Sturdy v New Wave Catamarans Pty Ltd
[2007] QDC 182
•15 June 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Sturdy v New Wave Catamarans Pty Ltd & Ors [2007] QDC 182
PARTIES:
NATHAN STURDY
Plaintiff
V
NEW WAVE CATAMARANS PTY LTD
First Defendant
AND
SEA SPEED PTY LTD
Second Defendant
AND
PAUL ANDREW BERGIN
Third Defendant
FILE NO/S:
BD2613/03
DIVISION:
Civil
PROCEEDING:
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
15 June 2007
DELIVERED AT:
Brisbane
HEARING DATE:
JUDGE:
Nase DCJ
ORDERS:
1. JUDGMENT IS GIVEN TO THE PLAINTIFF IN THE SUM OF $90,970 (TOGETHER WITH INTEREST AT 9 PER CENT PER ANNUM ON $50,970 FROM 8 AUGUST 2003 AND ON $40,000 FROM 1 JULY 2004) AGAINST THE FIRST AND THIRD DEFENDANTS. THE ACTION AGAINST THE SECOND DEFENDANT IS DISMISSED.
2. THE FIRST AND THIRD DEFENDANTS ARE ORDERED TO PAY THE PLAINTIFF’S COSTS OF AND INCIDENTAL TO THE ACTION (INCLUDING ANY RESERVED COSTS) TO BE ASSESSED ON THE STANDARD BASIS.
3. LIBERTY TO APPLY ON COSTS (WITHIN 3 MONTHS FROM TODAY)
CATCHWORDS:
COUNSEL:
Mr P. B. Laurie for the plaintiff
Mr R. Clutterbuck for the defendants
SOLICITORS:
Simmonds Crowley and Galvin for the plaintiff
Wellners for the defendants
Introduction
Nathan Sturdy, for as long as he can remember, wanted to fish. At the end of Year 9 he left school and worked as a commercial bloodworm digger. He bought his first boat out of his savings in 1995, and went commercial sand crabbing in Moreton Bay. Over the years he bought, sold, or leased a number of boats, working as a professional crabber in Moreton Bay (and at times in Hervey Bay).
In August/September 2002, he entered into an agreement with New Wave Catamarans Pty Ltd (NWC) for the purchase of an aluminium boat shell. After taking delivery of the shell,[1] he organised a motor and completed a basic fit out.[2]
[1]The shell included the hull, decking, and the cabin.
[2]The fit out completed by Nathan Sturdy involved the purchase of the outboard motor, the purchase and fitting of a steering wheel, padding for the cabin, a winch (for raising/lowering crab pots), and the electronics.
What he wanted was a boat he could work by himself (without crew) in the waters around Hervey Bay and Moreton Bay. This involved working in both sheltered and unsheltered waters, and at times remaining at sea for extended periods. After completing the fit out and taking the boat to sea, he quickly realised the boat was a dud, and was not fit for its intended use. The problem with the boat is that it broaches in a following sea, and when it broaches is likely to flip on to its side without warning. In the action, Nathan Sturdy is the plaintiff. NWC is sued in contract. The nominated designer under the contract is Sea Speed Pty Ltd (Sea Speed). Sea Speed is sued on what is said to be a collateral contract. Paul Andrew Birgan is a director of both NWC and Sea Speed. He, on the plaintiff’s claim, designed the vessel. Birgan is sued in negligence.
NWC and its directors (Peter Cavaliere and Birgan) claim the boat was designed by Nathan Sturdy, not by Birgan or Sea Speed, and the true nature of their contractual arrangements was that NWC made available materials, labour, and a workshop for Nathan Sturdy to design and construct the vessel. This claim is an unlikely one, as Nathan Sturdy has no shipbuilding or designer qualifications, knowledge or experience, and it is inconsistent with the written contract between Nathan Sturdy and NWC (in which Sea Speed is specified as the designer).
NWC through its directors also claim the boat is perfectly seaworthy and suitable for open water crabbing. On that issue, evidence was taken from what were essentially two teams of witnesses who gave opposing opinion evidence on whether the vessel is fit for its intended use as an open water crabbing boat.
