Von Stanke v Northumberland Bay Pty Ltd - [2008] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
VON STANKE & ANOR v NORTHUMBERLAND BAY PTY LTD
[2008] SADC 61
Judgment of His Honour Judge Lovell
15 May 2008
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
Collision at sea of two crayfishing boats – apportionment of liability – applicability of Marine Orders Part 30.
Navigation Act 1912; Navigation (Collision) Regulations 1982; Marine Orders Part 30 (Prevention of Collisions) r 3, 5, 7, 13, 14, 15, 16, 17 & 18 , referred to.
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Weinert v Schmidt (2002) 84 SASR 307, considered.

DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - DAMAGE TO CHATTELS
Appropriate method of assessment where chattel cannot be repaired – whether plaintiff acted reasonably in purchasing new boat – mitigation of loss – whether principles of betterment apply – assessment of deduction for betterment.
Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185; Livingstone v Rawyards Coal Co (1880) 5 AC 25; Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625; Electricity Trust of South Australia v O'Leary (1986) 42 SASR 26; Belz v Oslob Pty Ltd Unreported, NSWCA, 15 December 1989, BC8901306; Hoad v Scone Motors Pty Ltd (1977) 1 NSWLR 88; Uctkos v Mazzetta [1956] 1 Ll L Rep 209; Roman Catholic Archbishop of Perth Vanpress Pty Ltd v John Bishop & Anor Unreported, Full Court of WA, 15 December 1995, BC9504162; Jansen v Dewhurst [1969] VR 421; Bellgrove v Eldridge (1954) 90 CLR 613; Tilbury Civil Remedies Vol II; Banco de Portugal v Waterlow [1932] AC 452; Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443; Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313; Halsbury's Laws of Australia Vol 9, considered.

VON STANKE & ANOR v NORTHUMBERLAND BAY PTY LTD
[2008] SADC 61
Background

At about 1.00pm on 12 December 2003, a collision occurred between two commercial crayfishing boats about five kilometres north west of Carpenter Rocks. The plaintiff’s vessel “MV Bounty Hunter” (Bounty Hunter) was severely damaged. It was towed to shore by the other vessel, the “MV Rebound” (Rebound), skippered by Mr Dwyer, and later assessed as being damaged beyond repair. It had a market value of $115,000. The plaintiff, having found no second hand vessel to replace the Bounty Hunter ordered a new vessel built to similar specifications as the Bounty Hunter at a cost of $174,271.73. That amount included the cost of new equipment on the vessel.
The plaintiff sought from the defendant the sum of $174,271.73 as being the appropriate measure of damages.
The defendant conceded negligence but contributory negligence and quantum were in dispute at the trial.
Issues
Was the plaintiff guilty of contributory negligence?
Did the plaintiff act reasonably in purchasing a new replacement vessel for a sum exceeding the market value of the Bounty Hunter?
If the plaintiff did act reasonably in purchasing a new replacement vessel, has the defendant proved that the plaintiff failed to mitigate its loss when fitting out the new vessel?
If the plaintiff has mitigated his loss, are the plaintiff’s damages to be reduced to account for the “better” vessel he now possesses?
Was the plaintiff guilty of contributory negligence?
The defendant conceded negligence but argued that the crew of the Bounty Hunter had failed to keep a proper lookout and therefore observe the approach of the Rebound. It was argued that the failure to keep a proper lookout led to the failure of the Bounty Hunter to take evasive action.
The plaintiff argued that as the Bounty Hunter was virtually stationary at the time of the accident and tending its craypots, the crew had not breached the appropriate standard of care.
The evidence
Two witnesses were called on this issue; the deckhand from the Bounty Hunter, Mr Martin, and Mr Dwyer, the captain of the Rebound. Due to injuries received in the accident, the captain of the Bounty Hunter, Mr Jeffree was not called as a witness. It was conceded by the defendant that, as an explanation had been provided for the non-attendance of Mr Jeffree, no adverse inference could be drawn against the plaintiff for his failure to call him as a witness. The plaintiff was not on board the Bounty Hunter at the time of the accident and could not therefore give evidence in relation to liability.
Both Mr Martin and Mr Dwyer were called by the plaintiff.
Mr Martin told me that he had been the “deckhand” on the Bounty Hunter for the season that had begun on 1 October 2003. Mr Jeffree was the “skipper”; they were the only persons on board the Bounty Hunter. This was Mr Martin’s first season. They usually fished five to six nautical miles north west of where the boat was moored at a bay near Pelican Point. Fifty craypots were taken out early in the season and dropped in lines of 10. The 10 pots were not physically connected but were relatively close to each other “in a line”. On days of suitable weather all the pots would be checked, crayfish removed and bait replaced. Generally the pots would be approached from a “down wind” position. Buoys attached to ropes marked their location. A grapple hook would be used to grasp the rope and the rope would then be placed around the winch. The pot would then be hauled up and the catch removed. The pots would be rebaited and then replaced. Mr Jeffree and Mr Martin generally returned about lunchtime.
Immediately prior to the accident Mr Jeffree was manoeuvring the Bounty Hunter to retrieve a crayfish pot. It is likely that he did that from the “down wind” position. It was one of the last ones to be retrieved for the morning. Mr Martin used the “grapple” to retrieve the rope. He noticed seaweed around the line of the pot. Seaweed tangled around the rope was a common problem. I infer that Mr Jeffree disengaged the gears but left the engine running as was the usual practice. It may be that from time to time the gears would be engaged to assist manoeuvre the boat. The rope was attached to the winch and Mr Martin went to cut the seaweed away but accidentally dropped his knife. Mr Jeffree, who had been observing Mr Martin, went to the cabin to obtain a knife. Mr Jeffree had been on the starboard side of the boat. He had to go to the opposite side to get the knife. Mr Martin felt the boat “move” and then he heard a yell from Mr Jeffree to “hit the deck”. He then heard and felt the collision. Mr Jeffree told him to jump into the water; he did so. Whilst in the water he noticed that the Bounty Hunter was sinking. He noticed that the Rebound had collided with the Bounty Hunter on the port side and towards the stern. The stern of the Bounty Hunter was submerged with the bow pointing skyward. Mr Martin did not see or hear the approach of the Rebound prior to the collision. He was rescued by Mr Dwyer as was Mr Jeffree.
Mr Martin said, during cross-examination, that it took “a couple of minutes” to come up close to the buoy and have the rope positioned around the winch. It was after that process was complete that he attempted to remove the seaweed. He told me that they had spent about five to 10 minutes at this spot before the collision occurred.
Mr Martin also said that the water was “a little bit choppy”. He further explained that it was “a little bit rocky in the water, wind on and it was a bit choppy”. It was not the swell. He said “it was mainly the wind”.
