Treble v Club Marine Limited
[2021] WADC 22
•19 MARCH 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TREBLE -v- CLUB MARINE LIMITED [2021] WADC 22
CORAM: PETRUSA DCJ
HEARD: 10-19 AUGUST, 26 & 28 AUGUST 2020
DELIVERED : 19 MARCH 2021
FILE NO/S: CIV 1273 of 2019
BETWEEN: CHRISTOPHER JOSEPH TREBLE
Plaintiff
AND
CLUB MARINE LIMITED
First Defendant
ALLIANZ AUSTRALIA INSURANCE LIMITED
Second Defendant
Catchwords:
Marine insurance - Claim for costs of repairs arising from impact 16 months earlier - Expert evidence - Turns on own facts
Legislation:
Nil
Result:
The plaintiff's action is dismissed against each defendant
Representation:
Counsel:
| Plaintiff | : | Mr M A Tedeschi |
| First Defendant | : | Mr J R Criddle |
| Second Defendant | : | Mr J R Criddle |
Solicitors:
| Plaintiff | : | Bowen Buchbinder Vilensky |
| First Defendant | : | McCabe Curwood |
| Second Defendant | : | McCabe Curwood |
Case(s) referred to in decision(s):
Nil
PETRUSA DCJ:
Introduction
The plaintiff, Christopher Treble was the owner of a 7 m fibreglass Edencraft 233 vessel powered by two 300 HP Suzuki outboard motors and accessories, including a trailer. The first defendant, Club Marine Limited, issued a marine policy of insurance covering the vessel and attached motors and accessories for loss or damage. Club Marine was at all material times the agent of the second defendant, Allianz Australia Insurance Limited, in issuing marine policies of insurance and handling claims.
On 14 July 2016 the vessel suffered damage as a result of striking an unidentified submerged object in Cockburn Sound. A claim was submitted by the plaintiff on 15 July 2016. The claim was accepted and the damage to the two outboard motors was repaired on or about 3 August 2016.
Subsequently, in December 2017 and February 2018, further damage was identified to the vessel that the plaintiff claims was the result of the impact that occurred on 14 July 2016. The plaintiff seeks to recover the cost of these repairs pursuant to the contract of insurance.
The plaintiff's case is that as a consequence of the impact that occurred on 14 July 2016, the watertight seal between the pod and the transom of the vessel was compromised allowing water ingress causing extensive damage to the pod, transom, subfloor structures and cockpit floor. To this end the plaintiff relied on the expert opinions of shipwright Christopher Norman and marine architect Paul Bury.
The defendants dispute the extent of the damage claimed and in any event deny that the impact that occurred in July 2016 was the proximate cause of any damage to the vessel. The defendants rely on the expert opinion of marine architect Sean Johnston.
Before examining the expert opinions relied on it is necessary to have an understanding of the configuration and process of manufacture of this vessel as well as the background against which this claim arose.
First I will deal with the manufacture and configuration of this vessel.
Manufacture and configuration of vessel
The hull of this vessel was made of fibreglass. Along the centre of this fibreglass hull is placed the keel together with a number of other structures known as stringers or bulkheads. The stringers or bulkheads are between 100 mm and 150 mm wide. These stringers or bulkheads create a structural grid onto which the cockpit floor or deck is laid. The cockpit floor is made of 12 mm plywood covered with multiple layers of fibreglass. The fibreglass does not cover the edges of the plywood. The transom is attached to the back of the hull. The transom is a piece of 39 mm plywood which is also covered with multiple layers of fibreglass.
The structures in the hull are all bonded onto the fibreglass hull using strips of fibreglass and a resin creating a water tight seal. This process is referred to as secondary bonding. The cockpit floor is attached to the structural grid using a polyester slurry or bog. A sealant, known as Sikaflex, is then applied to the area where the cockpit floor connects to the hull on the exterior surface. The entire exterior fibreglass surface is then painted with an extra thick layer of a resin type substance called gelcoat. Gelcoat is a protective coating with no structural purpose.
The structures running from bow to stern in the subfloor area were variously described as stringers or bulkheads or longitudinal stringers or longitudinal bulkheads. I will refer to them as longitudinal stringers. These are made of hollow‑core solid FRP fibreglass.[1]
[1] ts 607.
There is a longitudinal stringer on either side of the keel. This divides the subfloor area into three longitudinal compartments referred to as the port side compartment, the centre compartment and the starboard side compartment.
Each of the longitudinal compartments is then divided into smaller compartments by what was variously referred to as transverse stringers, transverse bulkheads or structural knees. I will refer to them as transverse stringers. These transverse stringers are made of 12 mm plywood covered with multiple layers of fibreglass.
The port and starboard side compartments were divided into four smaller compartments with a compartment across the bow of the boat. All bar the aft compartment on each side is filled with buoyancy foam.
The compartment running along the centreline is also divided into four smaller compartments. There is a compartment for the fuel tank and two in‑floor storage compartments. The compartments running along the centre line are connected by limber holes. These allow water to move from those centre compartments into the sump area. The sump area, also known as the bilge well, is the compartment in the centre at the back of the vessel.
In addition to water from the limber holes, any excess water from the deck drains into the bilge well. Water is expelled from the bilge well by the bilge pump or when the vessel is out of the water via the bung hole in the transom. This bung hole is blocked with a plug known as a bung when the vessel is in use. The bilge pump on this vessel was an automatic one which activated when the water reached a predetermined level in the bilge well.
There are then three compartments running from port to starboard along the flat-edged back wall of the boat or transom as it is called. They are referred to as the port side aft compartment, the bilge well and the starboard side aft compartment.
Unlike the bilge well the port side aft compartment and the starboard side aft compartment are sealed compartments. They are only accessible from an inspection port on each side of the cockpit floor. Each inspection port is a chrome circle 150 mm in diameter with an O‑ring seal that can be opened from the deck.
Attached to the transom is a pod. The pod is a separate fibreglass structure that is bolted to the transom of the boat. The outboard motors are attached by four bolts to a lip or flange at the rear of the pod.
The pod is attached to the transom via a series of 16 bolts. The 16 bolts connecting the pod to the transom run all around the outside and through the centre of the pod. They are configured in a geometric pattern involving a line of eight bolts along the top below which is a line of four bolts. The remaining four bolts form a V‑shape at the bottom of which is the bung hole of the pod which itself is at the lower most point of the pod. The two outermost bolts on the second line connect the pod to the transom through the port and starboard side aft compartments respectively. Six of the bolts connect the pod to the transom through the bilge well. These six bolts include the two middle bolts of the second line and the four lowermost bolts around the bung hole.
A template of the bolt configurations is put on the back side of the pod and the holes for the bolts are drilled. The pod is then correctly aligned onto the transom and the holes drilled back through. The bolts together with a washer are put through the hole and tightened using a Nyloc nut. The nut is done up 'extremely tight'.[2]
[2] ts 537.
The bolts are half‑inch 316 grade stainless steel and are approximately 125 mm long. The bolts have a bending strength of 3.6 kg and a shear strength of 2.4 tonnes.[3]
[3] ts 347.
In addition, Sikaflex is placed around the perimeter of the pod where it attaches to the transom, around each individual bolt hole and inside each bolt hole.[4]
[4] ts 537 - ts 539.
The combination of the bolts and the placement of the Sikaflex provides a secure and waterproof seal between the transom and the pod.
I turn now to the background.
Background
In October 2015 Christopher Treble purchased the vessel from Edencraft International in Geelong.
On 27 October 2015 Club Marine Limited, as agent for Alliance Australia Insurance Limited, issued a policy of insurance to Christopher Treble. The policy covered, amongst other things, accidental damage to the vessel for the period of insurance from 27 October 2015 to 27 October 2016.
After the vessel was purchased, Christopher Treble's son, Michael Treble, transported the boat to Western Australia and thereafter had the control and exclusive use of it.
Michael Treble used the boat for fishing, scuba diving, spear fishing and other water activities. He used the boat three or four times a week. By 14 July 2016, he had done over 105 operating hours. On 14 July 2016 Michael Treble, together with at least two others, went night fishing in Cockburn Sound. He did not notice any problems with the vessel, feel any shudders or otherwise notice any change in its performance. But when cleaning the boat later that morning, he saw damage to both engines. There was damage to the cowlings, propellers and cavitation plate of each engine. He looked over the entire boat, including the rear and underside of the hull but did not see damage to any other areas of the vessel.
He immediately contacted his father and then, at his father's behest, Club Marine. He informed them of the incident and subsequently arranged for his mechanic, Lee Paxman, to come and inspect the vessel.
Lee Paxman found that the propellers and lower cowlings of both the starboard and port side engines had sustained severe impact damage and were not viable for repair. Further, the propeller shafts of both engines had been bent out of specification and were not viable for repair. The gearboxes on both engines were disassembled and whilst there was no notable internal gear and bearing damage, new propeller shafts, seals and bearings were required. Oliver Stevanovich, the assessor engaged by Club Marine, did not inspect the vessel but did examine the propellers and gearbox before submitting his report.
Based on the report submitted by Mr Stevanovich, Club Marine accepted liability and the claim was settled with the repairs to the engines being completed by about 3 August 2016.
After the repairs had been completed, Michael Treble continued to use the boat extensively. In the period from August 2016 to December of 2017, he accumulated a further 390 operating hours with nearly 200 of those hours being accumulated in the four month period leading up to 18 December 2017.
In addition to the regular trips to areas in and around Perth Michael Treble also took the vessel from Perth to Geraldton by road and then to the Abrolhos and back on about five occasions.
Michael Treble did not have any concerns about the performance of the vessel albeit another claim was made on the insurance policy in September 2016.
That claim was for damage to the boat trailer which occurred as a result of a collision with another vehicle. The claim was accepted and the boat trailer and gunwale of the boat were replaced at a cost of $30,000.
Michael Treble was very meticulous in his care of the boat. The maintenance regime he followed involved:
1.Washing down the vessel after each use. This included washing the entire surface of the boat with soap and/or a cleaner, spraying it all off with fresh water and drying the whole surface with a chamois.
2.Polishing all surfaces (including the hull) every couple of weeks.
3.Storing the vessel in his garage with the jockey wheel on the trailer wound up as high as possible so that the bow of the boat was elevated.
4.Servicing the engines in accordance with the manufacturer's recommendations.
He also looked at and into, the inspection ports from time to time[5] but not as part of his general care of the vessel.[6] He had done so on more than one occasion since September 2016.[7]
[5] ts 203 - ts 204, to a distance of about 25 cm.
[6] ts 200.
[7] ts 201 - ts 203.
At no time after September 2016 did Michael Treble notice any damage to the boat and in his eyes, the boat was 'still in perfect condition'.[8]
[8] ts 198.
In December 2017 two events occurred. First, damage was sustained to the lower cowlings on each of the motors when a rope from a craypot got caught in a gap between the cowling and the cavitation plate on each of the port and starboard motors. It was the second last day of the crayfish season and about a week before Michael Treble travelled to Geelong for Christmas.
Next on two consecutive days, after the cowlings were damaged Michael Treble noticed water in the pod. On each occasion Michael Treble had been out squidding on his own. Upon his return he took the boat out of the water and then removed the bung from the pod. About a litre of water came out of the pod. This was both unexpected and concerning because the bungs on the inside of the boat had not been removed and the sea had been flat. There was therefore no ready explanation for the presence of water in the pod.
Given his existing plans to travel to Geelong with the boat Michael Treble contacted the manufacturer of the boat, Edencraft International, and arranged an inspection. He felt the manufacturer would be best placed to identify any issue.
