R Marine Pittwater Pty Ltd v Skinner

[2009] NSWDC 273

CITATION:	R Marine Pittwater Pty Ltd v Skinner [2009] NSWDC 273
HEARING DATE(S):	13 and 14 October 2009
JUDGMENT DATE:	29 October 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict for the defendant; 2. Plaintiff is to pay the defendant’s costs.
CATCHWORDS:	BAILMENT – sub-bailment – damage to new motor vessel – boat seller left vessel with shipwright for modifications required by purchasers before delivery to purchasers – vessel scuttled and sunk at moorings – sea valves opened due to vandalism at night – whether bailee has demonstrated that the damage was not caused by his negligence - DAMAGES – measure of damages in bailment – whether vessel reasonably written-off by bailor who on-sold salvaged vessel to the manufacturer for subsequent refitting and re-sale – whether write-off inference should be reasonably drawn from re-fitting costs expended by manufacturer before re-sale.
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005, Schedule 7 clause 5(c)
CASES CITED:	Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 Califf v Danvers (1792) Peake 155; 170 ER 112 Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 Jacap Low Loaders v Lindores Plant and Equipment [2004] NSWCA 5 Luxton v Vines [1952] HCA 9; (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 Pitt Son Badgery Ltd v Proulefco [1984] HCA 6; (1984) 153 CLR 644 Howard v Jarvis (1958) 98 CLAR 177 Vickers v Double Bay Marina Pty Limited, NSWDC, unreported, 5 November 2007 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
PARTIES:	R Marine Pittwater Pty Ltd (formerly Riviera Sydney Pty Ltd), (ACN 080 651 074) (Plaintiff) Darren Skinner (Defendant)
FILE NUMBER(S):	3401 of 2008
COUNSEL:	Holmann Webb (Plaintiff) Colin Biggers & Paisley (Defendant)
SOLICITORS:	Mr D H Murr SC with Mr J B Conomy (Plaintiff) Mr J Simpkins SC with Mr M G McHugh (Defendant)

JUDGMENT

Nature of case

1. This is a claim for damages in bailment by the plaintiff boat seller, R Marine Pittwater Pty Ltd, formerly Riviera Sydney Pty Ltd, concerning a new vessel that had been vandalised and sunk at its moorings whilst it was in the custody and possession of the defendant Mr Skinner, a shipwright who had possession of the vessel as a bailee from the boat seller, for the purpose of effecting modifications that were required by the persons who were purchasing the vessel from the plaintiff.

Factual background

2. On 24 October 2007 Riviera Marine (Int) Pty Ltd, a boat manufacturer, through its related company, the plaintiff, sold a new Riviera 33FB/108 Flybridge Cruiser vessel to purchasers by way of a written bailment agreement with Capital Finance Australia Limited by which Capital Finance Limited purchased the vessel from Riviera Marine (Int) Pty Ltd for $333,807.43 inclusive of GST. Capital Finance Limited then bailed possession of the vessel to the plaintiff pending payment of the purchase price by the plaintiff. The plaintiff then took possession of the vessel with the consent of its owner, Capital Finance Limited, with the intention of delivering the vessel to the purchasers.

3. On 4 November 2007 Capital Finance Australia Limited entered into an agreement for the sale of the boat to the purchasers for a total consideration of $406,672, from which trade-in and other allowances were agreed to be later offset. The purchasers required some specified modifications to be made to the vessel before they took final delivery. These modifications included the fitting of a teak deck and table to the cockpit area as well as some surface modifications to the access hatch covers. The plaintiff arranged for these modifications to be effected by the defendant for the quoted sum of $5,436.20 including GST.

4. On 19 November 2007, and with the object of having the agreed modifications carried out, an employee of the plaintiff company delivered the vessel to the defendant at his moorings in Careel Bay, north of Sydney. The boat was moored some 450 metres from the nearest shore. Over the course of the ensuing two days the defendant and his employees carried out agreed work on the vessel, including the removal of the three rear hatch covers for these to be resurfaced as specified, as well as preparation of the fibreglass structure of the vessel for a new teak deck to be laid. The effect of removal of the centre rear hatch cover was to permit access to the engine and the sea strainers.

5. At approximately 5.15pm on 20 November 2007 the defendant and his employee finished work on the vessel for that day. They left the vessel key locked at its mooring but with the hatch covers removed and housed in the workshop pending the completion of work on them. The defendant left his Careel Bay workshop at about 8.30pm on that evening.