In relation to visibility Mr Martin said that there was no reason why you “couldn’t see as far as the horizon”. If he had been looking he could have seen the Rebound coming for “miles away”.
Mr Martin explained that he was aware that there were other crayfish boats in the vicinity and that those boats would be passing by “going out to collect their pots or on the way back”. That was a normal daily event. He was never instructed that it was part of his duties “to keep a lookout” for other boats.
Mr Dwyer was the captain of the Rebound. He has been a professional fisherman for 35 years. The Rebound was a bigger boat than the Bounty Hunter. Mr Dwyer operated his boat from the Blackfellows Cave area; that is situated south east of Carpenter Rocks.
On 12 December 2003 Mr Dwyer was crayfishing in the general area north west of Carpenter Rocks. He had left in the early hours of the morning with his son as his deckhand. On leaving the weather “wasn’t too bad… a little bit of east south east wind but not too bad”. During the course of the morning, after he had checked approximately half of his pots, the weather started to deteriorate. As he said the “weather was coming in shitty, bad so we went home because we had to go out deeper”. By that he meant his other pots were further out to sea and because of the deteriorating weather he decided to return home.
He set course for home using his GPS and set the automatic pilot. The automatic pilot controlled both speed (engine revolutions) and direction. He set the speed of his vessel at about 18 knots (37 kph) and the course for Blackfellows Caves. This meant he did not have to steer the vessel nor adjust its speed; it did not relieve him of his obligation to keep a proper lookout. He set the speed at 18 knots as that meant his vessel could “plane”. Planing made the vessel more manoeuvrable and gave better visibility as it sat higher out the water.
Mr Dwyer candidly admitted that he did not see the Bounty Hunter at any time prior to the collision. He told me that he was concentrating on making changes to his GPS equipment.
Mr Dwyer said he looked up from time to time but did not see the Bounty Hunter. He thought the swell must have obscured his view. The Rebound would have been travelling at about 18 knots (1800 revs) at the time of the collision. After impact Mr Dwyer pulled back the throttle and set about rescuing Mr Jeffree and Mr Martin. He then towed the Bounty Hunter back towards shore.
Whilst returning to shore after the rescue Mr Dwyer and Mr Jeffree spoke about the incident.[1]
[1] Transcript 111
QDid you get the skipper, Mr Jeffree, near you in the steering position.
AYes, he’s on the bunk; there’s two bunks, one runs up the side and one runs across the front of the wheelhouse.
QDid you have a conversation with him.
AYes.
QCan you recall if not the words of what was said words to the effect of what was said between you and he on that occasion.
AI said ‘Look, I didn’t even see you, Ken’ and he said ‘Yeah, we seen you coming’ but they went back to work and they just said, and he said to me ‘I was going home early that day’.
HIS HONOUR
QSorry, who said that, he said that to you –
AYes.
Q– Mr Jeffree said to you that he was going home early.
ANo, he must have said to his crew or thought that he was going home early, I was going home early, which I was.
The effect of the conversation, although not entirely clear, is that Mr Jeffree saw the approach of the Rebound and made a comment that it (the Rebound) was leaving early and then he (Mr Jeffree) went back to work.
At the time of the accident the Rebound was travelling in a southeast direction; the swell was running behind him but he was travelling into a wind, which was causing white caps on the water. Mr Dwyer told me that visibility was restricted to about 500 metres if the other boat was at the top of the waves. If a boat was at the bottom of a trough visibility would have been as little as 100-200 metres.
Analysis
It was common ground that at the time of the accident the Bounty Hunter was virtually stationary and the Rebound was travelling at about 18 knots per hour.
The defendant conceded negligence but argued that the plaintiff was guilty of contributory negligence in failing to see the approach of the Rebound and taking measures to avoid the collision.
I find that both Mr Martin and Mr Dwyer were honest witnesses who did their best to tell me the truth as they believed it. I accept their evidence generally. However there were two significant differences and they related to the weather conditions at the time of the collision and how that affected visibility.
Prevailing weather conditions and visibility
Mr Martin gave evidence that whilst it was “choppy” visibility was fine and that the Rebound could have been seen for miles as it approached. Mr Dwyer thought visibility was limited to no more than 500 metres. Depending upon the relative positions of the boats in the swell it could have been down to 100-200 metres.
I prefer the evidence of Mr Martin on this point. Mr Dwyer, having made the decision to come in early, set the autopilot and went about his business. He did not see the Bounty Hunter at all before the collision. His evidence about what he was doing in the minutes prior to the collision was reconstruction. The weather may have been a cause for him not wanting to go deeper (further out from shore) but that does not mean it was deteriorating closer to shore where the Bounty Hunter was still fishing. Nothing in the evidence of Mr Martin indicated that conditions had deteriorated to such a significant extent where he was fishing. Mr Dwyer was unable to explain why he did not see the Bounty Hunter before the collision and his explanation of poor visibility is, in my opinion, reconstruction. If the visibility was as bad as he suggested, as an experienced fisherman and knowing that other boats were in the vicinity, it is likely he would have not have been so easily distracted from keeping a lookout particularly at that speed.
Further his evidence does not fit with what Mr Jeffree told him after the rescue. I accept Mr Dwyer’s account of the conversation. Clearly Mr Jeffree had seen the Rebound and gone back to work. I accept the evidence of Mr Martin that Mr Jeffree was assisting him on the starboard side of the Bounty Hunter before he dropped the knife. If visibility was as little as 500 metres as suggested by Mr Dwyer, that must mean that Mr Jeffree saw the Rebound at no more than 500 metres away. At that time it would only have been about a minute or slightly less away from the point of collision. It must have been travelling straight towards the Bounty Hunter. Mr Jeffree must have ignored the Rebound and got on with his work. That is unlikely if the Rebound was within 500 metres. Further Mr Jeffree was assisting Mr Martin with the pot retrieval for at least a few minutes if not longer once they had grappled the buoy. That must mean the Rebound was well over 1 kilometre away at the time it was noticed by Mr Jeffree.
(b) Findings
I find that the weather conditions were as described by Mr Martin. I find that Mr Jeffree, as he admitted to Mr Dwyer, saw the Rebound leaving early. I am unable to make a precise finding about how far away the Rebound was when seen initially by Mr Jeffree but it must have been substantially further than 500 metres and more likely to have been at least a few kilometres. Clearly it was far enough away not to have caused immediate concern to Mr Jeffree. I infer that Mr Jeffree is likely to have made his observation of the Rebound whilst he was beginning his manoeuvre of the Bounty Hunter towards the craypot. Mr Jeffree was not called. There is, therefore, no direct evidence of what lookout, if any, he kept. The evidence of the crewman, Mr Martin, shows that at the relevant time, Mr Jeffree was concentrating on manoeuvring his vessel and assisting Mr Martin to retrieve the craypot.