Michael Treble drove the boat the 4,000 km to Geelong and took it to Edencraft's premises the day after he arrived, likely the 19 December 2017. There he had a conversation with Edencraft's shipwright, Christopher Norman wherein Michael Treble identified water ingress as his primary concern.
Mr Norman inspected the vessel briefly on the day it was delivered and more comprehensively on 20 December 2017. As a result of his inspection, Mr Norman, set out the damage he had observed in a letter. In the letter dated 22 December 2017, Mr Norman said:[9]
[9] Exhibit 21.2.
There are a number of indications of what Edencraft classify as major damages. Indications include:
-Major cracking and fracturing of the outboard pod.
-Major fracturing and cracking of the bottom of the hull.
-Major fracturing around the bolts of the inside of the transom that secured the pod to the vessel.
-Water leaking into the pod.
-Swelling of the timber transom and timber floor.
-Delamination of fibreglass in various areas around the vessel.
-Delamination of fibreglass around the dive door.
The letter recommended that authorisation be given for the removal of the engines and the pod from the vessel so further investigations could be undertaken. He included a quote of $1,848 to perform these works. Club Marine approved the expenditure.
The pod was removed from the vessel on 20 February 2018 under the direction and supervision of Mr Norman. Mr Norman's findings were particularised in a letter dated 8 March 2018. He identified water ingress as a significant issue. In particular he identified and removed water in each of the port and starboard aft compartments. Further he postulated that there was water damage further forward in the subfloor compartments. He attributed this water ingress to the failure of the connection between the pod and the transom which he opined was caused by the impact that occurred on 14 July 2016.
In that correspondence Mr Norman recommended a method of repair which was quoted to cost $113,685. The quotation made it clear that the method of works proposed could not guarantee the structural integrity of the bow of the boat because it contained original timber which, in Mr Norman's opinion, had potentially been exposed to water.
A subsequent quotation was prepared for a method of repair that would enable Edencraft to warranty the vessel. This was done by way of a quotation dated 11 April 2018. In that quotation the method of repair involved the construction of a new hull, new subfloor structures, a new transom and new pod. The cost of repair was $131,208.
The claim was rejected on the basis that the defendants were not satisfied that any water ingress was caused by failure of the connection between the pod and the transom nor connected to the incident that occurred 16 months earlier.
The defendants engaged a marine architect, Sean Johnston of CMS Marine Design and Consulting, to examine the vessel. Mr Johnston examined the vessel on 29 October 2018. His report, dated 31 October 2018, identified the following damage:[10]
•minor cracking and scratches of hull, below the water line;
•damage to cowling on both engines;
•water present in the aft section of the hull;
•gel coat cracking on the return of the outboard pod;
•minor separation of the deck from the transom on the port side around the sump; and
•water has been present in the forward section of the hull.
[10] Exhibit 57.
Mr Johnston went on to express the opinion that:[11]
it is more probable that the water apparent in the port and starboard aft compartments is not consistent with ingress from pod and bolt sealing and compound failing.
The staining on the deck would indicate that water is flowing from above the deck.
The delamination of the deck transom join may be consistent with impact damage.
[11] Exhibit 57.
As a result of this opinion the defendants agreed during an internal dispute resolution process to pay the cost of repairing the gelcoat of the pod and the cracking of the transom/stringer laminate, and of reinstating the seal between the transom and the pod.
The plaintiff did not accept Mr Johnston's opinions and engaged marine architect, Paul Bury. Mr Bury examined the vessel on 14 December 2018. In his report dated 15 February 2019 he identified damage that included:[12]
[12] Exhibit 56.
1.Cracking of hull stringer to transom bonding laminate;
2.Cracking in pod corner laminates;
3.Pod attachment bolts showed some bolts slightly deformation;
4.Minor scratches and gelcoat damage on hull running surfaces;
5.Edencraft staff advised that sealant used to seal pod to hull was extensively broken when vessel was first inspected by them and prior to them removing the pod.
6.Damage to outboard motor legs due to impact was not evident as this had already been repaired. This damage has been documented and agreed upon by others and is taken as a fact for the purposes of this report.
7.Sub-floor compartments were full of water due to access hatches being left open and the rain water draining into these areas. This was the state in which the vessel was inspected. Prior to this it was reported that water was in these sub-floor compartments when these access hatches were closed.
8.Transom plywood core looked wet at bolt holes. This indicates the plywood has been saturated by water and would be starting to break down consequently. Similarly, the cockpit floor, will be affected by this flooding and has also been reported to have a saturated plywood core (following the taking of core samples).
It is to be noted that at the time of Mr Bury's inspection the boat was outside in the rain.
In his report Mr Bury drew a number of conclusions that included the following:[13]
The only conceivable way water can be in the subfloor compartments is due to ingress from the water the vessel was floating in. Considering the damage noted in section 4, the connecting bolts, below the waterline, of the pod to the transom are the logical and obvious entry point for water.
Following this logic, it is my considered opinion that damage to this vessel including outboard leg impact damage, pod damage, pod bolt damage, internal structural cracking and damage caused by water ingress has been all caused by the impact of this vessel on a floating object.
[13] Exhibit 56.
Mr Johnston reviewed Mr Bury's conclusions and disagreed with them. The reasons for his disagreement will be dealt with later in these reasons save to say that he considered all of the physical damage to be minor and disagreed that any conclusions could be drawn as to whether water had moved forward, that the plywood subfloor had become saturated or that any water ingress or other damage was necessarily explained by the impact on 14 July 2016. Further in his opinion any water ingress into the pod was capable of being explained by damage arising from the incident involving the crayfish pots.
Other matters
Before moving to the expert opinions there are a number of other matters that should be noted.
First Michael Treble recalls speaking to Mr Norman after his inspection in December 2017. He recalls being shown the cracking along the flange of the pod, the delamination to the connection between the cockpit floor and transom and the delamination around the dive door.[14] He does not recall seeing any water within the boat.[15] His recollection is that the inspection ports were closed when he last saw the boat.[16]
[14] ts 105, ts 226.
[15] ts 226 - ts 227.
[16] ts 227.
Edencraft retained possession of the boat from 19 December 2017. There is a conflict in the evidence about how it was stored during that time.
Mr Norman's evidence was that the boat was always stored undercover predominantly in the shed at Edencraft's business premises. There was a period of time when it was kept in a shed at Grant Maher's home. Mr Maher is the proprietor of Edencraft.[17]
[17] ts 607.
Mr Norman elaborated in cross‑examination saying that, weather permitting the boat was taken out of the shed each day at about 7.00 am and returned at 4.00 pm. This was to better facilitate use of the shed for production purposes. However if the weather was bad the boat remained in the shed and the other work took place around it.[18]
[18] ts 642 - ts 643.
The boat was outside in the yard when both Mr Johnston and Mr Bury inspected it. When Mr Bury inspected the boat it was outside in the rain. The boat was very wet. Mr Johnston also formed the view, based on the location of the boat and of the items around it that the boat was stored outside on an ongoing basis.[19]
[19] ts 832.
Lastly, a total of 427 mm of rain fell in Geelong in the 2018 calendar year, notably:[20]
1.58.6 mm fell from 1 January to 20 February;
2.272.2 mm fell from 1 March to 29 October;
3.52.6 mm fell from 29 October to 14 December.
[20] Exhibit 69.
The expert opinion evidence
The three experts who examined this vessel have provided different and contradictory information and opinions about the nature of the damage they observed, the extent of any damage and importantly the cause of any damage. Christopher Norman and Paul Bury, the two experts called by the plaintiff, agreed that any significant water ingress occurred through the pod to transom connection which failed as a result of the impact that occurred on the 14 July 2016. The factual foundation and reasoning for their respective opinions was however different. Further they do not agree about the extent of the damage nor its significance. The defendants' expert Sean Johnston whilst agreeing with many of the observations made by Mr Bury came to very different conclusions. It is therefore necessary to examine the opinions of these experts.
Christopher Norman
Christopher Norman was the production manager at Edencraft in Geelong. He had worked for Edencraft for the best part of 20 years, albeit not continuously or in the same capacity. He did a traineeship with them before completing his four year shipwrights' apprenticeship. He achieved his qualification in 2006. He initially worked at their Gold Coast office rising to the position of production manager. The company then relocated to Geelong where he was involved in setting up the manufacturing area of the business. Thereafter he consulted with them for 5 - 6 years before returning to full time employment in the position of production manager.
He has over that time been involved in building over 200 Edencraft 233, 7 m vessels. He was not working for Edencraft in 2015 so was not involved in the construction of this vessel. In his opinion the Edencraft 233 is a high quality vessel able to sustain heavy use and in his experience is capable of lasting a long time.
In Christopher Norman's opinion the vessel could only be properly repaired by replacing the hull, the transom, the subfloor structures and the cockpit floor.
These repairs were necessary given Mr Norman's opinion about the nature, extent and cause of the damage to the vessel. That opinion, confirmed in evidence, was as set out in the letter of 8 March 2018 that:[21]
… the impact to the vessel have [sic] stretched the stainless steel outboard pod bolts, breaking the watertight seal between the outboard pod and the transom.
This has caused water to flow freely between the outboard pod and the transom resulting in water damage to the timber transom of the pod and to the vessel transom. Furthermore, we believe the impact to the vessel have [sic] resulted in fracturing to fibreglass on the pod, vessel transom and underside of the hull.
Due to the impact large amounts of water have been located under the floor on the outside of the port and starboard stringers. This leads us to believe there could be water damage further forward to the vessel including; timber structural knees, waterlogged buoyancy foam and water damage to the timber floor.
[21] Exhibit 61.
In order to understand this opinion it is necessary to consider the information available to Mr Norman and the conclusions he drew from that information.
He first saw the vessel when Michael Treble brought the boat to the factory in late December 2017. At this time Michael Treble:[22]
explained to us that he hit something which was rather large in the water, it had a very big impact with the boat, and he wanted us to assess it. There's a lot of things sort of going wrong with the boat. The pod was filling up and he was losing a lot of performance, so he indicated there were some problems with the vessel.
[22] ts 529.
Mr Norman also recalled Mr Treble telling him he had hit something 'very hard' at 'quite high speed'.[23] This history was confirmed by Mr Norman in the letter of the 22 December 2017. In that letter he records that Mr Treble said:[24]
[s]ince the incident, Treble states, his vessel has had a shudder through it and the performance has changed.
[23] ts 628.
[24] Exhibit 21.2.
He did a complete assessment of the boat a couple of days after this albeit he had done a quick assessment of it on the day when he had spotted stress cracking on the bottom of the hull that he believed was the impact zone.[25]
[25] ts 627.
During this complete assessment he looked over the entire vessel. The damage identified during this assessment was as documented in the letter dated 22 December 2017 referred to above.[26]
[26] See [43] of these reasons.
Mr Norman gave some additional evidence about the damage he observed during the December 2017 examination namely:
1.There was an impact site on the pod very close to the transom. He believed this was the impact site Mr Treble had spoken about.[27]
2.There was cracking through the gelcoat at the bottom of the hull forward of the impact site referred to above. This was a major concern for him.[28]
3.The port and starboard side aft compartments were full of water. This was 'hugely alarming'.[29]
4.There was cracked fibreglass all around the bolts at the back of the transom.
5.The watertight seal between the pod and the transom of the vessel was compromised. The Sikaflex was broken to the level of the planing strake[30] on the port side and about halfway up to the planing strake on the starboard side.[31]
6.The lip/flange of the pod where the outboard motors attach was cracked along its length from port to starboard.