The issues
The first question to be determined is the nature of the contractual arrangement between the parties. As Nathan Sturdy and NWC executed a written agreement for the purchase of the vessel, the written contract is the primary source of their respective obligations under the contract. It is nonetheless necessary to consider the claim advanced by Cavaliere and Birgan in evidence that Nathan Sturdy was solely responsible for the design and construction of the vessel.
A more difficult question is whether a collateral contract exists between Nathan Sturdy and Sea Speed, the nominated designer under the written contract. In the absence of a contractual relationship with Nathan Sturdy, Sea Speed cannot be liable to him in contract.
On the assumption NWC contracted to sell Nathan Sturdy a vessel (the monohull shell) and that a term is to be implied into the contract that the vessel will be fit for its intended use, then a breach will be established if the vessel is not fit for its intended use. The fitness of the vessel for its intended use will be considered separately.
Birgan is sued in tort, not in contract, as the designer of the vessel. In practical terms, the resolution of this part of the claim is dependent upon the plaintiff establishing Birgan failed to carry out the responsibilities of a designer to a reasonable standard of skill in circumstances where he undertook that role, resulting in the construction of a vessel unfit for its intended purpose and unsafe to use in open waters.
Finally the vexed question of quantifying the plaintiff’s economic loss remains to be determined. Both counsel devoted considerable space in their lengthy written submissions on this aspect of the claim.
The written agreement
The written agreement between NWC as vendor and Nathan Sturdy as purchaser is set out in an appendix to these reasons.
The agreement is expressed to be for a sale of a vessel. The parties are identified (Nathan Sturdy, NWC). The vessel is identified as a “new construction” 7.5 aluminium monohull shell (plus pods) of certain dimensions (LOA 7.5 metres, beam 2.5 metres). The basic construction details are specified. The price is stated and the times for payment specified. Sea Speed is identified as the designer. The contract was drawn by Birgan, who modified a standard contract for the purchase of a vessel. Cavaliere, Birgan and Nathan Sturdy signed the contract (Birgan as a witness). Birgan inserted Sea Speed as the designer and the other details (except for Nathan Sturdy’s name and address). The contract is dated 29 September 2002. The date entered on the contract is wrong, but nothing turns on this error, as Cavaliere, Birgan and Nathan Sturdy all said the contract was drawn up and signed at the Brisbane Boat Show in 2002, and a part payment of $12,000 paid on the same day.
Nathan Sturdy, as I have said, wanted a boat he could work alone in both sheltered and unsheltered waters. He had worked his last boat in the Hervey Bay, Bundaberg areas catching spanner crabs.[3] He had found that boat was too big for him to operate comfortably alone and, at the end of the season he sold it with the intention of buying one he could operate more comfortably by himself.
[3]He also travelled up to the Gladstone area: T8.
He was introduced to Cavaliere and Birgan in July 2002 by a friend of his, a Troy Dixon. Dixon had a background both in the fishing industry and in boatbuilding. He knew Cavaliere and suggested that Cavaliere might be able to build him (Nathan Sturdy) a boat.
At the initial meeting with Cavaliere and Birgan, Nathan Sturdy said he explained the type of vessel he wanted, and his proposed use of the vessel.[4] Dixon, who was present at the first meeting, confirmed Nathan Sturdy’s evidence on this point. He (Dixon) said that Cavaliere and Birgan told Nathan Sturdy they could build a vessel for him (“Whatever you want, we can do it for you.”[5]). Birgan and Cavaliere also effectively confirmed in their evidence that Nathan Sturdy told them what sort of boat he wanted.[6]
[4]T 9.
[5]T 110, 111.
[6]Cavaliere at T 83, and in detail at T 234, 235, and Birgan at T 277.
Nathan Sturdy said that at the initial meeting Cavaliere and Birgan talked about modelling it on an old Sports Fish Birgan had designed.[7] At subsequent meetings, Birgan produced a drawing of a boat: what he called a general arrangement.[8] Birgan said he subsequently modified the drawing for Nathan Sturdy. Birgan and Cavaliere said a slightly modified general arrangement of a boat was presented to Nathan Sturdy at the meeting at the boat show when the contract was drawn up and signed.
[7]T 9.
[8]Birgan said a general arrangement drawing is a study plan intended to give the prospective client a general indication of the vessel (T 267).
