Merrin v Cairns Port Authority - [2006] QDC 102

DISTRICT COURT OF QUEENSLAND

CITATION:

Merrin v Cairns Port Authority [2006] QDC 102

PARTIES:

TOM MERRIN and ANNETTE MERRIN

Plaintiffs

V

CAIRNS PORT AUTHORITY

Defendant

FILE NO/S:

2553 of 2003

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Cairns

DELIVERED ON:

16 May 2006

DELIVERED AT:

Brisbane

HEARING DATES:

8 August – 16 September 2005, 11-17 November 2005 and 7 February 2006

JUDGE:

McLauchlan QC DCJ

ORDER:

Judgment for Defendant

CATCHWORDS:

Harbours; construction of marina by Port Authority; cyclonic damage to marina; whether fragment of marina holed plaintiff’s yacht; whether breach of duty of care owed by Port Authority to plaintiffs; assessment of damages.

COUNSEL:

Plaintiffs self-represented

Mr Amerena, of counsel, for the defendant

SOLICITORS:

MacDonnells Solicitors for the defendant

REASONS FOR JUDGMENT

The Capsize

In March 1997 the plaintiffs were the owners of a catamaran which they used to travel up and down the coast of Australia from Cairns to the Torres Strait and northern Australia. The catamaran also served as their family home. The family consisted of Mr Tom Merrin and his wife Annette Merrin and their two children, Ben and Zachary. On Saturday, 22 March 1997 Cyclone Justin struck Cairns. Prior to that, cyclone warnings had been given by or on behalf of the Regional Harbour Board, and small craft berthed at the Marlin Marina, in Trinity Inlet inside Cairns Harbour, had sheltered further up the inlet at various creeks where they were protected by mangroves. The plaintiffs' catamaran, which had been berthed in Cairns Harbour for 18 months prior to the cyclone, had been moved from the harbour to “No Name Creek” where a number of other yachts were sheltering. The cyclone had been spent by Monday, 24 March 1997, and thereafter craft began leaving the inlet and proceeding out into the harbour. The plaintiffs took their catamaran out to the harbour on the Wednesday and tied up alongside a yacht owned by a friend of their’s, in preparation for a voyage which they intended to make. This voyage would take them firstly to Fitzroy Island, to the south-east of Cairns and then up to Darwin.

On Friday, 28 March, the catamaran left the harbour and proceeded around False Cape, intending to pass Cape Grafton and to proceed on to Fitzroy Island. The voyage was unremarkable until the vessel passed False Cape. At that point, according to the evidence of Mr and Mrs Merrin and Ben, the winds were stronger and the seas rougher. Mrs Merrin said in her evidence that the yacht faced a “beam sea” on the starboard side. Less than halfway across the waters of Mission Bay the yacht began to dip to the starboard side. Mrs Merrin and Zachary were at the front of the vessel engaged in various nautical tasks, and Mr Merrin and Ben, who was then 15 years old, were steering the catamaran. As conditions deteriorated for the catamaran the genoa or jib and the mainsail were taken down and, as the boat lurched further to the starboard side, Mr Merrin went down into the cabin to investigate the situation. A short time later the catamaran flipped over at the starboard hull and was then floating upside down.

Prior to this occurring, the rubber ducky had been untied and brought around to the side of the boat. Mrs Merrin and Zachary got into the rubber ducky, while Mr Merrin and Ben commenced to dive to recover various contents of the yacht which were now in the sea or on the sea-bed.

These events were witnessed by the skipper of the “Rum Runner”, a commercial vessel which transported fare paying passengers from Cairns out to the reef and back. On 28 March the vessel was heading back towards Cairns. The route took the boat just north of Fitzroy Island and then around Cape Grafton and False Cape into Cairns Harbour. The skipper gave evidence that the vessel crossed Mission Bay between Cape Grafton and False Cape, about one kilometre from the shoreline. The weather forecast on the day was for 15 to 20 knot south-easterly winds. The skipper estimated that in Mission Bay the winds were probably about 15 knots because of some sheltering effect from the land. The boat was passing along Mission Bay at about 11.30 to 11.45 in the morning. The seas were a little rough, and the waves had white caps but were not breaking. The Rum Runner and the catamaran were passing each other head on, when the catamaran rounded up into the wind and dropped its sails. The witness noticed a dinghy move away from the vessel and at about that time the catamaran capsized. At that point the Rum Runner was probably about 100 metres away from the catamaran. Immediately prior to the capsize, the catamaran was “down” on the starboard side and it capsized very quickly. The Rum Runner rounded up into the wind, dropped sail, and put a dinghy in the water with the dive master and an instructor on board, who offered assistance to the plaintiffs. In response, they were asked just to pick up stuff in the water. The skipper radioed the Coast Guard and told them what had happened. Shortly after that the Coast Guard arrived, and the dive master and instructor transferred the stuff that they had picked up to the Coast Guard vessel, and the Rum Runner continued its course back into Cairns.

Mr Michael Huxley was the skipper of the Coast Guard’s rescue vessel, the MV Tom Pyne. On 28 March he received a call from the Rum Runner that there was a yacht or catamaran overturned in Mission Bay, and that there could be children in the water. He then proceeded out to Mission Bay to go to the assistance of the catamaran, arriving there shortly after midday. The catamaran was on its side with one hull out of the water and one under, and he could see the mast which was approximately at 45 degrees pointed downwards. The witness offered to try to right the upturned catamaran, but the offer was declined by Mr Merrin, who thought that that might snap the mast. The depth of the water at that particular time was approximately six metres. Mr Merrin asked the witness to contact the “Koki Star” to see if they would come out to assist, and the witness did that. The witness stated that Mr Merrin stayed in the rubber ducky with his eldest son and Mrs Merrin came on board the Tom Pyne with the younger son, and they went back with the vessel at approximately 5 p.m. As the Tom Pyne was leaving, the Koki Star arrived. When the witness arrived at the scene the wind was approximately 15 knots from the south-east and the water was just white-capping slightly.

Mr Merrin said that after the sails had been lowered he went in the galley which was awash with water. He turned the bilge pump on and headed for shallow water, but the boat turned over. He put his wife and boys into the rubber duck and attempted to right the catamaran but could not do so. He got a buoy and managed to anchor the catamaran in about 40 feet of water.

It is not in dispute that the integrity of the starboard hull was breached at about 11.30 a.m. on 28 March 1997, and that the entry of water into the hull played at least a part in the capsize of the vessel. No one on the catamaran saw, heard or felt anything indicating a problem with the safety of the vessel before it began to list to the starboard. The principal question to be determined in these proceedings is whether the starboard hull of the catamaran was penetrated by Exhibit 3, allowing sea water to flow into the hull.

The plaintiffs' case is that it was, in fact, Exhibit 3 which holed the catamaran. Exhibit 3 is a fragment of the Marlin Marina, which was extensively damaged by Cyclone Justin. The marina was constructed of floating pontoons, consisting of polystyrene foam encased in a concrete shell. It was essentially a floating marina with walkways on top, and associated with a jetty construction, which enabled vehicular as well as pedestrian access. It is clear that a consequence of the damage to the marina wrought by Cyclone Justin was that pontoons and portions of them were floating free in and around Trinity Inlet for some days following the cyclone. It is not disputed that Exhibit 3 is such a portion of one of the pontoons.

Direct evidence linking Exhibit 3 with the ingress of water into the starboard hull of the catamaran is given by the plaintiffs, Mr and Mrs Merrin, and their older son Ben, and the owner of the Koki Star, Steven Eaton. Direct evidence to the contrary is given by Robert Hine, who also knew the plaintiffs, he and his father and Mr and Mrs Merrin having belonged at the time to the “yachting society” of Cairns.

Following the capsize, as already mentioned, Mrs Merrin and Zachary left for Cairns on the Coast Guard vessel. Subsequently Mr Merrin and Ben returned to Cairns in the Koki Star. On arrival back in Cairns, Mr and Mrs Merrin contacted Robert Hine to assist them to get some diving gear and some bottles of “aqualung”. They then returned to the Koki Star and headed back to the capsize site. Mrs Merrin says that it was around 5.30 to 6 p.m. when the party headed out on the Koki Star. Paul Collier, who was the owner of the “Tiger Too”, had his boat tied up in the harbour. He offered to come out to give assistance. Mrs Merrin said that the offer was declined but he came out in his boat anyway. When he was underway Ben went on board with him and they followed the Koki Star out. On arrival at the site the boats anchored as close as was safe. Ben stayed on the Tiger Too for the night with Mr Collier and the remainder of the party stayed on the Koki Star.

Ben said that they arrived at the site probably around 6 p.m. He confirmed that he had come out on Paul Collier’s boat “because he was too drunk to drive” and that he spent the night on that boat with Collier. He stated that the next morning he helped with the diving. His father and the other diver had aqualung gear and equipment. He said he dived with them around the yacht to help save what could be saved. It was not very deep so he was able to dive down to the bottom and pick up some of the stuff that had fallen out of the yacht. He said that he just jumped in to the water with a pair of goggles and flippers. He initially said that his father and the other diver (Robert Hine) came up with a piece of concrete (Exhibit 3) and that he helped bring it over to the rubber dinghy and helped get it in because it was very heavy. He recalled that Steve Eaton was driving the dinghy, and that he was busy trying to keep it steady while the others put the polystyrene object into it.

Ben said that it was dusk by the time the Koki Star made its second trip to the capsize site and that it was getting dark by the time they got there. It was too dark to dive. He gave evidence, also, that on the catamaran he slept in the starboard hull, and Zachary slept in the port hull. The cabin of the catamaran was on the other side of the collision bulkhead in the starboard hull. In the middle of the bulkhead there was an inspection porthole, which could be opened by unscrewing an airtight cap. When in port the screw cap could be removed to assist with air circulation.

On further questioning, Ben could not be certain that Robert Hine had participated in bringing Exhibit 3 to the rubber duck, although he was there. He said that he lifted or helped lift Exhibit 3 from the water into the rubber duck, and that Steve Eaton put it on to his boat, the Koki Star, from the rubber duck. Ben could not say whether or not Robert Hine would have seen Exhibit 3 out at the capsize site. Benjamin recalled that the catamaran was towed back to Cairns, and eventually put up on a beach on Admiralty Island, in the inlet, so that repairs could be done and the hull patched.

Benjamin was 23 when he gave evidence in this trial and at the last trial he was aged 18. As earlier indicated he was 15 when the capsize occurred. Ben confirmed that he and his family began living on the catamaran in 1990. They travelled between Cairns and the Torres Strait and around to Weipa and “did the whole of Cape York” in the yacht.

Mr Merrin confirmed the evidence about obtaining aqualung and associated gear. He stated that he made use of Robert Hine’s licence for that purpose. He stated that later that night, the party headed out to the capsize site at about 7.30 p.m., arriving there at about 8 p.m. He confirmed that Paul Collier also came out to the site on the Tiger Too. On the following morning Mr Merrin said that he rose early, picked up Ben from the Tiger Too and started the salvaging operation at about 6.30 a.m. or 7 a.m. He and Robert Hine were diving, Ben stayed in the rubber ducky. He said that visibility was only about 18 inches. Robert Hine was diving inside the vessel, whereas he, Mr Merrin, was diving around the outside of the boat, and found Exhibit 3 jammed in the hull. He pulled it out, brought it around and handed it to Ben in the rubber ducky. Robert Hine was still diving at the time.

It was put to Mr Merrin that it was untrue that he had taken Exhibit 3 from the starboard hull of the catamaran and that, in fact, he had picked it up from under the old timber jetty adjacent to the Cairns Yacht Club and had later inserted it in the catamaran hull. Mr Merrin denied this accusation.

Mrs Merrin said that when the diving was in progress on the Saturday morning she remained on the Koki Star with Zac and Hilda (a friend of Steve Eaton’s). She said that Steve Eaton came back with Ben at about 8 o’clock in the morning with some salvaged gear, which included Exhibit 3, and which was placed onto the duckboard of the Koki Star. She said she was standing on the duckboard when it was placed there before her. There were further deliveries of salvaged items throughout the day.