7.There was stress cracking running along both sides of the centre line of the hull, such that he formed the view that three quarters of the bottom of the hull had stress cracking.[32]
[27] ts 530.
[28] ts 531.
[29] ts 531.
[30] The area where the bottom of the pod meets the side of the pod.
[31] ts 531 - ts 532.
[32] ts 532.
Mr Norman had further opportunity to examine the vessel on 20 February 2018 when he supervised the removal of the pod.
In evidence Mr Norman said that in addition to the matters he had already identified his examination on 20 February 2018 revealed that:
1.The bottom cowls on both engines were broken. They had some big scuff marks on them consistent with an impact.[33]
2.The lip of the pod where the outboard motors attach had a 'huge amount of stress cracking through the gelcoat'.[34]
3.The bolt holes in between the pod and the transom were 'worn out'.[35] By this he meant they were a lot larger than the half inch he expected and were no longer straight consistent holes. The most obvious were the four holes at the lowest point of the pod and transom: two on the port side of the bung hole and two on the starboard side.
4.There was 'very minimal' Sikaflex left in the bolt holes.[36]
5.Four of the bolts securing the pod to the transom were deformed. One was stretched and bent whilst the other three were only bent. Three of these bolts came from the three lowest bolt holes on the port side of the vessel and the lowest bolt hole on the starboard side. The three bolts at the lowest point of the vessel went into the bilge well whilst the highest distorted bolt went into the port side aft compartment. It is this bolt that he believed was both stretched and bent.[37] He did not take any measurements, basing his assessment as to the condition of the bolts on his visual examination.[38]
6.A few drops of water came from about half a dozen bolt holes demonstrating water ingress into the timber core of the pod and transom.[39]
7.There was salt and sand between the pod and the transom.[40]
8.Each of the port and starboard side compartments was full of water. There was more water in them than what he had seen in December 2017.[41] He pumped the water out and estimated that he removed about five litres of water from each compartment. He tasted the water in the port side aft compartment and found it to be salty.[42]
[33] ts 544.
[34] ts 544.
[35] ts 545.
[36] ts 548.
[37] ts 618 - ts 621.
[38] ts 659.
[39] ts 546 - ts 547.
[40] ts 548.
[41] ts 552.
[42] ts 540.
In addition to the five litres of water removed from each of the port and starboard side aft compartments, on 20 February 2018, Mr Norman said he removed a further 2.5 litres from each of those aft compartments about two weeks later. Within the next eight months he also directed employees to drain water from these two compartments on two other occasions.[43]
[43] ts 609.
Mr Norman's contention that water had entered through the connection between the pod and transom was based on his findings that:
1.the Sikaflex seal around the perimeter of the pod and within the bolt holes was compromised;
2.the bolts connecting the pod to the transom were bent and elongated;
3.the bolt holes were deformed/elongated; and
4.water, notably salty water, was present in the port and starboard side aft compartments.
Mr Norman also said that various photographs depicted items that lent further support for his contention that water entered the vessel via the transom to pod connection. In this regard Mr Norman said that:
1.Figure 7 of exhibit 67 depicted discolouration of the fibreglass on the inside of the pod consistent with water damage;[44]
2.Figure 14 of exhibit 55 (also depicted in figure 14 of exhibit 67) depicted a circle of staining around a bolt hole consistent with the washer on the bolt head rusting from the inside out because water was moving through the bolt hole;[45]
3.Figure 15 of exhibit 55 depicted rust staining on the bottom side of one of the inspection ports consistent with moisture being present for quite a while because rust had dripped down into the water below.
[44] ts 614.
[45] ts 581.
Mr Norman's contention that the impact that occurred on 14 July 2016 was the cause of the damage to the connection between the pod and the transom was based on:
1.the history given to him by Michael Treble that included;
(a)information about the damage to the outboard motors;
(b)the reported changes in the performance of the vessel including experiencing shuddering;
2.the damage he saw to the lower cowlings of the two outboard motors and adjacent scuff mark on the pod;
3.the nature and extent of the gelcoat fracturing of the hull (including the fracturing between the water pickup and the transducer) and the lip of the pod; and
4.the presence of major fracturing around the bolts on the inside of the transom.
The significance of points 2, 3 and 4 above were explained by Mr Norman.
In Mr Norman's opinion the damage he saw to the cowlings on the two outboard motors was consistent with the impact damage he noted on the pod which in his view indicated a force sufficient to break the seal between the pod and the transom.[46]
[46] ts 640.
The cracking or fracturing of gelcoat was very significant to Mr Norman because in his experience gelcoat would not fracture without fracturing the fibreglass beneath.[47] The fracturing he observed to the hull and the lip of the pod were in his opinion extensive and caused by the pod moving on the transom. When the boat was in use, power from the outboard motors moved through the transom of the pod. If, as he opined, the pod was not firmly fixed to the transom it moved and flexed in ways that it was not designed to. As a result the transom on the boat would twist and flex in ways inconsistent with its design causing movement along the hull thereby fracturing the gelcoat and the underlying fibreglass.[48]
[47] ts 579.
[48] ts 536.
In addition to the fracturing of the gelcoat all the way along and very close to the centre line of the vessel Mr Norman noted some marks. These marks he said were:[49]
consistent with scraping along or when you have hit something, as in an impact … consistent with an impact, hitting something.
[49] ts 579.
It is clear then that the presence of the fractures in the gelcoat was very significant to Mr Norman's opinion as to the consequences of the impact on 14 July 2016 because they provided information about the point of impact and its force.
There were Mr Norman said 'quite a number of cracks' on the transom.[50] He confirmed the crack at the cockpit floor to transom connection on the port side as depicted in various photographs was one of these.[51] He described this crack as showing that the fibreglass joining the cockpit floor to the transom had pulled away and cracked.[52] In his opinion there were two possible causes for this: the initial impact itself or the movement of the pod slapping against the transom causing the fracture that over time opened up. He preferred the latter[53] despite his opinion that a fracture of this kind was evidence of a 'huge amount of force'.[54]
[50] ts 662.
[51] Exhibit 62, page 97, Exhibit 55, figure 14; Exhibit 67, figure 14.
[52] ts 541.
[53] ts 567.
[54] ts 580.
Mr Norman also maintained that there was a similar crack on the starboard side of the vessel as well as a number of other cracks around the bolt holes inside the transom. He accepted there were no photographs of these.
Mr Norman's contention that water had travelled forward of the aft compartments (likely resulting in damage to the timber core in the structural elements of the vessel), was based on:
1.the visible swelling of the cockpit deck and of the transom;
2.the presence of water inside the bolt holes: seen when the pod was removed;
3.the nature of the slurry that bonded the cockpit deck to the subfloor structures; and
4.the results/findings of the core samples taken.
The slurry/bog used to bond the cockpit floor to the subfloor structures had according to Mr Norman a 'major downfall' in that it was brittle. This was important because:[55]
in the case of a big impact, it becomes very brittle and it breaks easy … so with the bog being broken in between the joins or through the join of the floor and the stringer system, water's free to move through there because it's no longer a full seal … [water] can move all the way to the bow of the boat.
[55] ts 556 - ts 557.
Further, Mr Norman maintained in evidence he had seen a photograph that showed a breach through the join of the cockpit floor to the stringer.[56] No such photograph was tendered in evidence.
[56] ts 673.
The movement of water over the stringers was only possible when the water reached the level of the cockpit floor. Mr Norman acknowledged that this only occurred when a compartment was full of water or if the vessel was tilted so that the level of the water reached this height. For example when the bow of the boat was raised using the jockey wheel. In both cases the movement of water would cease when the water fell below the height of the stringer.
Two core samples were taken by Mr Norman from the cockpit floor in September 2018. One core sample called 'A' was taken from an area forward of the transom near the bilge well.[57] Mr Norman's evidence was that this sample had moisture in it together with signs that it had begun to delaminate: the water making the timber expand.[58] He acknowledged that the extent of the delamination was small.[59]
[57] ts 590.
[58] ts 590 - ts 592.
[59] ts 599 - ts 600; Exhibit 64, figure 3.
The second core sample called 'B', taken from an area just forward of the port side inspection port, was he said completely wet with water coming out of the floor when the sample was removed. The timber in this sample was completely saturated and the timber in it had swelled as a result.[60]
[60] ts 592.
Mr Norman identified the distinct height difference between the two core samples as demonstrating this.[61] This difference was the result of the delamination or swelling of the timber.
Summary of Mr Norman's opinion
[61] Exhibit 64, figure 1.
It is clear then that the principle foundations of Mr Norman's opinions are that:
1.The port and starboard side aft compartments had water in them in December 2017 and in February 2018 (when the volume of water present had increased).
2.Water continued to be seen in the port and starboard aft compartment despite being emptied on a number of occasions.
3.The Sikaflex seal between the pod and the transom was broken to the level of the planing strake.
4.The bolts and bolt holes were deformed.
5.There was extensive gelcoat fracturing on the hull, transom and pod.
6.Gelcoat fracturing is indicative of fracturing to the structural fibreglass beneath.
7.The slurry used to bond the cockpit floor to the subfloor structures is brittle and was seen to be visibly broken.
8.The core samples taken were wet and showed delamination of the plywood core of the cockpit floor.
9.There were issues with the vessel's performance since the time of the impact in July 2016.
10.The impact in July 2016 involved significant force causing damage that included the damage he observed to the lower cowlings of the two outboard motors and the associated scuff marks on the pod.
Turning now to the evidence of Paul Bury.
Paul Frank Bury
Paul Bury was called by the plaintiff. He has an aerospace engineering qualification and has worked as a yacht designer and naval architect for around 25 years. He began working in the industry in 1992 and has worked on boats up to 60 m in length although generally he works with boats that are 15 m ‑ 25 m long including fibreglass boats.
Mr Bury inspected Mr Treble's boat at the Edencraft premises on 14 December 2018. Prior to his examination he had spoken with Michael Treble and been given some photographs of the damage to the engines caused by the impact on 14 July 2016.
In his report dated 15 February 2019, Mr Bury set out what he understood to be his brief, his observations and his conclusions. Mr Bury understood he had been:[62]
… tasked to investigate damage to this vessel caused by a grounding event, as evidenced by impact damage on the outboard motor drive legs. Specific focus was to be on water ingress into the sub cockpit‑floor area and the cause of this flooding.
[62] Exhibit 56; ts 492; Mr Bury clarified in evidence that he understood that it was NOT a grounding event but rather an impact with a floating object.
Ultimately, Mr Bury concluded that there was evidence by way of observable damage that a significant force had been transmitted through the pod to transom connection as a result of the impact in July 2016. The force was capable of explaining the damage to the Sikaflex seal between the pod and the transom. Given the damage to the seal, the most likely explanation for the water seen in the port and starboard side aft compartments was that it entered those compartments through the bolt holes in the pod to transom connection. Further, once the water was in the port and starboard aft compartments it was capable of moving into compartments forward of these:
1.through any gaps in the polyester slurry connecting the cockpit floor to the sub‑floor structures; and
2.along the edges of the underside of the cockpit floor.
In order to understand Mr Bury's conclusions it is necessary to identify the damage he relied on to found his opinions and then to examine his reasoning. This is necessary because whilst his conclusions broadly align with those of Mr Norman there are material differences between the opinions in both these areas.
I now turn to consider the damage.
