Surf Life Saving Sydney Northern Beaches Incorporated v Garland

[2019] FCCA 3228

FEDERAL CIRCUIT COURT OF AUSTRALIA

SURF LIFE SAVING SYDNEY NORTHERN BEACHES INCORPORATED v GARLAND [2019] FCCA 3228

Catchwords:

ADMIRALTY – Collision – claim for damages in respect of property – whether the applicant’s vessel was an overtaking vessel – whether the defendant kept a proper lookout – judgment for the plaintiff.

COSTS – Application for costs on an indemnity basis – whether it was unreasonable for the defendant not to accept settlement offers – costs awarded on an indemnity basis.

Legislation:

Admiralty Act 1988 (Cth) ss.4, 9

Plaintiff: SURF LIFE SAVING SYDNEY NORTHERN BEACHES INCORPORATED

Defendant: MICHAEL GARLAND

File Number: SYG 522 of 2018

Judgment of: Judge Street

Hearing date: 8 November 2019

Date of Last Submission: 8 November 2019

Delivered at: Sydney

Delivered on: 8 November 2019

REPRESENTATION

Counsel for the Plaintiff: Mr T Hancock

Solicitors for the Plaintiff: Colin Biggers & Paisley

Counsel for the Defendant: Mr J Beran

Solicitors for the Defendant: Gells Lawyers Pty Ltd

ORDERS

1. Leave is granted to the plaintiff to file in Court an amended statement of claim dated 22 August 2019.

2. Leave is granted to the plaintiff to file in Court an amended defence to the cross claim dated 20 August 2019.

3. Judgment for the plaintiff against the defendant in the sum of $17,355.74 together with interest at the applicable rate for judgment under the Federal Court Rules 2011 (Cth) from 5 April 2016 to date.

4. Judgment for the cross-defendants on the cross claim.

5. The defendant pay the plaintiff’s costs of the proceedings including the cross claim and any reserved costs on an indemnity basis as taxed or agreed.

NOTES

1. The Court certifies that this is an appropriate matter for the engagement of experienced counsel.

DATE OF ORDERS: 8 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 522 of 2018

SURF LIFE SAVING SYDNEY NORTHERN BEACHES INCORPORATED

Plaintiff

And

MICHAEL GARLAND

Defendant

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction under ss 4(3)(a) and 9 of the Admiralty Act 1988 (Cth) (“the Act”) in respect of a navigational collision which occurred on 5 March 2016 near the entrance to the Hawkesbury River at Pittwater.

2. The plaintiff is the owner of a jet-ski which was being operated by its agent, Mr Howard. Mr Howard indicated that he was in the course of attending an incident which had been reported at Patonga. The defendant was the owner of the Riviera 40 Motor Cruiser, registration number MG5N (“Riviera Cruiser”).

3. The issue in the present case is one of responsibility for the collision in respect of competing claims between the owner of the jet-ski and the owner of the Riviera Cruiser for damages in relation to property.

4. The quantum is the subject of agreement where, if the plaintiff succeeds in respect of the property damage claim, the plaintiff is entitled to $17,355.74 plus interest from the date of the collision. There was a suggestion of dispute in respect of the incurring of a particular expense which the Court does not regard as being of any substance. The position in relation to the cross-claim by Mr Garland is that there is an amount of $6,281.34 claimed for property damage plus interest from the date of the collision.

5. There were nine witnesses relied upon by the plaintiff. Only two of those witnesses were the subject of cross-examination, being Mr Howard who was the driver of the jet-ski and Mr Fitzgerald who was an expert. The evidence of the plaintiff’s witnesses which were not called included Mr Fisher, who identified an incident log in relation to the callout of the jet-ski (“the incident log”). On behalf of the defendant, there were three witnesses and all three witnesses were called for cross-examination.

6. The defendant contends that the incident log is independent corroboration of the defendant’s case that the jet-ski was an overtaking vessel at the time of the collision and cut across the starboard bow of the Riviera Cruiser while travelling at about 30 knots. The Court does not accept this proposition. The incident log does not establish incontrovertible facts and was itself identified as a post-event record.

7. Mr Garland’s evidence was to the effect that he observed the jet-ski approximately five or less metres away and travelling in excess of 30 knots. Mr Garland gave evidence that, at that point in time, he was throttling back the Riviera Cruiser but was in a position where he was unable to prevent the collision which occurred almost immediately.