Mrs Merrin also said that on the Friday at the capsize site she heard Mr Merrin saying something about Ben and the capsize in the rubber ducky, but she was not involved in that conversation. She was in the Coast Guard boat at the time. She said that Mr Merrin had said something to the effect that Ben must have left the porthole open, but that Ben denied that. She also denied that Mr Merrin was angry with Ben the following day. She said that Exhibit 3 was handed to her on the Saturday morning by Steve Eaton, who said, “That’s what done it”, and there was some discussion about Exhibit 3 on the Koki Star. She said that Paul Collier came to the salvage area and helped bring the boom up. She said he was told on 29 March about Exhibit 3 and that Robert Hine was part of a discussion on 29 March about Exhibit 3. Exhibit 3 was on the Koki Star with a lot of other gear when it was brought back to port. She said that Robert Hine must have known about Exhibit 3 and that the Merrins regarded it as the cause of the capsize. Mrs Merrin recalled being with Robert Hine at the Cairns Cruising Yacht Squadron with her husband on 28 March, and there was some discussion about the boat sinking and about where to go to get gas bottles for the salvage operation. She said that at that point they did not know what had done the damage to the catamaran. She denied that Mr Merrin had said in that conversation that he could not find a cover to put back on the inspection hole, and she also does not recall her husband blaming Ben except on the one incident mentioned. She stated further that on the night of 28 March, on the Koki Star, there were herself, her husband, Ben, Steve Eaton, Hilda, Robert Hine and possibly Zachary. She said it was not possible to get a close view of the capsized catamaran and she did not hear Mr Merrin talking about Ben or about a wave hitting the vessel. She had no specific recollection of any discussion of possible causes of the capsize.

Mrs Merrin said that on the Sunday the salvage operation was finished, and the catamaran was towed back into the harbour. On the Tuesday morning the catamaran was placed upside down on the beach at Admiralty Island. The tide had been going out and Mr Merrin and Steve Eaton put a patch on the hull. The contents of the vessel were put on the beach and it was refloated when the tide came in, still in the upside down position.

Steven Eaton stated that on Good Friday, 28 March 1997, he received a radio call from the Coast Guard on his motorboat, the Koki Star, on which he lived. He was in Trinity Inlet at the time, having gone up to No Name Creek in his boat, along with the Merrins and others, to avoid damage from Cyclone Justin. He recalls when the plaintiffs sailed on that day, and that the sea was a little bit choppy. Later on that day he received a radio message from the Coast Guard in relation to a vessel capsizing. He was asked to come out and assist and he did so approximately around lunch-time. When he reached the capsized vessel the Coast Guard was still in attendance and Ben Merrin and Tom Merrin were in the rubber ducky. Later that day the Koki Star went back into town to pick up salvage equipment. He had also received a message from Cairns Harbour about putting a marker on the capsized catamaran for the safety of other ships, and that was one reason why he returned to the capsize site later that day.

Mr Eaton recalled being handed Exhibit 3 by Mr Merrin when he was in the dinghy with Ben. The dinghy is a rubber ducky or a large inflatable. He confirmed that Tom Merrin was diving, as also was Robert Hine, and they were salvaging things and handing them to himself and Ben in the rubber ducky. Most of the stuff was then being transferred on to the Koki Star. He recalls Mrs Merrin being on the Koki Star at different times, and also Zachary. He could not recall whether Exhibit 3 was passed up to the Koki Star or whether it was left in the rubber ducky, but he remembers sitting on it in the rubber ducky, which does not have any seats. He did not look closely at Exhibit 3. He has a somewhat uncertain recollection of Tom Merrin saying, in relation to Exhibit 3 at some point, “This is what sunk it”. He said that he did not see the damage to the catamaran until it was brought back into the inlet and placed upside down on the beach. He said that there had been an impact and he helped put a patch on it out of “corflute” or a plastic that came off a vessel and it was nailed on or glued with silicone. There was a hole in the boat and the ply was split.

On 5 April Mr Eaton and Mr Merrin took photos of broken sections of the marina. The broken fingers of the marina can be observed in Exhibit 97. Mr Eaton also gave evidence in relation to one of the fingers in or around 2000, where he used to tie his dinghy up, “the finger being used as a general dinghy wharf. It was then named A finger and since reconstruction has been renamed F finger.” The witness said that in the late 90s or around 2000, A finger was sinking. He said that if there were large numbers of tourists standing on it, the finger would sink below the surface or water would come over it. There were also electrical cables on the wharf, and therefore, from time to time, below the water.

Mr Eaton said that it was not he but Ben who was driving the rubber ducky on the Saturday morning. He did not himself engage in the salvage effort. He knew that Robert Hine was there but thought that he was not there all the time. The witness said that Tom Merrin was upset but he did not hear him blame his son in connection with the sinking of the boat.

The witness identified Exhibit 16, an invoice which he wrote out in respect of the salvage. He said that Mr Merrin brought an invoice book to him and said that he was going to sue the Port Authority and that he was entitled to some money for his salvage, so he wrote down what he was told to write. The invoice includes a charge for diving which the witness said he would pay to Robert Hine, although he had not made any specific arrangement with Robert Hine about that. A charge made for the Wilcox’s water pump is in a similar situation. The witness said that Mr Merrin had discussed with him at various times the size of his claim, and the figures mentioned have included $1 million, $2 million, and $250,000.

The witness said there was some conversation about Exhibit 3 at some point after it was handed to him in the rubber ducky. He said the conversation was amongst all concerned in the salvage effort. He denied, in cross-examination, that he had said to Ms Thomson of the defendant solicitors, that when the boat was beached on Admiralty Island and the witness was there with Tom Merrin, Mr Merrin had come around the boat holding a piece of the marina and saying, “Look what I’ve got”.

Some previous convictions were put to the witness, and it does appear that these matters indicate, at least, a lack of respect for the law. Some of Mr Eaton’s comments in relation to the law tended to reinforce this impression.

Robert Gary Hine was called as a witness by the defendant. He has diving qualifications which he described as “snorkel, scuba, night diver, deep diver, and fast diver”. In early 1997 he lived in Cairns. He thought that he was living at that stage on his father’s boat (which I understand to be the “Kuri Pearl”), which was moored in the inlet near Admiralty Island. He knew the plaintiffs, Tom and Annette Merrin as part of the yachting society in Cairns. They lived on their boat, which was also located in the inlet. He recalls the weekend when Cyclone Justin hit Cairns. At that time he was living on the boat up behind Admiralty Island in one of the creeks. He recalls that some days after Cyclone Justin had passed the plaintiffs were getting ready to leave Cairns, and he recalls that when they left it was a Friday. Later on, on that afternoon, his father and he heard a “securitae” over the radio to the effect that a boat had capsized, and he thinks that it was identified as a catamaran. He and his father tried to radio Tom Merrin to see if they were okay, and just to find out if it was their boat, but there was no response. They learned, from either the Coast Guard or from Steve Eaton, and maybe both, that it was the plaintiffs’ catamaran but that they and their children were okay. Still later that afternoon Tom Merrin contacted him. He wanted the witness to help salvage the boat. He asked the witness to meet him at the Cruising Yacht Squadron at Trinity Inlet, and he agreed to do so and they, in fact, met there. He told the witness that he needed to hire some diving tanks and gear to help salvage the boat, and he wanted his assistance because the witness had the “diving tickets”, which are required before you can hire tanks and buoyancy compensators.

At the meeting at the Cruising Yacht Squadron Mr Merrin told him that the catamaran had capsized between False Cape and Cape Grafton. He went on to say that a wave had split the front of the boat and the water came in and they did not really notice it until it was too late, and the boat capsized really quickly. Mr Hine recalled that Mr Merrin was angry with Ben about leaving the inspection cap on the inside of the galley undone. The witness agreed to help the Merrins as requested. They went out together and hired the diving gear that was required, and later they went out to the capsized boat. The witness was on Steve Eaton’s boat, the Koki Star, and he thinks that Paul Collier’s boat, Tiger Too, may also have come out that night.

According to Mr Hine, the Koki Star arrived at the site of the capsized vessel in Mission Bay when it was still daylight. The witness said it would have been late in the afternoon – “it would not have been any later than 6 o’clock I’d imagine”. When they got to the site of the capsized vessel they pulled up adjacent to the starboard hull. This was in fact on the left side of the boat because the boat was upside down. Conditions at the time were fairly rough. The boat was semi-submerged. The bottom of the boat was still above the waterline and you could see the split – “as the boat moved up and down you could see where the split was”. The boat was just afloat and the witness said there was still air inside the boat which was keeping it afloat and the boat was moving in sympathy with the waves. As the witness was looking at the boat from the Koki Star, Tom Merrin was nearby and he indicated that he was very angry and that he wanted to kill Ben for leaving the hatch open. He also repeated that a wave hit the boat and it just split.

The witness spent the night in the vicinity of the capsized catamaran on the Koki Star with the others. The Tiger Too was somewhere in the vicinity, but he does not recall exactly where. On the Saturday morning, 29 March, he and Tom Merrin commenced to dive, probably at about 7 a.m. He dived in scuba gear and he thought that Tom Merrin had some scuba equipment on for a short period, but other than that he wore a snorkel and face mask. He said that the Koki Star did not have any tenders with it, but there was probably Tom’s rubber dinghy there. He thought that he dived initially from the Koki Star, and swam around just checking the situation out. He had a look at the split and then went down and started retrieving fallen pieces and articles from the outside and the inside of the boat. The water was about seven metres to 10 metres deep, with visibility probably three to four or five metres. At one point (within the first half hour of the dive) the witness made a close inspection of the split in the hull. He said he was as close as a foot away from it and he looked to see how it had happened and how long the split in the boat was. He said he actually touched the split. It was a hairline split along the hull. In the area of the split the hull was moving and the boat gave an impression almost like breathing as it bobbed or semi-bobbed up and down in the water – “you could hear and see the two sides of the split opening and closing, allowing air in and expelling air out”. The weather conditions were still rough so that the split was above the water for a couple of seconds and below it for a couple of seconds, and so on. The split was about a metre long. There was no hole or large aperture in the middle of the split, or anything like Exhibit 3 wedged in the hull.

The witness said that the salvage operation took place over a couple of days, principally the Saturday and the Sunday, and at no time during that operation did the witness see Exhibit 3 either in the water, in the dinghy, or on the Koki Star. Moreover, he said, there was never any talk whilst he was on board the Koki Star concerning Exhibit 3.

The witness said that, after they had collected everything they could from the boat and the sea floor, Tom Merrin, and probably Steve Eaton, put a patch over the split so that the boat would retain air, and the witness and Tom Merrin nailed some prawn netting across the back of the boat to stop anything else falling out when it was being towed. So far as the witness could recall the salvage effort ended on the Sunday just after lunch, and the catamaran was then towed back to the harbour. In the harbour the catamaran was tied alongside the Koki Star, or another boat moored in Trinity Inlet, so that it could not float away.

A few days later the witness recalls coming home from work and, together with Tom Merrin, turning the boat up the right way. The witness’s father, Mr Bob Hine, was also involved in that exercise. They then beached it on Admiralty Island. Whilst on Admiralty Island the witness went there and saw the vessel, either on the day it was uprighted or soon after. He walked around the vessel and observed the starboard hull and observed the patch on it that had been put on at sea. A couple of days later he walked around the vessel again and observed that the patch was not on and there was just the split which he had seen during the salvage operation.

There is further evidence adduced by the defendant relevant to credit on this issue. Peter Whitmore is employed by the defendant as a contract supervisor, and gave evidence relevant to the credit of Mr Eaton. In March 1997 he was employed by the defendant as the work supervisor, which involved supervision of 19 tradesmen and various labourers working under him. The work being done was maintenance work on all of the seaport assets, which were buildings, roads, wharves and floating jetties, including the Marlin Marina. As work supervisor the witness used to inspect the Marlin Marina, on average, twice a week because there was ongoing maintenance required, and the general condition of the wharf had to be checked. The witness remained in the position of work supervisor until 2001.