Damage
The damage observed by Mr Bury, as documented in his report and confirmed and clarified in evidence, was:
1.Cracking of hull stringer to transom bonding laminate.[63]
2.Cracking to and chipping of the gelcoat on the pod in the area of the flange.[64]
3.A slight bend in one of the bolts attaching the pod to the transom.
4.Minor scratches and gelcoat damage on the hull running surfaces.
[63] ts 411; A reference to the crack seen on the port side in the area where the cockpit floor connects to the transom.
[64] ts 389.
Mr Bury also observed and documented that the port side aft compartment was full of water and that the transom plywood core looked wet at the bolt holes. However, given that the boat was outside in the rain and the inspection ports were open he attributed any water in these areas to the rain and did not rely on these observations in making his conclusions.
However in coming to his conclusions Mr Bury, in addition to his observations, accepted that:
1.The sealant used to seal the pod to the hull was extensively broken when the vessel was first inspected by Edencraft staff and prior to the removal of the pod;
2.Water was found inside the port and starboard side aft compartments by Edencraft staff and/or Michael Treble and that the compartments continued to refill over time;
3.The core samples taken established that the plywood core of the cockpit floor was saturated; and
4.The damage to the outboard motor legs was as shown in the photographs and was the result of impact. I note however that during his evidence Mr Bury spoke interchangeably about the damage to the drive shaft and the propeller shaft. The evidence is clearly that it was the propeller shaft that was bent out of specification. Whilst neither party clarified with Mr Bury what he understood was damaged and he acknowledged that a deformed drive shaft would be an indication of the degree of force,[65] the weight of his evidence suggests he did not materially misapprehend what was damaged.
[65] ts 456.
I now turn to the explanations provided by Mr Bury for his opinions.
Explanations
First Mr Bury accepted in evidence that he did not observe some of the damage identified and relied on by Mr Norman. Mr Bury did not observe:
1.swelling of the deck or transom;
2.elongated bolt holes;
3.elongated bolts;
4.more than one bent bolt;
5.fracturing of the laminate around the bolt holes inside the transom; and
6.broken or missing sections to the slurry/resin that attached the cockpit floor to the sub-floor structures.
The absence of these did not affect Mr Bury's opinion for the following reasons.
It was Mr Bury's evidence that it was not possible to make a visual determination that the transom or the deck was 'swollen',[66] that bolts were elongated or that bolt holes were elongated.
[66] ts 490.
Core samples were the only way to determine if the plywood core of either the transom or the cockpit floor were affected by water ingress.[67] He had not seen the core samples and the photographs available did not assist. In any event it was necessary to handle core samples in order to make any conclusions. Accordingly, he relied on the information from Mr Norman about the state of the core samples.[68]
[67] ts 490.
[68] ts 444.
Further although Mr Bury was confident that only one bolt was bent, given he had placed each of the 16 bolts along a ruler, he made it clear that water was still able to enter the aft compartments through the bolt holes provided the Sikaflex seals were broken. This was because the bolt holes were bored oversized so that a bolt could fit. Therefore a one millimetre gap around the entire bolt was as built and any elongation of the bolt or bolt hole may therefore be irrelevant.[69]
[69] ts 376.
Likewise any irregularity in the appearance of the bolt holes may be the result of the manufacture techniques: irregular holes drilled into fibreglass (which is a relatively soft product compared to metal).[70]
[70] ts 471, ts 391, ts 348.
Bent bolts and elongation of bolt holes may, he said, be indicative of force, even large force in the area however, they are not necessarily indicative of water ingress.[71]
[71] ts 498.
Put simply Mr Bury's opinion was that both bolts and bolt holes could be deformed without there being any water ingress provided the sealant remained intact; that is the sealant around the perimeter of the pod to transom connection and/or that around the bolt holes. Likewise, if the sealant was compromised both at the perimeter and around one or more bolt holes, there could be water ingress notwithstanding the lack of defects to the bolts or bolt holes.
Unlike Mr Norman, Mr Bury did not observe any break in the polyester slurry used to connect the cockpit floor to the sub-floor structures. Further Mr Bury's evidence was that the slurry was capable of creating a watertight seal between the cockpit floor and the subfloor structures which would not be affected by any impact.[72] However in Mr Bury's opinion the slurry did not necessarily cover the entire surface area between the cockpit floor and the sub‑floor structures because the compartments were not designed to be watertight. Accordingly there could be gaps between the cockpit floor and the sub‑floor structures that would allow water to pass over them when a compartment was full.[73] Whether such gaps existed depended on the workmanship of those constructing the vessel.[74]
[72] ts 381.
[73] ts 380 - ts 381.
[74] ts 382.
Therefore whilst agreeing with Mr Norman that water could move forward from the aft compartments over the sub‑floor structures Mr Bury proffered and preferred a second mechanism by which water could move forward from the aft compartments, namely along the edge of the cockpit floor.
The cockpit floor was effectively a piece of plywood with a fibreglass skin. The skin covers the top and bottom faces of the plywood but not the edges. The unsealed edge rests against the fibreglass hull. A Sikaflex seal is placed along the top of the cockpit floor where it meets the hull. It is not possible to repeat the procedure on the underside. In Mr Bury's opinion then, if an aft compartment were full of water such that it touched the underside of the cockpit floor, the water could move across this edge into the compartment forward of it. In addition water could saturate the whole edge and then begin to move through the plywood core of the cockpit floor.[75] This mechanism for the movement of the water was therefore also capable of providing some explanation for any water found in the plywood core of the cockpit floor.
[75] ts 383, ts 437 - ts 438.
Critical to Mr Bury's opinion is:
1.that the Sikaflex seal between the pod and the transom was broken prior to 19 December 2017; and
2.that there was evidence that the forces generated by the July 2016 impact were capable of causing the failure.
As was proper Mr Bury dealt only with the second save that:[76]
1.He acknowledged a break in the sealant could be a manufacturing defect (present from inception) albeit he thought it unlikely given he had been informed that when they removed the pod the seal was completely broken.
2.He was not able to say whether any break in the sealant at the perimeter of the pod to transom connection would be evident on a visual inspection.
[76] ts 459.
First it was clear he said that the damage to the outboard motors was 'consistent with an extremely forceful collision'[77] given that:
1.the stainless steel propellers were bent;
2.the cast aluminium cowlings were broken; and
3.the drive shafts were bent.[78]
[77] Exhibit 56.
[78] ts 372; Taken to be a reference to the propeller shaft.
This force would have an effect on the pod and pod attachment to the vessel. It was not possible to know exactly how the load was exerted on the outboard legs by the impact given the large number of unknown variables and the complex loading situation that would arise given the geometric configuration of the bolts.[79]
[79] ts 435.
However in his opinion the damage he observed was evidence of significant force being transmitted through the pod to the transom.
The cracking of the gelcoat on the pod in the area of the flange, although only minor and cosmetic damage, was consistent with a 'large amount of force'[80] moving through that corner area.[81]
[80] ts 343 - ts 344, ts 389.
[81] ts 389, ts 429.
Likewise the one bent bolt whilst having only a very minor bend was, in Mr Bury's opinion, demonstrative of a 'big force'[82] being applied to that bolt. He did not agree that the bend was more likely to have occurred because of the non‑parallel nature of the mating surfaces causing an eccentric loading on the bolts during construction. He did not understand how that assertion could be made because it was a complex loading situation, with too many unknowns. Bolts would not readily elongate and were more likely to 'pull through'[83] deforming the timber. This he said 'likely happened, because you can see the washer marks around the bolts'.[84]
[82] ts 429.
[83] ts 436.
[84] ts 435 - ts 436.
Finally the cracking visible to the laminate of the cockpit floor to transom connection was structural damage albeit of a minor nature. It was however damage that was significant because it indicated that a substantial load had been transmitted through the area.[85]
[85] ts 429.
It was suggested to Mr Bury that if the damage to the laminate in this area was caused by the July 2016 impact one would have expected there to be damage to the bolt hole nearest this connection point. This was because the impact to the propeller would cause there to be rotation around the transverse axis causing the pod to move away from the hull at the bottom and compress at the top edge. Given such damage was not present the more likely cause of the damage was because the fibreglass used in the secondary bonding process had not been long enough.
Mr Bury agreed that the forces involved in the impact[86] would have given rise to rotation. Further he agreed that the pod would move away from the transom at the keel and compress at the top. This he said may cause compression of the laminate around the boltheads near the keel because they were being pulled apart but he did not expect anything in the area of this connection point.[87] Whilst agreeing that there could be issues with secondary bonding as described he considered it unlikely to be the cause. In his view it was unlikely that cracking would occur through normal operation of the vessel even were there a weakness in the structure because the structure was not overloaded in its entirety.[88]
[86] That is a force capable of causing the damage to the propellers and propeller shaft.
[87] ts 493 - ts 494.
[88] ts 493.
In summary Mr Bury considered that the damage to the pod bolt, the damage to the flange on the pod and the damage to the laminate at the cockpit floor to transom connection were all evidence that force, even significant force, had been transmitted through those areas at the time of the impact in July 2016. For this reason Mr Bury concluded that the impact in July 2016 caused the sealant failure which, assisted by hydrostatic pressure,[89] enabled water to move into the port and starboard side aft compartments.
[89] ts 439, ts 441 - ts 443, ts 483.
Further Mr Bury accepted that water could have moved into compartments forward of the aft compartments and into the plywood core of the cockpit floor. In this regard Mr Bury accepted that further examinations were needed to determine if, in fact, either or both of these had occurred. These examinations involved destructive testing.[90]
[90] ts 404, ts 409, ts 437, ts 504.
It is of note that Mr Bury accepted that in coming to his conclusions he had, to some extent, engaged in ex post facto reasoning.[91] In addition to this Mr Bury made a number of other concessions.
[91] ts 457.
He conceded that he had not tried to calculate whether the force necessary to elongate and/or bend a bolt would be sufficient to cause the sealant to break around any particular bolt hole because it was very difficult to calculate and could not be done with any great precision because there were too many unknowns.[92] Mr Bury identified the direction and type of the force as being very significant to this calculation saying;[93]
…because a bolt – just because it's not bent, doesn't mean it wasn't carrying a lot of load.
[92] ts 436.
[93] ts 457.
Mr Bury conceded that if the crack in the laminate at the cockpit floor to transom connection was not present from the time of impact then his hypothesis in relation to the severity of the force was affected and in fact diminished. He accepted he had no way of dating this damage.[94]
[94] ts 478 - ts 480.
Mr Bury accepted that if water was getting into the port and starboard side aft compartments via the bolt holes then, when the boat was out of the water, he would expect water to drain out of the bolt holes vertically down between the seal and drip out of the bottom of the boat. Water would drain out of the boat in this way until the water in the compartment fell below the level of the bolt hole.[95]
[95] ts 439 - ts 440, ts 484 - ts 485.
Mr Bury accepted that water could enter the aft compartment via the inspection ports but only if they were left open either when the vessel was at sea or outside in the rain.[96] In his opinion however there is no evidence of water coming into the aft compartments from above. The information provided to him was that the inspection ports had been closed when the boat was in use. Further, whilst there was staining on the deck it was his opinion that this staining was more consistent with stains caused by tannins leaching out of leaves rather than from water moving over the area. He considered tannins the more likely cause because he had been told that leaves were on the deck and he believed that tannins created a fluid with a greater capacity to stain.[97]
[96] ts 491.
[97] ts 384.
Ultimately, Mr Bury accepted that fundamental to his opinion was that the Sikaflex seal between the pod and the transom was broken not just around the perimeter but also around the bolt holes.