8. The defendant’s case in relation to the incident log focuses upon timing. In the incident report, there is an entry at 1730 by Mr Fisher identifying that the jet-ski was en route to a location. There is then an entry at 1735 by Mr Fisher identifying that there had been a collision with a jet-ski and another vessel. Mr Beran of counsel on behalf of the defendant submitted that that was incontrovertible evidence corroborating Mr Garland’s assertions that the jet-ski must have been the overtaking vessel, given the time it would have taken upon departure by Mr Howard on the jet-ski in order for a collision to occur approximately five minutes later.

9. Mr Garland gave evidence to the effect that he had observed the jet-ski and it had stopped to attend to a rescue mat which was being towed behind the jet-ski. Similar evidence was given by two other witnesses, being Mr Pickering and Mr Phimsipasom.

10. Mr Beran submitted that, once one takes into account the time that must have been occupied in trying to secure the rescue mat, it is not possible for the jet-ski to have been some 600 metres away from the Riviera Cruiser. Mr Beran submitted that the jet-ski must, therefore, have been the overtaking vessel and thus the give way vessel in the circumstances. Therefore, the defendant contended that the jet-ski was liable for the negligence of the collision.

11. There are a number of difficulties with the defendant’s case.

12. Mr Howard impressed the Court as a witness of truth and the Court does not accept that he stopped to secure the rescue mat as was put to him in cross-examination. It is not irrelevant that no such incident was identified by Mr Garland in the recorded interview with the police officer which is the subject of Exhibit B.

13. It is also one where the Court, having observed Mr Pickering, did not regard Mr Pickering as in a position to identify accurately whether the jet-ski and its tow had become stationary. Whilst the Court accepts Mr Pickering was endeavouring to assist the Court, the Court does not regard his evidence in relation to that incident as being reliable.

14. Mr Phimsipasom also suggested that he observed such an incident and acknowledged the formation that the vessels were following to a point which had been arranged between Mr Phimsipasom, Mr Pickering and Mr Garland. Whilst the Court, again, accepts Mr Phimsipasom was endeavouring to assist the Court to the best of his ability, the Court does not accept his evidence in preference to that of Mr Howard as to the assertion that the jet-ski stopped to secure the rescue mat.

15. The Court does not accept as reliable the evidence which Mr Phimsipasom has given in that regard. The Court takes into account that Mr Phimsipasom’s evidence in relation to his observations in respect of the distance between the vessels, being his vessel and those of Mr Pickering and Mr Garland, was inconsistent. Mr Phimsipasom initially suggested that his vessel was two to three hundred metres from Mr Garland’s and he then suggested that Mr Pickering’s was three to four hundred metres from his vessel. Further, the distances are clearly inaccurate.

16. The picture that has been tendered into evidence does not support that assertion by Mr Phimsipasom. The picture was taken by Mr Garland from the bridge in a fashion that must have involved Mr Garland departing from the duties that he had in navigating a substantial vessel in what are confined waters at a significant speed by looking back to take photographs of his friends’ vessels. Mr Garland endeavoured to play down the significance of the obvious departure from his obligations to maintain a proper lookout by suggesting that he just held the camera back whilst looking forward. That is not credible and the Court does not accept that evidence.

17. The Court is also troubled by Mr Garland’s failure to identify that he took several photographs rather than a single photograph. This was a significant matter in relation to which it is apparent that Mr Garland took considerable steps to try and exculpate himself from the authorities in relation to his responsibility in respect of the incident.

18. Mr Garland acknowledged that it was a near death experience. It was not a near death experience for him, however, but it was a near death experience for Mr Howard. Notwithstanding that, Mr Garland wished to complain about Mr Howard causing these proceedings to be pursued. That complaint is hard to comprehend.

19. Mr Garland was not an impressive witness and was an advocate in his own cause. Mr Garland volunteered that he always kept a good lookout in response to a question where that answer was not responsive and was advocating his interests. Mr Garland was an unreliable witness. The Court does not accept the evidence of Mr Garland.

