Neumann v The Ship "Pelsaert" - [1999] WASC 166

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: NEUMANN -v- THE SHIP "PELSAERT" [1999] WASC 166

CORAM: WHEELER J

HEARD: 26-30 JULY & 2-4 AUGUST 1999

DELIVERED : 14 SEPTEMBER 1999

FILE NO/S: ADM 2 of 1994

BETWEEN: KENNETH CHARLES NEUMANN
Plaintiff
AND
THE SHIP "PELSAERT"
Defendant

Catchwords:

Maritime law - Negligence - Contributory negligence - Collision - Failure to keep proper lookout - No anchor watch

Damages - Assessment of - Loss of earning capacity - Post Traumatic Stress Disorder - Effect of pre-existing physical condition

Legislation:

Prevention of Collisions at Sea Regulations 1983

Result:

Damages awarded to plaintiff

Representation:

Counsel:

Plaintiff: Mr D M Stone
Defendant: Mr D R Clyne

Solicitors:

Plaintiff: Williams & Hughes
Defendant: Cocks Macnish

Case(s) referred to in judgment(s):

Bowen v Tutte (1990) Aust Tort Rep 81-043
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25
Yoo v ALCO Steel Corporation Pty Ltd [1988] NSWSC 17/06/98

Case(s) also cited:

Archer v Cable Sands (WA) Pty Ltd, unreported; DCt of WA; 2745/94; 4 April 1996
Armstrong v Neesham-Turner, unreported; DCt of WA; 2734/95; 20 August 1997
Banco de Portugal v Waterlow [1932] AC 452
Bourdon v Schumann & Ors, unreported; DCt of WA; 7930/93; 11 September 1997
Browne v Dunn (1893) R 67
Brownbill v Kenworth Truck Sales (1982) 39 ALR 191
Caudle v Wynne Meat Industries Ltd, unreported; DCt of WA; 102/95; 16 May 1996
"Coral 1" The, (1982) 1 Lloyds Rep 441
Foodlands Association Ltd and Passarelli v Mosscrop [1985] WAR 215
Freeway Hotel v Ugle, unreported; SCt of WA; Library No 940017; 21 January 1994
Future Look Landscaping Pty Ltd v Hanlon (1998), unreported; SCt of NSW; 8 July 1998
George v Erikson (1998) 27 MVR 323
Husher v Husher, unreported; FCt SCt of Qld; 21 August 1998
Jones v Dunkel & Anor (1958) 101 CLR 298
Lebagge v Buses Ltd (1958) NZLR 630
Lee v McLellan (1995) 127 FLR 383
Love v Clarona Pty Ltd, unreported; FCT SCt of WA; Library No 970012; 24 January 1997
March v E & M Stramare (1991) 171 CLR 506
Mills v Baitis (1968) VR 577
Muter v Baltic Shipping Company (1990) unreported; SCt of NSW; 15 February 1990
Nelson v N (1995) 184 CLR 538
Paulin v Stott (1997), unreported; FCT SCt of ACT; 3 February 1997
Quinn v Associated Steamships Pty Ltd [1968] 2 Lloyds Rep 271
Reily v Baird, unreported; DCt of WA; 4051/93; 7 November 1994
Rosser v Savage, unreported; DCt of WA; 6196/89; 5 August 1996
Scott v Electricity Commission of New South Wales, (1995) unreported; SCt of NSW; 8 September 1995
Shire of Harvey v Marist Brothers Community Inc, unreported; SCt of WA; Library No 930203; 24 March 1993
Simpson v Buckney (1995), unreported; SCt of TAS; 28 April 1995
Smith's Newspapers Ltd & Anor v Becker (1932) 47 CLR 279
State Government Insurance Commission v Toomath (1996) 23 MVR 319
Taroporewella v Berkery (1983) 3 NSWLR 28
Thomas v O'Shea (1989) Aust Tort Rep 80-251
"Verena" The, (1960) 2 Lloyds Rep 286
White v Owens, unreported; DCt of WA; 1977/95; 27 March 1997

WHEELER J:

Introduction

At about 4.00 am on 1 March 1993 the vessel "Pelsaert" ran down, and over, the vessel "Skeagan" which was anchored at sea about 23 nautical miles generally west of Kalbarri. It was dark and the weather was fine. The night was clear, and moonless. The "Pelsaert" was of fibreglass construction, 23.95 metres long and weighing approximately 105 tonnes. It was steaming on autopilot from Kalbarri in a generally westerly direction out to fishing grounds known as "Big Bank". A deckhand, Mr Mankelow, was on watch on the "Pelsaert". Other members of the crew, Mr Starling, (skipper) and Mr Atkins were asleep below. Mr Mankelow did not see the "Skeagan" at any time prior to the collision. The "Skeagan" was a marine ply vessel 9.87 metres long. It was at anchor, and was equipped with an anchor light. It was effectively destroyed by the collision, although it did not sink. The plaintiff, Mr Neumann, was the master of the "Skeagan". At the time of the collision both he and his deckhand, Mr Stuart, were asleep on board. Mr Stuart was either killed in the collision or drowned in the immediate aftermath. His body was never found.
Both liability and quantum of damages are in issue.
The major issues which arise are as follows:
1As to negligence of the "Pelsaert":
(a) was the light fitted to the "Skeagan" working, and if so was it working efficiently?
(b)Assuming the light was working, was it in any event likely in the conditions of that night that a prudent helmsman keeping a proper lookout would have been able to see it?
(c)Assuming the light was working efficiently and was not seen, were there any factors other than failure to see it, which might suggest negligence or inattention on the part of those crewing the "Pelsaert"?
2As to contributory negligence:
(a)was it negligent of the plaintiff to fail to ensure an anchor watch was kept when the "Skeagan" was at anchor in this area?
(b)Were there any other factors that pointed to negligence on the part of the plaintiff which was causative of the collision?
3As to quantum of damages:
(a)does the plaintiff suffer Post Traumatic Stress Disorder?
(b)If so, does that disorder mean that he is unfit to work either as a fisher or at all?
(c)Did the plaintiff suffer exacerbation of his back condition as a result of the collision, and if so, to what extent?
(d)If the plaintiff has lost some or all of his earning capacity, what allowance should be made in calculation of his damages for a pre-existing degenerative back condition which would in any event have affected his capacity to work in the relatively near future?
(e)How should the plaintiff's lost earning in respect of work as a fisher be calculated, if that calculation comes to be made?

Was the light working efficiently?