It is of note that Mr Bury was not asked:
1.Whether any of his opinions were affected by the fact that both the port and starboard side aft compartments were said to have water in them. Mr Bury did think it would not have been possible for water to move down one side and around the front of the vessel to the other side but he could not[98]
say categorically that it would be impossible.
2.Whether the damage caused to the lower cowlings from pulling on the ropes of the crayfish pots affected any of his opinions.
[98] ts 469.
Before leaving Mr Bury's evidence there are a number of other opinions that he gave that should be noted namely:
1.He estimated that each of the port and starboard aft compartments held about 200 litres of water[99] despite estimating that the compartments were only 300 mm deep.[100]
2.He guesstimated that each of the foam filled compartments forward of the aft compartments held 5 ‑ 10 litres of water.[101]
3.Depending on the hydrostatic pressure he would anticipate that anything from 1 ‑ 30 litres of water could leak through one bolt hole.[102]
4.Water entering the bilge well through a compromised bolt hole could activate the bilge pump for 15 seconds every hour or 15 seconds every five minutes depending on the rate of water ingress.[103]
5.The vessel's performance would not be noticeably affected by the presence of the water in its compartments even if they were full.[104]
6.The gelcoat cracking seen on the hull including the cracking near the water intake area, was not uncommon in vessels and therefore not significant.[105]
[99] ts 443, ts 468.
[100] ts 350 - ts 352, ts 357 - ts 358.
[101] ts 468.
[102] ts 375 - ts 376.
[103] ts 470.
[104] ts 448.
[105] ts 395 - ts 396.
I turn now to the evidence of Sean Daniel Johnston, the naval architect called by the defendants.
Sean Daniel Johnston
Mr Johnston has been a naval architect for about 35 years completing his studies at the University of New South Wales in 1994. He then worked as a naval architect for a number of companies until October 2003 when he became a principal of Commercial Marine Solutions Pty Ltd. The company provides marine design and consulting services. During his time with this company he has designed new vessels of up to 45 m in length. It is of note that prior to becoming a naval architect Mr Johnston qualified as a shipwright in 1986 and worked in that area until completing his degree in 1994.
Mr Johnston was engaged by the defendants to provide an independent review of any damage to the vessel and to determine the cause of that damage, in particular whether it was related to the claim. He was provided with very limited information, the sum total of which was:[106]
The vessel is a 2015 7.0 m Edencraft.
The claim was originally for impact damage to the outboards while the vessel was underway. Repairs to the outboards was completed in 2016.
Damage has since been discovered to the pod and hull.
[106] Exhibit 39.
It is accepted that he was not given any photographs or information about:
1.the nature and extent of the damage to the outboard motors; or
2.the findings of Mr Norman or anyone else.
Mr Johnston did not obtain this information until shortly prior to the commencement of the trial. This information did not affect his opinions that:
1.all of the physical damage identified by him was minor and could be explained other than by the impact in July 2016;
2.any water in the port and starboard side aft compartments was more likely to have come from the deck area or at least was not necessarily explained by the impact of July 2016;
3.no conclusions could be drawn as to whether water had moved forward of the aft compartments;
4.any damage to the plywood core of the cockpit floor (if accepted) was not necessarily the result of impact damage; and
5.any water ingress into the pod was capable of being explained by the incident involving the crayfish pots.
Mr Johnston inspected the vessel on 29 October 2018. The damage identified by him and confirmed in his evidence was:
1.minor cracking and scratches on the hull below the waterline;
2.gelcoat cracking on the return of the outboard pod;
3.minor separation of the deck from the transom on the port side around the sump;
4.water had been present in the forward section of the hull;
5.water was present in the aft section of the hull; and
6.damage to cowlings on both engines.[107]
[107] Exhibit 57.
Before considering Mr Johnston's opinions regarding these matters it is convenient to note that Mr Johnston made a number of concessions namely:
1.That during any impact it was always possible for damage to occur to places away from the immediate area of the impact.
2.It was possible for an impact that caused damaged to the bottom of the outboard motors to dislodge sealing compound around the pod.
3.That if the sealing compound between the pod and the transom were compromised water could enter the hull through the lower bolts provided that the sealing compound around the bolts was also compromised.
Hull Damage
Mr Johnston did not consider the minor cracking and scratches of the hull to be significant, nor indicative of any structural damage. His reasons for coming to this conclusion were:
1.The cracks were located in the middle section of the hull and their orientation was not consistent with a forward moving incident.[108]
2.The cracks were fine and limited to the gelcoat. If there had been compromise of the fibreglass underneath, he would have expected the cracks to be bigger and over a larger area.[109]
[108] ts 730.
[109] ts 709.
In regard to gelcoat damage generally, Mr Johnston, unlike Mr Norman, did not believe that gelcoat cracking was indicative of damage to the fibreglass beneath it. Mr Johnston explained why saying:[110]
no structure is completely rigid. There - there is always some flexibility in a structure and - and in the terms of fibreglass the - the gelcoat and the fibreglass have - have different flexural strengths meaning that one can bend without breaking further than the other one can and that's the case with gelcoat and fibreglass. So fibreglass can bend without breaking and that will cause small hair line cracking in the gelcoat if it - it exceeds ability of the gelcoat to not crack.
[110] ts 716 - ts 717.
Further, although Mr Johnston accepted that gelcoat cracking generally and in particular of the hull and of the pod flange was unusual in a vessel of this age it was not unheard of, having himself previously seen it in vessels of comparable age.[111] Mr Johnston did not say and was not asked whether the number of engine hours impacted on any expectation of gelcoat damage. However as a matter of common sense it is likely to be a factor bearing on this issue.
Pod flange damage
[111] ts 771, ts 807 - ts 808, ts 816.
Mr Johnston, like Mr Norman and Mr Bury, identified the cracks to the flange of the pod. The cracks were to the gelcoat alone. This had been confirmed because some of the gelcoat had been ground off to expose the fibreglass beneath showing, Mr Johnston said, that it was undamaged.
The outboard motors are attached to the flange of the pod and consequently Mr Johnston accepted that the gelcoat cracks could have been caused by flexing of the flange when the outboard motors impacted a submerged object.[112] However, they were equally consistent with flexing caused by acceleration and deceleration during the ordinary operation of the motors particularly if they were operated at high speed.[113] Only a small amount of force was necessary to cause flexing sufficient to crack the gelcoat.[114]
[112] ts 717.
[113] ts 769, ts 804.
[114] ts 769, ts 804.
Mr Johnston suggested in evidence that:[115]
whether the cracks are opening up or closing up … would determine the direction of rotation which would indicate either impact or operation.
[115] ts 804.
However it was difficult for him to see whether the cracks were opening up or closing up and so he could not determine whether the gelcoat cracks were the result of impact or operation.
Finally, Mr Johnston considered that the cracks in the flange could readily be seen whether the motors were in place or not. Accordingly, if they were caused by the impact in July 2016 they should have been seen at or about that time.[116]
Separation of deck from transom
[116] ts 770.
The damage referred to by Mr Johnston as:[117]
minor separation of the deck from the transom on the port side around the sump
is the damage or crack to the laminate at the cockpit floor to transom connection that was identified by both Mr Norman and Mr Bury. Mr Johnston also referred to this as the hull or transom stringer connection.
[117] Exhibit 57.
Mr Johnston agreed with Mr Bury that this was minor damage albeit to a structural element of the vessel. Further he accepted that it was possible that the damage had been caused by an impact. However, in his opinion the crack was more likely the result of a manufacturing fault occurring during the secondary bonding process. In this regard Mr Johnston said:[118]
when you're building fibreglass boats, … You need to have a tail or a length of fibreglass that attaches to both surfaces to - to create a good bond and to even out the…forces that are being applied to it. And if - if one of those legs is short, then it - it may create some - some localised stress that will cause the cracking that we see.
[118] ts 748.
In his opinion, the crack observed at the deck transom connection point was not caused by impact because:
1.There was no significant and identifiable damage in other areas including at the aft end of the pod;[119] and
2.There was no support in the anecdotal evidence.
[119] ts 852.
Mr Johnston accepted that there had been significant damage to the stainless steel propellers and propeller shafts and that a significant force was necessary to cause this damage. That did not however mean that that same force was transferred to the boat where the crack was located. Mr Johnston explained this saying:[120]
because the boat is removed from the area of impact due to the pod. So as the - if you can imagine the boat is travelling along. The propellers hit something which causes an impact or a load to be transferred to the shafts of the propellers, bending them, which absorbs some energy. It then also causes the motors to move on their springs, on their attachments, and cause some flex in the flange, which absorbs some energy, and then also causes flex in the pod. So for there to be transference of the load from the impact to the hull, that whole structure would have had to have been extremely rigid, and it's not. So energy is dissipated the further away from the point of impact you get.
[120] ts 747.
In Mr Johnston's opinion the force transferred back, in this case, was minimal. He formed this opinion based on a number of interlinking factors that included:
1.The location of the damage to the outboard motors;
2.The location of the crack;
3.The manner in which the forces would operate on the pod;
4.The lack of any damage or any significant damage to;
(a)The bolts securing the pod to the transom;
(b)The attachment point of the motors to the pod; that is to the flange area.
The crack in the cockpit floor to transom connection was not in a high loadbearing area.[121] The effect of this was that:[122]
irrespective of speed, the location where the stringer is attached to the transom, it would be extremely difficult for any force applied at the aft end of the pod to have transferred such a load to that point without causing catastrophic damage to the outboard end of the pod or certainly noticeable and significant damage to the outboard end of the pod.
[121] ts 854.
[122] ts 853.
Mr Johnston went on to say:[123]
if the force that had been transferred through the pod to the transom to cause the damage that we are talking about, the impact, whether it's from hitting an object or whatever, would have to be such that there would be, as I said, significantly noticeable damage, not just the gelcoat cracking the outboard end of the pod. The other thing (inaudible) is that as the load is transferred, it ends up being spread out over a significantly large area being the main area of the pod transom. And this is in the centre of that. So if the outboards had struck something and that force was then transferred to the pod, it would cause a rotational moment for the pod, effectively crushing the top and - and extending the bottom. This area is in the middle of the pod where the load transference is at its least.
[123] ts 854.
In relation to the forces involved with a significant impact Mr Johnston said:[124]
there can be straight-up compression where the force into the back of the pod and onto the transom is even around the whole of the pod face onto the transom and what you would then see if that was the case and it was excessive, you would see structural deformation in the sides of the pod because that's - that's where it would break. Now, if that blow is - is - and we've got to remember that the - the propellers sit well below the pod and the engine is attached to the top of the pod. So what would tend to happen is that if and when - when a boat hits something with outboard motors you get a rotational force. So what you get then is you get a compression at the top of the pod and you get a tension at the bottom of the pod.
…
Now, there's no indication in the lower bolts of - of either - or in any of the bolts of any elongation and there's no indication in any of the bolt holes in the lower section of any compression of the laminate.
…
If a load has been applied in that area with sufficient force to cause the - the crack in the vicinity of the transom stringer, then there would also have been damage to the bolt, [the bolt hole nearest the transom stringer damage] which wasn't evident.
[124] ts 772; ts 747.