He said that prior to Cyclone Justin in March 1997, the Marlin Marina consisted of four fingers, being A, B, C and D. The “sea most” of those fingers was jetty A or finger A. That was the main commercial wharf that was used by companies such as Big Cat, Ocean Spirit, and a number of other smaller concerns, all of which were commercial operators. There was a portion of A finger closest to the shoreline that was used as a dinghy tie-up area. It was used for that purpose because the water was not sufficiently deep for any commercial vessel to berth there, and it was fairly close to the land and an ideal place for dinghies.

Immediately after Cyclone Justin the witness observed the condition of the marina and specifically A finger. There were some pontoons missing and the Port Authority attended to the rectification required because it was a commercial wharf and within a couple of days the operators wished to go back out to the islands of the reef. The wharf was reinstated so that it was safe and able to function as a going concern again. The witness never saw any of the pontoons on A finger submerged to the extent that passengers or other persons using the walkway would have water lap across their feet as they traversed the pontoons, either before or after Cyclone Justin.

In or about March 1999 the defendant let a contract for significant repairs to A finger. Some of the pontoons on A finger were repaired. They had cracks along the sides, but those cracks had not affected, at all, the buoyancy of the pontoons. None of the cracks caused any of the pontoons to sink or submerge.

The witness said that his visits to A finger occurred often in the morning when the boats were loading with passengers, and also during the day when there were no people about, which was often the better time to carry out works. He was there during the morning when there were a lot of people on board, and in the evening sometimes, when they came in, and at other times during the day also. The witness never received any complaints from any commercial operators or anybody else about water lapping over the pontoons forming A finger.

Robert Charles Manning was formerly the Chief Executive Officer of the Cairns Port Authority and gave evidence to similar effect. He has now retired from the Port Authority, having left in April 2001.

In performance of his responsibilities as CEO of the Port Authority and Chairman of the Far North Queensland Promotion Bureau, the witness frequently visited the Marlin Marina. There was much consultation going on with some of the berth holders, and there was also the matter of the pier development, which was a large development which had been negotiated on adjoining land, so there was a constancy of interaction between the personnel of the Port Authority and the pier development and the berth holders at the marina. The witness said that he would visit the marina every second or maybe every third day, but certainly a couple of times a week.

He was asked whether at any time when he was there in 1990s, did he observe any pontoon or pontoons in the marina becoming submerged under the weight of persons using those pontoons, such that water lapped over their feet, and he replied, “Certainly not”. The witness went on to say that if that had occurred it would not have been permitted to remain that way. It would not have been possible to operate the marina, the centre of the marine tourism industry in Cairns, on that basis. The witness also said that he never received any complaints that such a situation existed from marine operators or customers or staff.

Robert Hine stated that a few weeks after the cyclone he was at the Cairns Yacht Club in company with his father and Tom Merrin. He was told something by his father on that occasion. Within a week he was again in Tom Merrin’s company on his father’s boat. Tom Merrin said to him basically, “Go along with the story and we’ll look after you”. He also said that he was going to pay the witness some money, and the amount so far as the witness can recall was around $10,000, on condition that he kept his mouth shut. The witness said that on a couple of subsequent occasions this “offer” was repeated to him, either at the yacht club or on his father’s boat. The witness also recalled an occasion about mid-1999 at the Bungalo Hotel. It was about 5 p.m. after work one day when the witness was having some drinks with his work mates. Tom Merrin came in and they had a brief discussion; Mr Merrin again said something to the effect of, “Just keep going along with the story and we’ll see you right at the end of the day”. The witness also said that he had never been spoken to by Mr Eaton about being paid for his efforts in connection with the salvage operation.

In cross-examination the witness said that on the Friday night the Koki Star pulled up to about three metres from the starboard hull of the capsized catamaran. He said that not only he and Tom Merrin saw the hairline fracture or split, but Steve Eaton did also. From memory he thought that Tom and Steve put the patch on the vessel at sea with glue and screws. The vessel was relatively high out of the water when this was done and he thought they had put the patch on from the rubber dinghy. He reiterated that he saw the split in the boat when he first got out there on the Friday night and that there was no piece of concrete or marina stuck in the starboard side of the hull.

The witness said further in cross-examination that his father told him that Tom Merrin had stuck the concrete in the side of the boat and that he had helped him. He said that Tom was going to put the piece in the wrong way and Mr Hine senior advised him to push it in the right way. The witness said that he had understood Tom Merrin’s offer to be to pay him $10,000 after he had won the court case, provided he kept his mouth shut about Exhibit 3.

Susan Elin Thompson is a solicitor employed at McDonalds in Cairns. On 12 October 1999 she interviewed Steve Eaton at the firm’s office in Grafton Street, Cairns. She made some notes and had a diary note typed. She had contacted Eaton earlier and asked if he would come in for an interview. The solicitors for the then third party, the State Government, in the proceedings, had provided a draft unsigned statement by Mr Eaton, and the solicitors wanted to speak with him and have the statement signed if it was correct. At the interview Mr Eaton was shown the draft statement and read it. The statement is Exhibit 40 in the proceedings. He made some alterations to par 5 of the statement to delete the indication that he had dived with scuba gear from the boat during the salvage operation. He said that that was incorrect. He and Ms Thompson continued to discuss the events in relation to the capsize of the catamaran. He evinced a desire not to continue with the interview, but he signed the document and dated it 12 October 1999. He declined to initial the alterations to the document and the interview was terminated fairly soon after that.

Ms Thompson took notes of the conversation with Mr Eaton after he signed the statement, but did not put them into a formal statement and attempt to get him to sign it, because she had the impression that he would not do this. She asked him if he had, while he was at the site of the capsize, seen any concrete in the vessel or in the water, and he replied that he had not. He went on to say that he had first seen a piece of concrete with styrofoam on Admiralty Island after the boat had been brought back in and was still in its capsized or upside-down position, and he first saw it in Mr Merrin’s hands. He had not seen a gash in the side of the boat or any concrete piece while at the capsize site. He said that he did not dive on the vessel with scuba gear, although he was in the water at some stages.

Mr Eaton explained to the witness how the boat was dragged back in, upside-down, to Admiralty Island and pulled up at the island, and everyone waited for the tide to go down. When the tide went down, his memory was of Mr Merrin going around the boat to see what had caused the damage. He said Mr Merrin was at the front of the boat and said words to the effect, “Look what I’ve got”. He came around the boat holding a piece of the marina. Mr Eaton described it as concrete, about one and a half inches thick with styrofoam. He said Tom Merrin was going around comparing it with other pieces of the marina that were lying around the area and he told the witness that he had seen pieces of styrofoam inside the hull of the vessel while on Admiralty Island. He said that the first time he saw the piece of concrete and styrofoam was when Mr Merrin had it in his hands on Admiralty Island. Finally, he said that he had assisted in the righting of the boat a couple of days after those events, and he put a patch on the side of the hull over the gash during that process.

The witness was cross-examined and it was suggested that what she said Mr Eaton had said in the interview was not correct, but the witness was not shaken in her evidence.

Paul Spencer Collyer was also called by the defendant. He learned of the capsize of the plaintiffs’ catamaran from Steve Eaton, who was going out to the site on the Koki Star. The witness said he was in his dinghy and Steve called him over and told him about it. He then went with Eaton on the Koki Star to see if he could be of assistance. When they got there they put some gear on the Koki Star and came back in. Subsequently the witness took his boat, the Tiger Too, out as well and anchored it up close in case any vessel hit the overturned catamaran during the night.

The witness thought it was early in the afternoon when they first went out to the capsize scene. The catamaran was upside-down and the Coast Guard vessel was leaving at that time with Annette and Zachary on board. Tom and Ben were in the rubber ducky. On that visit to the site the witness heard Tom Merrin say that he thought Ben had left the porthole open, and that that was the reason it was taking water in the starboard hull. He was pretty angry at the time at Ben. The Koki Star then returned to port to get some diving gear and the witness’s boat, and head back out. The witness thought that Robert Hine came back out with him. On arrival the witness located his vessel about 50 metres to the south of the capsized catamaran. Ben Merrin stayed on his vessel overnight. It was close to dark when the witness returned to the scene on the Friday.

On the next morning, the Saturday, Mr Collyer was assisting to collect stuff from people who were salvaging. The witness did not at any time on the Friday or on the Saturday morning see Exhibit 3 at the capsize site. He does not recall actually getting into the water at any time, just staying on his dinghy. He said that Mr Merrin was still upset about Ben because he thought he had left the porthole open and mentioned this in the witness’s presence. Ultimately the capsized catamaran was towed back into Cairns by the Koki Star and was anchored upside-down off the Kuri Pearl, which was the vessel the Merrins were looking after, and the next day it was tied up next to the Kuri Pearl.

Subsequently the witness saw the catamaran on the beach on Admiralty Island after it had been turned upright. He had a look around it to see if he could see where it had been holed, or if they had found anything. He was in the company of his wife, but she has since passed away. He observed a split in the starboard hull. He said that the split was not very long, a couple of a hundred millimetres, and just a very thin split. He touched the split. He also went around to the inside bow of the starboard hull and did not actually see anything there, but put his finger on the hull which seemed very soft to him. He saw nothing resembling a hole of any size on the hull on that occasion.

After the vessel was left upright on the beach at Admiralty Island, the witness is aware that it finished up in the “duck pond”, but how it got there he has no idea. The witness gave evidence of a further conversation that he had with Mr Merrin concerning the present claim. He is uncertain whether the conversation occurred before or after the vessel was in the duck pond. The conversation took place on the back of the Tiger Too. The witness cannot remember the date of the conversation but its effect was that Mr Merrin said to him that he was too old to work, and that he needed to sue someone to get some money.

There was extensive cross-examination of the witness, but he remained unshaken with respect to these allegations.

Mrs Merrin gave further evidence in rebuttal concerning the photographs which appear in Exhibit 4, photographs 8, 9, 10 and 11. Photograph 8 shows a patch on the hull of the catamaran. Photo 9 shows the hull with the patch removed and a hole in the starboard hull. Photograph 10 shows Exhibit 3, and photograph 11 shows Exhibit 3 inserted into the hole in the starboard hull of the catamaran on Admiralty Island.

Mrs Merrin said that some time after 15 April 1997 on Admiralty Island she and her husband removed the patch from the catamaran. The patch was a type of plastic sheeting that had been on the Kuri Pearl and used for packaging. They removed the patch leaving the nails behind because they just pulled through the plastic sheeting. Mr Merrin was about to re-insert the piece of marina when Bob Hine senior came over in his dinghy from his vessel. He said to Tom not to put it in that way because it was upside-down. Tom continued to do what he was doing, so he ignored Mr Hine and re-inserted the piece back into the boat, where it stuck once more. He then took photograph number 11 which shows Exhibit 3 stuck in the hull of the boat. The patch was not replaced. The witness and her husband then returned to the Kuri Pearl. They took Exhibit 3 back with them and did not re-cover the hull.

She was cross-examined and it was suggested to her that that was a dishonest account of the insertion of Exhibit 3 into the hull of the boat, and that the plaintiffs had not called Bob Hine senior, because they knew he would give an account of the insertion of Exhibit 3 into the starboard hull of the boat which was radically different from what the witness said in court. The response to that was:-

“Well no. Mr Hine, when he was served with the subpoena, said that he would not say anything different to his son, his son looked after him, he’ll look after his son, were his words.”

There is a further category of generally technical evidence which goes to the likelihood or otherwise of Exhibit 3 having holed the catamaran.

