipe in compliance with manufacturer’s guidelines;

7. failing to place a guard over the windlass so that the fingers could not become trapped;

8. failing to provide proper signage;

9. failing to ensure that the vessel met survey and was seaworthy;

10. failing to ensure that the operator of the vessel had a proper and sufficient knowledge and understanding of the operation of the boat; and

11. failing to attend upon the vessel in person, so as to provide assistance to the operator, i.e. the plaintiff, before the accident.

125. In his closing submissions the plaintiff emphasised that on his case, the windlass was not installed correctly and was idiosyncratic. There was misalignment coupled with a rusted chain. This rendered the chain more likely to jam and kink behind the gypsy. As it turned out the experts did not agree that any rust on the chain would have made any real difference to the propensity to kink or jam.

126. The plaintiff says that one of the precautions which would have prevented the plaintiff’s accident was taken in August 2015. The plaintiff emphasises that having regard to the evidence of the first defendant, little experience was needed to hire the boat and particularly in those circumstances, the risk of an accident occurring involving the anchor chain was foreseeable and not insignificant.

127. The plaintiff submits that the first defendant ought to have known of the problem with the anchor winch (being a propensity to jam) and taken steps to prevent a jam occurring. The plaintiff submits that the installation of a modified spurling pipe and chain stripper would have prevented the accident occurring.

128. Other than that, the first defendant should have ensured that the third defendant was aware of the problem and instructed a hirer such as the plaintiff by way of appropriate induction and warning. It was up to the third defendant to understand the hidden dangers and idiosyncrasies of the boat and inform a hirer such as the plaintiff of these hidden dangers.

129. Further, the plaintiff maintained that the third defendant breached its duty by failing to adequately respond to his request for assistance and ensure that the plaintiff knew how to adequately handle the situation.

130. In the end, leaving aside the failure to attend allegation (which I reject as entirely unreasonable), the plaintiff’s case remained:

1. a failure to instruct, warn, inform, and induct as to the features of the boat including risks and dangers associated with the anchor system; and

2. a failure to repair, maintain, replace or redesign components of the system such that the risk which eventuated would not eventuate.

131. Having said that, I reiterate that in circumstances in which the plaintiff ended up adopting a version of events different to that which he had opened on and which his expert had assumed, some of the particulars of negligence must necessarily fall away.

The defendants’ position

132. As set out in their defences, the defendants rely on a number of statutory defences including ss 5G, 5L, 5M and 5N of the Civil Liability Act 2002 (NSW) (“CLA”).

133. Further, the defendants relied on a contractual indemnity said to be contained in clause 11 of the charter contract.

134. In the end, the defendants’ primary contention was that they were not negligent.

135. The defendants withdrew reliance on the dangerous recreational activity provisions. Having regard to s 64 ACL, if the plaintiff is otherwise successful, the defendants would not be entitled to rely on the exclusion of liability contained in the contract.

Risk of harm

136. In a negligence action, it is only by the correct identification of the risk that the Court can assess what a reasonable response to the risk would be. ^[2] This is given statutory force in the CLA.

     2. Roads and Traffic Authority of New South Wales v Dederer and Another (2007) 234 CLR 330; [2007] HCA 42 at [59] (Gummow J).

137. Only once the risk of harm has been properly identified can the Court consider whether the risk was foreseeable, not insignificant and whether a reasonable person would have taken the precautions suggested: see Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council; ^[3] Port Macquarie Hastings Council v Mooney. ^[4]

     3. (2015) 91 NSWLR 752; [2015] NSWCA 320 at [102] (per Leeming JA, Basten and Simpson JJA agreeing).

     4. [2014] NSWCA 156 at [52] (per Sackville AJA, Emmett JA and Simspon J agreeing).

138. In Coles Supermarkets Australia Pty Ltd v Bridge ^[5] , Leeming and Payne JJA observed “[w]hat is to be avoided is an unduly narrow formulation of risk of harm which then distorts the reasoning, because, for example, it obscures the true source of potential injury … or because it too narrowly focusses on the particular hazard which caused the injury … or because it fails to capture part of the plaintiff’s case...”.

     5. [2018] NSWCA 183 at [22].

139. In Perisher Blue Pty Ltd v Nair-Smith ^[6] the Court held that it was generally unnecessary and undesirable to define the relevant risk with too much particularity but particularity can be called for in some circumstances, as without particularity, one cannot determine what, if any, reasonable precautions ought to have been taken, in order to avoid the risk.