Given that the speed of the Rebound was around 18 knots (approximately 37 kph) it would have travelled a little more than one kilometre every two minutes. I infer that the Rebound was close enough for Mr Jeffree to make an assessment that it was “leaving early”, that is heading in his general direction, but at the time of the sighting, not close enough to cause any immediate concern.
I find that having observed the Rebound he then went about the task of retrieving the craypot and that included assisting Mr Martin with the task of removing the seaweed. This took at least a few minutes, possibly longer. Having seen Mr Martin drop the knife he made his way towards the port side of the boat and saw the Rebound. I infer that from the time of is initial sighting of the Rebound until the moments just before the collision Mr Jeffree did not attempt to keep the Rebound under observation.
I find that Mr Dwyer set the autopilot on the Rebound to 1800 revs and the boat travelled on the course he set at around 18 knots per hour. I find that Mr Dwyer was distracted by tasks he was performing in the wheelhouse and failed to keep a proper lookout. He was aware of the likelihood of other boats in the area and their pots (including ropes and buoys). It was his responsibility to keep a lookout.
In accordance with his admission, I find that Mr Jeffree did see the Rebound heading in early. The evidence is not clear enough to make a finding as to exactly when that observation was made. Mr Martin gave evidence that they were retrieving the 49^th pot being, I infer, the ninth pot in the line of 10. As the pots in the line were within a short distance of each other (a few boat lengths) the Bounty Hunter had been in that vicinity for at least a half an hour, probably longer.
Mr Jeffree attempted to take evasive action by putting the boat into gear and applying the throttle. The Bounty Hunter moved forward slightly. His actions were too late and the Rebound struck the Bounty Hunter on the port side causing it to become almost totally submerged. The Rebound did not slow down or deviate from its set course before the collision.
(c) Negligence
Mr Halliday, counsel for the defendant, sensibly conceded negligence on his client’s behalf. The only question to be decided at this trial in relation to liability is whether Mr Jeffree was guilty of contributory negligence. There was no dispute that both boats were vessels within the meaning of the Navigation Act, 1912 and the Navigation (Collision) Regulations, 1982 and therefore were subject to the Marine Orders Part 30 (Prevention of Collisions) (“Marine Orders”).[2]
[2] Rule 3
Applicable Rules
Rule 3(i) states that “underway means that a vessel is not at anchor, or made fast to the shore, or aground”. Despite the fact that a craypot sits on the ocean bed it is not an anchor within this definition. The evidence was that the boat could be moved with the craypot in tow. Thus the Bounty Hunter is within the definition of “underway” even when the craypot has been “grappled” and attached to the winch. Thus, as is the case here, a vessel can be “underway” even though for all intents and purposes it is virtually stationary.
When a vessel is underway but barely moving, if at all, the application of rules 13, 14, 15, 16 and 17 which impose various obligations on moving vessels, becomes problematic. However it appears that the Rules anticipate such difficulties in the wording of rule 18. This rule recognises, that in certain circumstances, a vessel may be underway but not subject to the usual Rules of navigation. Relevantly rule 18 states:
Responsibilities between vessels
Except where Rules 9, 10 and 13 otherwise require:
(a)A power-driven vessel underway shall keep out of the way of:
i)a vessel not under command;
ii)a vessel restricted in her ability to manoeuvre;
iii)a vessel engaged in fishing;
iv)a sailing vessel.
…
As can be seen if the Bounty Hunter comes within the terms of (ii) and/or (iii) then an obligation fell on the Rebound to keep out of the way of the Bounty Hunter as opposed to such an obligation being imposed on both boats.
Was the Bounty Hunter engaged in fishing?

Rule 3 defines the term a vessel engaged in fishing as “any vessel fishing with nets, lines, trawls or other fishing apparatus which restrict manoeuvrability (my underlining), but does not include a vessel fishing with trolling lines or other fishing apparatus which do not restrict manoeuvrability.
The Bounty Hunter was fishing by use of a craypot. As mentioned the craypot was attached by a rope to two buoys which marked its position. Prior to the accident the rope was “grappled” and then attached to the winch. In my opinion this description fits within the definition of “other fishing apparatus which restrict manoeuvrability”. It is true that evidence was given that the Bounty Hunter could have (and indeed attempted to) drive off towing the pot. The rope could have been detached from the winch freeing the Bounty Hunter. It could have been cut. None of those matters detract from the proposition that at the time leading up to and including the collision the Bounty Hunter was using other “fishing apparatus” not involving trawling and that its manoeuvrability was restricted. In my opinion the fact that the craypot was attached by rope meant that the Bounty Hunter would be restricted in its ability to turn and also accelerate. I accept that such restriction may not be great; indeed given a short amount of time it could have been freed from its restriction. That is not to the point. It was engaged in fishing. In my opinion rule 18(a)(iii) covers this situation.
If I am incorrect in my assessment that a craypot would come within the definition of “fishing apparatus” rule 18(a)(ii) would apply in any event for the reasons mentioned above. It has restricted manoeuvrability.
I find that rule 18 operated in the circumstances of this matter to impose on the Rebound an obligation to keep out of the way of the Bounty Hunter. There was no such obligation on the Bounty Hunter.
Other Rules
Mr Halliday relied on the admission by Mr Jeffree that he had seen the Rebound leaving early. Mr Halliday argued that as the captain of the Bounty Hunter had seen the Rebound and that it was heading in their general direction (going in early) he was negligent in not keeping the Rebound under observation.
Rule 5 states that “Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.”
Rule 7(a) states that “Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.”
Not surprisingly, the Rules are structured so as to impose obligations on vessels to assess the risk of collision. Rule 5 places an obligation to keep a proper lookout by sight and hearing. Rule 7 goes further and imposes an obligation to “use all available means appropriate to the prevailing circumstances” to determine risk. Whilst rule 7 appears to focus on the use of radar it is not confined to that circumstance. There is no suggestion that the Bounty Hunter had radar facilities. The Rebound did not have an operational radar unit. Both vessels had operational radios.
As mentioned earlier I accept that Mr Jeffree appreciated that the Rebound was leaving early. I infer that Mr Jeffree must have known that the course of the Rebound was generally in the direction of the Bounty Hunter. Whilst it is likely that his initial sighting of the Rebound was when it was at least a few kilometres away the Rules require him to make a full appraisal of the situation and of the risk of collision. If there was doubt the risk was deemed to exist.