Clearly Mr Johnston did not see any bent or elongated bolts or compression of the laminate. In particular he did not see any damage to the bolt or bolt hole nearest the transom stringer damage.[125] In cross‑examination he opined that any small bending of a bolt was more likely a product of eccentric loading on the bolts during construction which was inherent in fibreglass construction. In this regard he said:[126]
so when fibreglass items are made, they are made in (indistinct). They have a very smooth surface, which is the external or the part of the item that's meant to be seen. There can be variations of the thickness of the laminate in behind that and when you are then bolting 2 items together, while the surfaces may mate correctly, as in the transom and the pod face, the surfaces or the internal surfaces of the laminate may not be exactly parallel. So you can get very small bending or deformation of the head or the tail of the bolt when you tighten those up …
[125] ts 747.
[126] ts 753.
In addition, when it was suggested to Mr Johnston that a considerable application of force was necessary to cause the damage to all six of the stainless steel propeller blades he said this:[127]
it's not clear how the propellers were damaged. So whether it was from a large amount of very small impacts or from one very large impact, I can't say. So I can't agree with you that it was from a very large impact.
…
The fact that it was only the edges of the blades means that the force probably - while it was sufficient to damage the propeller blades and the shafts, it probably indicates that the force that was transferred to the boat wasn't as great as everybody seems to be thinking because if the bottom of the leg had been hit, then there would be considerably more force transferred to the pod and therefore potentially to the transom.
…
… And what you've got to remember is that the propeller spins around, so the bottom of the propeller can hit something without the leg itself being hit.
…
And again, as I've said before, the impact, irrespective of how large it was, would have had minimal impact on the transom because of the distance and how forces are transferred. There may have been some, but there doesn't seem to have been a lot because the bolts haven't been elongated or other damage.
[127] ts 766; ts 767 - ts 768.
On the issue as to the degree of force involved in any impact Mr Johnston, contrary to the opinion expressed by Mr Bury, also had this to say:[128]
… in terms of the sort of impact we're talking about where the propellers, and both of them are significantly damaged, it would surprise me that no one felt or had any indication that the - they had impacted something. In addition to the fact that there would have been some vibration after the event causing the boat to shake, because the propeller shaft - or sorry, the propellers were unbalanced, because all the edges have all been - or the blades have all been bent and the shafts were bent causing - would have caused a - a large vibration at (indistinct) speeds above idle.
[128] ts 747.
Whilst it was not made clear I understand Mr Johnston's comments to relate to propeller damage caused by a single forceful impact not propeller damage caused by multiple small impacts.
Given then the absence of any other significant and identifiable damage in particular to the bolt nearest the damage, the non‑loadbearing location of the crack and lack of supporting anecdotal material Mr Johnston considered it more likely there had been insufficient length in the fibreglass tails used during the manufacturing process.
Water in forward section of hull
Mr Johnston clarified in evidence his observation that water 'had been present' in the forward section of the hull. This observation was based on the appearance of a recess in the forward cabin. The recess had 'like rings around the bath' and 'staining up the sides on the vertical faces'[129] consistent with water being present in that area. The recess was accessible from the deck and therefore water from the deck could accumulate in it. For this reason he did not consider it to be evidence of damage.
[129] ts 826.
This was particularly so because the recess was amongst the forward compartments in the centre line that were connected via limber holes to the sump. Accordingly it was unlikely to be the source of any water ingress into the port and starboard side aft compartments.[130]
Water in the aft section of the hull
[130] Exhibit 57.
Mr Johnston also observed water in the port and starboard aft compartments. Mr Johnston tasted the water in one of the compartments found it to be 'brackish' rather than salty.[131]
[131] ts 734.
Mr Johnston conceded that water could enter these compartments through the pod to transom connection provided the sealant was compromised: that is the sealant both around the bolt holes and the perimeter of the pod to transom connection.
Mr Johnston, however, believed that the water he located in these aft compartments came from the deck area. Again his reasons for coming to this conclusion were based on a number of interlinking factors. These included his views about force, transference of force and the damage present referred to above.[132]
[132] See [155] – [159] of these reasons.
Specifically on this issue Mr Johnston considered it unlikely that the compressive force applied by the pod to the transom as a result of the impact that caused the propeller damage was sufficient to break the seal around the bolts or through the bolt holes because:[133]
there was no indication that the bolts had either elongated or that the bolts had been - bolt washers had been drawn into the structure, indicating any large force had been applied to the transom via the bolt holes from the pod attachment. So it's - it's therefore unlikely that the - that the sealant has broken its seal to allow water to ingress into the vessel in those areas.
[133] ts 771.
Mr Johnston acknowledged that he had located one bolt hole that may have been leaking given the appearance of the rust stains around it. However in relation to this he said:
1.The leak was explained by the damage seen to the lower cowlings that is discussed below;[134]
2.Any water ingress was extremely slow;[135]
3.The attachment point for the bolt was in the sump so that any water would leak into the sump and not the port or starboard side aft compartments;[136]
4.Any deformation of the bolt was not due to impact of the vessel's outboard motors with an object;[137]
5.Any deformation of this bolt would not compromise the attachment between the pod and the transom. This is because the geometric configuration of the bolts allows the load to be shared so that the compromise of this bolt would not have any consequences for the quality of the connection and in particular to the sealant.[138]
[134] See [186] of these reasons.
[135] ts 752.
[136] ts 855.
[137] ts 855.
[138] ts 854 - ts 855.
Mr Johnston went further, saying even if the four bolts referred to above[139] were deformed as described by Mr Norman it was 'unlikely'[140] that the sealant would be compromised. In order to exceed the elastic limit of the sealant the bolts would need to be significantly deformed.[141] Further, given the use of Nyloc nuts, that do not loosen, one would expect the bolt to be pulled through the bolt hole causing both elongation of the bolt and leaving an impression of the washer on the laminate.[142] He did not see any deformations consistent with this.
[139] See [75.5] of these reasons.
[140] ts 792.
[141] ts 793.
[142] ts 857.
Accepting, for the purposes of argument, that the sealant was damaged and the four bolts were deformed as described, Mr Johnston did not believe:
1.That the pod would move on the transom because of the number of other bolts that were still holding the pod in place;[143] and
2.Any compromise to these four bolts could not explain water ingress into the starboard side aft compartment because they were either in the centre or on the portside of the vessel.[144]
[143] ts 792.
[144] ts 792 - ts 793.
In Mr Johnston's opinion, the water located in the port and starboard side aft compartments was better explained as coming from the outside. Water could, he said, enter the port and starboard side aft compartments via the inspection ports. Water could either flow over the top of the inspection ports if they were left open or water could enter under the fittings of the inspection ports. In respect of the latter there was no evidence of sealant being used to bed down the fittings.[145]
[145] ts 759 - ts 760.
Further, consistent with water entering the compartments from the deck above, there was:
1.rust staining on the deck that appeared to flow over the area;
2.rust staining around the thread of the inspection ports indicative of water leaking from above; and
3.rust staining blooming across the entire surface of the water in the compartments consistent with rust coming from above.[146]
[146] ts 736 - ts 737.
Mr Johnston's opinion was fortified by the information that the water continued to fill the port and starboard side aft compartments after it was initially removed on 20 February 2018. In his opinion the refilling of these compartments was more consistent with the water coming from the deck than with it travelling back from compartments forward of them. This was because water could only move from the forward compartments if the water in those compartments filled high enough to move over the transverse stringers. This was only possible if the bow of the boat was continually elevated to greater and greater heights above the stern. Mr Johnston explained this, saying:[147]
Think of it in terms of - of a - of a jug that's filled partially with water. And that jug is tilted to an angle to pour water out of that jug into a glass. Now, if you pour the water - if you tilt the jug to an angle, at a point the water will stop leaving the jug and entering the glass and will just stay in the jug. To move the - or to get more water out of the boat or out of the jug, you need tilt the jug further over. And it will get to a point where the water will stop flowing. And if you tilt the jug back the other way, then no water will come out … so - so if - if the boat was kept at the same angle - - - then it is - it's difficult to understand how those aft compartments would - would continue to fill up.
[147] ts 834.
Irrespective of this Mr Johnston did not accept that there was a means by which water could move forward from, or back to, the port and starboard side aft compartments. It would in his opinion be very unusual for there to be gaps in the wet polyester slurry connecting the cockpit floor to the subfloor structures. He did not see any gaps.[148]
[148] ts 757.
Insofar as there was any suggestion that water could move forward along the edge of the cockpit floor that was not covered with fibreglass, Mr Johnston said:[149]
it would be unusual for the edges of a fibreglass - sorry, of a piece of timber to have not been coated with any sort of a resin or fibreglass laminate. If the laminate wasn't put on the edge, it would certainly have a resin coating over it which then sort of prevents saturation of the panel core, of the timber core. It's strange that - I mean, the edge of the cockpit floor is against the side of the - side shell of the vessel, so I'm not quite sure what he's talking about, what bit's not bonded. I mean, it's fibreglass to the side for the deck so if all of the grid that the deck sits on is covered with a wet polyester slurry, then how is there a gap for the water to be able to go forward?
[149] ts 756 - ts 757, see also ts 731.
It is clear then, that Mr Johnston was satisfied that the fibreglass hull and the wet polyester slurry created a seal that prevented any water from moving forward from within the port and starboard side aft compartments.
Water, he said would leak out of the boat when it was not in the water if the sealant around both the pod and the bolt had failed and the water level in the compartment was above the level of the bolt hole.[150]
[150] ts 760, ts 774.
There was no evidence of water leaking out of the vessel by this means nor was there any evidence that water had moved forward of these aft compartments.
Mr Johnston's opinion was not affected by the suggestion made that the core samples showed compromise to the plywood core of the cockpit floor. Mr Johnston accepted he had not had the opportunity to inspect the core samples but found a number of the purported findings troubling.
The suggestion that there was distortion of the plywood in the middle of the core sample was inconsistent with expectations. Normally deterioration would be expected to start at one side or the other depending on where the water was entering. Mr Johnston could not explain how water passed all the way through the various laminates and only damaged the laminate in the centre. Further, if water was accessing the laminate through the sides of the deck that contacted the hull, there was an expectation of bubbling or sponginess in the area of the deck where water ingress to the plywood had occurred. Mr Johnston did not observe any sponginess of this kind.[151]
[151] ts 757.
In addition, one could reasonably expect that marine grade plywood was used in the construction of this vessel. Marine grade plywood is far superior to lesser grades because better quality timber is used and stronger glues are used to bond the laminates together. The glues used act to retard water permeation from one layer to another.[152] Marine grade plywood is capable of being boiled in water for more than an hour without any deterioration of the plywood.[153] Finally Mr Johnston did not believe that the timeframes involved in this case would have allowed the degree of deterioration suggested by Mr Norman.[154]
[152] ts 758.
[153] ts 732.
[154] ts 835.
Consistent with the opinions expressed by Mr Johnston, any water getting onto the deck either when the boat was at sea (eg from wetsuits, sea spray, fish etc) or during the cleaning process or rainwater if the boat was left outside could enter the port and starboard side aft compartments via the inspection ports. The presence then of water in the aft compartments was not therefore associated with any damage to the connection between the pod and the transom. This opinion was fortified by the presence of water in both the port and starboard side aft compartments: it being unusual to have leaks in exactly the same place on both sides.[155]
Damage to cowlings
[155] ts 773.
Finally, Mr Johnston observed the damage to the lower cowlings on both outboard motors. This was the damage caused by pulling on the ropes of crayfish pots that had become caught in the area near to the lower cowlings. This event occurred shortly prior to Michael Treble noticing that there was water in the pod. In Mr Johnston's opinion any separation between the pod and the transom occurred at the time the cowlings were damaged.[156] Further, given the pod had only about one litre of water in it, any leak was small consistent with a small compromise of the sealant around the bung between the pod and the transom.[157]
[156] ts 863.