The evidence in relation to this matter fell within a fairly narrow compass. It seems to have been common ground that the light fitted to the "Skeagan" was of a type which complied with r 22 of the Prevention of Collisions at Sea Regulations 1983, in that this type of light, operating efficiently, would be visible at the minimum range of two nautical miles. Similarly, it seems to have been accepted that the "Skeagan" was "in survey". The most recent certificate of survey was dated 16 October 1992. The evidence of Captain Purkiss, which was not challenged in cross-examination, was that it was usual practice for the surveyor to make a check of the vessel's lights at the time of survey to ensure that they were adequate.
The evidence of Mr Neumann was that he turned the anchor light on and that when he retired the light was burning brightly. He said that when he woke momentarily on occasion during the night, he saw the light reflecting on the deck. He was of course unable to say whether the light was functioning properly immediately before and at the time of the collision, as he was asleep at the time. However, in the absence of evidence that the light was in any way defective, or that there was a problem with its power supply, it would be reasonable to infer that the light continued to burn until the time of collision.
The light salvaged from the "Skeagan" was examined by Mr Tovey, a consultant chemist. When he received it, the metal strip, which provided the positive connection to the globe, was broken; the globe was missing, as was the lens. He repaired it by soldering the broken metal contact back onto the base. He noted that it was corroded, and upon initial testing no voltage could be measured across the globe contacts. He identified the products of corrosion as copper chloride and zinc chloride, and identified a black coating on the positive contact as copper oxide. He compared the light with a new light of an identical type, and formed the view that the light could not, as manufactured, be considered to be waterproof or spray-proof.
In Mr Tovey's view, assuming the "Skeagan" light was not exposed to moisture in the time between its recovery and its being given to him in April 1993, it was likely that the corrosion on the negative terminal would have been identical or almost identical to that present at the time of the collision. That could have impaired the brightness of the light. He further noted that during testing the "Skeagan" light frequently ceased to work at all due to the corrosion products producing a bad contact between the globe and brass conductors.
During cross-examination, Mr Tovey conceded that it was possible that in repairing the "Skeagan" light, contact had been made which was not identical with the condition of the light prior to the collision. It may be that the intermittent working of the light was therefore a function of the manner of its repair.
So far as the presence of corrosion and consequent impairment of efficiency was concerned, Mr Tovey's opinion was based upon the hypothesis that the light had not been exposed to moisture subsequent to the collision. However, the evidence was that the "Skeagan" was not salvaged until well after sunrise on the morning of the collision. Photographs of the "Skeagan" following the collision, while it was lying in the water, reveal that anything above deck in the bow of the boat was entirely demolished, and only some fish boxes appear to project above the level of the deck. It was common cause that a quantity of debris from the "Skeagan" was floating in the water for a considerable period. Although there is no direct evidence as to what happened to the light in the period immediately following the collision, the overwhelming probability would appear to be that it was damaged during the collision and spent some hours either immersed, or partially immersed, in seawater.
In my view, therefore, no conclusions can be drawn concerning the probable condition of the light at the time immediately preceding the collision from the evidence of Mr Tovey. There is therefore nothing to displace the inference which arises from the combination of the fact that the light was of an approved type, that the vessel had relatively recently received a certificate of survey, and that the light was seen to be burning during the night by Mr Neumann.

If the light was on, should it have been seen?

The evidence in relation to this matter falls into four categories. First, there was evidence of experts in relation to human perception of light generally. There was evidence of witnesses who had been on vessels in the general vicinity of the "Pelsaert" at approximately the same time, and who had either seen or failed to see a light. There was evidence of mariner experts who examined the "Skeagan" light and considered the circumstances of the accident, and there was evidence from a number of fishers concerning their expectation of seeing an anchor light in conditions similar to those on the night of the collision.
So far as experts are concerned, Dr Keller gave evidence of the difficulties that normal human observers experience in estimating distance at night, and of the factors which would help an observer to discriminate between lights (in particular, between an anchor light and a stern light or an anchor light and a celestial object such as a star). His evidence was that perception is more difficult in respect of a light directly in front of an observer, rather than in respect of a light at an angle. The "Skeagan" light must have been directly in front of the "Pelsaert" for some time; the point of impact of the collision was apparently right at the front of the bow of the "Pelsaert", and the "Pelsaert" had not altered course prior to the collision. He agreed that the relative brightness of objects would help to distinguish them, and that the increasing brightness and size of an approaching light would help to identify it. However, he said that there was a threshold of brightness below which it was very difficult for an observer to make such comparisons; unfortunately, he was not able to say whether, or at what distance, the "Skeagan" light may have fallen below this threshold. Dr Keller acknowledged that in laboratory tests, experienced observers performed visual discrimination tests more accurately than inexperienced ones and thought it a reasonable inference that experienced mariners might find it easier to distinguish between different lights than other observers.
Evidence as to the relative brightness of the "Skeagan" anchor light and of relevant celestial objects at various distances was given by Dr Hutton, a physicist. Assuming that the "Skeagan's" anchor light complied with the regulations as to its intensity, Dr Hutton said that at two nautical miles the "Skeagan's" anchor light would be visible, but less bright than Regulus, the brightest star in the western sky; at 1500 metres - a little under one nautical mile - "Skeagan's" anchor light would be four times brighter than Regulus, which would be at a bearing angle of eleven degrees to the north of "Skeagan" and at an elevation of twenty degrees above "Skeagan"; at 500 metres or about a quarter of a nautical mile, "Skeagan's" anchor light would be forty times brighter than Regulus and at 250 metres, "Skeagan's" anchor light would be one hundred times brighter than Regulus.