I am satisfied Cavaliere and Birgan were fully aware that Nathan Sturdy wanted a vessel suitable for use as a crabbing boat, and one which was capable of working in both closed and open waters. The intended purpose of the vessel is in contract theory part of the common objective background or purpose of the contract between the contracting parties, and it also provides a factual basis for the operation of the implied conditions that the vessel be fit for its intended purpose (Trade Practices Act 1974 (Cwth) s 71).
Notwithstanding Birgan had limited academic qualifications and trading,[9] at the date of contract, he had established a career in the design and sale of catamarans. He (and Cavaliere) founded NWC approximately four years earlier and through NWC he had been able to sell catamarans into a number of markets. From his evidence and his actions, I have no doubt he was not interested in designing a small monohull for Nathan Sturdy. He said at one point in his evidence he did not do monohull design.[10] I infer that the reason Cavaliere and Birgan were interested in building the boat for Nathan Sturdy is because they had no other work at the time.[11] Taking on Nathan Sturdy’s job enabled NWC to offer work to its employees.
[9]He commenced work as a young man as a clerical assistant with the Department of Harbours and Marine. While working there he completed a certificate course in boatyard operations at night. He said he had an interest in design and worked in design approval section at the department. Apart from some additional qualifications in business management and computer design (AutoCAD), he has no other academic or technical qualifications.
[10]T 184.
[11]T 216
The written contract therefore was prepared by Birgan (adopting a standard form contract for the sale of a vessel) and duly executed by NWC and Nathan Sturdy. In the contract, Sea Speed is nominated as the designer in a sheet entitled “Details of vessel”. The nomination of Sea Speed as the designer was inserted by Birgan (who was an owner and director of Sea Speed) and the details signed by Cavaliere (on behalf of NWC) and Nathan Sturdy. Birgan’s signature appears as a witness.
Who designed and built the vessel
Both Cavaliere and Birgan assert that the real agreement between the parties (reached at the meeting at the boat show at which the contract was signed) was that NWC was merely to make its factory, its workmen, and sufficient materials available to Nathan Sturdy to enable him to superintend the construction and design of a boat to suit his needs.
To this claim Mr Laurie (who appeared on behalf of the plaintiff at trial) submitted that as the contract is both clear as to who was to design the boat, the parol evidence rule prevents NWC asserting a different agreement to that executed by it. As a fallback position, Mr Laurie submitted the oral arrangement sworn to by Cavaliere and Birgan should be rejected as untruthful. I agree with both Mr Laurie’s submissions.
The parol evidence rule
The parol evidence rule continues to be an important rule of the law of contract. For the purposes of this judgment, it is sufficient to refer to the recent joint judgment of the High Court in Equuscorp Pty Ltd and Anor v Glengollan Investments Pty Ltd (2004) 218 CLR 471, where it was said:
“The respondents each having executed a loan agreement, each is bound by it. Having executed the document, and not having been induced to do so by fraud, mistake, or misrepresentation, the respondents cannot now be heard to say that they are not bound by the agreement recorded in it. The parol evidence rule, the limited operation of the defence of non est factum and the development of the equitable remedy of rectification, all proceed from the premises that a party executing a written agreement is bound by it. Yet fundamental to the respondents’ case that the operative agreements between the parties were wholly oral, and reached earlier than the execution of the written agreements, was the proposition that the written agreement subsequently executed not only may be ignored, they must be. That is not so. Having executed the agreement, each respondent is bound by it unless able to rely on a defence of non est factum, or able to have it rectified.”
The factual situation here is a simple one in which one side to a written contract asserts the actual agreement is different (and in this case radically different) from the written contract executed by the parties.
In this case the application of the parol evidence rule means that NWC is bound by the written contract. While the rule concludes the terms of the contractual agreement against NWC, I have additionally reached a clear view on the claims by Cavaliere and Birgan that Nathan Sturdy assumed responsibility for the design of the vessel. A consideration of this issue is relevant to the negligence claim against Birgan.
Who designed the monohull?
On this issue I do not accept the evidence of Cavaliere and Birgan that at the meeting at the Brisbane Boat Show, Nathan Sturdy agreed to design the boat. I will endeavour to explain why I do not accept their evidence.
Firstly, the fact Birgan both inserted the name Sea Speed as the designer in the contract and deleted the special condition section of the contract, is inconsistent with his evidence that Sea Speed was not the designer and that instead a “special agreement” had been reached that Nathan Sturdy would superintend the design and construction of the boat at NWC’s factory utilising NWC’s employees and materials.