Evidence was given by Geoffrey Allan Glanville. Mr Glanville is a naval architect and marine consultant, and is the principal of G.A. Glanville and Co Naval Architects Pty Ltd. He practices in Cairns. Mr Glanville prepared a report for the defendant which has become Exhibit 166 in these proceedings. Mr Glanville produced in evidence a piece of marine ply which is commonly called 6 millimetre marine ply, but is actually of a thickness of 6.5 millimetres. This is relevant in the case because a report by a marine surveyor, Mr Wilkins, establishes in evidence that the hulls of the boat were constructed of 6 millimetre marine ply. The point about marine ply is that it is stronger than form ply or ordinary ply, although both sorts of ply are constructed by layers of wood with the grain orientation of the successive layers at 90 degrees to the grain orientation of the preceding layer.

The dispute between the plaintiffs and the defendant, for the purposes of Mr Glanville’s brief, was stated, in effect, in terms of the plaintiffs' contention that the catamaran was holed by reason of impact with Exhibit 3 on the date in question, as opposed to the defendant’s contention that Exhibit 3 had nothing to do with the matter, but that a split had developed in the starboard hull of the plaintiffs' vessel as a result of the action of the sea causing impacts upon that hull. Specific questions were put to Mr Glanville, to which he responded. The first question related to the orientation of Exhibit 3, if it was in fact floating in the sea. Mr Glanville concluded that Exhibit 3 would naturally float in water in the “concrete side down” orientation. If turned over it would promptly self-right and resume floating in the water “concrete side down”. He further stated that the concrete would tend to act like the ballasted keel on a yacht, and that the body would have a strong self-righting tendency to the “concrete down” orientation. Mr Glanville gives scientific reasons for these conclusions and relies, in part, on material from a report of Russell Larkin, a valuer, whose report is in evidence.

Mr Glanville was further asked what was the likely cause of the entry of water, as described by the plaintiffs, into the area aft of the collision bulkhead in the starboard hull of the subject vessel. It is common ground that the penetration of the starboard hull occurred forward of the collision bulkhead, and that if that compartment had been watertight, then insufficient water would have entered the vessel to permit of its being capsized, as in fact happened. In relation to this matter Mr Glanville again refers to Mr Larkin’s report which shows, by means of photographs, the situation of the collision bulkhead with a nylon inspection port fitted into the bulkhead. The survey report also confirms that the damage to the starboard hull was forward of this bulkhead. Mr Glanville refers to the plaintiffs’ testimony in the earlier trial in relation to the bilge pump, utilised in attempting to pump out the hull after water was discovered. Their testimony confirms that the inflow of water into the hull was greater than the capacity of the pump, which implies that the flooding area must have been significant. Mr Glanville noted that the inspection port in the collision bulkhead had a clear opening of approximately 120 millimetres diameter and that it was the only significant opening in the bulkhead through which flooding could occur. He concludes that the likely cause of entry of the water into the vessel was through the inspection port in the collision bulkhead, in which the watertight closure was probably not fitted. What he said about the capacity of the bilge pump and the size of the inspection port was not contested by the plaintiffs in cross-examination.

Mr Glanville was also asked, in effect, what matters, if any, made the defendant’s version of the “split” more likely than the plaintiffs' version of the “hole”, and what matters, if any, made the plaintiffs' version of the “hole” more likely than the defendant’s version of the “split”. Mr Glanville’s response was that no aspect of the matter referred to him would support the plaintiffs' version of the hole as being more likely than the defendant’s version of the split, but that there are a number of considerations that would support the likelihood of the defendant’s version. The first of these matters relates to stress cracks on the starboard inner hull. Reference is again made to Russell Larkin’s report which described a split in the shell ply in the starboard inner hull and contains photographs of this split – in the same location as the outer split in the hull and of the same length as the outer split. The hulls of the vessel are symmetric and photographs in the Larkin report of the internal structure of the collision bulkhead show the structure to be identical outboard and inboard. Mr Glanville proceeds:-

“It is a natural conclusion that if a stress crack had developed in the inboard side of the hull, that this would be indicative of structural inadequacy to support the loadings on that structure, and that the identical structure on the outboard side of the hull would be equally inadequate to support the same loadings. It would be expected that the environmental loadings on the outboard side of the hull would be at least equal to and would probably exceed the environmental loadings acting on the inboard side in that location.
The likelihood of impact loadings resulting in identical cracking in both the outboard and inboard panels is very small, and it is considered that sea loadings in the normal operations of the vessel would have resulted in the cracks inboard and outboard.”

He goes on to say that the occurrence of the cracks directly beneath a continuation of the first main hull stringer, forward of the collision bulkhead, means that it is likely that the stress cracks on each side of the hull have propagated in precisely this location due to sea loads. He says, further, that in the event that the penetration of the starboard hull was caused by impact with a floating object, it is highly coincidental that this impact occurred in precisely the same location as the stress cracks at the highest stress point of the panel.

The second consideration referred to by Mr Glanville is it that there are no signs of abrasion in the vicinity of the damage. That proposition relies on the photographs of the damaged area in the Larkin report, which shows a very clean fracture around the hole. Mr Glanville states that that is somewhat surprising and considers that a very large direct impact would be required to cause such a clean fracture. In the event of a collision with a floating object it would be expected that there would be abrasive damage in the vicinity of the damage, and there is no indication of any such damage in the photograph. He then refers to his previous discussion of the flotation of the pontoon segment and states his opinion that it would naturally float with the concrete portion of the segment at a substantial angle to the water plane, with the concrete portion fully below the waterline, and further, that it would have a natural self-righting ability to maintain this orientation. He goes on to say:-

“It is difficult to accept that this concrete segment could be rotated to the extent that the concrete would act perpendicular to the hull, as would be required to achieve the clean impact shown in the photographs.”

Mr Glanville also opines that it is highly unlikely that the object could have been thrown into the side of the vessel by the waves that were “crashing into the side of the vessel”, according to Mr Merrin’s testimony in the previous trial. As previously noted by him:-

“The concrete portion of the segment tends to act as a keel for the foam portion of the segment providing the buoyancy. In any wave action it will be the buoyant foam portion being subjected to the most severe motions. In such a case any impact with the vessel would likely have been at low velocity from the buoyant foam portion of the segment.”

Finally, Mr Glanville expresses the view that the crack or split in the hull, alleged on behalf of the defendant, noting that the effect of the seas would tend to open up the crack, would have produced a sufficient inflow of water to capsize the vessel on the footing that the integrity of the bulkhead had been compromised. Taking into account, these various considerations, Mr Glanville is of the view that the boat is more likely , from a technical point of view, to have been sunk by the ingress of water through a split in the hull, as contended by the defendants, than by the ingress of water through a hole in the hull, as contended for by the plaintiffs.

Mr Glanville also expressed the opinion the experiment conducted by Matthew Forrest, an engineer, in which concrete was dropped from a height upon marine ply arranged in a steel frame, was a scientifically valid procedure.

Mr Glanville was cross-examined at some length on these various propositions, but was not persuaded to change his position in relation to any of them. The main criticism directed as Mr Glanville’s evidence appears to be that it was purely scientific in nature, whereas the evidence of “practical” men is to be preferred.

Matthew David John Forrest is an engineer who was present at a site examination of the catamaran on Admiralty Island, Cairns, on 13 November 1997. He was there with Mr Russ Larkin of Russ Larkin and Associates Valuers, and Mr Merrin was also present. The witness took a number of photographs, and three were put to him and identified by him. These photographs, which are now Exhibit 202, show the hole in the starboard hull of the catamaran, as inspected on the date mentioned. Mr Amerena, of counsel, for the defendant, made it clear that he was not calling Mr Forrest as an expert witness, but simply with respect to foundational facts mentioned by Mr Glanville in his report.

Mr Forrest gave evidence that the hull of the catamaran was constructed of plywood on a timber frame, and was sheathed in fibreglass (known as GRFP) on the outside. He made various measurements of the hole and the splits at each end of the hole and made notes of those measurements. At the time he was working for a firm called ETRS. A search of their archives has failed to recover those notes.

Mr Forrest produced an original report, which is Exhibit 203 in the proceedings, to examine whether the hole in the hull of the catamaran had been caused by the fragment which is Exhibit 3. The conclusions of that report are as follows:-

“1.The nature of the hole in the hull was consistent with an impact from the fragment of concrete and polystyrene.

2.It was concluded that the holing and the subsequent sinking of the hull occurred in the general manner described. Observations, calculations and simulations show that the holing was consistent with the report of circumstances, except that the time between noticing the water in the starboard hull and overturning was greater than the two minutes reported. This conclusion is based entirely on approximate calculations as there was insufficient physical evidence to confirm or verify the reported circumstances.

3.The general condition of the hull was fair to poor, with some isolated areas of dry rot and cracking unrelated to the hole.”

The report reveals that a collision between the fragment of concrete and the hull was simulated under laboratory conditions by a drop test. This test was carried out using a piece of 6 millimetres marine ply supported on a steel frame. A 600 millimetre square concrete tile was cut down to give the same angle and shape of point and weight as the fragment. The test piece of concrete was then dropped from various heights onto the plywood to determine whether failure would occur, and if so the mode and extent of the failure.

Three drop tests were carried out from heights of 0.5m, 1.0m and 1.5m. In each case the block was dropped vertically onto the plywood. In all three cases a test piece penetrated the plywood, but made different sized holes. Comparisons of these results with observations of the hull indicated that the collision between the concrete fragment and the hull must have occurred with approximately the same (but slightly greater) energy and velocity than that produced by dropping from a height of 1.5m.

Subsequently, on 27 June 1999, Mr Forrest reviewed his original report and wrote to Ms Thompson, of MacDonnell’s Solicitors, to say that in view of statements enclosed with a letter from Ms Thompson to him dated 11 June 1999 including, in particular, the statement of Chris Cameron, the skipper of the Rum Runner, that it now seemed unlikely that the sinking of the yacht occurred in the manner earlier described to his firm. “The major factor in this is the lack of rough enough conditions to produce a collision of sufficient energy or velocity to cause the hole which was observed.” This was based upon a statement provided by Chris Cameron to the effect that the seas do not “break” in the areas of the bay where the yacht sank. In his evidence Mr Forrest distinguished between a breaking wave and a swell with a white cap. Only a genuinely breaking wave would have provided sufficient force to cause a collision between Exhibit 3 and the hull of the catamaran so as to penetrate it. A swell with white caps would not generate that force. A breaking wave is not just one which is breaking at the top but over the whole height of the wave, so as to produce a “face”. The face of the wave breaking over the bottom of the wave provides the opportunity, in given circumstances, for a force to be exerted on an object in the water.

The witness indicated, in a memorandum prepared by him for the defendant solicitors and dated 2 July 1999 (Exhibit 207), that a breaking wave was required, as a smooth swell will not cause the fragment to move forwards – it will only move up and down. On the other hand, a fragment could fall from the top of a breaking wave so as to cause penetration of the hull of a vessel, but the angle of impact would not be consistent with the damage which he had observed to the plaintiffs’ catamaran.

Professor Malcolm Lewis Herron is Professor of Physics at James Cook University, and has extensive experience in oceanography and marine science. He stated generally, that an object in the water which was substantially immersed, would be affected by water movement rather than by wind, whereas an object substantially exposed above the waterline would also be affected by the wind in the region and would be moved along in the direction of the wind. The rate of movement of an object affected only by the influence of the water is, however, affected by the fact that the wind has an effect upon the water itself, and in that sense affects the speed at which an object may move in the water.

Professor Herron, in a report to the defendant solicitors, made observations to the following effect about the movement of debris in Cairns Harbour during the period 22 March to 28 March 1997.

The likely track of pieces of debris from the marina is that they would be contained in the inlet until about 20.30 hours on 23 March 1997. From that time, and up till 16.00 hours on 24 March 1997, the floating debris would emerge from the inlet under the influence of north-westerly winds assisted by floodwater run-off and be distributed along the shoreline of the eastern side of Trinity Bay, from Trinity Inlet to Sturt Cove. It is unlikely that any debris from the marina would have got as far as Lyons Point, and very unlikely that any pieces would have passed False Cape. The north-westerly winds during the period 20.30 hours on 23 March to 16.00 hours on 24 March would have driven most of the debris ashore between Stafford Point and Bessie Point.