There is no direct evidence of what “look-out” was kept by Mr Jeffree. However consistent with my earlier findings it is likely that having seen the Rebound earlier Mr Jeffree did not see it again until moments before the collision when he attempted evasive action. Given that the Rebound was heading in his general direction a risk of collision, albeit small, existed. I find that he failed to maintain a proper lookout so as to make a full appraisal of the situation and of the risk of collision. I infer that after his initial observation of the Rebound he did not see it again until he attempted to take evasive action. Mr Jeffree had an obligation to keep the Rebound under observation. He should have looked more frequently than he did. In breach of his obligation under the Rules he failed to do so.
Discussion
During final submissions Mr Swan stated that the plaintiff did not rely on any suggested breach of statutory duty to found a cause of action. He relied on the law of negligence and submitted that the Marine Orders provided a framework which assisted in determining the relevant standard of care. As I understood the submissions the defendant agreed with that position. I will approach the case on that basis.
Mr Dwyer admitted negligence. I have found that he had an obligation to keep out of the way of the Bounty Hunter. He failed to do so. The Rebound had restricted manoeuvrability. Mr Dwyer was well aware that boats in the area might have such restrictions. Given the weather conditions and the fact that visibility was good, setting the engine at 1800 revs and therefore at about 18 knots per hour was not of itself a negligent act. The cause of the collision was not excessive speed; it was the failure to keep a proper lookout given that he was travelling at that speed.
Mr Jeffree clearly owed a duty of care towards the Rebound. No doubt he was distracted from keeping a lookout by the fact that he had to manoeuvre the boat towards the buoy and then assist Mr Martin to free the rope from seaweed. However, knowing that the Rebound was heading in his general direction he did not keep a proper lookout. True it is that he did see the Rebound at the last moment but that was too late to take any appropriate evasive action. I do not criticise Mr Jeffree for the action he took in the “agony of the moment”.
I find that he breached the standard of care in failing to keep a proper lookout in all of the circumstances. I find that Mr Jeffree was guilty of contributory negligence.
Apportionment
The principles guiding a court on the issue of apportionment are well established. It involves a comparison both of culpability of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage.[3] It is the whole conduct of each negligent party in relation to the circumstances of the accident, which must be subjected to comparative examination.[4]
[3] Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; Weinert v Schmidt (2002) 84 SASR 307
[4] Weinert v Schmidt (2002) 84 SASR 307
Mr Jeffree’s departure from the appropriate standard of care was not as serious as the admitted departure of Mr Dwyer. The Rebound was travelling at 18 knots with Mr Dwyer keeping no lookout. He had an obligation to keep clear of vessels that had restricted manoeuvrability. His failure to see the Bounty Hunter at any time prior to the collision was a gross breach of the standard of care. The breach by Mr Jeffree was far less serious.
I apportion liability 90/10. The plaintiff is to have 90% of his damages.
Quantum
Legal Principles
It is well settled that, whether in contract or in tort, the injured party should receive compensation in a sum which, so far as money can do so, will put him in the same position as he would have been if the contract had been performed or the tort had not been committed.[5] The way in which that principle is worked out depends on the facts in each case.[6] Generally speaking the measure of damages in the case of damage to a chattel is the cost of repair but if it is unreasonable from the business point of view to repair the article, or if the article is damaged beyond repair, then the basic measure is the cost of replacement in an available market. If there is no available market and it is reasonable to take steps to have a substitute made, the cost of the substitute may provide the measure of damages.[7] In looking at a possible replacement vessel from the available market the plaintiff is entitled to the reasonable cost of another vessel which reasonably meets his needs and which is reasonably in the same condition.[8]
[5] Butler v Egg & Egg Pulp Marketing Board (1966) 114 CLR 185; Livingstone v Rawyards Coal Co (1880) 5 AC 25; Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625 at 637
[6] Electricity Trust of South Australia v O’Leary (1986) 42 SASR 26
[7] Belz v Oslob Pty Ltd, unreported, NSWCA, 15 December 1989, BC8901306; Hoad v Scone Motors Pty Ltd (1977) 1 NSWLR 88 per Samuels J
[8] Uctkos v Mazzetta [1956] 1 Ll L Rep 209
It was common ground that the Bounty Hunter was effectively destroyed; it could not be repaired and pass survey as a commercial crayfishing boat. As the boat could not be repaired, the real issue in this case was whether a comparable second hand vessel could be obtained in the market. If neither the cost of repairs nor the cost of going into the market to obtain a comparable vessel were available, then it would be necessary to estimate what it would cost to manufacture a comparable vessel.[9]
[9] Belz v Oslob Pty Ltd (supra); Roman Catholic Archbishop of Perth Vanpress Pty Ltd v John Bishop and Anor unreported, Full Court of WA, 15 December 1995, BC9504162
The onus is on the plaintiff to satisfy the court on the whole of the evidence as to which approach is the correct method of assessing damages.[10] Where a plaintiff claims the cost of the work necessary to put him or his property in the pre-injury condition the work must not merely be necessary for that purpose but it must be a reasonable course to adopt to do that work. The test of what is the appropriate measure in any case is reasonableness in the particular circumstances and that is a question of fact.[11] Factors that indicate a more expensive course may be justified include (but are not limited to) the rarity of the chattel, its usefulness in the plaintiff’s business, it’s condition before the tort and the difficulty of obtaining a substitute. The plaintiff’s sentimental attachment to the chattel is an irrelevant consideration.[12]
[10] Jansen v Dewhurst [1969] VR 421
[11] Bellgrove v Eldridge (1954) 90 CLR 613; Jansen v Dewhurst (supra); Murphy v Brown (1985) 1 NSWLR 131
[12] Tilbury Civil Remedies Volume II at para [12021].
Reasonableness must be considered not only from the point of view of the plaintiff but also from that of the defendant who has to pay.[13] However the plaintiff only has to act reasonably and the standard of reasonableness is not high in view of the fact that the defendant is an admitted wrongdoer.[14] In relation to the question of reasonableness there is an overlap between the question of the “reasonableness” of the appropriate measure of damages and the question of mitigation of loss. Given my findings it is not necessary for me to decide that question.
The Facts
Assessment of Witnesses – Quantum
[13] Jansen v Dewhurst (supra)
[14] Banco de Portugal v Waterlow [1932] AC 452 at 506
The Plaintiff
Mr Von Stanke gave evidence relating to the quantum of the claim. I generally found his evidence reliable. It was suggested that I should have reservations about his evidence. I have considered the matters put to me by Mr Halliday but neither individually nor collectively did they make me doubt the evidence of the plaintiff. On occasions the plaintiff became defensive with some of his answers but that was understandable given that he was in the witness box for some considerable time; indeed his evidence was interrupted by the interposition of other witnesses. On occasions he could be dogmatic. However in my view he was a truthful witness.