6. At about 5.50am on 21 November 2007, shortly after sunrise which was at 5.41am, the defendant and his employee travelled to the mooring for the purpose of bringing the vessel into a working berth for the purpose of continuing the next phase of the partly completed work. At this time the defendant noticed that the vessel had been scuttled and was partly submerged, still taking on water whilst it remained attached to the mooring where it had been left the previous day.

7. Later that day the vessel was lifted out of the water and at this time it was apparent that the covers of the sea strainers forming part of the engine cooling system had been maliciously removed. It appears that between 5.15am on 20 November and 5.50am on 21 November, some mal-intended person or persons had boarded the vessel and vandalised it by removing the sea strainer covers to the engines and opening the sea valves. This caused the vessel to take on water and then sink at its moorings.

8. The subsequent salvage operation included a process of flushing seawater out of the engines by using diesel oil with the aim of inhibiting corrosion. The plaintiff later sold the damaged vessel back to its related manufacturing company for $20,000. Following that sale the vessel was later stripped of its damaged components, re-fitted by the manufacturer and then re-sold to another purchaser in an as new condition as distinct from a new condition. That sale was for $390,000.

9. The plaintiff, as bailor of the vessel, claims that the defendant, as bailee of the vessel, has not rebutted the ordinary presumption arising from the bailment, that presumption being that the damage to the vessel was caused by the defendant’s negligence. The defendant disputes that he was negligent. The defendant argued that in the event he is to be found liable for damage to the vessel, he disputes the formulation of the plaintiff’s damages claim.

Issues to be determined

10. The following five issues emerged for determination:

Issue 1 : Whether possession of the vessel by the plaintiff should be characterised as a possession in itself or as agent for the owners;

Issue 2 : Whether the plaintiff gave exclusive possession of the vessel to the defendant so as to create a bailment;

Issue 3 : If there was a bailment, whether the defendant has discharged the onus of establishing that such damage occurred without any negligence on his part;

Issue 4 : If the onus of rebutting negligence has not been discharged, what damage, if any, has the plaintiff suffered;

Issue 5 : If any damage has been suffered by the plaintiff, should that damage be reduced for contributory negligence, and if so, to what extent.

Issue 1 – Nature of the possession of the vessel by the plaintiff

11. There is no issue that the plaintiff had lawful possession of the vessel when it was delivered to the defendant for work to be carried out upon it. Such possession was necessarily different in its character to ownership or title to the vessel.

12. The defendant has submitted that the characterisation to be placed on the possession of the vessel by the plaintiff was that the plaintiff was merely the agent of the purchasers and therefore the plaintiff has no standing to bring the claim. The defendant consequently submitted that the plaintiff’s claim is flawed, since the purchasers, as owners, were the proper plaintiffs.

13. I do not accept that submission because the notion of possession in bailment giving rise to an entitlement to claim damages against a bailee in respect of damaged goods previously left undamaged in the custody of the bailee is independent of the status of ownership of goods. Possession and exclusive possession are mutually exclusive states and both states are capable of enabling a bailee or sub-bailee in possession to create a valid bailment or sub-bailment with related rights to lawful possession. A bailee in possession of goods is capable of creating a sub-bailment even though that bailee is not the owner of the goods.

14. Accordingly, accepting the defendant’s argument that the purchasers were entitled to possession of the vessel, and accepting the defendant’s argument that the plaintiff was the agent of the purchasers for the purpose of arranging the required modifications, I nevertheless consider that the plaintiff was in lawful possession of the vessel at the relevant time and was therefore able to give lawful possession of the vessel to the defendant in the form of a valid sub-bailment.

15. As bailee and sub-bailee respectively, with regard to any damage to the vessel, both the plaintiff and the defendant each had a duty to account to the persons entitled to exclusive possession of the vessel if required to do so. That qualification on the right to possession did not derogate from the plaintiff’s ability to lawfully bail the vessel to the defendant by way of a sub-bailment. I consider that is what occurred on this occasion. I therefore find that at the relevant time the plaintiff held the vessel as bailee and created a sub-bailment to the defendant when the vessel was delivered to the defendant’s moorings for modifications including when it was left there after providing the defendant with a key to the vessel.

Issue 2 – Whether the defendant had exclusive possession amounting to a bailment

16. When the defendant took possession of the vessel from the plaintiff for the purpose of effecting the specified modifications he did so to the exclusion of all others except for the plaintiff’s right to re-claim possession of the vessel and also subject to the lawful owners’ right to possession if the owners chose to exercise that right. In my view such an arrangement does not detract from the validity of a sub-bailment so created because a transfer of possession had taken place.