Following 16.00 hours on 24 March 1997 the winds were predominantly from the south-east, and any floating debris along the eastern side of Trinity Bay would be drifting out in a north-westerly direction across the bay. The presence of floating debris in the shipping channel would be greatest during 25 March 1997 and 26 March 1997, but it is possible that some pieces could have been held up in the shallows on the eastern side of the bay and be drifting across the channel on the morning of 28 March 1997.

On 28 March 1997 the winds were from the south-east (about 142 degrees east at 11.9 knots between 10.00 and 12.00 hours). Under these conditions the wave heights would have been about 0.43m. In consideration of the sheltering effect of the Yarrabah, it is likely that the wave heights would have been less than 0.43m along the track of the plaintiffs’ vessel between Trinity Inlet and False Cape. It is most unlikely that there would be breaking waves along this section of the track.

A sustained (average) wind speed of about 21.4 knots would be required to produce a sea state with wave heights of 1.5m. The observations at the Cairns Airport had a maximum of 14 knots, between 10.00 and 12.00 on 28 March. Christopher Cameron’s observation that the wave heights in Mission Bay were approximately 0.4m is consistent with the wind speed given by the Bureau of Meteorology, considering that Mission Bay is not fully exposed to south-easterlies.

The effect of this evidence was not diminished by cross-examination.

Bernard William Madden is employed by Huntsman Chemical Company Australia Pty Ltd. Among other product lines, that company manufactures a raw material which is later processed by its customers into expandable polystyrene foam for applications such as pontoons. His evidence was to the following effect.

Expandable polystyrene has low water absorption, normally accepted as a maximum of 4 per cent by volume for short to immediate term immersion. This has a negligible effect on buoyancy. If there is a continuous water vapour pressure gradient in one direction and the temperature in the expanded plastic falls below the dew point, water vapour may condense and result in accumulation of water in the expanded foam to up to 30 per cent by volume. This can occur in the case of expanded foam bodies floating on water. Expanded EPS foam which absorbs 30 per cent by volume of water will lose 30 per cent of its buoyancy.

The witness made it clear that for water to be absorbed into the expandable foam, it needs to be in vapour form rather than in water form. The witness stated that a piece of foam that was a cubic metre in size would weigh 20 kilograms, and if it was in water it could support a weight on top of it of about 980 kilograms. If the piece of foam lost 30 per cent of its buoyancy it would lose its ability to support 30 per cent of that weight, so that the foam would sink into the water by one-third of its height. Once it has taken up about 30 per cent by volume of water, it will not take up any more. At that point it is saturated. If sufficient weight is placed upon it, it will sink to the bottom.

If foam is totally encased in concrete, then it is unlikely to absorb water vapour at all. If there is some cracking in the concrete coating, then if that is exposed to water, some of the foam may absorb some of the water in the form of water vapour, i.e. humidity. However, even in the form of vapour, water would not penetrate concrete or cracks in concrete, so as to be absorbed by the foam inside, in the absence of a pressure gradient, forcing the vapour through the concrete and into the foam.

If concrete and polystyrene foam, joined together, were exposed to water, the witness considered that in a period of six days there would be perhaps up to 1 per cent absorption, but not more, so that there would be no effect at all upon the buoyancy of that fragment. Even that would be dependent upon all the foam being below the water level for it to absorb as much water as that in one week. If the piece is in fact floating comfortably above the water when it is dry, it is highly unlikely that that piece would, in a period of six days after being exposed to the elements, absorb enough water to have its buoyancy affected at all. The probability of the fragment floating with its topmost surface at the surface of the water or close to it is less, in the witness’s opinion, than the probability of its being above or partly above the water.

Mr Eaton was called to give rebuttal evidence in relation to marine ply, the drop test carried out by Mr Forrest and referred to in his evidence, and related matters. However, he failed to qualify himself as an expert in relation to technical matters of that sort. The only additional evidence he was able to give was that prior to leaving port on the Good Friday, he did some work on the catamaran. Specifically he made alterations to the rudder, and inspected the vessel. He did not notice any dry rot at that time and, if he had seen it, he would have informed the plaintiffs. In his view, the boat was sound.

There is a further category of evidence of possible relevance to the role played by Exhibit 3 in the capsizing of the catamaran, and that is evidence as to the psychological and mental state of the male plaintiff, Mr Merrin. This evidence is to be considered in considering the weight to be given to Mr Merrin’s evidence and also, possibly the weight to be given to the evidence of Mrs Merrin and Ben. Evidence in relation to these matters has been given by a psychiatrist, a psychologist, and a general practitioner.

Dr Paul John Trott is a consultant psychiatrist. He received instructions from MacDonnell’s by a letter dated 12 May 1999 to interview both Thomas Merrin and Annette Elizabeth Merrin, and did so on 26 May 1999. He reported to MacDonnell’s by a letter dated 18 June 1999. The doctor was provided with various medical reports for the purposes of his report, and found the most significant of those to be the reports of Dr McAuliffe and Dr Jenkins. Dr Trott says in relation to Mr Merrin that:-

“He does not have a psychotic disorder nor a major depressive illness. He has an underlying character vulnerability secondary to his poor narcissistic development (factors in his developmental history). He has a longstanding history of affective instability, with low frustration tolerance and poor impulse control. Additionally his character is sensitive to criticism and rejection. Mr Merrin has a paranoid world view, and is hostile and negative towards persons of authority or professional standing. He has defence mechanisms of denial, projection, idealisation and denigration, and rationalisation.”

Dr Trott states that it is his clinical opinion that Mr Merrin has a paranoid personality disorder in that he has a pervasive distrust and suspiciousness of others and that persons’ motives are interpreted as malevolent. Although it had been suggested by Dr McAuliffe that Mr Merrin may have a psychotic illness, Dr Trott does not share that view. He further states that:-

“Additional to his paranoid personality disorder there are narcissistic and antisocial traits which at times have resulted in abhorrent behaviours, including a sense of self-importance and entitlement, as well as interpersonal exploitativeness, and an inability to develop empathy.”

In relation to the capsize of the catamaran, Dr Trott states:-

“It is my clinical opinion that Mr Merrin has tended to exaggerate various symptoms and has attributed most of his characterlogical difficulties to the present incident relating to the sinking of his catamaran though the motives are both unconscious (primary psychological gain) and conscious (secondary psychological gain). Primary gain motives relate to his character function, whereby he tends to project blame for his various failings upon an external factor, rather than attempting to take personal responsibility for his actions. Secondary gain motives relate to financial benefit. It appears that Mrs Merrin has passively colluded with her husband.”

With respect to Mrs Merrin it is the doctor’s opinion that she does not qualify for a diagnosis of either a psychotic illness or a depressive disorder. The doctor notes that it is difficult to ascertain why Mrs Merrin has persisted in a relationship with her husband, as he was unable to examine her developmental history (due to the non-cooperativeness of Mr Merrin). He hypothesises that Mrs Merrin may have unconscious maternal fantasies towards her husband whereby she has taken on a caring and nurturing role for him, so as to modulate his markedly immature behaviour. It is also possible, he thinks, that she feels trapped in the relationship and is fearful of her husband’s subsequent behaviours if she were to leave him.

It is also the doctor’s opinion that Mr Merrin has a longstanding character disorder that has resulted in significant impairment to his interpersonal, social and occupational life. Although the catamaran sinking and loss of personal possessions would exacerbate his character dysfunction, it is unclear, in the doctor’s opinion, as to what degree there has been a deterioration in his level of functioning, given the chronicity of his disturbance pre-morbidly.

The cross-examination of Dr Trott was abusive and essentially achieved nothing.

Sharon Daniels is a clinical psychologist practising in Cairns. She interviewed and assessed Mr Merrin on 4 and 28 October 1999 and prepared a report dated 30 October 1999, which is Exhibit 171 in the proceedings. Ms Daniels’ report includes a psychometric summary which states:-

“Overall, Mr Merrin’s results indicate that he is a man who is outraged and deeply hurt as a result of having his home/boat destroyed. There is no doubt that this accident has caused him deep distress. However, self administered personality assessments only substantiate his own self reported personal history of a pre-existing personality disorder overlaid with a history of continuing alcohol abuse.
Contrary to Mr Merrin’s belief, I could find neither anecdotal nor hard evidence to substantiate a diagnosis of post-traumatic stress.”

Earlier in the report the psychologist says:-

“The configuration of the clinical scales suggests a person with a history of drinking problems who is embittered and angry. His sensitivity and hostility in social interactions probably serves as a formidable obstacle to the development of close relationships, and thus he is likely to be withdrawn and isolated. Alcohol may be playing a functional role in helping withdraw from such relationships or in reducing the anxiety and threat they impose. Mr Merrin likely ruminates about his life circumstances and the urge to drink may be at the centre of many of these ruminations. It is likely that there is significant impairment in social role performance that has resulted from his drinking; however, he is more likely to attribute such problems to external factors than to admit their relation to his drinking.
Mr Merrin describes a level of suspiciousness and mistrust in his relations with others that is unusual even in clinical samples. Such a pattern is often associated with prominent hostility and paranoia of potentially delusional proportions. He is likely to be a hypervigilant individual who often questions and mistrusts the motives of those around him. He is extremely sensitive in his interactions with others and likely harbours strong feelings of resentment because of perceived slights and insults. He is quick to feel that he is being treated inequitably and often holds grudges against others, even if the perceived affront is unintentional.”

The witness was cross-examined by Mr Merrin but remained unshaken in her opinions.

Dr Michael McAuliffe is a general practitioner practising in Cairns. He examined Mr Merrin who had applied for an invalid pension, and at that stage Dr McAuliffe used to do medical examinations for the Department of Social Security to assess the medical condition of people making such applications. The doctor produced copies of what he had prepared for the Department, which became Exhibit 189 in the proceedings. Dr McAuliffe saw Mr Merrin on 10 July 1996.

There is also Exhibit 36 in the proceedings, which is a letter written by Dr McAuliffe for the benefit of the Department of Social Security. The letter is dated 11 March 1999 and is addressed to “whom it may concern”. The first paragraph of the letter reads:-

“Thomas Merrin is currently attending the surgery for management of his medical problem. He was seen once, in July 1996 on behalf of the Department of Social Security and, more recently, has been attending on a regular basis since July 1998. His main problem is depression brought on by the sinking of his boat in 1997 and subsequent legal problems relating to this.”

In his evidence Dr McAuliffe amended that paragraph to make it clear that Mr Merrin’s depression was not solely due to the sinking of his boat. Rather, that event produced an exacerbation of a pre-existing depressive condition, because Mr Merrin had given him a history of having been depressed since 1972.

The letter of 11 March 1999 continues:-

“His symptoms include poor sleep pattern, inability to concentrate and manage his own affairs, irritability and aggressiveness towards his wife and others, heavy drinking plus excessive eating leading to obesity. The obesity results in some problems with blood pressure control.
Thomas Merrin has become very dependent on his wife and requires her to administer his medications. His mental state is so confused that he is unable to cope with this task. In addition, he suffers some panic attacks if she is not constantly with him. It appears that she devotes an average of five hours per day looking after him.”

In Exhibit 189 Dr McAuliffe stated:-

“He gave a long, rambling and disjointed history which lacked any real logic. There was no sequence in his ideas and he jumped from subject to subject and from time to time. There was a very strong paranoid ideation throughout and, at the end of his monologue, one could make out a very definite delusional state. The ideas were quite bizarre and involved all sorts of conspiracies involving politicians, police and very big money. Central to the theme was Thomas Merrin.”

At the end of the report the doctor said:-

“Throughout the interview it became obvious that this man was irrational, paranoid and suffering from a delusional state. As such he is unfit to work. If he were treated and it proved successful, he might be fit to return to the work force. However, from his history it appears that this is a most unlikely outcome. He should be reviewed in two years to see whether the problem has been recognised and treated.”