The plaintiff had, in an earlier damages claim for injuries suffered in a motor vehicle accident, been the subject of criticism by a judge of this court. It was suggested that in some way I could use that finding adversely to the plaintiff. I do not agree. The plaintiff before me was cross-examined about that matter and denied that he had not told the truth to that judge. That question was directed to a credit issue. His answer in my view is final. However, even if I were to take into account the findings of the judge it would not affect my findings on credibility of the plaintiff.
Other witnesses
All other witnesses in this matter did their best to assist me. All were witnesses of truth. Mr Oakley, a shipbroker, was called by the plaintiff. Mr Edmonds, a shipbroker was called by the defendant. Mr Oakley was the most experienced in relation to boat sales and was an impressive witness. Mr Edmonds did not have the overall experience of Mr Oakley. There was in my view little difference between the evidence of the experts but where there is any difference I prefer and rely on the evidence of Mr Oakley.
Mr Baker and Mr Ruffin gave evidence relating to boat construction. Again, in my view there was little difference between their evidence apart from the fact that they work with different materials and clearly both had their preferences. Mr Baker also gave factual evidence and I accept his evidence. Mr Ruffin gave evidence about the value of the Bounty Hunter at the time of the accident. I accept that evidence. There was a difference between Mr Baker and Mr Ruffin in relation to the value of the wreck of the Bounty Hunter. Mr Baker had the advantage of having inspected the wreck (and indeed worked on it). I prefer his evidence on that topic.
Mr Ploenges gave evidence relating to boat engines and I accept his evidence.
Background
Carpenter Rocks is a bay situated on the coast some 30-40 kilometres west of Mount Gambier. Approximately six kilometres southeast of Carpenter Rocks is a smaller bay named Pelican Point (sometimes referred to as Bungaloo Bay). Mr Von Stanke has lived at Pelican Point for some 32 years. The house, in which he lives with his wife, overlooks the bay at Pelican Point.
After leaving high school Mr Von Stanke did a spray painter/panel beater apprenticeship. He eventually ran his own business. However he changed occupations and commenced in the fishing industry working for relatives at Carpenter Rocks.
Approximately 21 years ago he purchased a fishing licence and a boat named “Layla”. The licence and boat were sold as a package. Mr Von Stanke, who had fished recreationally for many years from Pelican Point, now began to fish commercially. He moored his boat at Pelican Point. Layla, a Starcraft boat, was of aluminium construction. Mr Von Stanke preferred a boat of aluminium construction as he was able to do repair work on the boat due to his prior training.
The Layla came with a BMW inboard diesel motor. The engine unit was known as a “Z drive”. This system enables the leg attached to the propeller to be raised or lowered hydraulically thereby allowing the boat to enter shallow water and still be driven. After about 18 months of use he replaced the motor in the Layla. Mercury had taken over the BMW licence and so he purchased a Mercruiser motor. He has used them ever since. He trusts the motor and is able to service them and do minor repairs.
Importantly in about 1996, Mr Von Stanke made a decision to upgrade his fishing vessel. He contacted Mr Baker, a builder of aluminium boats, and after some discussion he had Mr Baker build the Bounty Hunter to his specifications. The Bounty Hunter was specifically set up, not simply to catch crayfish, but to do so in a way that suited the method of fishing of Mr Von Stanke.
The matters considered essential by the plaintiff for the building of the Bounty Hunter were as follows:
a)    the boat could not be greater than 10 metres in length. The plaintiff’s coxswain permit would not allow him to captain a boat greater than 10 metres in length. The plaintiff preferred a boat that was wider for “stability”.
b)   the hull be of aluminium construction and not fibreglass. The plaintiff preferred aluminium boats as he was able to do maintenance on the boat himself. He generally had a preference for aluminium boats in any event.
c)   the boat have a shallow draft to assist with fishing but also to moor his boat in the harbour adjacent to his house at Pelican Point. Such a mooring enabled him to keep his boat under observation during stormy weather and it was convenient for him to load his vessel in the morning. The deep water mooring available some six kilometres away at Carpenter Rocks was of no interest to Mr Von Stanke as he was not confident in his seamanship in taking a boat out the entrance of the harbour at Carpenter Rocks. The plaintiff wanted to be able to fish areas where a shallow draft was essential.
d)   the boat be manufactured so that an inboard diesel motor with a “leg” could be installed. The motor that he eventually installed was a “Mercruiser” brand, a brand he had used before and with which he was familiar. He was able to do small servicing jobs himself. The boat was to have a larger than standard engine compartment for easy access for routine maintenance.
e)   the cabin area be brought forward to maximise the “working deck space”. The size of the working deck space was important and affected his ability to transport pots at the beginning and end of the season. He did not want bunks in the forward cabin area. He did not intend to stay out fishing overnight and was therefore of the view that bunks were unnecessary.
f)    the “pot hauler” had to be adjacent to the wheel so the boat was capable of being operated by one person. This was a requirement common to many crayfishing boats.
g)   The boat have higher railings for safety and the windows lower for better visibility.
Mr Baker gave evidence confirming that his firm had built the Bounty Hunter in 1996. He identified the invoice, exhibit D3, evidencing the transaction. Whilst the invoice did not contain specifications as such Mr Baker confirmed that he consulted closely with all customers during the build as “they’re all personalised boats”.[15] The Bounty Hunter was built according to the specifications.
[15] Transcript 402
Mr Von Stanke was very satisfied with the boat.
Around 1996 Mr Von Stanke was involved in a motor vehicle accident in which he received some physical injuries. For a while he was unable to operate his boat but eventually returned to fishing. However, in 1999 he approached Mr Jeffree about entering into a contractual arrangement for the use of his boat and licence. Mr Jeffree was to skipper the boat and a proportion of the catch proceeds would be paid to Mr Von Stanke. This arrangement was entered into and renewed a number of times. It was operating at the time of this accident.
Plaintiff’s conduct after the accident
Having heard a report of the accident the plaintiff went to Carpenter Rocks. He was concerned about the crew and arranged for an ambulance to attend. The boat was towed to the beach and then taken to a “hard stand” in a boat yard. The police and the Department of Transport were investigating the accident. The plaintiff was unable to inspect the boat immediately.
Mr Ploenges, from Mercruiser, and the plaintiff inspected the boat the next day. Attempt was made to “save” the motor. It was apparent from the inspection that the ignition had been on at the time the boat sank. The motor was full of seawater and the electrical system had “shorted out”. The plaintiff noticed that the boat was in forward gear.
The plaintiff’s insurance broker was notified. His insurer notified him that the boat was a “write off”. The insurer offered him the wreck for $5,000, which he accepted. He took the wreck of the Bounty Hunter and stored it near his shed.