[157] ts 866.
In providing this explanation Mr Johnston acknowledged that:[158]
if there was water in the pod there - there is a number of ways that water could enter the pod, one of which is there is - there is a leak. The other one is - is that the - the bungs have been left out or the forward bung has been left out which enabled water to travel from the sump of the boat into the pod.
…
The bung might have a leak in it or there - there could be a leak between the join of the pod to the transom.
[158] ts 773.
However, given that Mr Johnston's evidence was that the one compromised bolt hole he observed in the bilge well (the one that appeared to have a small leak) was also likely explained by circumstances giving rise to the damage to the lower cowlings[159] the connection between these events was likely.
[159] ts 773, ts 752.
I turn now to my findings.
Findings
It is clear from the evidence in particular of the experts that there are a number of areas of dispute namely:
1.Was there water in the port and starboard side aft compartments;
2.Did the impact of the 14 July 2016 cause damage to the connection between the pod and the transom such that;
(a)The bolts and bolt holes were deformed;
(b)The Sikaflex seal around the perimeter of the pod and transom connection and around the bolt holes was broken;
3.Was there any water ingress:
(a)Through the connection between the pod and the transom into the port and starboard side aft compartments;
(b)To the compartments forward of the aft compartments;
(c)Into the timber core of the cockpit floor, transom and subfloor structures.
Resolution of these matters requires evaluation of the opinions expressed by the experts. My findings on these matters have been informed by my impression of each of the three experts. In this regard my general impression of each of the three experts is as follows.
Christopher Norman had less formal qualifications and his work experience as a shipwright appeared to be limited to working at Edencraft albeit over long period of time. His evidence about some matters of expertise conflicted with the evidence given about these matters by the other two experts both of whom are, in my view, more qualified. His evidence about the nature and extent of the damage is not supported by the other experts, the photographic and documentary evidence and the evidence of Michael Treble. Further he made a number of assumptions that were not accurate. Consequently the factual foundations of Mr Norman's opinions is not supported by the evidence.
Sean Johnston had extensive and a broad range of experience. I found him to be measured, considered and reasoned. He impressed as starting from a position of neutrality. He made observations and then based on those observations he considered various explanations before coming to his final conclusion. He was then able to explain and justify those conclusions and why he preferred them to others. As a consequence he was highly persuasive.
Contrary to this Paul Bury, whilst very qualified, set out to determine if there was evidence to support a connection between the water ingress and the impact that occurred in July 2016. His concession that he engaged in ex post facto reasoning was well made and as a result he did not, in my view, properly weigh alternate explanations for his observations. Further I found Mr Bury did not always give attention to detail. For example his belief that the port and starboard side aft compartments could hold 200 litres of water when they were only 300 mm deep and were one of four compartments in the vessel that is seven metres long.
I return now to the areas of dispute.
Was there water in the aft compartments?
It was not contested and I am satisfied that there was water in the aft compartments:
1.on 20 February 2018 when the pod was removed by Christopher Norman;
2.on 29 October 2018 when the vessel was inspected by Sean Johnston;
3.on 14 December 2018 when the vessel was inspected by Paul Bury;
4.on two occasions when the vessel was visited by Joshua Kent; and
5.on the occasion when photographs the subject of exhibit 62 were taken.
I cannot however be satisfied on the balance of probabilities that there was water in the port and starboard aft compartments on 19 December 2017 when the Christopher Norman inspected the vessel for the first time.
The presence of water in these compartments was a significant matter. It was particularly significant given that the complaint being investigated concerned water ingress. Despite this no mention was made by Mr Norman of seeing water in these compartments in his letter of 22 December 2017 nor did he make any mention of this to Michael Treble.
The failure by Christopher Norman to mention the presence of water in the aft compartments in his letter of 22 December 2017 is significant. Its omission is not justified by his explanation that he just did not include in that letter all of the damage he had observed. The letter specifically refers to 'major damage' and Mr Norman went so far as to make reference to the delamination of the fibreglass around the dive door. No one, including Mr Norman, considered the delamination of the dive door to be in any way concerning. Conversely the presence of water in the aft compartments was very concerning. I do not accept that had Mr Norman seen water in the aft compartments in December 2017 that he would not have included it in his correspondence.
Consistent with this finding is the evidence of Michael Treble that Mr Norman did not tell him about any water ingress during their conversation in December 2017. It is reasonable to expect that if Michael Treble had been told about water ingress he would have recalled it. It was after all the very reason he had taken his vessel to Edencraft.
Did the impact of 14 July 2016 cause damage to the connection between the pod and the transom?
I am not satisfied on the balance of probabilities that the impact of 14 July 2016 caused damage to the connection between the pod and the transom. I do not accept the opinions of Christopher Norman and Paul Bury about this. My reasons are as follows.
The factual foundation for Christopher Norman's opinion on this point is not supported by the evidence and he has failed to give consideration to other relevant matters.
The factual matters underpinning his opinion that are not supported by the evidence include:
1.that there were four bent bolts, one of which was elongated;
2.that the bolt holes were deformed beyond manufacturing specifications;
3.that the gelcoat damage to the hull and the flange of the pod were indicative of damage to the fibreglass underneath;
4.that the vessel showed damage in the form of scuff marks to the pod that aligned with gelcoat damage to the hull;
5.that there was cracked fibreglass all around the bolts at the back of the transom;
6.that the vessel had had performance issues since the time of the accident;
7.that the cowling damage seen in December 2017 was related to the impact in July 2016;
8.that the Sikaflex seal around the perimeter of the connection between the pod and the transom and around individual bolt holes was broken.
Neither Mr Bury nor Mr Johnston agreed with 1 - 5 above.
Mr Norman's evidence that the bolts were deformed in that they were both bent and elongated was based entirely on a visual examination. Mr Bury qualitatively determined there was only one bent bolt. He did this by measuring each of the 16 bolts against a ruler.[160] In addition both Mr Bury and Mr Johnston agree that it was not possible to tell whether a bolt was elongated based on a visual examination.
[160] See Exhibit 56.
Mr Norman also used visual examination to determine that the bolt holes were deformed as compared to the point of manufacture. He attributed this to impact damage.
Neither Mr Bury nor Mr Johnston were concerned about the appearance of the bolt holes. They were not grossly deformed such that any deformation could not reasonably be explained by the manufacture process involving fibreglass. I accept their evidence about this.
Mr Bury and Mr Johnston also agree that the gelcoat fracturing is not indicative of fracturing of the fibreglass beneath and I accept their evidence about this. Mr Bury in fact explained that it was eminently reasonable that the gelcoat could crack without affecting the fibreglass beneath it because the two substances had different flexibilities. Their evidence is also supported by the examination of the fibreglass on the flange. The gelcoat had been ground away in a small section to reveal the fibreglass which showed there was no fracturing.
Mr Norman was the only person to see any scuff marks on the pod and the cracks to the fibreglass around the bolts in the transom. This is inconsistent with the evidence of Mr Bury, Mr Johnston and Michael Treble. If scuff marks and cracks had been present it is reasonable to expect that each of these men would have seen them. I therefore do not accept Mr Norman's evidence about these things.
Michael Treble also positively denied that there had been any performance issues with the vessel and provided an explanation for the cowling damage relied on by Mr Norman. Michael Treble's evidence on these matters is further supported respectively by:
1.the expert evidence that there would have been no appreciable change in the boat's performance irrespective of any water ingress; and
2.the evidence of Mr Paxman that the cowlings were repaired after the impact on the 14 July 2016.
The only evidence that the Sikaflex seal between the pod and the transom was compromised came from Mr Norman and is referred to above.[161] Mr Bury and Mr Johnston were not in a position to comment on this given they were not present when the pod was removed.
[161] See [73.5] of these reasons.
The plaintiff's counsel endeavoured to garner support for Mr Norman's evidence about this when examining Mr Bury and cross‑examining Mr Johnston. He pursued lines of questioning that suggested that the photographic evidence showed gaps in the residue of the sealant left on the pod and/or the transom or discolouration consistent with water ingress above the line of the sealant. Mr Bury simply acknowledged any gaps. Mr Johnston did not agree that anything could be drawn from photographs given any gaps may have been caused during the removal process and that any discolouration was the product of the photographic process.
I must therefore accept Mr Norman's evidence if I am to find that the Sikaflex seal between the pod and the transom was broken. I have reservations about accepting unconditionally Mr Norman's evidence on this issue.
First Mr Norman made no mention of any failure of the Sikaflex seal at the perimeter of the connection between the pod and the transom in the letter of 22 December 2017. He did not mention it despite saying in evidence that he observed the broken seal during his first examination of the vessel on 19 December 2017. As with his evidence about the water in the aft compartments this was significant damage and his failure to mention it is not justified by his explanation.
Secondly Michael Treble gave no evidence about being told of this failure by Mr Norman in December 2017. To the contrary, Michael Treble gave evidence that the seal was in place when he dropped the vessel off at Edencraft's premises. Michael Treble's meticulous care of his vessel was such that had any damage to the Sikaflex seal been obvious to a visual inspection it is reasonable to expect that he would have seen it.
Thirdly it is accepted that the vessel was carefully examined in September 2016 when the claim was made on the insurance policy for the damage to the trailer. No damage was identified to the Sikaflex seal at this time.
Fourthly the evidence of Mr Bury was that it was not possible to see the condition of the Sikaflex seal without removing the pod. I acknowledge that Mr Bury was certain of this insofar as the Sikaflex seal around the bolt holes was concerned but less certain in respect of the Sikaflex around the perimeter.
Fifthly, whilst Mr Norman was present for the removal of the pod it is clear that he was there in a supervisory role. The work was done by others. As a matter of common sense he may not always have been in a position to properly assess the quality of all aspects of the connection between the pod and the transom. For example Mr Norman could not comment on the tightness of the bolts because he did not remove them.
Finally Mr Norman has shown himself to be inaccurate about a number of material matters.[162]
[162] See [203] - [210] above.
Given these matters it is difficult to be satisfied on the basis of Mr Norman's evidence alone that the Sikaflex seal between the pod and the transom was compromised at all or at least to the extent described by Mr Norman.
However, given the evidence of Michael Treble that water had been seen in the pod and the possible explanations for this as given by Mr Johnston and referred to above,[163] I am satisfied that it is more likely that there was some damage to the Sikaflex seal at the perimeter of the connection between the pod and the transom albeit I am not satisfied that it was to the level of the planing strake nor that the Sikaflex seal around the bolt holes that enter the port and starboard side aft compartments was compromised.
[163] See [186] - [187] of these reasons.
In addition to these matters Mr Norman has failed to give any or any adequate consideration to the types of forces involved in any impact with the propellers and any damage that may be expected as a consequence of this type of impact.
Mr Norman has also assumed that the delamination at the area of the connection between the cockpit floor and the transom had been present since, or at least near to, the time of the impact in July 2016. There is no evidence to support this assumption. Michael Treble's failure to see it in the 16 or 17 months that had passed since the impact is inconsistent with this assumption. In addition Mr Norman has not given any consideration to the location of the delamination,[164] or of other possible causes of this damage. Further unlike both Mr Bury and Mr Johnston he classified this damage as major damage.
[164] An area that was in Mr Johnston's expert opinion not one that was load bearing.
For all of these reasons I do not accept the opinion of Mr Norman that the impact in July 2016 caused damage to the connection between the pod and the transom.