If one were to assume that the light should have been easily identifiable as an anchor light rather than a star, and as a light approaching rather than moving away or remaining stationary, at some time between reaching a brightness of four times that of Regulus and that of forty times that of Regulus, it would follow that a prudent helmsman should have had anywhere between a minute, and several minutes, in which to recognise the light and take or begin to take appropriate action. However, the expert evidence of Dr Keller in relation to the difficulties of human perception suggests that such an assumption might not necessarily be correct. The evidence of these experts, taken together, in my view, advances the matter no further.
A number of wetline fishers gave evidence about the distance at which, in their experience, they could see anchor lights at night. Mr Lake thought they should be able to be seen "quite well" at three nautical miles. Mr DeGrauw similarly thought they could be seen "quite easily" at three nautical miles, while Mr Barton and Mr Scheffer took the view that the visibility might be even greater and that such lights could be seen at distances of either three to five nautical miles or three to six nautical miles respectively. No doubt, their experience encompasses vessels with different types of lights, and some of those lights may be of a greater intensity or otherwise more easily distinguishable than that of the "Skeagan". However, they were speaking of lights used by wetline fishers generally, and it was not put to them that there should be any particular difficulty with the type used by the plaintiff.
Mr Mankelow, who was the helmsman on the "Pelsaert" at the relevant time, said that he distinguished what he took to be stern lights at a distance of five or more nautical miles. The significance of this evidence is that stern lights and the anchor light in question are required to be of equivalent minimum intensity. Even allowing for difficulties of judging distance at night, which were referred to by some of the fisher witnesses, if Mr Mankelow had been able to distinguish a stern light, it would appear to follow that he should likewise have been able to make out the anchor light of the "Skeagan". Allowance must be made for the likelihood of stern lights being fixed at a position lower than the 3.5 metres approximately above sea level, which would have been Mr Mankelow's eye height in the coxwain's chair of the "Pelsaert", which may have had the result that stern lights at times fell apparently somewhat below the horizon and were seen against the black backdrop of the sea. However, given the evidence about the difficulties that an observer would have in distinguishing precisely where the horizon was at sea at night, and given that the position of lights relative to the horizon would be affected by the swell (which was the subject of a number of estimates varying between 1 and 2.5 metres at the relevant time), I think it is reasonable to assert that if a stern light could be seen then an anchor light would have been able to have been seen.
The plaintiff's expert maritime witness, Captain Purkiss, took the view that the "Skeagan" light should have been distinguished by the helmsman from celestial bodies at a distance no less than one nautical mile. The defendant's expert maritime witness, Captain Douglas, took the view that a light such as the "Skeagan's" does not become distinguishable from celestial objects until it is observed over a period of seconds at a distance of "a few hundred metres". I think it is fair to summarise his view, based on his written substance of evidence and his cross-examination, as being to the effect that the "Skeagan" light was not of optimum size or intensity, and that distinguishing it from a celestial object would take longer than was desirable. Although I have had regard to his observations about the difficulties of seeing the light at a reasonable distance, I prefer on this point the evidence of Captain Purkiss, supported as it appears to be by the every day experience of those fishers who gave evidence on this point.
Finally, evidence was called from crew on board a number of vessels which had been at sea in the early hours of the morning of 1 March. Before I turn to their evidence, it is necessary to deal with a dispute concerning whether or not the port side deck light of the "Pelsaert" was illuminated when the "Pelsaert" was steaming that night. The significance of this evidence is that a vessel, which may have been in the area of the collision fairly shortly before it occurred, had passed on that night a vessel, which was steaming with "a bright light" behind the wheelhouse.
A deck light is a bright light used to illuminate the working area of the deck. If the deck light had been on, some witnesses took the view that it would have caused a degree of reflection into the wheelhouse and would have made forward visibility more difficult. It appears to be common ground that the "Pelsaert" was at the relevant time steaming and not working; it was proceeding to Big Bank where the crew were intending to pull up their craypots, and the deck light presumably would have been used when they arrived for that purpose. It appears that only one of the deck lights was in working order.
Mr Neumann's evidence was to the effect that as soon as he saw the "Pelsaert" after the collision, before it had stopped or begun to turn, it had a bright, rear light on. He was adamant that it was a deck light. Mr Starling, the master of the "Pelsaert" and the two deckhands, Mr Atkins and Mr Mankelow, said that the deck light was not on. Mr Starling said that it could not have been on, because it required the auxiliary motor in order to be operated, and the auxiliary motor was not on. There was no explanation in evidence as to why he was certain that the auxiliary motor could not have been on.
Mr Atkins however, appears to have reconstructed his evidence. He formed the view that the deck light was not on after having had a conversation with Mr Starling. Prior to this, on 3 March 1993, when interviewed by officers of the Department of Occupational Health, Safety & Welfare, he had said that the rear deck light was on; in that statement, he had recalled seeing it when he went up to the wheelhouse, virtually simultaneously with Mr Starling, immediately following the collision. The evidence of the fisher witnesses generally was to the effect that deck lights were not usually illuminated when vessels were steaming at night, but only when they were anchored, either working or sometimes when the crew were asleep. However, although they were generally not illuminated while steaming, it appears that there were exceptions to this practice. Certainly, in his statement made to the Department of Health, Safety & Welfare, Mr Atkins seemed to see nothing unusual in suggesting that the deck light was illuminated.