The plaintiff spent a few weeks ensuring his business continued and that his quota for the season would be caught. He relied on friends and relatives to catch his quota. He had to organise a “ministerial exemption” for other people to work his pots. This was organised successfully and his quota was caught. The plaintiff did not claim any loss of income for the period after the accident. The defendant did not, nor could he, criticise the plaintiff’s conduct in relation to this issue.
The value of the Bounty Hunter at the time of the accident

The plaintiff’s insurer valued the Bounty Hunter at $115,000. The plaintiff accepted that valuation. He paid $5,000 for the wreck and the insurer deducted $1,150 for the excess nominated in the contract of insurance. The plaintiff received $108,850.
There was very little evidence regarding the true market value of the Bounty Hunter as at the time of the accident. The plaintiff did not argue with the fact that $115,000 was the approximate market value. Mr Ruffin, who gave evidence on behalf of the defendant, had valued the Bounty Hunter as at 28 February 2000 at between $110,000-$115,000. Whilst he thought that the boat would have depreciated “slightly” in the three years since that inspection he thought that would be countered by the fact that a new motor had been fitted.[16]
[16] Exhibit D14 (29/1/07)
Given that the Bounty Hunter was well maintained and further that the motor had been replaced, in my view the market value of the Bounty Hunter was $115,000 at the time of the accident.
There was a disagreement between Mr Baker and Mr Ruffin as to the value of the wreck of the Bounty Hunter. Mr Baker thought the boat was worth “scrap” value only; less than $5,000. Mr Ruffin was of the opinion it was worth $15,000-$17,000 (before subsequent work). I prefer the evidence of Mr Baker as he had seen and indeed worked on the wreck of the Bounty Hunter. Mr Ruffin gave his opinion based on photos. In my opinion the Bounty Hunter after the accident, as a wreck, was worth $5,000. This sum included the items of equipment still attached to the wreck such as the winch which may have had some value.
There was evidence that the plaintiff, by the time of trial, had commenced restoring the wreck for the purpose of recreational fishing. He had Mr Baker do some work in relation to repairing the hull. The plaintiff was invoiced $12,216.60 for this work.[17]
[17] Exhibit P14
It was suggested in argument that the value of the wreck had therefore increased and I should value the wreck at a sum greater than $5,000 whilst ignoring the money spent by the plaintiff. I reject that argument.
The plaintiff’s search for a replacement boat
When assessing the plaintiff’s conduct post accident his background cannot be ignored. He had fished successfully for many years prior to his accident. The Bounty Hunter had been built specifically with his operation in mind.
When the plaintiff turned his mind to replacing the Bounty Hunter he was aware that it could not be repaired and was a “write off”. The defendant has not argued that the Bounty Hunter could be repaired. The plaintiff was paid $108,850 (after his deductible of $1,150 and a further deduction of $5,000 for the wreck) by the insurer. As I have found the market value of the Bounty Hunter prior to the accident was $115,000.
Appropriately, the plaintiff initially considered a second hand vessel. He took the following steps:
1.    searching the Professional Fisherman magazine;
2.    searching the “Trader Boat” magazine (two editions – December 2003 and January 2004. It was unclear whether he searched the February 2004 edition);
3.    conducting a search on the internet;
4.    speaking to Mr Hayles of Pro Marine.
Mr Von Stanke gave evidence that he found nothing that “came close” to the Bounty Hunter as a result of his searches. He stated:[18]
QJust before lunch you were telling us about some inquiries and efforts you made to see if there was an alternate boat for sale, either in the various magazines you referred to or by personal contact or, indeed, by the Internet. Were you successful in finding anything as a result of those inquiries that might serve your purposes.
ANothing that was close.
QI take it there are plenty of boats for sale, particularly in the Trader Boat magazine, what was wrong with them so far as your assessment was concerned.
AThe majority of boats out there are fibreglass and the majority of them that are in Trader Boat, if you look at the lobster fleet now, 20 years ago the average size was 35 feet. The average size now is 50 feet and bigger, so as far as little boats like mine, and as far as I know there’s only three of us left in the southern zone, there’s just not many out there. There are fibreglass ones which I wasn’t interested in and old ones which were narrower and – yes.
[18] Transcript 172
It must also be borne in mind that the plaintiff had knowledge of the type and availability of crayfishing boats in the area. He was an experienced fisherman and had lived in the area most of his life.
Did the plaintiff unduly narrow his search?
The defendant argued that whilst the Bounty Hunter had been purpose built there were, on the market at the relevant time, vessels that were reasonably suitable for the plaintiff’s fishing business. The defendant argued that the plaintiff only sought vessels that matched the specifications of the Bounty Hunter rather than widen his search to include vessels that were capable of catching his crayfish quota. Further he argued that as the plaintiff had narrowed his search the defendant was unable to reconstruct the second hand boat market and therefore had suffered prejudice. It was argued that he ought to have contacted a shipbroker to ascertain the available second hand market.
During cross examination the plaintiff agreed that he had a number of “stipulations” and that he was not interested in boats that did not match these stipulations. The matters considered essential by the plaintiff were as follows:
1.      the boat should be at least 8.9 metres long and 3.5 metres wide (the dimensions of the Bounty Hunter) but no greater than 10 metres in length. The plaintiff’s coxswain permit would not allow him to captain a boat greater than 10 metres in length. The boat had to be in the appropriate survey or capable of being put in survey.
2.      the hull had to be aluminium and not fibreglass.
3.      the boat had to have a shallow draft to assist with fishing but also to moor his boat in the harbour adjacent to his house at Pelican Point.
4.      an inboard diesel motor with a “leg”. The motor was to be a “Mercruiser” brand, a brand he had used before and with which he was familiar. The plaintiff was not prepared to consider a petrol motor either inboard or outboard.
5.      the cabin area brought forward to maximise the working deck space. He did not want bunks in the forward cabin area. This stipulation really meant a suitable “working deck space”.
6.      the “pot hauler” had to be adjacent to the wheel so the boat was capable of being operated by one person.
7.
the boat had to be a similar age to that of the Bounty Hunter.

8.      the boat have higher railings for safety and lower windows for better visibility.
Not surprisingly these stipulations were, generally, the specifications given to Mr Baker when building the Bounty Hunter. Whilst the plaintiff stated that all of these matters were important to him when he searched the Internet he typed in “9-10 metre aluminium craft powered by a Mercruiser”. In reality this was his starting point. Matters such as working space, lowered windows and higher railings could be achieved if a boat with that basic structure could be located. It was a reasonable point for him to start the process by looking for a boat constructed of aluminium of that length. Whilst he typed in “Mercruiser” he told me that a number of boats “came up” with petrol engines. In other words the Internet search engine widened his search anyway. He was unable to locate anything that came close to matching his basic search parameters.