The witness saw Mrs Merrin on 16 October 1998 as a patient. He said she was applying for a carer’s allowance to look after her husband, although Mrs Merrin asserted that she had been receiving that allowance since 31 May 1997 (which appears to be correct) and that her interview with Dr McAuliffe in 1998 related to a review or “update” of the allowance. Dr McAuliffe also saw her on 9 March 1999 in connection with an assault upon her by her husband.

The witness was cross-examined by Mr Merrin, and accused of being, amongst other things, a liar and a “cop loving bastard”. Mr Merrin then left the courtroom talking about “liars, cheats and thieves” and Mrs Merrin continued to cross-examine the witness. The witness did not resile from any of his opinions.

Mr and Mrs Merrin were also cross-examined in relation to their criminal histories, which revealed circumstances in which they had behaved dishonestly or with contempt or a significant lack of respect for the law. I take these matters into account in relation to their credit. Both Mr and Mrs Merrin hold the view, as I understand it, that many or most of the laws which regulate behaviour in our present society are, at least to some extent, invalid, in that they are “politicians’ laws” rather than “peoples’ law”. It may follow that they do not feel any particular moral compulsion to obey such laws. Mr Merrin also, from time to time, indicated scant respect for these proceedings. It does suggest, and it is a conclusion which I draw also from their demeanour as witnesses, and the manner in which they conducted their case, that they do not necessarily have a scrupulous regard for the truth in these proceedings. I received an impression, from both witnesses, that they might, as and where necessary, tailor their evidence to secure a successful outcome for them in the proceedings. I was also unimpressed with Mr Eaton as a witness. He left me with a strong impression that his major interest in giving evidence in the case was to assist the plaintiffs. I treat his evidence with considerable caution. On the other hand, making allowance for the sorts of inconsistencies which always occur when different witnesses are giving evidence about events which have happened, nothing discreditable could be established against the witness Robert Hine, and he impressed me as a witness who was simply there to tell the truth about Exhibit 3 and was a little annoyed that he was in the position of having to do so. With respect to Paul Collyer, some mention was made of criminal convictions, but no permission was sought to cross-examine the witness upon these as they were convictions in respect to which the rehabilitation period had run under the Criminal Law (Rehabilitation of Offenders) Act 1986. The witness was asked some questions concerning a cheque, but declined to answer on the ground that he might incriminate himself. There was also put to him a suggestion that there was an unpaid bill owing by him to the defendant, which he acknowledged to be the case, and it appeared that the implication of the question was that the defendant may have, in some way, bought his evidence. Generally, he was not a witness in whom I would place much reliance.

The plaintiffs have the onus of proving that any negligence established on the part of the defendant caused the capsize of their catamaran, and therefore the losses which they allege flowed from that. That involves proof that the catamaran was holed by Exhibit 3 on the morning of 28 March 1997 in Mission Bay. On that issue I prefer the evidence of the defendant’s witnesses as being more straightforward, persuasive and creditworthy than the evidence of the plaintiffs and their witnesses, which I regard with reserve. Even apart from the question of credit, it appears to me, taking into account the technical evidence in the case, that the plaintiffs cannot establish their allegations on the balance of probabilities. I am not satisfied that the catamaran was holed by Exhibit 3; indeed I am satisfied, on the balance of probabilities, that it was not.

It follows that the plaintiffs must fail in these proceedings. However, I should go on to deal with the allegations of negligence against the defendant and with the issue of the damages sought by the plaintiffs.

Warnings

The contention of the plaintiffs is that there were no warnings issued by the defendant either on its own behalf or on behalf of the Regional Harbour Master, at least from and including Monday, 24 March, when the harbour was opened, until the catamaran sank, and they have given evidence to that effect. They also say that during this period there was a VHF radio that remained on the emergency channel (channel 16) 24 hours a day on the catamaran. And there was also a “hand-held” which the plaintiff’s took with them if they left the catamaran to go into town for any purpose. The plaintiffs’ case on this issue must extend to satisfying the court that, had there been appropriate warnings of debris in the harbour and/or outer harbour during the period in question, they would have refrained from embarking on their journey on 28 March 1997. I am presently unaware of any evidence from the plaintiffs to that effect.

The parties called a number of witnesses with respect to this issue. Dorothy Avon Eather was called by the plaintiffs. She is the caretaker at the Cairns Marine Radio Club and was in that position in 1997. She took calls from vessels and the Coast Guard and the Pier Master on a number of radios at the club and recorded messages known as “securitaes”, which were essentially warnings of various sorts. These would come from a number of sources, and she would record the information in a log book. The extract of the log book for March up to mid April in 1997 is now Exhibit 127 in the proceedings.

Ms Eather slept overnight at the Marine Radio Club, and her job was to record significant messages from 6 p.m. to 9 a.m. during week days, and from 6 p.m. to 7 a.m. on the weekends. In effect, at that time, the Marine Radio Club did a “night shift” and the Coast Guard did a “day shift”. There is a record on 22 March 1997 at 8.57 a.m. to all ships, from Cairns Harbour on frequency 16 of a red alert, which is when Cyclone Justin struck. There is also a call recorded on 23 March 1997 at 0708 hours to all stations from the Marine Radio Club that the club was closing the cyclone watch. Some of the recordings in Exhibit 127 are made by the witness, and some of them were made by Brian Swinton, who was the president of the club. The witness said that at night if messages were received she would scribble them on pieces of scrap paper, and subsequently write them into the log book. No other messages recorded relate to debris in the harbour.

It is not contended by the defendant that it has any special privilege, statutory or otherwise, which would afford it some protection in a negligence action arising out of the construction and operation of the marina. The defendant also concedes that it had a duty of care to the plaintiffs and others in their position at the relevant time to take reasonable care to protect them from harm, flowing from the partial destruction of the marina by cyclonic winds, such as were produced by Cyclone Justin. The defendant is to be considered in the position of any ordinary individual or corporation in determining whether or not its conduct in constructing the marina, initially without protection from the elements at all, and then reconstructing and extending the marina with protection, but by way of a staged development, constituted a breach of duty to the plaintiffs. It is not contended that it was not foreseeable that damage to a vessel such as the plaintiffs’ might occur in and around the waters of Cairns Harbour, following structural damage to the marina, whilst the marina lacked protection from the north and the north-east. The question which arises for decision is whether it was a reasonable and justifiable course for the defendant to adopt, to defer providing that protection to the last stage of the upgrade.

The considerations to be taken into account include the extent of the risk that destructive damage might be caused to the marina from the north or the north-east, before the re-building of the marina was completed, the practical possibility of obviating the risk of that happening, and the availability of funds to enable the defendant to proceed expeditiously with the project. The defendant was also under pressure from the community, including the business community in Cairns, to provide an operational marina for the development of the tourist industry in that city and to upgrade the general wharf facilities for the general economic development of the city and region. So far as practicality is concerned, the studies undertaken and the advice received by the defendant was generally to the effect that the nature of the upgrade to the marina was the only feasible one in the circumstances and, in particular, to proceed in stages was the only way of achieving an upgrade which apparently was within the defendant’s financial capability. As it turned out, of course, the defendant did not have the financial capability to proceed with the development beyond the completion of stage 1A prior to March 1997, when Cyclone Justin struck. This appears to have been a result of less than anticipated revenues flowing to the Authority, and the extraction of substantial amounts of money from the Authority by the State Government by way of dividends.

Not to have proceeded to provide protection to the marina would have left the defendant clearly vulnerable in a negligence action by any person who suffered damage as a result of further cyclonic damage to the marina. The only alternative to providing protection would have been to destroy the marina completely, so that the risk of damage would be thereby obviated. In my view, that was not a course of action that a body placed in the position of the defendant could reasonably be expected to have undertaken. The alternative, that is to say the retention and development of the marina with protection of the structure from damage from the elements was, in effect, the only viable option for the defendant. The fact that that protection could only be provided over time was a consequence of the financial capacity of the defendant and, as a body with serious responsibilities, both with respect to the sea port and the airport, there was no practical alternative but to stage the provision of protection, along with the extension of the marina, if the defendant was to recover its costs over time from the provision of extra berthing facilities and from Marine Parade rentals at the same time as protection was provided to the marina. No report or study in evidence suggested to the defendant that a satisfactory breakwater could have been constructed, and would have been financially feasible, to provide interim protection to the marina whilst the extension of the marina proceeded.

The advice and opinion given to the defendant was unanimous in indicating that damage from the north or north-east was the area of least risk with respect to cyclonic activity in the region, and that this risk was slight, or low. Moreover, the area of high risk, as Cyclone Joy had recently demonstrated was possible damage from the south-east. The staging of the development adopted by the defendant did provide, as soon as possible, protection against damage from the south-east which would have been increased with the completion of stages 3 and 4. Moreover, it appeared to be central to the re-development concept to build the marina from an upgraded version of the existing jetty, retaining the existing site of the marina, which expert advice indicated was the only reasonably practical site for the development, and this at the same time catered for the perceived necessity to provide protection from winds from the south-east. There is no evidence that there was any practical way of constructing the marina in a different fashion from that decided upon by the defendant, and in particular, in a way that would have provided protection against cyclonic winds from the north east whilst the marina was in course of construction.

In the end, and recognising that others may have different views, I would conclude that the failure of the defendant to provide protection to the marina from the north by the time damage was caused to the plaintiffs’ vessel, was not a breach of its duty of care to the plaintiffs. In the circumstances of this case, I consider this conclusion to be consistent with the principles to be collected from the authorities to which I have been referred, viz; Romeo v Conservation Commission (1998) 192 CLR 431; Pyrenees Shire Council v Day (1998) 192 CLR 330; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Brodie v Singleton Shire Council (2001) 206 CLR 512 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.

Damages

Loss of the Catamaran

Mr Merrin gave evidence that the catamaran was purchased in 1989 for $15,000. It is not disputed that the catamaran was the joint property of the plaintiffs.

Sydney Allan Wilkin is a retired boat builder. He practised as a marine consultant and ship surveyor in Townsville and he did a “survey report and valuation” dated 26 October 1990 of the plaintiffs’ catamaran. This valuation included the vessel with navigation equipment, lifesaving equipment, engine, electrical equipment, pumps, rigging, dinghy sails and covers, as well as other items. The witness commented:-

“The vessel when visually inspected was `out of the water’ and later afloat, and found to be maintained in a good seaworthy condition, with no notable defects.
The outboard engine is new and considered to be of sufficient auxiliary power for this sailing vessel. At the time of this inspection, this vessel is being fitted with the interior fittings and furniture, and would be 75 per cent completed, this report will be updated at completion.
In my opinion this vessel, in its present condition of refit, would represent a reasonable investment at this valuation and a valuation at completion in the mid 60s.”

The valuation then follows:-

Hull and permanent fittings     $30,000
Machinery  $13,500
Special Equipment                   $ 6,000
Total  $49,500

Special equipment included a radio to be fitted and a radio cassette with a CD player to be fitted, an auto pilot, an echo sounder, a television set and a mobile telephone.

The witness said that he valued not only vessels but marine chattels as well and that he had conducted valuations for banks and all kinds of financial institutions and insurance companies.

The witness said that to properly maintain a vessel requires an investment of 20 per cent of its value per year. Short of that the vessel will deteriorate. There is also a decrease in the value of vessels as they get older, to an extent which the witness did not quantify but he said that that would be kept to a minimum if the vessel was properly maintained.

The witness conceded that he could not comment upon the valuation of another marine valuer some years later, since he had not seen the vessel since 1990. He agreed that a vessel that was occupied was likely to be better maintained that one that was not.

Another valuation was prepared by Russell Stephen Larkin. He is a marine surveyor and his firm in 1997 was known as Russ Larkin and Associates. The witness carried out an inspection and report of the catamaran on 27 May 1997 and subsequently whilst the vessel lay on the beach at Admiralty Island, Trinity Inlet. The valuer noted that the vessel appeared to have been in poor condition before the “casualty”, as several areas of dry rot were noticed at the time of inspection. In the opinion of the witness the value of the vessel would not exceed $15,000, which was considerably less than the estimated costs of repairing the vessel. Following another inspection of the vessel on 13 November 1997, while the vessel still lay on the shore at Admiralty Island, the witness stated that, in his view, the vessel would not have been in particularly good condition at the time of the capsize. It was noticed that there were some “soft” areas on the deck between the hulls, which were probably the result of dry rot in the timber. Certainly there was dry rot in the stem of the starboard hull, and about one metre from the stern of the portside hull.

