Mandic v Nautilus Marine Services Pty Ltd

[2016] QDC 2

DISTRICT COURT OF QUEENSLAND

CITATION:

Mandic v Nautilus Marine Services Pty Ltd [2016] QDC 2

PARTIES:

ANTHONY MANDIC

Applicant

V

NAUTILUS MARINE SERVICES PTY LTD

Defendant

FILE NO:

No. 382 of 2011

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

15 January 2016

DELIVERED AT:

Southport

HEARING DATES:

30 November, 1, 2 and 3 December 2015

JUDGE:

Judge C F Wall QC

ORDER:

Judgment for the plaintiff against the defendant for $227,602.37 plus costs to be assessed on the standard basis unless agreed.

CATCHWORDS:

NEGLIGENCE – BREACH OF DUTY – work performed on sea strainer of plaintiff’s vessel – vessel later sank due to sea strainer cap lifting – whether defendant negligent in failing to properly secure sea strainer cap.

CASES:

Holloway v McFeeters (1956) 94 CLR 470
Richard Evans v Astley [1911] AC 674
Cofield v Waterloo Case Co. Ltd (1924) 34 CLR 363

Davis v Bunn (1936) 56 CLR 246

COUNSEL:

Mr G. Coveney for the Plaintiff

Mr P. Woods for the Defendant

SOLICITORS:

HWL Ebsworth Lawyers for the Plaintiff

Minter Ellison for the Defendant

Introduction

1. Lisa May sank at its mooring at Hope Island Resort Marina (HIRM) very quickly in the early hours of 4 November 2010 between about 5 and 6.30am.  The plaintiff says this was because the defendant didn’t properly secure the aft port sea strainer cap after working on the strainer and was for that reason negligent and in breach of its contract to carry out the work with reasonable professional care, skill and diligence.  The aft port sea strainer is exhibit 2.  Quantum is agreed at $227,602.37.

Preliminary findings

1. Because of their relevance to the determination of liability I should first record some preliminary findings.

1. Chris Egan of Gold Coast City Marina (GCCM) on behalf of the plaintiff, requested the defendant, through its director John Billett, to inspect and clean the boat’s sea strainers, check valves and check for engine corrosion after GCCM had carried out anti-fouling on the boat.  The plaintiff says someone from the defendant rang him (after being contacted by GCCM) and he arranged the work during this phone call.   Egan can’t remember and my impression was that Mr Billett had a better memory of events than the plaintiff.

1. The work on the boat was probably not the first job on 28 October 2010 for the defendant’s employees, Geoff Morris and Martin Appenzeller, by reference to the time Mr Billett rang the plaintiff, 11.17am (from phone records). Morris and Appenzeller are probably mistaken about this being their first job for the day.  The job sheet requested they attend to the work “Thursday morning please” not that it be their first job for that day.  This was not a big job.[1]

   [1] The total cost was $126.50 (Invoice)

1. The batteries on the boat were flat when Morris and Appenzeller arrived to start work.  Morris, a mechanic then with 10 years experience working on recreational vessels, and Appenzeller an electrical engineer who had then worked for the defendant for about 9 years were well qualified to reach this conclusion.  Morris said after lifting the engine covers he saw about 6ʺ of water in the bilge (not unusual and probably rainwater) and tripped the bilge switches to pump it out but nothing happened; there was no power on the boat.  Appenzeller said nothing worked.  He tested the batteries with a multimeter which measures voltage.  The reading indicated there was no charge left in the batteries.  He then went and got two torches so they could see what they were doing.  The plaintiff said the batteries were not flat but I have no reason to doubt the defendant’s employees.  In my view the plaintiff was mistaken or they may not have been flat when he last used the boat and since then became flat. 

1. Morris telephoned Billett to tell him there was no power on the boat.  As a result Billett rang the plaintiff – at 11.17am.   He rang the plaintiff because he never liked to put a boat back in the water without power. In the meantime Morris and Appenzeller continued with the job.  Morris worked on the aft sea strainers and Appenzeller on the forward strainers.