Secondly, what happened after the contract was signed tends to support Nathan Sturdy’s account of the arrangement. To explain this point, it is necessary to consider some of the evidence in greater detail, and I will do that now.
Justin Taylor, who was employed as a foreman by NWC, was left with the task of physically constructing the boat. Taylor had worked as a boat builder for approximately 10 years, after completing an apprenticeship in boatbuilding and aluminium fabrication. His evidence revealed how the boat was built.
Taylor confirmed he was not supplied with any proper design documents.[12] Instead, he used a template, which determined the shape of the hull[13], and the general arrangement drawing by Bergin, which was indicative of the side profile of the completed boat.
[12]T 243.
[13]T 243.
The template Taylor was supplied with was used to cut the metal sheets, which in turn were drawn up and welded together to form the hull. The templates therefore determined the shape of the hull and bow.[14] He said that after the sheets had been pulled up and spot welded in position, he telephoned Nathan Sturdy to come and look at the hull. In considering this sequence of events it is important to know that the templates were supplied to Taylor by Birgan.
[14]T 250, 251.
Nathan Sturdy said that after receiving the telephone call from Taylor informing him the metal sheets had been pulled up, he contacted Tony Dixon, and the two of them visited NWC’s factory. Taylor in his evidence confirmed that Nathan Sturdy arrived with Dixon. Dixon did not like the shape of the hull, and asked to see the drawings. He said he was fobbed off and not shown any drawings. He suggested to Nathan Sturdy that he (Nathan Sturdy) speak to Cavaliere and Birgan about the design. Nathan Sturdy said he subsequently telephoned Birgan (Cavaliere was overseas at this time), who assured him “… it’s going to be a really good boat, and you’re going to be very happy with it.”[15] On Nathan Sturdy’s evidence, he accepted Birgan’s assurances over Dixon’s misgivings.
[15]Bergin, in his evidence, denied reassuring Nathan Sturdy in those terms.
At the time Nathan Sturdy and Dixon inspected the hull, it was still possible to make design changes to its shape. Taylor said it was possible to make changes to the entry.[16] Birgan took the position in giving evidence that Nathan Sturdy had the option of changing the design parameters of the hull at that point in time (consistent with being the designer), and he denied reassuring Nathan Sturdy he would be happy with the boat.
[16]T 246.
In fact, no changes were made to the shape of the hull by Nathan Sturdy.[17] The hull therefore was constructed according to the template supplied by Birgan, and any deficiency in the design of the hull is due to the design defects in the supplied template. Cavaliere, when he was pressed in evidence to explain the fact Sea Speed is specified as the designer of the vessel, at first said Sea Speed was identified as the designer because the templates (or mylars) were supplied by it,[18] but then changed his evidence saying the nomination of Sea Speed in the contract as the designer was a mistake.[19] Birgan simply maintained the boat was designed by Nathan Sturdy.
[17]Taylor at T 247.
[18]T 226.
[19]T 227.
Cavaliere, when pressed in cross‑examination, accepted that Nathan Sturdy’s role in the design and construction of the boat was limited to the supply of details (such as his height), which might be necessary to know in order to construct the boat.[20] Taylor’s evidence was consistent with this view,[21] although each of them also endeavoured to maintain the inconsistent view that Nathan Sturdy was in charge of the design and construction of the vessel.
[20]T 216 to 220.
[21]T 245.
Apart from the details about how the boat was actually constructed, the evidence throws up two other relevant circumstances. Firstly, when Nathan Sturdy realised the vessel was unstable in the water, he took it back to Cavaliere. NWC then endeavoured to improve its stability by welding chimes to each side of the hull. The important fact in this, Mr Laurie suggested, is that the act of accepting the boat back and attempting to modify it to improve its stability entailed an acceptance of responsibility for the boat by NWC. The second circumstance is that at one stage in the process, NWC took the boat back from Nathan Sturdy and attempted to sell it. In advertising it for sale, NWC described the boat as “professionally built”. Thus both by its conduct and the representations made when it attempted to sell the boat, NWC impliedly accepted responsibility for the boat.
Finally, it is improbable that Nathan Sturdy, who had no qualifications or experience of boatbuilding or boat design, would undertake the task of design and construction of the vessel.