17. In bailment, possession to the exclusion of others does not necessarily mean exclusive possession. In this case, whilst the defendant, as a bailee, had possession of the vessel, he had exclusive possession of it until someone with a greater right and entitlement than his asserted their right to possession. Until such an assertion of right had occurred, which was not the case here, the defendant had exclusive possession of the vessel.

18. The defendant has argued that because the plaintiff had retained a key to the vessel whilst at the same time providing the defendant with a key for his purposes, this indicated that exclusive possession had not been conferred upon the defendant.

19. In support of that argument the plaintiff relied upon an analogy drawn from the decision of Rein DCJ, as he then was, in Vickers v Double Bay Marina Pty Limited, NSWDC, unreported, 5 November 2007. The plaintiff in this case argued that Vickers was relevant because there, it was held that the repairer did not have possession because the owner had retained a key. The defendant in this case argued that Vickers was distinguishable from this case because although in Vickers the owner of the vessel retained his key whilst giving another key to a tradesman to carry out work on the vessel whilst it was moored at the owner’s private berth, those particular circumstances made this case distinguishable.

20. I accept the submission that Vickers does not provide an appropriate analogy to the circumstances of this case because there, the distinguishing fact was that the vessel remained at the owner’s berth which made a difference to the character of the possession, unlike in this case.

21. Accordingly, I find that in the circumstances of this case the defendant had a valid sub-bailment of the vessel for the purpose of carrying out the agreed modifications that were required by the purchaser as arranged between the plaintiff and the defendant.

Issue 3 – Whether the defendant has rebutted the presumption that damage was due to his negligence

22. The obligations of a bailee in the circumstances of a case such as this are well settled. A bailee is not the insurer of the bailed goods but is obliged to exercise reasonable diligence in taking care of them: Glebe Island Terminals Pty Ltd v Continental Seagram Pty Ltd (1993) 40 NSWLR 206 at 228 per Sheller JA approving Califf v Danvers (1792) Peake 155; 170 ER 112. The fact that the goods were damaged whilst in the custody of the bailee gives rise to a rebuttable inference of a failure to exercise due skill and care. The onus for the rebuttal of that inference rests with the bailee: Jacap Low Loaders v Lindores Plant and Equipment [2004] NSWCA 5. That onus is a practical one and is not a heavy onus to discharge.

23. In considering the possibility that there may have been negligence on the part of the defendant, which the defendant here denies, but in doing so bears the onus of rebutting, one has to look at the surrounding circumstances and the potential, in those circumstances, for damage to have been occasioned to the vessel. It seems to me that the potential scenarios for the vessel to become damaged in the manner that was evident was foreseeable by the reason of variations on the following two circumstances:

(a) There was the potential for carelessness in the performance of work by the defendant or his employees thus giving rise to the damage : there is no evidence that the defendant or any of his employees worked on or near the sea strainers and the related structures on the vessel and this was not part of the plaintiff’s case. Accordingly, this potential source of negligent damage does not arise for consideration; or

(b) By leaving the vessel unattended and moored at a particular location and over a period of time this may have made the vessel both accessible and attractive to potential wrongdoers and vandals.

24. It seems to me that scenario (b) above is the only reasonably tenable theory of potential negligence on the part of the defendant bailee in this case. In evaluating that theory, the consideration of the defendant’s conduct must proceed in line with what a reasonable person in the position of the defendant would have done in response to the risk : Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 per Mason CJ at [14], 48.

25. The plaintiff relies upon the authority of Pitt Son & Badgery Ltd v Proulefco SA [1984] HCA 6; (1984) 153 CLR 644. In that case the bailee of wool in a wool store was found liable for wool destroyed in a fire that was lit by a person described as a drifter. In finding the bailee wool storer liable in that case it was held that the bailee had failed to take reasonable care by taking the obvious and comparatively inexpensive precaution of providing a secure fence. It is apparent from that case that the question of what constitutes reasonable care is a question of fact in each case.