1. I accept Billett’s version of the phone call; it is entirely consistent with the evidence of Morris and Appenzeller.  He told the plaintiff there was an issue with the power on the boat, the batteries were dead flat and the bilge pumps wouldn’t work and asked if he wanted the defendant to fix the problem.  The plaintiff denies such a conversation saying that all Billett said was the work was all done but the batteries were a little bit low on charge or the battery level was a little bit low and the batteries needed to be charged.  Absent the phone call from Morris, I can discern no reason why Billett would have phoned the plaintiff just to tell him the batteries were low.  Billett said the plaintiff said he was aware of the problem, that there’d been no power on the boat for some time and he would take care of it himself.  This made no sense to Billett; the batteries needed to be removed from the boat and placed on the defendant’s charger in order to recharge them and it made sense to do this while the boat was at the defendant’s premises.  The batteries would not be recharged simply by connecting the boat to shore power; they were too far gone for that and for that reason also the boat’s chargers wouldn’t charge the batteries.  Billett couldn’t understand having the boat towed back to its mooring not fully repaired.

1. Billett’s evidence about the charging of the batteries was supported by Andrew Unwin who has expertise and experience with marine battery charging devices and also by Anthony Hearder, a marine surveyor.  If Appenzeller’s evidence is correct (and I have found it is) the boat’s battery chargers wouldn’t work and shore power would make no difference.  Below 9.3v the charger wouldn’t recognise the batteries even if only one battery was below 9.3v.  Without power the bilge pumps wouldn’t work.  

1. Even though the plaintiff said the boat was in immaculate condition, Peter Crompton, who was on the boat assisting Chris Egan to tow it to and from GCCM, thought it appeared a little bit neglected; zipped covers had shrunk and a couple of press studs were missing.  This is consistent with its limited use by the plaintiff who lives in Sydney.  He last used the boat 3 – 5 weeks earlier and only used it 3 or 4 times a year.  Accepting that the power was then working and there was no trouble with the batteries, it clearly wasn’t by 28 October 2010.  Photos show some marine growth on the propellers consistent with the boat not being regularly used.

1. The evidence of Morris and Appenzeller as to the absence of power is supported by Hearder’s evidence that examination of the battery terminals after the boat was raised, revealed they were clean indicating the batteries were flat (out of charge) at the time the boat sank.  All 3 batteries appeared to be flat and could have been so for a considerable time before submersion.

1. Had the bilge pumps been working between 29 October and 4 November one would hear them operating and see water being discharged.  Cindy Snyder, an administrative assistant at HIRM lived on a boat in the marina and walked past Lisa May at least twice a day.  Nothing about the boat caused her concern before she saw it sinking.  John Keane lived on his houseboat which was moored stern to stern with Lisa May.  Before it sank nothing about it caused him any concern.  He didn’t hear a bilge pump operating or observe water being discharged from the bilge outlets, nor did he see the boat sitting low in the water. 

1. The absence of any notation on the job sheet or invoice as to absence of power is explained by the phone call by Morris to Billett and Billett to the plaintiff.

1. The failure to tell Crompton about the absence of power is probably because Billett said he told Egan or Crompton; it was probably Egan and he forgot to tell Crompton.  Egan has little memory of events.

1. On returning the boat to HIRM Crompton checked the engine bay; nothing appeared to be amiss; there was nothing in the dynamic and stability of the boat to indicate the ingress of water.  The boat was re-moored at HIRM on 29 October 2010.

1. Richard Maxwell, experienced in such matters, salvaged the boat.  Airbags were attached and the boat raised, but water was still getting in through the aft port sea strainer; it was gushing through.  This suggests there may have been upward water pressure on the underside of the lid (or cap) when it was closed and apparently sealed.[2]  He could see this when he put a mask on and put his head under water.  The sea strainer cap/lid was completely off in approximately the position where it is now on exhibit 2.  The cap has two arms, one fixed and one non-fixed or moveable; the moveable arm was not attached to the lid.  Each arm has a wingnut which has to be screwed down to seal the cap.  He tried to close the lid but the moveable arm appeared “a bit tight” and he wasn’t able to push down on the lid and secure the lid in place; the wing nut appeared to be screwed down too tightly on the arm but he could not see properly because the water was murky and he couldn’t get close enough to see exactly “what was going on”.  He took a breath, went down again and loosened/unwound the wing nut[3] and was then able to attach the arm to the lid and close the lid, but only after removing the strainer basket which seemed to be preventing him from closing the lid.  This suggests the basket may not have been correctly located on the pin situated on the floor of the strainer.  Once he “got rid of” the basket the lid closed. 