The three potentially relevant vessels are the "Murion Waters", the "Calomi II", and the "Midas Touch". The "Murion Waters" can, I think, very shortly be disposed of. Evidence was given both by its master, Mr McAulley, and by the deckhand Mr Peters. Their evidence was that the "Murion Waters" left Kalbarri just before 2.00 am approximately and steamed on a course of somewhere between 283 and 285 degrees. Mr McAulley took the first watch, which changed about 25 miles from Kalbarri. If one allows for some variation either way, the change of watch occurred at about the distance from Kalbarri at which the collision occurred. Neither Mr McAulley nor Mr Peters saw any lights in front of them, and they saw nothing on the radar. The only lights they saw were from an unidentified vessel which passed them at some stage, although Mr Peters said that he saw "glows" behind him which could have been the lights of vessels.
In cross-examination, Mr McAulley noted that because of compass deviation, which is caused by metal in the boat affecting the compass, vessels on bearings which appear to be five degrees apart may in fact be travelling on the same course; conversely, it appears that vessels which set the same bearing may nevertheless diverge somewhat in their courses. Mr McAulley also conceded that it was possible that his vessel had left not from Kalbarri but from Jake's Point, which is about one and one half nautical miles south of Kalbarri.
Mr Peters said that contrary to his written substance of evidence, although he was not really sure, he thought that the "Murion Waters" had probably left the river at Kalbarri early, then gone to Jake's Point, and then proceeded from Jake's Point. Having regard to the very approximate nature of the course set by the "Murion Waters", and to the likelihood that that course was set not from Kalbarri but from Jake's Point, it is, in my view, impossible to conclude that the "Murion Waters" must have passed within two miles of where the "Skeagan" was anchored. No inference can therefore be drawn from the failure of the crew of that vessel to see any light which may have been the "Skeagan".
More difficult to evaluate is the evidence on the one hand of Mr Harrison of the "Calomi II" and Mr Oxwell of the "Midas Touch". Mr Harrison said that the "Calomi II" left Kalbarri at approximately 2.20 am and that he remained on watch until 4.45 am. He said that "Calomi II's" bearing was between 282 and 284 degrees and that when it cleared the river mouth at Kalbarri, the "Pelsaert" was directly behind, approximately one quarter of a mile astern. He said that the "Pelsaert's" light appeared to keep roughly a constant distance. He was not entirely certain of the distance, but he could at all times see the "Pelsaert's" navigation lights and he said that lights of those kind would have been visible for a distance of three miles or perhaps further. He saw the lights of two unidentified vessels in front of him to the port quarter and they stayed in approximately the same position throughout his journey, which means that they must have been the lights of vessels in motion. Just before he finished his watch, at about 4.15 am, another boat passed him on approximately the same course that he was on, on his port side and no more than about 100 metres away. He could see that its radar was working. He had, prior to the passing of the unidentified vessel, seen two lights behind his vessel for a long time, one being the light of the "Pelsaert" and the other being the light of the unidentified vessel. About 15 to 20 minutes before the unidentified vessel passed, he thought he saw a spotlight flash, or something of that kind, behind his vessel. Otherwise, he saw no vessel lights.
Mr Oxwell was a deckhand on the "Midas Touch", which steamed out of Kalbarri towards Big Bank in the early hours of 1 March. He took the second watch, when the vessel was about 15 miles from the river mouth. He saw the stern light of one vessel ahead of the "Midas Touch" and a second vessel appeared on the radar ahead of that. At a time which in an earlier statement he gave as 3.45 am, and which in his evidence he estimated to be somewhere between 3.00 and 3.30 am approximately, "Midas Touch" caught up to the rear most vessel. He decided that "Midas Touch" was too close to it, so altered course slightly to port and passed the rear most vessel, about 200 metres away and on its port side. This vessel was displaying a bright light behind the wheelhouse. He kept "Midas Touch" on the same course and passed the front vessel within about three miles, again to port of that vessel and again about 200 metres away.
He then altered course to get back onto the original course and, as he was leaning forward to switch the autopilot back on, he noticed a small white light on his port side about 200 metres to the south. He looked at his radar but did not detect an echo. In cross-examination, he agreed that the light was very faint. It reminded him of the type of lights which shark fishers would sometimes use to mark their nets.
Mr Oxwell could not remember with precision the bearing on which "Midas Touch" was steaming; it appears that he did not set the course. However, he said it could have been "ten degrees either side" of a bearing of roughly 290 degrees to 300 degrees. I accept the evidence of Mr Oxwell, and I am satisfied that the vessels passed by the "Midas Touch" at this time were the "Pelsaert" and the "Calomi II".
Mr Mankelow gave evidence that the "Pelsaert" was passed by an unidentified vessel which came rather close and which he observed with some care at a time which appears to have been about ten to twenty minutes prior to the collision. This fits very closely with Mr Oxwell's estimate of the time at which he passed the two vessels. The manner of his passing the front vessel fits very closely with the description given by Mr Harrison of the way in which the unidentified vessel passed the "Calomi II". Mr Oxwell's reference to "a bright light" on the stern of the first of the vessels he passed fits with Mr Neumann's evidence that there was a deck light illuminated on the "Pelsaert" and with the evidence that one of the deck lights was not working. I found Mr Oxwell a witness who was careful not to attempt to give his evidence with greater precision than his memory allowed, which gives greater force to the evidence of which he felt confident.
Accepting Mr Oxwell's evidence, it follows that I reject portions of Mr Harrison's. The distance between the "Pelsaert" and the "Calomi II" I accept was under three miles, but I would not accept was anywhere near as small as a quarter of a mile. Mr Harrison's estimates of time in relation to the passing of the unidentified vessel are also inconsistent with Mr Oxwell's evidence and I do not accept them. Having decided that Mr Harrison's estimates of time are unreliable, it might be speculated that the "spotlight flash" was a brief sighting of the "Skeagan", but I do not do so; he was not asked about it, and the general tenor of all the evidence about lights suggests that spotlights are much brighter than anchor lights. Accepting Mr Oxwell's evidence, it appears to me from his description of the position of the faint light which he saw, and the time at which he saw it (ie shortly after passing the "Calomi II" or approximately 10 minutes or a little more after passing the "Pelsaert") that the light was probably that of the "Skeagan".
It appears to me that once the conclusion is reached that the light of the "Skeagan" was working efficiently and was apparently seen by another vessel, even if it was perceived by Mr Oxwell as "dim" then, in the absence of any unusual factors operating on the night, one could form the view that any helmsman keeping a proper lookout must have seen the light and that failure to see it at all is indicative of negligence. It is in my view significant in this respect that Mr Mankelow's evidence was not that he saw the light too late to avoid a collision, but that he saw no light whatever.