     6. (2015) 90 NSWLR 1; [2015] NSWCA 90 at [106] (Barrett and Gleeson JJA, Tobias AJA).

140. In para [7] of the Amended Statement of Claim the plaintiff identifies the risk of harm being that:

“that a person, such as the First Plaintiff, might trap their hand in the unguarded windlass while attempting to free the anchor chain that kinked, jammed or bunched as becoming an actuality.”

141. At the commencement of the hearing the parties agreed that this was the correct formulation of the risk of harm.

142. In their closing submissions, the defendants suggested that having regard to the actual evidence, the risk of harm was not correctly identified at the outset of the hearing.

143. The defendants say that the risk of harm was that he might injure his hand by holding onto the chain and stepping on the deck button. The defendants say it is the stepping on the button that caused the materialisation of the harm. In a sense the different descriptions of the risk of harm merely identify the primary issue between the parties.

144. On the plaintiff’s description of the risk of harm, categorisation must include the fact that on his case, the anchor chain was rusted and it kinked, jammed or bunched. The defendants include as the critical factor in assessing the risk of harm that the plaintiff trod on the deck button.

145. In my view, the risk of harm should not be defined with too much particularity. As is often the case, it suits the defendants to identify the risk with as much particularity as possible. The plaintiff suggests a broader characterisation that must necessarily encompass a range of circumstances. One of the circumstances which the plaintiff’s broader description must necessarily include is the risk arising from inadvertence on the part of the plaintiff, such as by inadvertently operating the deck switch.

288. The findings I thus make in assessing the plaintiff’s claim for past loss of income are thus that:

1. the band would have engaged in a large comeback tour and at least one other small tour between 2015 and 2021; and

2. the earnings from the large comeback tour would be closer to the earnings in 2006 and 2007 and the earnings from the smaller tour might be closer to the amounts earned in 2011 and 2012. I have regard to the possible uplift which might arise from a resurgence in interest, as well as the chance that whoever the new lead singer may have been, he or she may not have been popular (that is more the 2012 experience than the 2006 and 2007 experience).

312. At its highest, the evidence is that the band would have embarked on one more farewell tour which is what the plaintiff says in his statement.

313. I assess loss on the basis that:

1. for the large scale tour: $200,000;

2. the sum of $80,000 in respect of the small tour which is more reflective of the earnings made from the tours in 2011 and 2012; and

3. similarly for the large farewell tour in the future (which I expect would have taken place before 2025), I expect that there would have been the potential to earn the same amount that might have been earned in 2017. However, of course, many things might have happened in the intervening period, one being a pandemic. In the end, it seems to be that a 30% discount is again appropriate and there is no need to further discount on account of contingencies. That means I would allow $200,000 for the future.

314. I emphasise that the plaintiff’s share of any profit from any touring that INXS might have undertaken was only ever approximately 1/5^th of the net profit and in the future would only have ever been 1/5^th of the net profit. The most that the plaintiff has ever earned from any tour since the death of Michael Hutchence was $316,000 gross and that was earned in 2006/2007 on the back of a television series and a large scale tour.

315. These sums must be converted into after tax figures.

316. There is an issue between the experts as to what rate of tax should be applied to these figures. Any award for loss of earning capacity must be on a net basis. Mr Gronsbell-Luntz says that as the plaintiff would have structured his affairs such that the income from touring would be received through a trust structure, then any compensation should be awarded on the basis of a more favourable tax rate.

317. He suggests a figure of 30%.

318. Mr Kahler refers to the fact that the plaintiff continued to receive income from other sources even when not touring in the period 2013-2015 and that the income he might have received from any tours but for the accident would need to be added to that income such that the more preferable tax rate for income received from a trust could not be applied to the allowance for loss of earning capacity.

319. Unlike in cases such as Husher v Husher the plaintiff has both prior to and since the accident continued to receive an income from a number of sources. As such whilst he might have received income from touring through a trust, that was not the only income he would have received. It is artificial to simply assume the lowest tax rate in those circumstances.

320. In my view, the award of damages should reflect the normal tax rates on the gross sums lost by the plaintiff:

1. For the large scale tour, this amounts to $137,000 net;

2. For the small scale tour, this amounts to $62,000 net; and

3. For the future tour, this amounts to $139,000 net.

321. As such, converting the gross loss into a net loss leaves the sum of $199,000 for the past and $139,000 for the future.