   [2] Hearder said the water leak on an improperly sealed cap was “quite vigorous”

   [3] He could only guess as to how tight or how much he had to unwind the wing nut

1. Exhibit 2 has seen quite a few years of work (Hearder).

The evidence of Morris

1. He undid the wing nuts, took the baskets out, washed them, put them back and put the caps back.

1. He initially denied exhibit 2 was the strainer he worked on, said it was different, the one he worked on was skinnier.  This meant that demonstrations by him using exhibit 2 may have been of limited value.  Later in his evidence when shown photos of the sea strainer in position in the boat he said “I don’t know, it’s quite possible that’s the same strainer”.  His confusion may be because the forward strainers are smaller than the aft strainers.

1. He said if the basket wasn’t properly located on the bottom you can’t get the lid on but Mr Hearder demonstrated that you could.  He later said he didn’t think the lid could be closed because “it’ll squash” the handle of the basket, but in fact it could be closed on an improperly located basket.

1. He had no difficulty doing up the cap.  He satisfied himself it was watertight because he “reckoned it was tight enough” and the lid appeared to be closed properly, “I wasn’t sure but it appeared to be closed properly”.  He was extra careful to make sure it was closed properly.

1. After he finished he looked to see what Appenzeller had done and he “only looked were I had been”.  Appenzeller said a little more.  He said he put his hand on top of the aft strainers and “gave them a little wobble” to make sure the pads on the hull were in good condition and the strainer “wasn’t wobbling around”.  He checked both nuts and sprayed lanolin.  He “tested” the caps, “inspected” them and said they were closed properly.  It was, he conceded in re-examination, more of a visual check and checking the tightness of the wingnuts.  I think he was primarily concerned with the stability of the strainers and his was a cursory and relatively casual inspection of anything else.  A visual inspection of the cap from above may indicate at best that it appeared closed and the fact that the wingnuts appeared to be tightened doesn’t necessarily mean they were evenly tightened or that the basket was correctly located.  Realistically he would not have been able to ensure that the cap was properly sealed by doing what he did and I doubt that he in fact did more than check the stability of the strainer.  Morris was more experienced and I don’t think Appenzeller felt he needed to check his work.  I am not satisfied that he did, nor am I satisfied that he checked the wingnuts for their tightness, but if he did that wouldn’t necessarily indicate a proper seal.

1. Morris said he had cleaned sea strainers hundreds of times.  Appenzeller said he had done so countless times.  I think this familiarity likely resulted in some carelessness and lack of attention to detail.

1. I found Mr Morris to be quite defensive and I don’t think it was just because his professionalism was called into question, rather it was because he knew he may have been less than careful and attentive when he closed the cap.  I think the likelihood is that he didn’t close it properly one way or another.  It was for him a relatively straight-forward and simple task and I don’t think he adverted to the possible consequences should he not do it properly.  I think his protestation of extra carefulness was made with the benefit of hindsight as was Appenzeller’s evidence about checking his work.

Mistakes can be made – Hearder

1. Hearder is familiar with this type of strainer and its operation.

1. The aft sea strainers are not particularly easy to access.  The strainer can’t be examined closely by eye and it is difficult to ensure the cap is sitting correctly by feel.

1. When closing the cap he felt it was in the correct position but it wasn’t.  He thought the reason may have been because the basket wasn’t fitted properly or he had inadvertently tightened one side too much or a combination of both, he is not sure as he could have fitted the basket properly and tightened the wingnuts unequally.

1. The correct or required pressure must be applied when closing the cap.  Ensuring the cap is sitting correctly by feel is difficult.  A strainer can be incorrectly closed.  Failure to balance the tightening of each wingnut by using one hand on each at the same time may result in an inadequate seal.

1. From above the strainer it is difficult to see if the basket is located properly; one may notice if it was not fitted correctly if familiar with the particular strainer, otherwise not (Morris had not worked on exhibit 2 before).