Other factors leading to failure of proper lookout

A number of factors are pointed to by the plaintiff as potentially explaining what appears to have been a failure to keep a proper lookout. Those which seem to me to be of relevance are the question of the deck light, of Mr Mankelow's movement in the cabin, and of the potential effects of alcohol and fatigue.
I turn first, however, to deal with the issue of the radar, which was the subject of considerable evidence. The evidence was that the "Pelsaert" was fitted with a radar, which was not turned on on the night of the collision. The evidence was that it was never turned on, since Mr Starling regarded it as difficult to set, and "did not trust" it. There is no requirement that vessels such as the "Pelsaert" be fitted with radar. However, the Prevention of Collisions at Sea Regulations 1983 require, by r 7(b) that:
"Proper use shall be made of radar equipment if fitted and operational …".
It cannot be said that a failure to consider whether or not radar should be used, no matter what the conditions at the relevant time, would be "proper use" of the radar. The blanket policy adopted by the master and crew of the "Skeagan" in relation to the radar may be seen as indicative of a somewhat casual approach to the prevention of the risk of collision. However, the evidence establishes that it is most improbable that any use of the radar would have prevented this collision and so, even if the failure to consider whether to use it may be seen as negligent, any such negligence was not causative of the collision. There are a number of reasons for this conclusion.
First, I accept the evidence of Captain Douglas that on a night such as 1 March, with clear visibility, the conditions were not such as to suggest that use of the radar would be necessary. Further, it appears to me that the evidence establishes that a vessel of the "Skeagan's" construction would be unlikely to give a consistent radar echo, although it may have been visible on radar intermittently. Mr Oxwell did not pick it up. Finally, the evidence was that the phenomenon known as "clutter" can result in the ordinary ocean swell appearing on the radar and distracting attention from those echoes which may be vessels. In order to eliminate this, it is necessary to tune the radar so that it will not pick up most of the swell. Because of the small size of the "Skeagan", tuning of the radar to eliminate the swell may well have had the result that the radar would not be sufficiently sensitive to pick up the "Skeagan", even if the vessel were of such a construction as to be capable of giving a reliable echo.
I have already noted that in my view it is probable that the portside deck light was illuminated on the "Pelsaert". The evidence both of the expert witnesses and of the fishers varied as to whether it was likely that that light would cause reflection - "scatter" - on the windscreen of the "Pelsaert", so as to make forward vision more difficult. Despite the evidence to the contrary, it seems to me that common experience suggests that there would be some effect upon forward vision from a light, which was bright enough to enable the crew to work on the deck at night, even if that light was pointed to the rear of the vessel and I accept that evidence which was to that effect. Mr Mankelow's evidence was to the effect that the deck light did shine to an extent into the wheelhouse. It therefore seems to me probable that the illumination of the deck light affected Mr Mankelow's forward vision, albeit perhaps to a small extent. Further, the fact of having a bright light at the rear of the vessel must also have had some effect on Mr Mankelow's "night vision" when he turned to look aft, and this too may have created some difficulties with his forward vision.
The maritime experts differed as to whether Mr Mankelow should have been moving about the cabin at all. Captain Purkiss took the view that the coxswain's chair was the position of best visibility and that the helmsman should remain there so far as possible, while Captain Douglas took the view that moving about the cabin to some extent would assist the helmsman to stay awake.
Mr Mankelow performed a number of actions in moving about the cabin, including getting himself a cold drink and making himself a sandwich. The only one that appears to me to be of relevance is his action in going to the rear of the wheelhouse and standing in the doorway smoking a cigarette for perhaps a couple of minutes, immediately prior to the collision. He did so because it was Mr Starling's policy to prohibit smoking in the wheelhouse.
He said that while standing in the doorway, he did keep a lookout all around him. However, I do accept Captain Purkiss' evidence that the best position for forward visibility is the coxswain's chair. Although Captain Douglas said that he had stood at the rear of the wheelhouse of the "Pelsaert" and formed the view that visibility there was as good as it would have been from the coxswain's chair, two things must be noted about that evidence. First, the test which he conducted was during the daytime and in the harbour, rather than at night with a degree of scatter on the windscreen and in the open sea and, further, he did not actually sit in the coxswain's chair of the "Pelsaert", since the chair has been altered since the date of the collision. Captain Douglas explained that, while it was the helmsman's responsibility to keep a watch on the ocean for 360 degrees around him, the 180 degrees forward of the vessel should be the focus of the greatest attention which he roughly quantified as, on a scale of one to ten, rating "eight or nine" in importance, with the 180 degrees astern one or two. It was therefore very important that Mr Mankelow monitor forward visibility.
The evidence as to Mr Mankelow's drinking and sleeping pattern in the three days preceding the collision varies a little depending upon whether one considers the evidence of Mr Atkins, who was with him, or of Mr Mankelow. However, looking to Mr Mankelow's evidence, on the Friday night after the "Pelsaert" returned from sea to Kalbarri, unloaded its catch and cleaned up, the crew went to the hotel to celebrate Mr Mankelow's birthday. They left the hotel at closing time and went back to the jetty and on to a neighbouring cray boat and stayed there drinking until 3.00 am or thereabouts. Mr Mankelow conceded he was drunk on that night.
The next day he got up (it is not clear when) did some work around the boat and went to Geraldton late in the afternoon with Mr Atkins. On that evening they had one or two drinks of bourbon. Mr Mankelow described them as "a light drink" in a five-ounce glass; it is not clear how much was in the glass. The following day, which was Sunday, he and Mr Atkins returned to Kalbarri and did some more work around the boat. They then went to the hotel for a counter meal. With dinner, Mr Mankelow consumed two seven-ounce beers, and two rum and cokes. When the hotel closed he took a can of rum and coke back to the boat; he said that he did not drink it all. They watched television and went to bed sometime between 10.00 and 10.30 pm. About three hours later, at about 1.40 am on Monday, they got up and the "Pelsaert" left Kalbarri. Mr Starling took the first watch and woke Mr Mankelow after about 13 miles, or approximately one hour. He told Mr Mankelow to be careful because there was quite a bit of traffic about, and Mr Mankelow then took over. Mr Atkins' account of the events of those three days was very similar.
Mr Neumann said that after the collision when he was taken on board the "Pelsaert", that the crewmembers, other than Mr Starling, were "moving very slowly" and that he could smell alcohol very strongly on both of them. He was cross-examined about this matter and it was in effect put to him that that evidence was a recent invention. It was pointed out that Mr Neumann had given two statements, one on 2 March 1993 to officers of the Department of Occupational Health, Safety & Welfare, and one on 4 March, to officers of the Department of Marine & Harbours, in neither of which had he mentioned the crew smelling of alcohol.
His explanation was that he had asked the police to conduct breath tests or any other relevant tests on the crew immediately upon their return to Kalbarri, and had been informed that the police lacked the power to do so. When he was unable to persuade the police to do those tests he had "given up". Mrs Neumann gave evidence, to rebut the suggestion of recent invention, that her husband had complained to her of the failure of the police to conduct alcohol tests on the crew of the "Pelsaert". I found her a credible witness.
Although Mr Neumann did not in either of the interviews on 2 or 4 March, assert that the crew were affected by alcohol, his answers to the questions he was asked about the crew of the "Pelsaert" suggested that he thought there was something wrong with them. To officers of the Department of Occupational Health, Safety & Welfare, who asked "Do you think their reactions … what you would consider normal for fisherman?" He replied, "No. I would have said their reactions were very slow". In answer to the direct question asked by officers of the Department of Marine & Harbours, which was "Is there anything, in your opinion, to indicate they [the "Pelsaert" crew] were influenced in anyway by alcohol or drugs?" He answered, "I got nothing to say; all I know is their reactions were very slow. They were subdued."
The reaction of Mr Mankelow to the collision appears to have been extremely slow. Mr Starling's evidence was that he was asleep in his bunk, which was almost immediately under the wheelhouse of the "Pelsaert", when he was jolted awake by the collision; that he immediately leapt from his bunk and up the stairs, closely followed by Mr Atkins, and that he then reached the controls and took the throttle off. It appears that in the time it had taken Mr Starling to reach the controls, Mr Mankelow had remained standing at the wheelhouse door, which was where Mr Starling first saw him. Mr Mankelow said he was, not unnaturally, surprised by the collision and that he had moved towards the controls but had stumbled. Even allowing for surprise and stumbling, it appears to me that Mr Mankelow's reaction to the collision was abnormally slow. It was obviously imperative that someone take control of the vessel, in order to prevent any further damage and to take any repair or rescue action that might be necessary. Mr Mankelow was the person awake and on watch at the time of the collision, and yet he apparently failed to take any action at all until Mr Starling arrived.
I accept Mr Neumann as a witness of sincerity. I found his demeanour by and large credible. I am conscious that, in circumstances such as those of this case, where there has been an accident with tragic consequences, there is a natural tendency of those involved to wish to blame others, and perhaps to exaggerate, albeit unconsciously, the shortcomings of others involved. However, I nevertheless accept that Mr Neumann was readily able to smell alcohol on the breath of the two crewmembers. The impression I formed of Mr Mankelow and of Mr Atkins was that it was likely that they were understating, to an extent, their alcohol consumption in the two days preceding the accident. For example, Mr Atkins was adamant in his cross-examination that he had had precisely one rum and coke, although his written substance of evidence refers to "a couple of rums with coke". I was not convinced that Mr Mankelow had consumed as little as he alleged at the hotel on the night preceding the collision.
There is no evidence to support a conclusion that either man had consumed a plainly excessive amount of alcohol, in the sense that either was obviously intoxicated. It may well be that the amount each man consumed would not be considered excessive in ordinary social circumstances. However, that alcohol consumption was followed by a relatively brief period of sleep and then, in the case of Mr Mankelow, by the carrying out of tasks which required considerable care and concentration. It is in the light of the amount of sleep which each man was expecting to have, and the tasks which would face them during the early hours of the morning, that the alcohol consumption is to be considered, and I have formed the view that it is likely that the consumption was excessive in that sense. Mr Starling, as master of the vessel, did not enquire into the alcohol consumption of either man, and there was no evidence of any pre-existing instruction or policy, which he pursued in relation to alcohol consumption. That too, in my view, was negligent.