His evidence, as to the available market in that regard, was supported by the evidence of the expert Mr Oakley.
Whilst the plaintiff stated that all of his stipulations were important, clearly some were more important than others. For example, whether the boat had cabins or not was not that important, what mattered was the amount of working deck space. Visibility and higher railings were also less important.
When considering the “reasonableness” of the decision made by the plaintiff the Court cannot ignore the particular circumstances of the plaintiff. He was familiar with the fishing boats in the area and was aware that it was most unlikely that there would be one locally that matched his requirements. It also cannot be ignored that the plaintiff had to have his boat ready by the beginning of the next crayfish season, namely 1 October 2004. The plaintiff did not have the luxury of waiting many months to see what boats may have come onto the market. He inquired of Mr Baker as to whether a new boat could be constructed in time for the next crayfish season and found that a spot was available. The plaintiff had to make the decision quickly. Indeed there was a need for some urgency. It would have been imprudent of him to wait for the possibility that a suitable boat may come onto the market with the potential consequences of it not being ready, or him not finding a boat, and therefore not being able to catch his quota the following season with a consequent loss of income.
The evidence of Mr Oakley and Mr Edmonds (both shipbrokers) established that shipbrokers have access to a greater range of available boats than those found in the magazines. It may well have been better if the plaintiff had contacted a broker. However that is not the test. The plaintiff accessed the Internet and read trade magazines. He spoke to both Mr Hayles and Mr Baker, people involved in the boating/fishing industry. He was aware generally of the type of boats that may have been available in the market place and thought, not unreasonably, that it was going to be difficult to replace his boat. In my opinion the plaintiff did act reasonably in the circumstances.
The defendant also argued that by insisting on the same specifications as that of the Bounty Hunter the plaintiff did not act reasonably. I do not agree. The plaintiff was entitled to look for a boat that reasonably met his needs and which was reasonably in the same condition. The Bounty Hunter was built to specifications that were, suited to the plaintiff’s business. In my opinion it was reasonable for the plaintiff to look for a boat of similar aluminium construction of a similar age containing most of the features of the Bounty Hunter so that he was able to run his business as he desired. If one were to look at each specification in isolation it may well have been unreasonable for the plaintiff to have refused a second hand boat that complied with all bar one of the “stipulations”. However the plaintiff was entitled to start searching, in general terms, with those stipulations in mind to see what was available. The plaintiff did not embark on his search for a reasonable match to the Bounty Hunter because he had an idiosyncratic attachment to such a design. There were sound business and personal reasons for the design of the Bounty Hunter.
This case cannot be equated with the authorities dealing with motor vehicles. The market for used boats is clearly different to that of the used car market. Commercial fishing boats are more personalised.
I bear in mind that I must take a panoptic view in relation to the question of whether the plaintiff acted reasonably in all of the circumstances in not replacing the Bounty Hunter. It is appropriate however that I deal with the individual criticisms made by the defendant.
The defendant argued that the plaintiff did not require a boat with a shallow draft. It was said that the only reason for a boat with a shallow draft was so that the plaintiff could “look at his boat through his bedroom window”.
I reject that argument. It was reasonable for the plaintiff to insist on the boat being able to be moored in the bay in front of his house and that is so for a number of reasons. It was more convenient for him to moor his boat in front of his house although this was of minor importance. I accept that in terms of distance he would travel on a given day there would be little difference between mooring the boat at Pelican Point or at Carpenter Rocks given that he had to transport his catch to Carpenter Rocks to be processed in any event. However, a shallow draft not only enabled him to moor the boat in that bay but to also fish in areas that other boats could not access. A boat with a greater draft would restrict his fishing activities. True it is that he may still have been able to “catch his quota” from other fishing spots. However his preference to fish in certain areas should not be ignored. Further it was important to the plaintiff that he be able to moor the boat in the shallow water of Pelican Point. The plaintiff gave evidence that he would not be comfortable in navigating his way in and out of the deeper harbour at Carpenter Rocks. I accept his evidence about that. His seamanship ability is a matter to take into account. Taking all those matters together it was reasonable to look for a boat with a shallow draft.
The defendant argued that the plaintiff should not have excluded fibreglass boats from his search. The plaintiff was able to do minor maintenance work on an aluminium hull; he had no experience working with fibreglass. The plaintiff had, for almost his entire fishing career, used aluminium boats. I have had regard to the expert evidence of both Mr Baker and Mr Ruffin who were experienced boat builders. They were both good witnesses. Not surprisingly, Mr Baker, who built aluminium boats, preferred aluminium. Mr Ruffin who built fibreglass boats, preferred fibreglass. Both had reasons for preferring one material over the other. Clearly both materials are eminently suitable for the construction of boats. Whilst there was no direct evidence, I infer there was little difference in terms of construction costs. Thus it was not suggested by the defendant that the cost of a new aluminium boat was different to a fibreglass boat. The relevance of the evidence was that a second hand fibreglass boat could be maintained as easily, at least from a cost perspective, and therefore the plaintiff should not have ruled out purchasing a second hand fibreglass boat. There were more fibreglass boats available second hand. In other words it was not reasonable for him to narrow his search to that extent.
However that is not the case from the plaintiff’s perspective. He was familiar with aluminium boats not fibreglass boats. He was able to maintain an aluminium boat both from his previous training and his experience. He had always used aluminium boats. In my opinion it was reasonable for him, at least initially, to only search for aluminium boats, subject to the question of cost.
For reasons that are set out later it mattered little as the plaintiff was able to show that the new hull he purchased cost little more than what he had paid for the hull of the Bounty Hunter years earlier and that there were no boats, aluminium or fibreglass, that would have made a suitable replacement at a reasonable cost.
The defendant initially argued that the plaintiff could have looked for boats that were up to 12 metres in length. There was argument about the restrictions imposed on him by his coxswains certificate. The evidence demonstrated that the plaintiff has a type of certificate that no longer is available. I accept his evidence that his coxswains certificate only allowed him to skipper a boat no greater than 10 metres in length. The defendant did not argue, in the end, that he was not so restricted. I find that it was reasonable for him to insist on a boat that was around 10 metres in length.
The defendant argued that the plaintiff should have widened his search by including petrol motors and/or outboard motors. There was a suggestion that he should have considered a boat that was powered by petrol outboard motors. However the evidence showed that they would not have been as fuel efficient as a diesel motor.[19] Further the plaintiff had experience in working on inboard diesel motors. He had no experience with petrol motors. It was reasonable for him to look for a boat that was powered by an inboard diesel engine.