26. The defendant submits that unlike in Proulefco, the damage in this case could not have been avoided by the provision of fencing as this was not practical in the case of a moored boat. Further, in deciding what constitutes a reasonable standard in the circumstances, on the question of the appropriate standard, I bear in mind the cautionary words of Dixon CJ, Fullagar and Taylor JJ in Howard v Jarvis [1958] HCA 19 at [13]; (1958) 98 CLR 177, 185:

“This is a case of a spectacular calamity. It is one of that not uncommon class in which very grave damage would not or might not have ensued if a precaution, trifling in itself, had been taken or had been more thoroughly taken. In such cases it is especially necessary to be on one’s guard lest too high a standard of care be applied.”

27. The principle in Shirt’s case also has to be read in light of the statement that the law ought to be slow to impose liability on a person in respect of the acts of third parties over whom that person had no control, especially in the case of the unlawful acts of wrongdoers : Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254, per Gleeson CJ at [19], Gaudron at [42], Hayne J at [117] and Callinan J at [135]; pp 263, 270, 293, 297. Although Modbury was concerned with occupier’s liability for personal injury, I do not see a relevant distinction in applicable principles concerning liability for the wrongful acts of others, as occurred in this case.

28. In this case there is no room for doubt that the vessel was damaged due to unlawful acts of vandalism. There is also little room for doubt that the vandal or vandals carried out those acts by gaining access to the vessel without permission after the defendant had left his premises at the end of the working day and after the vessel had been locked, albeit that the hatch covers had been removed to be worked on in the workshop.

29. In these circumstances, bearing in mind that the defendant was not in the position of insurer and adopting the test of reasonableness, I consider that the only reasonable basis upon which the defendant could be held responsible for the actions of the person or persons who vandalised the vessel would be if the defendant’s actions negligently invited the attention of vandals as some form of allurement. This calls for a consideration of whether the circumstances in which the vessel was moored invited the attention of wrongdoers who, for whatever reason, were motivated to carry out acts of vandalism. I do not consider this was the case for the reasons that follow.

30. First, I consider that the vessel was prudently and appropriately tied up at a mooring by an employee of the plaintiff who had been directed by the defendant as to where to moor the vessel. In my view this action was little different to the parking of a car in an available space in a car park. Of itself, the selection of the mooring did not amount to negligence on the part of the defendant.

31. Secondly, in mooring the vessel a considerable distance from the shore, I consider that this had the effect of creating a moat or barrier to access, thus making access very difficult unless it was achieved by access over water by some kind of watercraft or, less likely, by swimming. In my view it was simply not feasible for the defendant to isolate the vessel in a locked area or at a berth close to the workshop because those berths were already in use. I do not consider the defendant’s choice of the location of the mooring to have involved negligence on his part. Overriding this consideration is the reality that a determined vandal or even an opportunistic vandal could still have obtained access to a berthed vessel or to a vessel moored closer to the workshop. It is speculative to assume that the presence of night lighting and security cameras, which was the case here, would have necessarily deterred such conduct because the motivation of the vandals who caused the damage is simply not known and therefore not amenable to analysis.

32. Thirdly, I consider that a boarding of the moored vessel, opportunistically or otherwise, by vandals in circumstances where the hatch covers were found to have been absent thus enabling the vandals to have access to the sea strainers and sea valves, should be seen as a co-incidental matter because, as the evidence in this case shows, even locked hatch covers have at times proven to be no obstacle to vandals gaining access to the inside of vessels. This was adverted to in other instances of vandal damage to boats that was within the knowledge of the defendant. In any event, the uncontradicted evidence which I accept is that from a practical workflow perspective, the nature of the work the defendant was required to undertake on the vessel indicated that it was reasonable for him to remove the hatch covers and leave them off overnight without placing the vessel, which was otherwise locked, at undue risk of damage.

33. Having safely moored the vessel and having key-locked the engine at the end of the working day to prevent it from being started, the defendant had in my view taken reasonable and adequate precautions against the vessel being stolen. The evidence shows that the defendant would not have been able to move the boat closer to the workshop and the lighting and security cameras, assuming a closer berth had been made available because, at the end of the working day, the fact was that he was unable to move boats around as he could not control or move the other boats that were in the vicinity.

34. In the circumstances, I do not consider the non-covering of the hatch openings to have been negligent in this instance given the location of the mooring, the fact that the vessel had been left key-locked and the fact that the work required the hatches to be removed. There were sound reasons for leaving the hatch openings uncovered. This was to enable the covers to be worked on and for the glue to harden in order to fulfil the purpose of the bailment.

35. The plaintiff’s criticisms of the defendant’s failure to temporarily replace the hatch covers at the end of the working day or the failure to use some other form of temporary covering requires evaluation.