Contributory negligence

Mr Neumann was guilty of substantial contributory negligence. He gave evidence that, as far as he knew, the area in which he was anchored was one outside the course likely to be taken by most boats towards Big Bank and that, having seen no vessel during the day (apart from one very large vessel which passed at some stage), he had no reason to think that there would be many vessels going out. However, the area in which he anchored was not, even on his view, very far from a course likely to be taken by fishing vessels (either wetline or cray fishing) heading for Big Bank, and as he took the view that conditions were good for fishing on that night, it was likely that others might do so. The area was sufficiently close to the normal course to Big Bank to give rise to the possibility that there would be vessels passing by the spot at which he was anchored. He recognised this possibility by checking, before he and Mr Stuart retired, to see if any vessel was visible. Neither Mr Neumann nor Mr Stuart remained on watch. This was a plain breach of the duty imposed by the Prevention of Collision at Sea Regulations to maintain a proper lookout at all times.
Mr Neumann agreed that had he been keeping watch, he would have been able to alert the "Pelsaert" to "Skeagan's" presence by putting the lights on, putting a spotlight on, sounding a warning device, or possibly by letting off a flare. Had he recognised the danger in time, he might have started his engine and attempted to move the "Skeagan" out of the way. The taking of such action would of course have been conditional upon his realising that there was a risk of collision, and he noted that it was the practice of fishing vessels sometimes to approach each other purely for social purposes, and that it might have been difficult for him to realise in time that the "Pelsaert" was likely to collide with the "Skeagan". However, in my view, a careful watch would have enabled the likelihood of collision to be observed by Mr Neumann or by Mr Stuart and might well have enabled additional warning of the "Skeagan's" presence to be given to the "Pelsaert" so as to avoid the collision.
There was evidence from a number of fishers, including Mr Neumann, that it was the common practice of wetline fishers to anchor at night without keeping an anchor watch. It was said that this course was taken because most such boats had only two crew members, and that it was simply impossible, on a fishing trip of a number of days, for crew members to go without sleep to the extent required to keep a proper watch, as well as carrying out their normal fishing tasks. While it may be a normal practice, it is nevertheless a breach of the regulations and is unsafe. It is obvious that if no watch is kept, the crew of an anchored vessel have no way of knowing that a collision may be imminent, and of either warning other vessels or taking action to avoid the collision.
While it is the duty of the vessel underway to maintain a proper watch and to steer so as to avoid anchored vessels, it cannot be assumed that vessels underway will always be able to do so. Weather conditions, or faulty equipment, or temporary distraction of the crew of the vessel underway, or any number of combinations of unforeseen circumstances, may have the result that a vessel underway fails to perceive the risk of collision with an anchored vessel as early as it should. All of these risks must be obvious to anyone who puts to sea regularly. A failure to keep an anchor watch to guard against these risks is grossly negligent in my view. That is particularly so in a case such as the present, where Mr Neumann and Mr Stuart were only to be at sea for one night, and so were not faced with the prospect of being deprived of sleep over a period of days.
As I understand it, in assessing the culpability of the parties for the purposes of apportioning negligence, it is to the whole conduct of each party in relation to the circumstances of the accident that regard must be had. It is important to consider the relative importance of the acts of the parties in causing the damage: Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25. If one were simply analysing relative negligence, it appears to me that the negligence of the plaintiff was greater than that displayed by the crew of the "Pelsaert". However, having regard to the relatively helpless position of the vessel at anchor, as opposed to the "Pelsaert", in avoiding any possible collision, it appears to me that the negligence of the "Pelsaert" crew played a greater role in causation of the collision than did that of Mr Neumann. In my view, it is appropriate to apportion liability for the collision at 40 per cent to Mr Neumann and 60 per cent to the "Pelsaert".

Assessment of Damages Post Traumatic Stress Disorder

I have no doubt that the plaintiff suffers Post Traumatic Stress Disorder. His wife's account of his behaviour in the time immediately following the collision, and of his changed behaviour from then until present day was not challenged in cross‑examination. Dr German, whose evidence I accept, described him as a "classic case" of Post Traumatic Stress Disorder.
The evidence was that, prior to the collision, fishing was an activity which Mr Neumann very much enjoyed. In addition to his work as a fisher, he played golf, went surfing and hunted goats, often in company with friends. He spent his time in these pursuits, in general social discussion with other fishers and with his family. Following the accident, he suffered nightmares, flash-backs, dramatic mood swings, irritability to the point where he was unable to have ordinary contact with people, and a loss of interest in his previous leisure activities. His relationship with his wife deteriorated and his moods were such that she would, on occasion, leave the house with the children, driving away for some time until he was calmer. She said that she had been, following the accident, afraid to leave the children alone with him. He drank alcohol to excess. She reported that following his visits to Dr German, their family life seemed to improve.
When Dr German last saw Mr Neumann in early 1999, he reported that Mr Neumann's symptoms had improved to the extent that his home life was happier and that he was much less irritable with his family. His mood swings had improved somewhat and he was making efforts to control his alcohol consumption. Dr German took the view that his improved symptoms were substantially due to the fact that between 1998 and 1999, Mr Neumann had moved from Kalbarri to the seclusion of a small farm approximately 45 kilometres to the south, and was living what others might regard as an almost "hermit like" lifestyle. Additionally, Mr Neumann takes 40 milligrams of Prozac per day - roughly the top of the ordinary clinical dose range - and Dr German thought that that assisted also in controlling his moods.
Since the collision, Mr Neumann had on a number of occasions engaged for short periods in work or leisure activities that involved the sea. He had worked for a time on a charter fishing vessel which did not remain at sea overnight, and he had worked with an Abalone diver off the coast at Mandurah, again not remaining at sea overnight. Additionally, he had done some surfing. His evidence was, however, that he found contact with the sea now extremely stressful.
Dr German considered that it was not surprising that Mr Neumann had attempted to return to pre-accident activities that involved the sea. Dr German said that it was not unusual for people, after a traumatic event in which their work had become frightening, to make attempts to return to it, generally fairly soon afterwards. However, if they suffer Post-Traumatic Stress Disorder, they will gradually realise that their flash-backs, nightmares and other symptoms are exacerbated by such attempts. Mr Neumann's behaviour seems to me to be entirely consistent with the description given by Dr German.
I accept Dr German's opinion that due to Post Traumatic Stress Disorder, Mr Neumann will never return to work as a professional fisher. I accept also Dr German's evidence that Mr Neumann would not be suitable for any job which required him to take responsibility for the safety of others and that his "hair-trigger irritability and intolerance of people" makes it unlikely that he would be able to obtain or retain any employed position which involved any significant interaction with people.

Pre-accident employment history, pre-existing back disability

Before I turn to the question of Mr Neumann's pre-existing back condition, I should mention his pre-accident employment history. He was born in 1959, and left school at 15 years of age and was an apprentice panel beater for four years. He spent time as a trades assistant at Mt Newman and then did five years of mainly concrete work in the Mandurah/Pinjarra area. He found that concreting was hard on his back even at that time. However, he did not give up that work because of any disability. He then worked as a deck-hand out of Kalbarri, as a storeman at Karratha and then for the Agriculture Protection Board in the Kimberley. There were additional casual jobs at times, and there was a period in about 1988/89 when Mr Neumann and his wife travelled around Australia for approximately 12 months.
Mr Neumann had had problems with his back on occasion since about 20 years of age. He had developmental disabilities, and degenerative changes pre-existing the accident. Sometimes he would hurt his back at work, either performing normal duties (eg screening concrete, carrying a large box of bolts and other items), or sometimes he would be injured in other ways, (eg as a result of a motorbike accident). He would sometimes have periods of a few days off work, once or more during any given year. When he operated the "Skeagan", he found it difficult to lift the tubs of fish and bags of ice, and so he would get the deckhand to do most of that work. The most significant difficulty with his back prior to the collision was in 1992. In about April of that year, he injured his back surfing and was unable to work for about five weeks.
Mr Neumann was cross-examined at some length about his intentions in relation to fishing, at a time from 1991/1992 through to the collision. It was put to him that he was in any event dissatisfied with the returns that he was getting from fishing and that he was not physically able to manage the work. I do not think it is necessary to go through this evidence in detail. Mr Neumann presented as a person who, prior to the accident, was relatively active and adventurous and prepared to attempt a variety of occupations, some of which were quite demanding. He obviously enjoyed outdoor activities and the lifestyle available in relatively small communities such as Kalbarri. I entirely accept his evidence that he enjoyed fishing and, despite some difficulty with his back, proposed to continue it for as long as he could.