I also do not accept the opinion of Mr Bury that the impact in July 2016 caused damage to the connection between the pod and the transom. Having seen his task as establishing, if possible, a connection between the water ingress and the impact of July 2016 he did not go on to evaluate that possibility.
He (like Mr Norman before him) failed to consider properly or at all whether there was any evidence inconsistent with this finding. For example neither Mr Bury nor Mr Norman gave any consideration to:
1.the absence of any evidence of excessive amounts of water entering the bilge well and triggering the automated bilge pump when six of the bolts connecting the pod to the transom went into the bilge well; and
2.the absence of any evidence that water was seen under the boat in the garage despite it being stored with the jockey wheel fully extended when it was accepted that water could flow out of the aft compartments in the same way it got in.
Further fundamental to Mr Bury's opinions was the presence of water in both the port and starboard side aft compartments in December 2017 and more importantly that the Sikaflex seal was broken both at the perimeter of the connection between the pod and the transom and around the bolt holes. These factual matters relied solely on the evidence of Mr Norman. These facts are no longer sustainable given my factual findings about these issues.
Mr Bury also did not consider or adequately consider:
1.the rotational forces involved in the impact of July 2016;
2.any likely damage that would be caused as a result;
3.whether such damage was present; and
4.whether in any event the damage he did observe was consistent with the information available about the impact that occurred on the 14 July 2016.
As against this I found Mr Johnston's analysis of the damage he observed as compared to the damage he would have expected had the impact of July 2016 been responsible for failure of the pod to transom connection giving rise to water ingress, as careful, comprehensive and convincing. Mr Johnston was able to provide clear and credible explanations for the damage that he did observe and why it is unlikely to be related to the impact of 2016 given the lack of other damage. These explanations are set out above.[165] Mr Johnston's explanations provide other reasonable alternative explanations which together with the deficiencies in the opinions given by Mr Norman and Mr Bury have meant that I am not satisfied on the balance of probabilities that any damage to the connection between the pod and the transom was caused by the impact of July 2016.
Was there any water ingress?
Through the connection between the pod and the transom into the port and starboard side aft compartments
[165] See [168] – [176] and [185] of these reasons.
I have found that there was water in the port and starboard side aft compartments at various times from February 2018. I am not satisfied that it was present before this.
All of the experts agree that water can enter these compartments if the Sikaflex seal at the perimeter of the pod to transom connection and around each of the bolts that go into the respective compartments failed. Given my findings above,[166] any water in the aft compartments could not have entered by this route.
[166] See [221] of these reasons.
Further there are other reasonable explanations for any water in these compartments. These explanations, given by Mr Johnston, would also explain the presence of water, even salty water, in these compartments prior to February 2018.
Mr Johnston's opinion was that water could have travelled into these aft compartments in one of three ways, namely:
1.from the deck underneath the inspection ports where they had not been bedded down properly because a sealant was not used;
2.from rainfall falling on the deck and travelling into the inspection ports either underneath them or over the top if the ports were left open; and
3.a combination of the above.
In relation to [233.2] above there had clearly been rain in Geelong throughout 2018,[167] and Mr Norman himself said at one point in his evidence that there is rain and bad weather most of the time in Geelong.[168]
[167] See [62] of these reasons.
[168] ts 643.
Further whilst Mr Norman's evidence was that the boat was not left outside the evidence referred to above suggests otherwise.[169]
[169] See [61] of these reasons.
Finally, given the matters below,[170] I am fortified in my view that Mr Johnston's reasonable alternate explanations are more probable.
Was there water ingress to the compartments forward of the aft compartments or of the timber core of the cockpit floor, transom and subfloor structures?
[170] See [244] - [246] of these reasons.
It is convenient to deal with the issue of the presence of water in the compartments forward of the aft compartments and the timber core of the cockpit floor, transom and subfloor structures. These are matters that are relevant to the extent of any damage caused by water ingress. Given my other findings it is unnecessary for me to consider these matters. I will however do so because of the reliance placed by the plaintiff on these matters as evidence touching upon the issues of water ingress into the aft compartments through the pod to transom connection.
In the opinions of both Christopher Norman and Paul Bury there was both a mechanism by which water could move forward from the aft compartments and evidence that there was in fact water in those forward compartments.
Dealing first with the mechanism. Both opined that water could move over the top of the subfloor structures albeit for different reasons. Christopher Norman's evidence was that the slurry that bedded down the cockpit floor was brittle and an impact could cause it to break creating gaps through which water could move. He claimed in fact to have seen gaps consistent with this albeit he did not photograph them nor could he remember where the gaps were. Neither of these matters is supported by other evidence.
Both marine architects described the slurry as a 'wet polyester slurry' and Paul Bury specifically did not believe there would have been any damage to it.[171] Mr Bury did however, believe that because the compartments were not designed to be watertight it was possible for there to be gaps in the slurry allowing water to move over the subfloor structures. He did not see any gaps. Mr Bury's acceptance of this as a mechanism by which the water moved forward was more an acceptance of a theoretical possibility as opposed to one he considered to be realistic.
[171] ts 381.
In any event, Paul Bury's opinion was that water was more likely to have moved forward along the unsealed edge of the underside of the cockpit floor.
Sean Johnston thought it would be unusual for there to be gaps in the slurry given that it is put on the top of the subfloor structures so as to bed down the cockpit floor. Mr Johnston also did not see any such gaps. Further Mr Johnston had difficulties understanding how water could move along the edge of the cockpit floor given it sits in the slurry and against the fibreglass hull.
The weight of the evidence therefore does not favour water movement over the subfloor structures as a mechanism for the movement of water forward. Further together with the matters raised by Mr Johnston I have reservations about Mr Bury's opinion regarding the water moving forward along the edges of the cockpit floor particularly given the volume of water that is being suggested in this case.
Both Mr Norman and Mr Bury relied on the ongoing presence of water in the aft compartments over time, despite them being emptied on a number of occasions, to support their opinion about both water ingress generally and specifically by the mechanisms suggested. This reliance is, in my view misplaced for two reasons.
First it fails to take into account the alternate reasonable explanations for the presence of water in the aft compartments referred to above.[172]
[172] See [233] of these reasons.
Secondly and importantly in order for water to move backwards into the aft compartments, the bow of the boat would need to be continually elevated to greater and greater heights. This is because water cannot flow backwards once the water level falls below the height of the subfloor structures or the underside of the cockpit floor. With one minor exception there is no evidence that this process was undertaken. The exception is that Mr Kent gave evidence that after emptying the aft compartments he wound the jockey wheel on the trailer to its highest level. There is no evidence however that the boat remained at this height or that it had not been at this height prior to his involvement. The absence of evidence that the bow of the boat continued to be raised over time makes it unlikely that the water moved backwards from the bow. Mr Johnston's reasonable alternate explanations for the water in the aft compartments is therefore more likely.
The only evidence that the timber core of either the cockpit floor or the transom was compromised comes from Mr Norman. To this end his evidence was that he observed swelling to the cockpit floor and the transom. Neither of the other two experts saw this or raised any concern about these matters. Swelling does not dissipate over time so if such swelling existed, it is reasonable to assume they would have seen it.
Next Mr Norman relied on the core samples that he took from the cockpit deck. These were, according to Mr Norman, wet to touch and showed deformation, both of which were indicative of water damage. Neither of the other experts were able to comment about this because they had not seen the core samples themselves and neither were prepared to make a comment based on the photographs of the samples taken. Mr Johnston did however say that he would have expected that had there been water movement along the edge of the cockpit floor there should have been sponginess of the deck that he did not see or feel.
I have reservations about accepting Mr Norman's evidence about the core samples. First, his evidence on other matters has been inconsistent with, and at times contradicted by other evidence, such that I have general reservations about his accuracy and reliability.
Further there is in the evidence, particularly of Mr Johnston, material that at least raises questions about the core samples that have not been addressed. These issues include:
1.how did any water access the timber core of the cockpit floor?
2.if water was moving along the edge of the cockpit floor (which whilst not laminated was still likely covered with a resin) as described by Mr Bury then why was there no sponginess of the deck?;
3.if, as you would expect, marine grade plywood was used, why did the water get in at all or travel as far as it did?
4.was there enough time for the level of saturation described by Mr Norman to occur? Where would the water have to come from in order to satisfy the time frames?
I am not satisfied on the balance of probabilities that any water travelled forward of the aft compartments or that the timber core of the cockpit floor, transom and subfloor structures were compromised.
Further given the unresolved issues regarding the core samples I am not satisfied that even if I were to accept that the core samples were wet, that this evidence on its own or in combination with any of the other evidence I accept, is sufficient to persuade me on the balance of probabilities that any of my other findings should amended.
Miscellaneous
I am fortified in my conclusions in this case by the evidence of Sean Johnston that is capable of providing an explanation for the water seen by Michael Treble in the pod in December 2017. It was Mr Johnston's evidence that there may have been some damage to the Sikaflex seal at the perimeter of the connection between the pod and the transom and one of the lower bolt holes when the rope on the crayfish pots damaged the cowlings on the outboard motors. This may have allowed some water to enter the pod. I note that even Mr Norman considered that the damage to the cowling that he observed was evidence of an event capable of damaging the connection between the pod and the transom. There is a temporal relationship between the damage to the cowling and Michael Treble's observations of water in the pod such that it is more likely that they are connected.
Conclusions
For the reasons set out above I am not satisfied on the balance of probabilities:
1.that any water seen in the port and starboard side aft compartments entered those compartments via the connection between the pod and the transom;
2.that the impact of the 14 July 2016 caused damage to the connection between the pod and the transom;
3.that there is water in the compartments forward of the aft compartments;
4.that there is water damage to the timber core of the cockpit floor, transom and subfloor structures at all or that if there is any damage that it is causally related to the impact of the 14 July 2016.
Given these findings the plaintiff's claim pursuant to the contract of insurance fails.
Claim for breach of duty
The plaintiff has further and in the alternative pleaded that the defendants owed him a duty of care to properly inspect and assess all the damage to the vessel. In breach of the duty the plaintiff claims the defendants were negligent in its inspection of the vessel on 3 August 2016. The claim was particularised as follows:[173]
1.failing to test drive Edencraft after the repairs were completed;
2.failing to ensure that Edencraft had been restored to its pre‑accident condition;
3.failing to ensure that there was no further damage to Edencraft; and
4.failing to identify the extensive damage to the pod, transom and hull.
[173] Amended statement of claim dated 4 December 2019, pars 17 – 18.
Whilst the plaintiff did not make any submissions in relation to this claim it was not formally abandoned. Given my findings, that there is no damage causally linked to the impact of 14 July 2016, the claim in negligence, if it existed, is not made out.
However for completeness and without determining whether a duty of care existed (which is denied by the defendants) the evidence did not establish that any of the damage found as at 19 December 2017 could reasonably have been identified at the time of the inspection and assessment in July and August 2016: there was in July 2016 no visible external damage beyond that to the outboard motors, there is no evidence that any of the damage observed in December 2017 was or could reasonably have been made evident in August 2016 and there were no performance issues with the boat at any time in the 300 hours of operation it had undertaken since August 2016.
Orders
First, the plaintiff's action against the first and second defendants is dismissed.
Second, given the concession made by the defendants that it would honour the commitment made during the internal dispute resolution process to pay the cost of repairing the gelcoat of the pod and the cracking of the transom/stringer laminate, and of reinstating the seal between the transom and the pod I consider it would be appropriate to make an order, subject to hearing from the parties, that the defendants pay the plaintiff the sum of $8,300.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Petrusa
18 MARCH 2021
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