322. Finally the plaintiff claims a loss on account of his inability to write songs. I suppose that there was always a possibility that a creative person such as the plaintiff might have written a marketable song but, with respect to the plaintiff, I must have regard to the past and the evidence does not support this aspect of his claim. I acknowledge that he has written songs in the past but that was quite some time ago.

Cost of replacement labour

323. Montana makes a claim for the cost of replacement labour on the plaintiff’s farm. According to the plaintiff he would visit the farm on a number of days over a fortnight and perform some work whilst he was there. As I understand the position, the farm has a manager and the regular work required would be undertaken through the manager and the other persons obtained by the manager. However, the plaintiff says he used to go there and do things whilst he was there and it would now be necessary for Montana to hire someone else to perform the work that he might have performed.

324. The problem with this claim is that he does not adduce evidence of any amounts actually spent by Montana in replacement labour. For example, he does not produce invoices for farm workers that needed to do the work that he would have done. Further, it could not be said that he is restricted from undertaking any type of work on the farm.

325. It is difficult to discern any direct loss suffered by Montana having regard to the company’s financial statements. It does not seem to me that I should award damages based on some generalised approximation of hours and value by the plaintiff. The plaintiff might have adduced specific evidence as to when the replacement labour was hired and at what cost. The plaintiff did not do so but he has thus not discharged his evidentiary onus on this issue.

Claim for loss of increased royalties

326. Montana makes a claim on the basis that if not for the plaintiff’s accident, royalties would have increased over time having regard to a likely increase in interest in INXS generated by further touring. Again, it is important to emphasise that the claims for loss are all related to the proposition that INXS would have continued to tour and would have been successful in their tours. The plaintiff admits that it is not possible to be precise as to the increase in royalties but simply says an allowance of $250,000 should be made.

327. I have regard to the evidence of Mr Gronsbell-Luntz as to how musicians now earn an income from streaming services and the potential increase in hits on songs which might derive from increased interest in publicity about a band. It is notable that there have been some TV shows about INXS in recent times. Again, I accept Mr Gronsbell-Luntz’s evidence about renewed interest in bands such as INXS but assessing damages is not supposed to be an exercise in speculation. Even awarding a lump sum buffer on the basis that precise calculation of weekly losses is not possible requires some foundation for the sum allowed.

328. The difficulty in the plaintiff’s industry is that there is really no way of predicting how many hits on Spotify or other streaming services might be generated by an increased interest through touring. Yet it must be that a comeback tour such as that proposed by the plaintiff which might have taken place in 2017 would necessarily result in increased “sales” or “hits” (that is from the streaming services).

329. Adopting a mid-range based on Mr Gronsbell-Luntz’s research a band or musician might receive $5,000 per 1 million hits. The plaintiff was only one member of the band and according to his own expert accountant he received 1/6^th of recording royalties and a 10% share of publishing royalties.

330. In his own evidentiary statement, the plaintiff says that he mostly received a 7.14% share of the publishing rights to most INXS songs.

331. Even on the plaintiff’s estimate, a loss of $250,000 would equate to a loss of over $3.5 million in total. This is said to be the loss of additional royalties which would have been derived from the tours in 2017 and in the future.

332. At $5,000 per million hits it would follow that I would have to find that but for the accident and as a direct result of the INXS touring at the times I have suggested there would have been an extra 700 million hits on Spotify or other services. This only needs to be said to be rejected. The only figure I have by comparison is Mr Gronsbell-Luntz’s reference to Queen following the release of Bohemian Rhapsody.

333. Yet I am satisfied having regard to the evidence that there would have been some increase. Bearing in mind that Montana would have only received a portion of the income and that I am only awarding damages for the increase in royalties as a result of touring I allow the sum of $40,000.

334. The only other amounts to be awarded are for past and future treatment and care. I was informed that the parties had agreed on the sum of $55,000.

335. Should the first plaintiff have succeeded, damages would have been awarded as follows:

Head of Damages	Amount
Non-Economic Loss	$229,000
Past Economic Loss	$199,000
Future Economic Loss	$139,000
Past and future treatment and care	$55,000
Total	$622,000

336. Montana would have received the sum of $40,000.

Orders

337. The plaintiff has not succeeded. I enter a judgment for the defendants.

338. I order the plaintiffs to pay the defendants’ costs. I grant liberty to apply should any other costs order be sought.

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Endnotes

Decision last updated: 28 January 2022