36. I consider that it was not practical to re-fit the removed hatch covers prior to leaving the vessel tied up at the end of the working day. This was because the required work necessitated those covers be removed for treatment with epoxy glue which required curing by overnight drying time thus rendering it impractical to re-fit the covers partway through the progress of the partly completed works.

37. I accept Mr Skinner’s explanation that it was impractical for the defendant to use temporary covers made of plastic or other materials that would have caused safety concerns in the case of plastic covers, and in the case of temporary timber panels, would have caused affixation damage to the structure of the fibreglass vessel which in turn would have required additional remedial work to be carried out afterwards. In any event there is no evidence that the fitting of temporary plastic or plywood covers would have prevented the damage.

38. The plaintiff submitted that the defendant could and should have arranged for replacement hatch covers to be obtained. The evidence discloses that these items would have cost something in the order of between hundreds of dollars to about one thousand dollars. In my view the suggestion that such replacement covers be obtained involved a counsel of perfection which was not warranted in order for the defendant to discharge his duty of care as the bailee of the vessel in this instance.

39. I consider that as bailee of the vessel, the defendant has discharged his obligation to demonstrate that he took reasonable care to avoid the vessel being damaged whilst it was in his custody and possession. I consider he has demonstrated that there was no negligence on his part which caused or led to the damage in question. Instead, I consider the evidence establishes that the damage to the vessel was occasioned by the uncontrollable activities of a vandal or vandals, these being activities for which the defendant cannot in this case be held responsible. In my view, for the foregoing reasons, the defendant has satisfactorily demonstrated that the damage to the vessel was not due to negligence on his part.

Issue 4 – Nature and extent of the claim for damages

40. In cases where bailed goods are damaged, the usual or commonplace measure of damages is to prove an estimate of the reasonable cost of effecting the required repairs or, alternatively, proving that the vessel was a total write-off and beyond repair.

41. In this case the plaintiff did not call evidence of the reasonable cost of repairing the damaged vessel. Instead, the plaintiff called evidence showing that the vessel had been sold back to the manufacturer for a salvage price of $20,000. The plaintiff has submitted this price to have been fair and reasonable but there was no direct evidence called to support that proposition. The defendant did not concede the fairness and reasonableness of the salvage price obtained.

42. In this regard, the plaintiff claimed that the vessel was written-off due to the extent of the damage which was obviously apparent. Usually, unless obviousness is glaringly apparent, proof of justification for writing-off a vessel of this kind would be established by expert opinion explaining why it was considered to have been irreparable and why it should be treated as a write-off. In this instance, the plaintiff did not take that course. Instead, the plaintiff introduced evidence to show that after taking delivery of the salvaged vessel, the manufacturer stripped it of its damaged fittings and then re-fitted it with new parts and fittings at a total cost of approximately $273,000 including salvage costs and then sold it again as new to other purchasers for the sum of $390,000. The commercial reasoning for these sequential steps was not explained.

43. The plaintiff seeks that an inference be drawn that the vessel was reasonably and justifiably written-off and that it had no higher salvage value than the $20,000 that was actually achieved. The suggested basis of such an inference is said to be the fact that the manufacturer spent approximately $253,000 excluding salvage costs to strip and re-fit the vessel. The inference sought was that this resulted in a completely re-built vessel as repairs were not feasible in the circumstances.

44. Whilst that inference is one of the inferences available on the evidence adduced, it is not the only inference available. For example, although speculative, it could be inferred that the manufacturer, for commercial reasons best known to itself and which were not articulated in evidence, saw a commercial advantage, possibly from a trading or tax perspective or otherwise, in proceeding down the pathway it had chosen to follow.

45. In the absence of cogent expert evidence showing that the chosen course was a reasonable one, I am left to speculate not only as to whether the salvage amount of $20,000 was fair and reasonable but also as to whether the decision to write the vessel off was justified.

46. In my view the fact that the manufacturer spent as much money as it did in reinstating the vessel, without detailed evidence of the reasons explaining why it did so, does not of itself provide a proper and justifiable basis for inferring that the vessel was a write-off.

47. The evidence discloses that very soon after the vessel was refloated, in accordance with accepted and prudent salvage practice, its diesel engines were flushed with oil in order to inhibit corrosion. Thereafter the damaged vessel was sent back to the manufacturer in Queensland with the engines still apparently attached to the damaged vessel. Expert evidence discloses that submerged engines that have been promptly inhibited in this way have some salvage value. There is no direct evidence as to what became of these engines. No evidence was called to identify any such value or to alternatively show that there was no such residual value in these engines. I consider the absence of such evidence to be a flaw in the plaintiff’s claim for damages. There is some evidence that the re-fitted vessel had different engines but that is not proof of the assertion that the engines which had been submerged had no salvage value.