It is true, as has been submitted, that Mr Wilkin’s earlier valuation was of the vessel complete with equipment, whereas Mr Larkin’s valuation was essentially the vessel without any fittings and some six and a-half years older. Mr Wilkin had valued the hull and permanent fittings in the sum of $30,000. Mr Larkin considered the hull to be worth no more than $15,000 when he inspected it. The passage of time might account for the difference between the two valuations or contribute to that difference.

Mr Larkin’s evidence about the necessity of paying about 20 per cent of the value of the vessel per year in maintenance, in order to maintain the value of the vessel is of obvious importance.

Mr Merrin said in his evidence that it would have cost $70,000 odd to repair the damage to the catamaran. He also said that a $20,000 refit had been carried out on the vessel in the 18 months prior to sailing, some of the items required for this having been purchased in 1995. The plaintiffs' submissions refer to pages 15, 16 and 17 of Exhibit 20, which is a bundle of statements of an account which the plaintiffs had with the National Bank on Thursday Island. There is one debit amount of $10,000 shown on 28 July 1995, but the evidence does not appear to link this to expenditure on the catamaran. The bank statements tend to indicate that the principal amounts being paid into the account were Social Security payments and it would not appear that the plaintiffs enjoyed a substantial income at any time from 1990 onwards. On the other hand, there is evidence from Mrs Merrin that from time to time her mother and her father provided the plaintiffs with capital sums to assist them with their expenses. The pages of the bank statement referred to earlier show a credit of $11,000 at one point, which may be explicable upon that basis. As indicated earlier, Steve Eaton said that the catamaran was in good condition when it sailed on 28 March 1997 but, as I have also indicated, I treat his evidence with some reserve. I think the plaintiffs and their family have a genuine love of boats and of the nautical life, and I think that they would have spent what moneys they could, after providing for living expenses, in keeping the yacht in reasonable condition. There is evidence from them that living on the catamaran meant that their living expenses were very low. It is thus possible that the vessel was worth some $49,000 in 1990 and was worth close to that figure in March 1997. On the other hand there is Mr Wilkin’s evidence of the condition of the yacht not very long after the date of the capsize. The evidence is such that it does not admit of precise or even approximate calculation of the value of the catamaran as at the date of the capsize. I would estimate a value in the area of $40,000 in that respect.

Loss of Contents of the Catamaran

The evidence is to the effect that all the contents of the catamaran were lost or damaged beyond any possibility of reinstatement. The plaintiffs called a valuer, Mr Neil Teves, who is a registered valuer under the Valuers Registration Act of Queensland. He prepared a valuation report of an inventory of items as at 3 November 1999, and assessed the total value of these items at $51,000. Details of the items valued were provided to the witness by the plaintiffs and he depended entirely upon that information. The witness said that he applied his experience and knowledge of chattels of this nature in giving a replacement value to the items and in assessing a figure for depreciation. The witness considered it appropriate to value the items on board the yacht in situ, that is the value they would have to a purchaser who was buying the yacht equipped with all its contents. Moreover, with respect to some items, such as wedding photographs, disposable contact lenses and titanium teeth, he allowed a value which would be personal to the plaintiffs and which was, in fact, more than any purchaser would pay for them.

The other valuation was provided on behalf of the defendant by Mr Larkin. Mr Larkin’s valuation of the chattels was done on the basis of market value with what he considered to be a appropriate amount of depreciation, about 15 per cent to 20 per cent, to reflect that the item was no longer new and in the store, and then, as a rule of thumb, about 10 per cent per year on some items, or more in respect of others. Mr Larkin’s valuation, conducted on that basis produced a figure of approximately $32,000.

Authorities such as Parramatta City Council v Lutz (1988), 12 NSWLR 293, an authority to which I was very properly referred by counsel for the defendant, show that market value is not always appropriate where the question of valuation is being considered in relation to a family home. In appropriate circumstances, rules for the assessment of damages, including the “Spencer” rule, have to give way to the principle that an injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he would have been in if the tort had not been committed. There is no doubt that the catamaran served as a home for the plaintiffs and their family. All in all, I consider it reasonable that the items should be valued in situ in accordance with the method adopted by Mr Teves. I think, nevertheless, that there will have been some overvaluation of those items, and, of course, it was not possible to independently verify the information given in relation to each item to Mr Teves by the plaintiffs. The difference between the two claims is approximately $18,000. I would, in all the circumstances, place a value on the chattels of $42,000, reducing Mr Teves’ valuation by a figure of $9,000.

Mr Merrin’s Personal Injuries Claim

Mr Merrin’s injuries are particularised at page 8 of the final amended statement of loss and damage, which has become Exhibit 157 in the proceedings. Under cross-examination Mr Merrin conceded that his contention was not that these various conditions had been caused as a consequence of the capsize of the catamaran, but that they had been exacerbated by that event.

Several medical practitioners were called to give evidence, in addition to those who dealt with Mr Merrin’s psychological state and personality. Dr Anthony Jenkins was Mr Merrin’s medical practitioner. He first saw him on 4 July 1996 and subsequently on 7 January 1997, and then on 1 April 1997 following the capsize of the catamaran. Dr Jenkins provided a report dated February 6 1998, confirming that Mr Merrin presented at his surgery on 1 April 1997, in a very stressed and agitated state after his boat sank. He was drinking heavily because of the stress he was under and he was hypertensive and overweight. He reported that he was told that when salvaging items washed overboard from the boat he inhaled petrol fumes from an air pocket, and this made him feel sick. He was quite depressed and he was commenced on Prothiaden. He was also commenced on Tenorman for his blood pressure. The prescribed dose was steadily increased during April and May. He needed multiple visits for counselling and to monitor his blood pressure and depression. The doctor said that his patient’s condition had not changed over the last six months and he now constantly suffered from stress and had the following symptoms:

1.          Inability to sleep – poor concentration,
2.          Inability to tackle tasks during the day – anger and    resentment with the “system”,
3.          Loss of hair secondary to stress,
4.          Aggressiveness towards his wife and other family members,
5.          Oversensitivity.

Dr Jenkins proceeded to say:-

“Mr Merrin feels trapped and frustrated without his boat and without the sea life he has had for so long. He is ill-equipped to settle down in a job in a city environment. He has made an effort to cut back on his alcohol in the last six months, but is eating excessively. He is not suicidal and his thought patterns are appropriate though muddled. Unfortunately he is not even able to work around the house and he certainly cannot work before the presentation of his court case, which is all being prepared by his wife. His boat was not insured and he is now suing the Port Authority and the Harbour Master for the piece of floating pier that caused the sinking of his vessel.”

It was elicited in cross-examination from Dr Jenkins that Mr Merrin was suffering high blood pressure and depression prior to the date of the capsize. This may have been due to a prosecution that he was involved in with respect to foxtail palms. Indeed Dr Jenkins conceded that it was quite possible that Mr Merrin suffered from the sorts of symptoms that were outlined in his report on 6 February 1998, prior to the capsize of the catamaran.

Dr Maurice Heiner gave evidence concerning Mr Merrin’s lungs. Mr Merrin presented to him with a CT scan and chest X-ray revealing some bullous changes throughout the lung. This revealed some scattered bullae in both lungs. There was no evidence of any asbestos-related disease, which apparently had been a concern of Mr Merrin’s. A histamine test indicated that he did not have asthma.

In examination-in-chief Dr Heiner said that Mr Merrin had hyper-reactive airways or asthmatic airways, and that it was conceivable that such a person, if he inhaled contaminated water or chemical vapours, would suffer an increase in airway reactivity. Coughing up blood would not be a normal reaction but it might be related to infection or irritation, and could be related to chemicals, particularly hydrochloric acid or sulphuric acid. That would certainly cause people to cough up blood or vomit up blood if the concentration was high enough to cause damage to the lining of the gastro-intestinal or the respiratory tract. In cross-examination Dr Heiner agreed that the asthma afflicting Mr Merrin was probably genetic. Bullous lung disease can also be a hereditary disease, and as people age the bullae become larger. A number of people who have bullous disease have associated asthma. The bullous changes in Mr Merrin’s lungs were not having any impact upon his lung function, so that the physiological effects of the enlarged bullae were negligible. The doctor also thought that at the time when Mr Merrin saw Dr Jenkins, in all probability he did not have symptoms of asthma caused by the incident in the catamaran. Dr Heiner said that Mr Merrin should not dive, because of his bullae and also, and separately, because of his asthma.

Even the basis, put by Mrs Merrin, that Mr Merrin inhaled a “cocktail of poisons” which caused him to black out and that he had trouble finding his respirator and blacked out on two more occasions on his way to the surface then spent an hour attempting to recuperate when he was back on board the Koki Star, but had to return back to diving, did not assist the doctor to conclude that the condition of Mr Merrin’s lungs was probably attributable to the catamaran incident.

Dr Frederick Simpson is a consultant physician, specialising in respiratory medicine. He prepared a report for the defendant dated 2 August 2005, which is now Exhibit 208 in the proceedings. The tests show multiple small bullae (enlarged air spaces) scattered throughout both lung fields. The doctor said that it was not possible to make comment as to the presence or the absence of generalised emphysema within the lung. Bullae are most commonly associated with generalised emphysema, which itself is most commonly brought about by cigarette smoking. In the absence of cigarette smoking, both emphysema and bullae formation can occur where a lack of a protective protein in the blood can cause diffuse lung damage. This is an inherited condition. Bullae can also form as a development abnormality, and there is a form of emphysema known as paraseptal emphysema where bullae can form within the lungs. Paraseptal emphysema is generally of no clinical significance. The doctor referred to Dr Heiner’s letter which suggests that complex lung function testing showed normal lung volumes and gas transfer. In any situation Dr Simpson considers that the bullae themselves would have no effect on Mr Merrin’s capacity to breathe, and would not in themselves cause breathlessness.

The presence of bullae is generally regarded as a contraindication to scuba diving, but there are many cases of people, particularly experienced divers, who have dived throughout their life with bullae and suffered no adverse consequence. The doctor said that it was not possible to say upon the evidence whether Mr Merrin does suffer from asthma, but if he does the probability is that it is very mild. There is also a condition known as reactive airways dysfunction syndrome which provides asthma like symptoms and airway hyper-responsiveness following a prolonged period of exposure to toxic or irritant substances by inhalation. Exposure is usually intense and most reports deal with exposure to extremely toxic gases. In Mr Merrin’s case the doctor thinks that his symptoms are probably attributable to mild asthma, rather than to reactive airways dysfunction syndrome. The doctor noted that Dr McAuliffe’s report suggests that he was overweight and had poor levels of physical fitness, together with problems related to stress and depression. All of these factors may be relevant to the development of breathlessness.

The doctor said that a combination of hydrochloric acid from batteries and oils, chemicals, paint hardener for two pack paint and fibreglass toxins would certainly be very irritant when inhaled and cause short-term wheezing, but he did not think that any of those things would cause the bullae in Mr Merrin’s lungs. They certainly could be associated with airway irritation and cough and some wheeze, which may go on for some time, and it could trigger asthma-like symptoms. In the end Dr Simpson thought Mr Merrin might be suffering from mild asthma –

“but we don’t have any evidence of abnormal lung function, which is really a sine qua non of a diagnosis of asthma. At some stage you should be able to demonstrate impaired airway function and reduction in spirometry and I’m not sure that has been demonstrated. So, I guess, whatever Mr Merrin has is not having, or hasn’t been demonstrated to have, measurable consequences on his lung function.”