Likely cause of the cap failing

1. Maxwell observed the moveable arm was not attached to the lid and the wingnut was too tight for him to be able to attach the arm to the lid.  He had to unwind the wingnut to allow him to attach the arm and close the lid.  The wingnut may have been overtight because the cap had been forced down because the basket was not properly located.

1. The evidence establishes that if the cap was not properly secured water could enter and cause the boat to sink and the defendant knew this.  The risk of this happening was higher if the vessel had no power (as was known by the defendant to be the case here) meaning the bilge pumps would not work.

1. In all likelihood the cap sprung open because it had not been properly secured by Morris.  The inability to precisely determine how it sprung open is no bar to a finding that it was not closed properly in the first place.[4]  What was done by Morris lasted for some time and then failed.  This may have been because both arms may not have been screwed properly (Hearder); a combination of not locating the basket properly and tightening one arm too much (Hearder, Maxwell); screwing a wing nut too tightly (Hearder); tightening the wingnuts unequally; incorrect loading on the screws causing an imbalance (Hearder); not balancing the tightening of each arm by tightening each at the same time using one hand on each; incorrect balancing of each arm (Hearder) or not locating the basket correctly (Hearder).

   [4] See Holloway v McFeeters (1956) 94 CLR 470 at 477 (Dixon CJ, diss. as to the result but not as to the principles); Richard Evans v Astley [1911] AC 674 at 678

1. If the basket was not located properly on the pin and the lid was over-tightened and/or tightened unevenly making a seal and then the basket later clicked into place and correctly seated itself each arm would then go loose.  This could explain how the moveable arm fell away.  Mr Hearder didn’t say how lose but as I understood him, he was giving an explanation of what could have gone wrong, what could have caused the cap to spring open and the inference contended for  by the plaintiff is clearly open (Hearder).  Water pressure could then spring the cap open. 

1. The estimated flow rate of water through an open strainer would result in the boat sinking in under 4 hours with an inoperative bilge pump, longer if the cap was only marginally open/slightly ajar at first (Barrett).

1. It is difficult to say with certainty what caused the cap to open but I am satisfied it was due to negligence on the part of Morris, for which the defendant is responsible, in not refitting/securing the cap properly.

1. In my view the likelihood of this being the cause is much greater than third party interference or sabotage as suggested by the defendant.[5]  Clearly someone could have accessed the boat but there is no evidence anyone did and undid the strainer cap.  The suggestion that someone did is speculative at best and based on little evidence of significance, a loose unzipped clear cover and relatively easy access to the marina finger and the boat.  I agree with Mr Coveney that on the basis of Maxwell’s observations the saboteur would have to untighten the wingnut, open the cap and then re-tighten the wingnut.  It is more likely that the wingnut was overtightened in the first place. An inability to be definitive about precisely how the cap lifted in circumstances where it was not closed properly in the first place is no reason to jump to a conclusion of external interference.  The cap was obviously properly sealed before the defendant worked on it.  Shortly after that work it failed and the boat sank. 

   [5] See e.g. Cofield v Waterloo Case Co. Ltd (1924) 34 CLR 363 at 375; Davis v Bunn (1936) 56 CLR 246 at 260-2

1. The failure of the cap to remain in a sealed state caused water to enter the boat and caused it to sink.  This is effectively what is alleged in para 7 of the Statement of Claim.  The vessel may have progressively taken on some water commencing sometime between 29 October and 4 November prior to the cap opening after which much water quickly gushed in or the cap may have remained sealed until it failed early on 4 November causing water to then quickly gush in.

1. The inability of the plaintiff to prove that the batteries were not flat and the bilge pumps were working is not fatal to his case.

Result

1. The plaintiff has established his case in negligence and contract.  The defendant did not dispute that there was an implied term of the contract that it would perform the work under the contract with due care and skill and owed a duty of care to the plaintiff to perform the work under the contract with reasonable professional care, skill and diligence.  As a result of failing to properly refit the cap to the vessel’s port engine sea strainer upon completion of the work, the defendant breached the contract and the duty of care it owed to the plaintiff. 

1. I give judgment for the plaintiff against the defendant for $227,602.37 plus costs to be assessed on the standard basis unless agreed.