48. The defendant called evidence from Mr Doherty, a professional maritime surveyor and engineer. Mr Doherty stated:

“It is not considered possible to return the vessel to an as new condition. This is because the hull and outfit incorporate Fibreglass modules for structure and outfit such as furniture, galley, deck, flybridge and other areas.

To reconstruct the vessel would require dismantling of these modules in effect stripping the vessel and then rebuilding. In my opinion this would not be economical and it would be easier and less costly to build a vessel from the start.”

49. Mr Doherty stated that the damaged vessel had to be stripped and re-fitted to enable it to be sold as a new vessel. The basis of this evidence was not explained other than in brief terms stating that it was not economical to do so compared to building a new vessel from the start. That costing analysis was not explained in detailed or particularised monetary terms and I therefore consider it to be of little probative value.

50. Mr Doherty stated that the estimated cost of repairs to the vessel to return it to a similar standard of outfit as the original would be between $350,000 to $400,000. That opinion was not supported by comprehensive assumptions or sufficiently reasoned detail. As such I do not regard it as having probative value : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 and Uniform Civil Procedure Rules 2005 Schedule 7 clause 5(c).

51. Mr Doherty’s report was silent on surveying the detail of the damaged parts of the fittings of the vessel. It was also silent as to any discussion on whether or not those parts were repairable or not, or whether the total costs required replacement parts and labour exceeded the cost of a new vessel. In my view Mr Doherty’s repair estimate in the range $350,000 to $400,000 cannot be authenticated by reference to the costs the manufacturer later expended on re-fitting the vessel because there is no evidence discussing or justifying the legitimacy of such a comparison.

52. Further, in my view, the plaintiff has failed to demonstrate by evidence or from reasonable inferences open on the evidence that the salvage price that was achieved for the vessel was fair and reasonable. This is so particularly since the salvage price was paid by the manufacturer which was a company related to the plaintiff. Accordingly, on its face, the salvage transaction price has not been shown on the evidence to be at market value or at arms length.

53. Mr Doherty makes no mention of the potential for the engine to be salvaged. Photographs were tendered to show the extent of some damage to the vessel but these photographs do not enable conclusive views to be formed on the salvageability or otherwise of the vessel once it had been righted. In the absence of expert evidence establishing these matters I have been left to speculate on these issues and have been invited to draw an inference that the vessel was not repairable. As that inference is not the only inference available, I consider that the plaintiff’s submission which invites me to find that the vessel was written-off does not rise above mere speculation and does not satisfy the requirements for proof of loss : Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Luxton v Vines [1952] HCA 9; (1952) 85 CLR 352. Accordingly, I am unable to accept the approach submitted by the plaintiff as an appropriate or reasonable evidentiary foundation of proof of the claimed loss.

54. The foregoing analysis compels me to the view that even if I were to have accepted that the defendant had not discharged his onus to establish that the damage to the vessel was not due to negligence on his part, on the evidence adduced, I could not be satisfied that the quantum of the plaintiff’s claim is either fair or reasonable. In these circumstances, had I been required to assess damages, I would have been compelled to find that the plaintiff has not proven the quantum of its loss.

Issue 5 – Whether reduction of damages for contributory negligence is warranted

55. Although in my view the issue of whether or not the plaintiff was contributorily negligent does not arise, I propose to deal with it in brief terms in case my other findings are held to be in error.

56. The facts relevant to the contributory negligence argument are that the plaintiff left the vessel at the mooring nominated by the defendant, and in doing so, left the vessel locked and then gave the defendant the key to that lock. At that point the plaintiff temporarily parted with possession of the vehicle. In these circumstances I do not consider that there was a failure on the part of the plaintiff to take reasonable care for the safety of the vessel for the purposes of avoiding damage. In my view there was no contributory negligence on the part of the plaintiff.

Disposition

57. The result of the litigation is that the plaintiff fails in its claim against the defendant and the plaintiff must therefore pay the defendant’s costs.

Orders

58. I make the following orders:-

(a) Verdict and judgment for the defendant;
(b) The plaintiff is to pay the defendant’s costs;
(c) The exhibits may be returned;
(d) Liberty to apply on 7 days notice if further orders are required.