These factors in combination tend to support Nathan Sturdy’s account, and I accept his evidence about the contractual arrangements between himself and NWC. On all of the evidence, and exercising my own judgment, I do not believe the account by Cavaliere and Birgan.
I was not impressed by the evidence given by either Cavaliere or Birgan. On Birgan’s account, he was prepared to allow Nathan Sturdy “design” and “construct” a boat with his (that is NWC’s) labour and materials and in his factory, even though it must have been quite obvious to him that Nathan Sturdy was not remotely qualified to carry out those tasks competently or safely. Birgan, in his evidence, presumably in order to avoid the ethical problem in his account, claimed he believed Nathan Sturdy was competent to undertake the design and construction tasks involved in boatbuilding, a claim for which I cannot see any reasonable basis and which I do not accept.
Is there a contract between Nathan Sturdy and Sea Speed?
The written contract was between Nathan Sturdy and NWC. The argument put on behalf of Nathan Sturdy is that he was also in a contractual relationship with the designer nominated in the contract (Sea Speed). When Birgan entered the various details in the pro forma contract, he was a director of Sea Speed. Sea Speed was, I assume, a business vehicle for Bergin’s work as a designer, separate from NWC’s work as a boat builder.
I am not satisfied a collateral contract came into existence between Nathan Sturdy and Sea Speed. On the contract between Nathan Sturdy and NWC, Sea Speed is best characterised as a subcontractor.
Mr Laurie, in his written submissions, simply asserts a contractual relationship without discussion of the theoretical nature of any asserted contract.
In the absence of a contractual relationship with Sea Speed, Nathan Sturdy’s action against Sea Speed must fail.
Liability in contract:was the vessel fit for its intended purpose?
Each side called evidence from a small team of “expert witnesses”, and each side carried out a stability test and conducted sea trials. The plaintiff’s tests demonstrated the vessel was unfit for its intended purpose, and unsafe to use as a commercial crabbing boat. The defence tests apparently demonstrated the opposite: the vessel did not broach a following sea and was apparently safe to operate in open waters.
The fact conflicting results were obtained by the two teams of experts is explained by the fact Cavaliere (and perhaps others) doctored the boat for the defence tests.
The problem with the boat lay in its lack of stability. In order to artificially lower the centre of gravity, Cavaliere filled the internal petrol tank (300 litres) with water. He then added a second fuel tank (210 litres) above deck and manned the boat with a number of men for the tests. This had the effect of lowering the boat in the water and, one would expect, improving its stability. The boat, however, was lowered so far that it became necessary to block the water freeing ports (“scuppers”) which allow water on the deck to drain out of the boat. I infer the scuppers were blocked in order to prevent sea water flowing on to the deck through them. The defence tests were carried out with the boat’s scuppers blocked, although for safety reasons a boat’s scuppers should never be blocked.
Any sea test, to be valid, should test the boat over a range of actual operating conditions. The defence sea trial only tested the boat in its doctored condition. A crabbing boat, as Nathan Sturdy explained in evidence, is used in both laden and unladen conditions. When an area is first crabbed, the crab pots are taken to sea and dropped at selected locations. Typically, after this initial exercise, the crab pots remain at sea while the boat is used to check the pots, rebait, and collect crabs as necessary. Often the boat will be returning from the fishing area relatively unladen (and with less than a full tank of fuel). The plaintiff’s trials, but not the defence trials, tested the boat in these conditions. The defendants’ sea trials ultimately are not helpful, and, once it is understood were conducted only when the boat was both laden and “doctored”, is not necessarily inconsistent with the plaintiff’s sea trials.
In summary, the problems with the vessel’s stability was more likely to arise when it was relatively unladen, reflecting one set of conditions in which a commercial crabbing boat is commonly operated. It was therefore important to test it under these conditions. The plaintiff’s sea trials did, but the defendants’ did not.
In addition, the stability tests conducted by the defence experts (Borlase, Davis) were tests appropriate for a vessel which was to be used in protected waters.[22] The test by Mr Borlase, who is appropriately qualified, produced results which are, on their face, inconsistent with the results produced by the plaintiff’s expert (Mr James). However, the inconsistency between their results is more apparent than real. In this connection, I accept Mr James’ opinion evidence the results are in “reasonable agreement” once allowance is made for the different conditions under which the vessel was tested. I note also that the reports obtained by the defence from Mr Ainscough and Mr Davis were on the footing the intended use of the vessel was in sheltered waters.