I think it may be accepted that Mr Merrin suffered some exacerbation of some of the symptoms complained of in Exhibit 158. The evidence does not permit of any hard and fast conclusions in respect to these matters. There is reason to believe that to the extent that the symptoms existed following the capsize of the catamaran they also existed to a significant extent, prior to that event. I think it is likely that there were measurable increases in stress, depression, alcoholism and aggressive behaviour following the capsize and that he ought to be compensated for these. I would put compensation for Mr Merrin’s pain, suffering and loss of amenities within the range of $30,000-$40,000, so at a figure of $35,000.

Mr Merrin’s claim for loss of income to the date of the amended statement of loss and damage (Exhibit 157) is stated as follows:-

“In the time that the plaintiff’s wife could have been working in the areas mentioned there would have been opportunities for Mr T W Merrin to have gained employment in the area of caretaking vessels and diving, as well as beachcombing and prospecting. Possibly also improving his health to a great extent. Mr Merrin’s income could have possibly reached to the date of this statement: $80,000.”

The plaintiffs’ submissions do not make any mention of this claim. The claim amounts effectively to a net income of $10,000 over eight years. The principal source of income for Mr Merrin since at least 1990 has been Social Security benefits in various forms and, ultimately, a Disability Support Pension, which apparently dates from 25 July 1996. There are no records which convincingly demonstrate income earned by him in the area of caretaking vessels, beachcombing or prospecting, although I accept that he did engage, to some extent, in those activities whilst in port and whilst travelling with his family on the catamaran. Counsel for the defendant has pointed out that no claim for economic loss was made by Mr Merrin in the first trial. And it is submitted that, “In all the circumstances, one may comfortably conclude that this is a deliberately exaggerated claim for illicit gain.” Nevertheless, I think it likely that Mr Merrin would have earned something in the neighbourhood of $1,000 to $1,500 per year over the eight years and I would award, in respect of past economic loss, the sum of $10,000.

At the time of making the final amended statement of loss and damage, which was July 2005, it appears from that document that Mr Merrin was 62 years of age. With the state of health which he appeared to suffer even before the capsize of the catamaran, it is difficult to believe that he could have engaged, for any significant period, in earning further income, or that he would have made any particular effort to do so when he was receiving a Social Security benefit, as was Mrs Merrin. I would allow for future economic loss, a sum of $6,000.

Mr Merrin makes a claim for out-of-pocket expenses, relating to various medical supplies and bus fares. The total amount claimed is $849.55. It appears that some of these matters are barely connected to the consequences of the capsize of the catamaran, in view of the medical evidence which has been referred to above. However, I think it is reasonable to allow an amount of $800 with respect to this claim.

Mrs Merrin’s Personal Injuries Claim

Mrs Merrin claims in respect of pain and suffering, lateral epicondylitis (tennis elbow); damaged left ear-drum; mild seasickness; stress; and depression. By way of loss of amenities she claims a loss of ability to swim underwater, diminished enjoyment of socialising, inability to lose weight due to stress and, finally, an inability to seek employment of her choice.

The tennis elbow was not a direct result of the capsize of the catamaran. It resulted from the fact that the plaintiffs were obliged to live aboard the Kuri Pearl in the days and weeks following the capsize because they had nowhere else to live, and there was no electricity available on that vessel, with the consequence that to obtain fresh water Mrs Merrin had to raise buckets of water up over the side. She states that that is how she injured her elbow joint. In a sense, that episode is attributable to the impecuniosity of the plaintiffs, because presumably they could not afford to stay somewhere where normal services, such as electricity, were provided. Such damage is not normally recoverable and, as submitted by defendant’s counsel, it is doubtful that it is damage foreseeable by the defendant. However, I think that on balance Mrs Merrin should receive some compensation from the defendant in respect to that injury, in the event that the defendant is visited with any liability to her.

The only medical evidence in relation to the damaged ear-drum is that of Dr Glennie, an ear, nose and throat specialist, practising in Cairns. Dr Glennie first saw Mrs Merrin on 20 July 1998, following a referral from Dr Hartrick, her usual general practitioner. Dr Hartrick had seen her on 1 May 1998, when she had been putting peroxide drops in the left ear and developed discomfort. In his report Dr Glennie says that there is no apparent relationship between the onset of otitis externa in May 1998, or several weeks before that, and any injury she sustained when the vessel capsized on 28 March 1997. He considered that aspergillus contracted by Mrs Merrin was responsible for the tympanic perforation and he considered it probable that that condition developed between May 1998 when she saw Dr Hartrick, and July 1998 when she saw Dr Glennie, and that it was the aspergillus which caused the hole in the membrane.

The witness was cross-examined by Mrs Merrin but his conclusions remained undisturbed.

The mild seasickness of which Mrs Merrin complains is attributed by her to the damaged ear-drum. It follows that that matter also was not caused by the capsize.

With respect to her claim for stress and depression, the position is that there is no evidence that she suffered the states, in a clinical sense, in circumstances which can fairly be attributed to the loss of the catamaran. Mrs Merrin may suffer stress and depression to some extent for other reasons, and she would naturally have been upset when the catamaran was lost, since the vessel served both as a boat and as her home. An emotional upset short of a diagnosed medical condition is not normally compensable in damages.

There is no satisfactory evidence in relation to the matters complained of by way of loss of amenities. The loss of ability to swim underwater is presumably related to the damaged ear-drum. And the lack of ability to seek employment of her choice is, apparently, alleged as a consequence of her decision to become Mr Merrin’s full-time carer following the capsize. It is, in my opinion, not something reasonably foreseeable by the defendant and is too remote to be recoverable. The evidence, in my opinion, fails to establish physical or mental damage suffered by Mrs Merrin as a consequence of the capsize of the catamaran (See MIM v Pusey (1970) 125 CLR 383 per Windeyer J at 394) apart from her tennis elbow, as to which I would award her the sum of $4,000.00.

Mrs Merrin’s claim for past economic loss is stated as – “$209,000 plus the percentage indexed to the gross average wage for the last eight years” – which has to do with income she says she could have earned tutoring at TAFE colleges on Thursday Island, Bamaga, Mornington Island and on the outer islands, over the period mentioned, were it not for her full-time obligation to care for her husband. To this she adds the sum of $6,363, which she thinks she might have been able to earn with the Department of Employment, Education and Training. Mrs Merrin conceded in cross-examination that she had no taxable income from 1990 to the time of the capsize in 1997, except during the financial year 1993/1994 when she earned approximately $22,000 from contract tutoring. Counsel for the defendant submits that Mrs Merrin’s failure after the 1993/1994 financial year to earn any income plainly relates to her conscious decision to place what she perceived to be Mr Merrin’s priority needs in front of her own economic aspirations. Also, as counsel submits, it is far from clear that, but for the capsize, she really would have had the opportunity to obtain income from contract tutoring, having regard to Mr Merrin’s likely demands. Moreover, Mrs Merrin conceded in evidence that no injury prevents her from turning to work. What prevents her from returning to work is only her desire, echoed by Mr Merrin, to be his carer. In my opinion, Mrs Merrin’s claim for past economic loss must be rejected. Mrs Merrin’s claim for future economic loss, which is stated at a figure of $522,511.60, must also be rejected for the reasons stated above.

Mrs Merrin’s claim for special damages again must be rejected because it has not been shown that she suffered from injuries caused by the capsize, to which the medications and treatments referred to have been proved to relate.

A claim is also made on behalf of Mr Merrin for Griffiths v Kerkemeyer damages in respect of “gratuitous nursing and domestic services that have been rendered to him”. The claim totals $158,780 and is calculated over a period from 1 April 1997 to 7 August 2005. It is noted that Mr Merrin’s conditions are still ongoing “meaning he still requires medication and care”. There is no particularity in the evidence as to the precise services rendered by Mrs Merrin, other than his statement that:-

“She’s with me all the time and makes sure that everything is done and all the tablets are taken at the right time. She has to fill in reports all the time … whatever – whatever a woman or a carer has to do.”

The only additional information forthcoming was that Mr Merrin needs assistance to put his socks and shoes on and tie his laces.

The medical evidence indicates that Mr Merrin was placed on an invalid pension in 1996 because of his psychological and personality disorders. Those are a sufficient explanation for the services provided to him by Mrs Merrin, and are matters unconnected with the capsize of the catamaran.

The plaintiffs make a claim for rent, electricity and gas, being expenditure which they say they would not have incurred but for the capsize and subsequent loss of the catamaran. The claim for rent is an amount of $61,985 over the period from 1 May 1997 to 23 June 2005. And the amount claimed for rent and gas over the period is approximately $5,000. The total of the amounts claimed is thus $67,000 over eight years, which equals $8,375 per year.

In assessing the value of the catamaran as at the date of its capsize, I assessed a figure of $40,000 on the basis that the plaintiffs would have made a reasonable effort to keep the catamaran in reasonably good condition in view of its importance to them. There was also reference to the fact that such maintenance would require expenditure of 20 per cent per annum upon the vessel. In addition to that, there would be fuelling of the vessel and incidentals. I therefore take, as an approximate figure, the cost of maintaining and fuelling the vessel as being in the vicinity of $8,000 per annum. That amount I consider should be offset against the expenditure on rent, electricity and gas claimed by the plaintiffs. In view of the lack of certainty, and to some extent of particularity, in these claims, and looking at the matter broadly, I consider that the result is to completely offset the claim for rent, electricity and gas.

There is a further claim made in respect of computers, printers and scanners purchased “for the purpose of creating documentation required in this claim”. The amount claimed in that respect appears to total $3,583.95. However, I do not consider that these expenses are recoverable against the defendant. Perhaps something should be allowed in respect of Mr Eaton’s claim for salvage, amounting to $6,200.00. It is clear that Mr Eaton played only a minor part in the salvage operation but did provide the use of his boat. It would, I think be reasonable to allow a sum of $3,000.00 in respect of his claim.

The result is that I would award the plaintiffs the sum of $85,000.00 in respect of the loss of the catamaran and chattels and the salvage claim. I would award Mr Merrin the sum of $51,800.00 for his personal injuries, past and future economic loss and out of pocket expenses, and I would award Mrs Merrin the sum of $4,000.00 in respect of her personal injuries. These amounts total $140,800.00. However it is necessary to consider whether and to what extent that amount should be reduced on account of contributory negligence on the part of the plaintiffs. In my opinion, the evidence favours the view, on the balance of probabilities, that the cause of the capsize was as much a result of the screw cap in the inspection port hole having been left off, as it was a result of the penetration of the starboard hull by Exhibit 3, in the event that that were ultimately found to have occurred. I would see the two events as jointly operating causes, and would reduce the award of damages by 50%, since, in my view, the failure to ensure that the inspection porthole was closed whilst the vessel was at sea represented a failure on the part of the plaintiffs to take reasonable care for themselves and the catamaran. That would produce a judgment of $70,400 of which some components would attract interest.

The plaintiff’s claim is brought in Public Nuisance as well as in Negligence but that circumstance does not, in my opinion, affect any of the conclusions reached in these reasons.

CITATION:	Merrin v Cairns Port Authority [2006] QDC 102
PARTIES:	TOM MERRIN and ANNETTE MERRIN Plaintiffs V CAIRNS PORT AUTHORITY Defendant
FILE NO/S:	2553 of 2003
DIVISION:	Civil
PROCEEDING:	Claim
ORIGINATING COURT:	Cairns
DELIVERED ON:	16 May 2006
DELIVERED AT:	Brisbane
HEARING DATES:	8 August – 16 September 2005, 11-17 November 2005 and 7 February 2006
JUDGE:	McLauchlan QC DCJ
ORDER:	Judgment for Defendant
CATCHWORDS:	Harbours; construction of marina by Port Authority; cyclonic damage to marina; whether fragment of marina holed plaintiff’s yacht; whether breach of duty of care owed by Port Authority to plaintiffs; assessment of damages.
COUNSEL:	Plaintiffs self-represented Mr Amerena, of counsel, for the defendant
SOLICITORS:	MacDonnells Solicitors for the defendant