Effects of accident on Mr Neumann's back

It was agreed by the medical practitioners that the injuries which were observed on Mr Neumann as a result of the accident - being fractured ribs and lacerations to the back - indicated a degree of force was applied to Mr Neumann's trunk during the accident which was likely to have led to exacerbation of his back condition. On the assumption that symptoms of pain and disability occurred within roughly 24 to 48 hours of the collision and persisted for some months, the medical practitioners formed the view that the exacerbation had been significant. However, the defendant points to an absence of any complaint of back pain following the accident for a period of approximately eight months.
The medical practitioner whose evidence particularly impressed me was Dr Home, who took a thorough, detailed and careful history from Mr Neumann and whose answers appeared to me to be based upon a very full appreciation of all the relevant facts. Dr Home took the view that, if one could conclude that absence of complaint to a medical practitioner was synonymous with an absence of symptoms, then it must follow that the accident had had no effect upon Mr Neumann's pre-existing back condition. The question for me to determine, then, is whether the absence of complaint to a medical practitioner is indicative of an absence of symptoms.
Mr Neumann said he did not complain to anyone about his back condition following the accident because medical practitioners had been unable to help him very much in relation to a sore back in the past. I do not entirely accept this evidence. While it may be that, particularly in Mr Neumann's very depressed and withdrawn post-accident state, he would not have been inclined to seek treatment for his back, he did see Dr Boucher, his GP, on a number of occasions between the accident and his first complaint of pain, and it is odd that the matter was not mentioned at all during the course of those consultations. In particular, if, as Mr Neumann said he was essentially "flat on his back" for some months because of the pain, then I consider that he would have sought treatment for it.
Mrs Neumann gave evidence of a number of occasions during the months following the accident on which Mr Neumann's back appeared to cause him pain. She said that these episodes commenced within a short time of the accident. I accept, based on Mrs Neumann's evidence, that there were some symptoms and some complaints of pain from Mr Neumann shortly following the accident and in the months thereafter, but I consider that these were episodic, rather than continuous, and that the immediate post-accident symptoms were not as severe as those described by Mr Neumann.
Returning to Dr Home's evidence, he took the view that the surfing injury in 1992, which had resulted in some five weeks off work, was a quite significant injury. He said that it was not unusual for episodes of pain caused by a degenerative back condition to incapacitate a person from work for periods of roughly two weeks, but that a period longer than that was indicative of further significant injury. Being told of this episode in 1992, led him to the view that Mr Neumann's condition had degenerated, prior to the accident, to a much greater degree than Dr Home had first thought.
On my understanding of Dr Home's evidence relating to Mr Neumann's pre-accident condition, it would appear that the role of the collision in 1993 was to exacerbate, to some extent, a pre-existing developmental condition which had been the subject of progressive degeneration over many years, as a result of the stresses of working, and as a result of a variety of injuries. However, the collision was but one in a long series of injuries which had affected Mr Neumann's back, and is not to be regarded as the most significant injury, but for which he would be able to engage in physically demanding occupations. Rather, it seems more probable, that the surfing accident of 1992 had a more significant effect upon Mr Neumann's present condition.
It is my view, in the light of the medical evidence, particularly that of Dr Home, and of my findings in relation to Mr Neumann's post-accident condition, that as a result of his back condition he is now physically unfit for very demanding occupations such as concrete work. Occupations such as rust repair of vehicles are less than ideal for him, but he can cope with assistance. He would be fit for relatively physically undemanding tasks, such as that of storeman.
Having regard to the history of his back condition, even without the accident, he would have reached a point at some stage during his working life at which relatively demanding occupations such as fishing would be closed to him, even with assistance. It is difficult to ascertain precisely when such a point would have been reached. Certainly, he would have been totally precluded from carrying out the heavier portions of the fisher's tasks at some stage around five years from the surfing accident of 1992. Gradually, at some time after that, actions such as reeling in fish and moving about a moving vessel would have become too demanding. It seems probable, then, that even without the collision, Mr Neumann would over the ten years from 1992 have had episodes of back pain which prevented him from fishing for a time, which episodes would gradually increase until the point was reached at which it was necessary for him to give up fishing altogether. Once that point was reached, it would be unlikely that he would be fit for any but sedentary work.

Post collision employment

Since the collision, Mr Neumann has worked in a variety of occupations. He did concreting for a short time, but found that he was unable to cope physically with that work. I have mentioned his occupations on the charter boat and with the Abalone diver. Additionally, he and his wife for a time ran a chalet business, letting out a chalet, which they had purchased, to visitors. That business caused considerable stress to Mr Neumann because of the need to deal with the demands of guests. He travelled with his father-in-law to Angola to explore business opportunities, but nothing seems to have come of that. In addition, he said, and I accept, that he applied for a variety of other positions in Kalbarri and surrounding areas but was unsuccessful in obtaining employment. Currently, he and his wife operate a rust repair business. At first, his wife helped him with the heavier parts of that business, but now he has obtained other assistance. The business is not presently profitable, but he thinks it is improving and may return an income some time in the future.

Loss of earning capacity - approach to assessment

Mr Neumann having proved that he has lost his entire earning capacity as a fisher due to his Post Traumatic Stress Disorder, and has endeavoured to obtain alternative remunerative work but has largely not been able to do so, the defendant now bears the evidentiary onus of showing both that there is a residual earning capacity in Mr Neumann and that there are jobs available: Bowen v Tutte (1990) Aust Tort Rep 81-043. As to the first part of the onus, the consensus of the medical witnesses, which is agreed with by Mr Neumann himself in evidence, is that he retains a capacity to earn income as, for example, a storeman. However, it should be noted that, applying Dr German's comments, not all storeman's work would be open to Mr Neumann but only work of a type which did not require a great deal of contact with other people. The defendant has made no attempt to discharge the second part of the onus, in the sense of demonstrating that there are jobs available. The defendant has not pointed to a single job in Kalbarri or the surrounding areas, which Mr Neumann is fit for. The defendant asserts that Mr Neumann should be required, if necessary, to leave Kalbarri in order to seek work elsewhere.
In relation to a plaintiff who lives in a relatively small and isolated community, in which the work available is necessarily limited both in variety and number of jobs, difficult questions of reasonableness may arise in relation to whether it is appropriate to assume that a plaintiff can or should travel, or, if necessary, relocate in order to obtain employment. I do not think it is necessary to explore those issues in any detail in the present case. Harking back to Dr German's evidence, it seems clear that so far as Mr Neumann's Post Traumatic Stress Disorder is concerned, it is necessary for him to live in a relatively isolated situation. The lifestyle necessary for him to gain relief from, and improvement in, his Post Traumatic Stress Disorder is necessarily inconsistent with living in a larger community in which jobs such as a storeman's would be readily available.
In my view, the appropriate way in which to assess Mr Neumann's loss of earning capacity is to consider that he has lost the whole of his ability to work as a fisher because of his Post Traumatic Stress Disorder, but to allow, in calculation of damages, for the probability that his earning capacity would in any event have declined significantly over the five years from 1992, so as to preclude him entirely from heavy work, and would have continued to decline after that, because of his pre-existing degenerative back condition, until he became unable to fish. The damages awarded must be adjusted to reflect the degree of probability that Mr Neumann's pre-existing disability would have adversely affected his earning capacity in any event: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. Such adjustment must take into account the possibility that some sedentry occupations will also be closed to him by reason of the Post Traumatic Stress Disorder. It is also necessary to make some allowance for the possibility that Mr Neumann will be able to earn some income in future, either because his rust repair business does gradually improve, or because he is able to obtain work of a similar kind. In my view the allowance under this last head should be relatively small. Finally, when assessing Mr Neumann's loss of income as a fisher, it should be noted that he traded in partnership with his wife, but that he made the principal contribution to the partnership income; in my view an allocation of 80 per cent of the likely partnership net income to Mr Neumann would appropriately reflect those circumstances.