[22]T 328, 334.
Turning to the detail of the expert evidence, I should say that I accept the opinion evidence of Mr James (a navel architect called by the plaintiff) and Mr Kirsher, a maritime safety officer, both of whom I thought gave their evidence objectively and without bias. Mr James conducted a stability test and also observed sea trials. He concluded the vessel is “unsuitable for use as a seagoing fishing/crabbing vessel for the following reasons:
1) The way the vessel handles in a sea is dangerously unsafe.
2) Stability of the vessel is seriously inadequate for the intended use.
3) The vessel is open and lacks adequate freeboard to the working deck.
4) Freeing port area is insufficient to clear water from the enclosed deck.”[23]
Mr James has a degree in engineering (UQ) and is a naval architect. None of the other witnesses (apart from Mr Borlase, who conducted some stability tests) had comparable qualifications. Of the other witnesses, Mr Kirsher gave his evidence objectively and reasonably. He was present for some sea trials. He concluded the vessel was not seaworthy for its intended use (open water crabbing) and was unsafe because of its liability to broach without warning. I also accept Nathan Sturdy’s evidence concerning the seaworthiness of the vessel. I do not accept the suggestion that he deliberately caused the vessel to broach during any of the sea trials.
[23]Report dated 1 August 2005, Exhibit 20.
At the same time, I must say that I thought a number of the expert witnesses (especially the defence expert witnesses) were partisan. The problem with partiality of expert witnesses is an old one, perhaps aggravated in this particular case by the lack of formal academic training by many of those called to give expert evidence.
Conclusions:liability
I am satisfied NWC is liable in contract for breach of the implied undertakings as to quality and fitness imported into the contract by the Trade Practices At 1974 (Cwth) s 71. I find Nathan Sturdy expressly made known to both Cavaliere and Birgan (with whom he negotiated the contract with NWC) the purpose for which he required the vessel (that is, for crabbing in both sheltered and open waters off the Queensland coast). I find the vessel supplied by NWC was not fit for that purpose, and not of merchantable quality.
Mr Clutterbuck, who appeared on behalf of the defendants, submitted in his written submission that no liability is thrown on NWC because Nathan Sturdy examined the vessel as it was constructed. Sub-section 71(1)(a) and (b) of Trade Practices Act 1974 (Cwth) provide a limited defence where the consumer purchases after the defect has been specifically drawn to his or her attention (s 71(1)(a)) or where the consumer examined the goods before purchase and as a result of the examination was or should have been aware of the particular defect (s 71(1)(b)). These provisions have no application: the defects were not drawn to Nathan Sturdy’s notice before he contracted with NWC, nor did he examine the vessel before contract. Although Nathan Sturdy was a “witness” to the construction of the vessel, he is not a boat builder or boat designer, and lacks the knowledge or capacity to identify the defect in the vessel constructed for him. The suggestion these defences have any application is entirely without merit.
I am satisfied Birgan is liable in tort to Nathan Sturdy. During the negotiations between Nathan Sturdy, Cavaliere, and Birgan leading up to the contract, it was understood Birgan would carry out any necessary design work. I presume that is the reason that Birgan inserted Sea Speed in the contract as the designer. Birgan supplied a general arrangement for the boat, and he also supplied the templates for the hull. The templates determined the major design features of the boat. Although Birgan was interested in taking Nathan Sturdy’s money, he was not really interested in monohull design (and may or may not have been competent in that area of design).
Nathan Sturdy did not alter the basic hull shape (although it was suggested in evidence he was, in effect, invited to change it). Birgan is therefore entirely responsible for the defects in design. The attempt by Birgan (and Cavaliere) to deflect responsibility on Nathan Sturdy for the design of the vessel is because Birgan himself failed completely to exercise the level of care and skill expected from a reasonably competent boat designer.
I find the vessel (the monohull shell) produced in NWC’s factory for Nathan Sturdy is unfit and unsafe for its intended use as a commercial fishing boat. I find the defects in the vessel are a direct result of Birgan’s failure to exercise reasonable care and skill in the design of the vessel; and that in so doing, he breached his duty of care to the plaintiff.