20. The Court does not accept that the jet-ski was the overtaking vessel and cut across the starboard bow of the Riviera Cruiser. The Court accepts the evidence given by Mr Howard, in which he explained that he had passed the Riviera Cruiser, received what he thought was a message, took his hand off the throttle and endeavoured to contact those sending him to the incident at Patonga. The jet-ski was ahead of the Riviera Cruiser and was at idling speed. The collision occurred moments later and could have been avoided had Mr Garland kept a proper lookout.

21. The Court accepts that the collision occurred in circumstances where the jet-ski was ahead of the Riviera Cruiser and the Riviera Cruiser, while not keeping a proper lookout and being the give way vessel, ran down the jet-ski with the driver on it. The fact that life was not lost is extraordinary and Mr Garland’s description of it as a near death experience is a candid and correct admission. As was the admission made by Mr Garland to Mr Phimsipasom after the collision that he had run down a jet-ski.

22. The Court does not accept that the collision was, in any way, due to any failure by Mr Howard in the safe navigation of the jet-ski. The Court finds that the collision was due to the failure of Mr Garland to keep a proper lookout while travelling at an excessive speed in circumstances where the Riviera Cruiser was the give way vessel, Mr Garland knew there was a jet-ski in the area and Mr Garland was operating a significant vessel of the kind of the Riviera Cruiser.

23. The dictates of good seamanship are ones in respect of which there is probably no more important rule, quite apart from the regulatory requirements, in respect of keeping a proper lookout. The Court finds that Mr Garland departed from the standard of good seamanship, was not keeping a proper lookout and that Mr Garland’s negligence caused the collision.

24. The Court finds that this is further reinforced by the admissions clearly made in the Preliminary Act. Mr Garland admitted in the Preliminary Act that he did not observe the jet-ski until it was five or less metres away and suggested that the jet-ski was then travelling in excess of 30 knots. There was no basis identified in the affidavit evidence given by Mr Garland for that estimate of speed being in excess of 30 knots. When the matter was raised with Mr Garland he did not proffer any basis for the estimate of speed. The estimate was unfounded and inconsistent. The jet-ski was at idling speed at the time of collision and was in affect run down by the Riviera Cruiser.

25. Mr Beran suggested that the speed could be understood because of the contention that the jet-ski was the overtaking vessel and, therefore, would have had to have been travelling faster than 30 knots. The Court finds that Mr Garland’s proposition that he was maintaining the standards of good seamanship and observing a jet-ski less than five metres away, of which he contends he could somehow estimate the speed being in excess of 30 knots, defies credibility.

26. The Court finds that the damage to the plaintiff’s property was caused by the negligent navigation of the Riviera Cruiser by Mr Garland in failing to keep a proper lookout and then travelling at an excessive speed in the circumstances. The Court finds that the plaintiff is entitled to the damages claimed in the sum of $17,355.74 plus interest from the date of the collision, being 5 April 2016, to date at the interest rate applicable to judgments in the Federal Court of Australia.

27. The Court finds that the cross-claimant has failed to establish any negligence by the operator of the jet-ski or the surf lifesaving club and, accordingly, the cross-claim must be dismissed.

Costs

1. The plaintiff has asked for costs on an indemnity basis from the defendant in relation to the case. The plaintiff relies on Calderbank offers, the first of which was made on 5 February 2018 to settle the matter for $13,884.59 and a further offer to settle the matter for $25,000.00 inclusive of costs.

2. The Court regards, in the circumstances of the present case, the defendant to have acted unreasonably in failing to accept the settlement offers. This is a case where the defendant’s Preliminary Act put on notice to any competent mariner that the defendant had a problem with liability. The Preliminary Act in relation to the admissions concerning the distance away at which the jet-ski was first observed and the implausible proposition of the speed of the jet-ski observed at that distance away was itself cause for the Court to be of the view that this is a case in respect of which indemnity costs should be ordered.

3. The settlement offers which were identified were clearly reasonable settlement offers and, in any event, independent of the Preliminary Act. The dispute by the defendant as to negligence was unreasonable and accordingly it was unreasonable for the defendant to reject those settlement offers. This is an appropriate case where, because of the unreasonable conduct of the defendant, the Court is satisfied it is appropriate to order costs on an indemnity basis in respect of the substantive proceedings and cross-claim.

I certify that the preceding thirty (30) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 8 November 2019 and the parties were provided sealed copies of the Court’s orders.

Associate:

Date: 28 November 2019