Calculation of lost income

Evidence in relation to this issue was given by Mr McGee and Mr Dyson. Both were accountants. Both have extensive experience with small businesses. There are relatively few differences between the methodology adopted by each. To the extent that there are differences, I prefer the evidence of Mr Dyson, a significant portion of whose practice involved giving of advice to fishers. Mr Dyson thought it was appropriate to project Mr Neumann's likely earnings after the collision by looking to the top five holders of what are described as open West Coast licences or "FBL's", and assuming that Mr Neumann's catch would have fluctuated in volume and in percentage of each species in the same way as the catch of the top five in fact fluctuated.
The top five were chosen because Mr Neumann had been a relatively successful fisher, when the size of his vessel is taken into account. Holders of FBL's only were chosen for comparison because the vast proportion of the State fish catch both in volume and value is generated by managed fisheries, and as a generalisation the holder of an FBL can operate in a more restricted and less productive area than can holders of managed fishery licences. That seems to me to be an appropriate basis of comparison, and more useful than Mr McGee's reference to the top ten holders of both managed fishery and FBL licences.
Mr Dyson established Mr Neumann's "base catch" by including in his calculations a figure of approximately 1000 kilograms of fish, predominantly pink snapper, which Mr Neumann said he had on board the "Skeagan" at the time of the collision. Evidence was called from one of the men who salvaged the "Skeagan" who gave evidence of having to tip into the sea the contents of at least two fish storage boxes, one having a capacity of approximately 800 kilograms of fish and one having a capacity of approximately 200 kilograms of fish. Based upon that evidence, which I accept, I think it is appropriate to include that amount as part of Mr Neumann's catch; Mr Dyson did so, while Mr McGee did not.
Mr Dyson based his fish prices for certain species on those obtained by a Kalbarri fisherman, Mr Lake, whereas Mr McGee relied upon Fisheries Department statistics concerning the average prices of various species for the relevant years. The differences are not substantial in any event, but given the evidence which tended to suggest that fish prices would vary somewhat from one location to another, I think it is perhaps more appropriate to adopt Mr Lake's prices as indicative.

Other damages

In addition to general damages for pain and suffering in respect of the accident injuries and Post Traumatic Stress Disorder, and in relation to past and future lost earning capacity, in my view it is appropriate also to allow for expenses of medication, estimated by Mr Neumann at $40-$50 per month (which will be required for many years, and perhaps for life) and to make some allowance for the possibility that Mr Neumann will seek further treatment for Post Traumatic Stress Disorder from Dr Chiu, as recommended by Dr German, the cost of which (excluding hospital accommodation) would be of the order of $8,000, or for the possibility that he will seek other psychiatric treatment. However, it is not appropriate to make allowance for any possible future surgery on Mr Neumann's back, since in my view the collision played a relatively small part in both his present and likely future back condition.

Illegality

Subsequent to the conclusion of the evidence, and during the course of closing submissions, the defendant sought to amend its defence to raise the issue of illegality. This was said to arise because Mr Neumann fished more than 15 nautical miles off-shore, when he had conceded in cross-examination that as the holder of a coxswain's certificate, he was permitted only to operate a vessel up to 15 nautical miles off-shore. Although the certificate was in evidence, there was no restriction endorsed upon it and the source of the restriction was not explained by the defendant, other than by reference to Mr Neumann's concession. The vessel "Skeagan" was able to be operated up to 30 nautical miles from a safe anchorage and 30 nautical miles off-shore, and there appears to have been no limitation in Mr Neumann's fishing licence, which would have prevented him from fishing in the relevant area.
It appeared from cross-examination of Mr Neumann that approximately 1000 kilograms of fish, which had been on board the "Skeagan" when it was lost, had been obtained by fishing at almost exactly the spot at which he had anchored, ie approximately 23 nautical miles offshore. It also appeared from cross-examination that Mr Neumann "sometimes" took the "Skeagan" outside a distance of 15 nautical miles from shore. How often he did so did not appear.
In my view it is too late to raise an issue of this kind after the conclusion of the evidence. Because the issue was not live at the time, the evidence in cross-examination about Mr Neumann's fishing habits was elicited only in the most general terms. He was not re-examined on the point at all, no doubt because it was not considered to be of significance. The precise terms of the restriction, and its source, may well be important in determining whether as a matter of public policy Mr Neumann should be deprived of any damages for past loss of earning capacity. In any event, it is to be noted that in 1994, Mr Neumann obtained a Master Class V certificate which, as I understand it, would have permitted him to take a vessel outside 15 nautical miles. No doubt, had the illegality point been live, the likelihood of his obtaining such a certificate at an earlier stage would also have been explored. In my view, it would be unfair to the plaintiff to allow the issue to be raised now.
I should note in any event that it appears to me that the situation of the plaintiff is not dissimilar from that of the plaintiff in Yoo v ALCO Steel Corporation Pty Ltd [1988] NSWSC 17/06/98, in which the plaintiff, an alien illegally in this country, nevertheless recovered damages in respect of his inability to earn income in Australia as a result of an injury. His presence was unlawful, but his employment was otherwise lawful. Here, the plaintiff was prohibited from operating a vessel more than 15 nautical miles off-shore, but there is no suggestion that there was any prohibition on the taking of fish, either at that spot or at any other spot at which he habitually fished, so that the activity of fishing was lawful, although his presence at that location may have been in breach of the conditions endorsed on his certificate.

Calculation of damages

For pain, suffering and loss of amenities, I take the view that a figure of $45,000 would be appropriate.
For past loss of earning capacity, I would adopt Mr Dyson's figures for 1993-97 inclusive, but would discount them by 10 per cent in 1993, 20 per cent in 1994, and so on, until a discount of 50 per cent is reached in relation to 1997, to allow both for the probability that increasing time would be lost from work due to the pre-existing back condition, and the increasing probability that he would have become unable to work as a fisher at all in any event. That calculation gives net, (post-tax) figures of:
1993      $16,197.30
1994      $18,161.60
1995      Nil (Mr Dyson's projection was for a loss in this year)
1996      $25,172.40
1997      $10,253.50
Total    $69,784.80
Less 20 per cent to Mrs Neumann's share of partnership = $55,828
For past loss from 1997 onwards, and for future loss, it is my view that a global figure is more appropriate than the making of any precise calculation, in view of the uncertainty surrounding the probable progress of his back condition, the effect of Post Traumatic Stress Disorder upon the availability of alternative employment and - to a lesser extent - because of the possible improvement in his existing business. I would fix that figure at $95,000.
To allow for future medical expenses and possible future psychiatric treatments, I allow $12,000.
Mr Neumann's total damages are therefore: $207,828 less 40 per cent in respect of his contributory negligence, ie $124,696.