As far as the claim against Sea Speed in contract is concerned, I am not satisfied Nathan Sturdy separately contracted with Sea Speed for the design of the vessel, and the action in contract against Sea Speed will be dismissed.
Damages 1:the direct loss
The direct loss suffered by the plaintiff is satisfactorily quantified in the evidence, and is not really in dispute. The amount claimed is $50,970.[24]
[24]For the detailed calculations which resulted in this figure, see Exhibits 4 and 13, pp 40 and 41 transcript, and counsel’s written submissions pp 15, 16.
Damages 2:economic loss
The plaintiff also claims a sum for economic loss. Mr Laurie suggested the plaintiff’s damages include any loss of net income suffered as a result of being unable to work as a professional crabber.
The dispute between Nathan Sturdy and NWC quickly reached a standoff. As he was unable to use the vessel to work as a professional fisherman, Nathan Sturdy returned to digging for bloodworms[25] for a livelihood. He did not have the financial resources to purchase another boat.[26] Initially, he worked for a while as a rigger/scaffolder, but he has mainly worked in a series of truck driving jobs. He has maintained his commercial fishing licence, and did lease a boat at one stage. That leasing arrangement was not successful: he experienced problems with the motor, and the boat was too large for him to operate comfortably without crew.
[25]T 127.
[26]T 26.
Nathan Sturdy made a loss in each of the financial years ending in June 1999, 2000, 2001, and 2002. He said in evidence the crabbing seasons in Moreton Bay (where he mainly worked) were very poor. None of that evidence establishes a loss from his inability to work as a professional fisherman.
The claim he suffered a diminished net income in the years 2003 and 2004 is based on an overall increase in the catch of crabs in the Fraser/Burnett commercial fishery commencing from around 2000 to 2001. The years 2003 and 2004 saw a significant increase in the total catch in the Fraser/Burnett area. The increased commercial catch was apparently a result of the expansion of fishing into offshore areas. The increase is documented in a report by the Department of Primary Industries and Fisheries (annual statutes report 2005, Queensland Blue Swimming Crab Fishery, July 2005).
Nathan Sturdy first fished the Hervey Bay area in 2002 when he travelled there with another commercial fisherman (a Mr Hyland). Both men fished the same areas for about three months. Hyland, in the following seasons, was able to return to the Hervey Bay fishery. He recorded catches. The gross values of the catch can be set out in a table.
2001 27.24 tonnes of crab $256,000.00 (gross) 2002 35.5 tonnes of crab $315,000.00 2003 36 tonnes of crab $279,000.00 2004 45 tonnes of crab $310,000.00
Based on Hyland’s success, the plaintiff claims he has suffered a loss resulting from his inability to work as a commercial fisherman.
Commercial fishing is a business which lacks the predictability of many other businesses. Mr Clutterbuck, in his written submissions, challenged the claim for economic loss. The variables affecting the income of a sole commercial fisherman are such that it is impossible to carry out any precise exercise.
I agree that if the plaintiff had been able to work as a commercial fisherman in the Fraser/Burnett pot fishery, the probability is that he would have recorded a higher catch than he recorded in the preceding years, and presumably, the value of his catch would be greater. But it is quite impossible to carry out a calculation intended to demonstrate his lost profits with any pretence at accuracy. In these circumstances, the only course open to the court is to make a global assessment: an assessment which is in reality an estimate of the loss of the opportunity to profit from the increased commercial catch recorded for the Fraser/Burnett pot fishery.
I do accept the plaintiff’s evidence that he intended to fish for crabs in the Fraser/Burnett fishery, and he was only prevented from doing so because he was unable to use the NWC vessel for that purpose.
My assessment of the value of the opportunity he lost of fishing in the Fraser/Burnett pot fishery in the years 2003 and 2004 is $40,000. The total claim therefore is $50,970 (together with interest at 9 per cent per annum from 8 August 2003[27] to judgment) and $40,000 (together with interest at 9 per cent per annum from 1 July 2004[28] to judgment).
[27]The date the claim was filed.
[28]The notional end of the crabbing season.
Judgment is given to the plaintiff in the sum of $90,970 (together with interest at 9 per cent per annum on $50,970 from 8 August 2003 and on $40,000 from 1 July 2004) against the first and third defendants. The action against the second defendant is dismissed.
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