[19] Transcript 505
The defendant accepted that it was reasonable for the plaintiff to insist on reasonable “working deck space”. The defendant’s position was that there were a number of boats in the market that had reasonable working space. That is true. However those boats did not match most, if any, of the other reasonable requirements of the plaintiff. It was reasonable for the plaintiff to insist on a reasonable “working deck space”; one that enabled him to carry all of his pots on the one trip.
It was argued by the defendant that it was not reasonable to insist on the motor being a Mercruiser as opposed to any other brand that matched the general specifications of the Mercruiser. Once again, in isolation, that is a reasonable point. If the plaintiff had been able to find a reasonably similar second hand boat and the only difference was that it had a different brand inboard diesel motor, it may well have been unreasonable for him, subject to the question of cost, to have refused to consider such a replacement boat. However, leaving aside the question of the motor, no boat came close to being a reasonable replacement for that question to arise.
The defendant, in effect, submitted that the plaintiff should have considered a boat with a greater draft that would restrict his ability to fish where he chose, to be moored in a harbour he did not want to be in, constructed of a material he had no experience in maintaining, of dimensions he was not comfortable with (stability) and with a petrol engine (despite the increase, albeit unquantified, in running costs) with which he was not familiar. The defendant argued that the plaintiff should have considered at least some of these options when looking at the second hand boat market. I do not agree. In my view it was reasonable for the plaintiff to start the search for a boat in the second hand market that was of the same approximate dimensions, constructed of aluminium and with an inboard diesel motor. Other requirements of the plaintiff were of lesser importance. A reasonable search of the available market revealed no such boat existed. The expert evidence generally confirms that fact.
Further, and I deal with this matter in more detail later in this judgment, when the plaintiff inquired about the replacement cost of a new boat, the quote he obtained for the new hull (leaving aside new equipment) was only marginally more expensive than what he had paid in 1996 for the Bounty Hunter. When assessing whether the plaintiff acted reasonably that factor cannot be ignored.
What was the available market
I do not intend to canvass the evidence of the experts called in the case in any great detail. All gave credible evidence and did their best to assist the court.
Mr Oakley, called by the plaintiff, was an impressive witness. He had substantial experience in the industry.[20] His reports were tendered.[21] On page four of the report of 6 July 2006 he stated:
7. Based on the research I have been able to make through Trade A Boat and Professional Fisherman magazines, trawling through our own listings of the period from November 2003 to April 2004 and speaking to another broker, I have come to the conclusion that there were no secondhand boats in the market place that were equivalent to that of the “Bounty Hunter”.
I have stated that some boats came close to the requirements of the boat owner, but they would have required modifications as well as a possible change of how a boat was utilised.
Modifications required to any replacement vessel, along with the outlay, would likely have been much greater than the total amount expended by Mr. Von Stanke in obtaining the “Southern Lights”.
[20] Exhibit P10
[21] Exhibits P10, 11, 12 and 13
In evidence he elaborated on that position. During cross examination he was questioned about the suitability of a number of boats. He agreed with sufficient modification a few may have come closer to the design of the Bounty Hunter. There was no attempt by the defendant to cost the modifications that may have been necessary. His conclusion that the cost of modifications to any vessel would have, along with the initial outlay, exceeded the cost of Southern Heights was not shaken

Mr Edmonds of Sunflash Pty Ltd was called by the defendant. He gave evidence of his experience in the ship broking industry. There was little disagreement between Mr Oakley and Mr Edmonds and where there was I prefer the evidence of Mr Oakley as he was far more experienced in the industry.
The defendant was able to show that there were boats on the market that could have been used to “catch his quota”. The plaintiff happily conceded as much. However the boats indicated failed to meet a number, or on occasions, most, of the requirements of the plaintiff. There was no vessel shown to be on the market at the time that reasonably met the plaintiff’s requirements. There was no vessel shown to be on the market that could have been suitably modified within the price paid for the Southern Heights.
The matters considered essential by the plaintiff in his search for a boat were, in my opinion, reasonable. The plaintiff did not have to accept a boat of a substantially different construction simply because it could catch his quota. The plaintiff had his requirements because they suited his seamanship abilities, his fishing requirements and his requirement for mooring.
The plaintiff has shown that he made reasonable attempts to locate a second hand vessel but an appropriate one was not available. The evidence of Mr Oakley confirms the fact that a suitable boat was not available.
Did the plaintiff act reasonably in ordering a new vessel to replace the Bounty Hunter?
The plaintiff contacted Mr Baker of Alufarm. He obtained a quote to build, in terms of its draft and dimensions, a boat matching the Bounty Hunter.
Mr Baker’s report was tendered[22] and he also gave evidence. He was an impressive witness and I accept his evidence. Indeed it was not suggested otherwise by the defendant.
[22] Exhibit P15
Mr Baker built the Bounty Hunter and the Southern Heights. The quotes relating to the construction of each boat were tendered.[23] Mr Baker gave evidence that after allowing for GST, which was not imposed in 1996, there was a modest increase of approximately $5,000 between the construction cost of the Southern Heights as compared with the construction cost of the Bounty Hunter. This evidence was, appropriately, accepted by the defendant[24] without argument. The Southern Heights was a little longer and wider than the Bounty Hunter but this was at little extra cost. Thus rather than having to go to the trouble of purchasing an older boat and then spending money modifying it, the plaintiff was able to achieve an almost identical hull for very little more than he had previously paid. Given the limited time the plaintiff had to make a decision it was reasonable for him to make the decision to build a new boat, given the cost, rather than wait to see if a suitable second hand boat became available.
[23] Exhibits D3 and D4
[24] Transcript 427
The final cost of the Southern Heights was greater than what was paid for the Bounty Hunter and indeed what the market value of the Bounty Hunter was at the time of the accident. It can be seen from the evidence of Mr Baker that the real issue regarding cost related to the purchase by the plaintiff of new equipment for the boat rather than the cost of the hull.
Did the plaintiff fail to mitigate his loss?
Did the plaintiff fail to mitigate his loss in the “fit out” of the new vessel?
The plaintiff, having ordered a new hull, then fitted the vessel with brand new equipment. The defendant argued that the plaintiff should have sought second hand equipment when fitting out the vessel. In particular, it was argued that the plaintiff should have sought equipment of a similar condition to that on the Bounty Hunter, namely:
a)   a used motor;
b)     used sonar and sounding equipment;
c)     a used pot hauler winch.
The hull and superstructure of the Bounty Hunter had a life expectancy in excess of 30 years. The motor and sonar equipment had a life expectancy of five years and the pot hauler 10 years. On the Bounty Hunter the motor and sonar equipment had already been replaced once prior to the accident. The plaintiff decided against second hand equipment as, for example, the motor was due for replacement in a further 12-18 months. The sonar equipment and the pot hauler winch also were due for replacement within a two to three year time frame.
It was reasonable, in my view, for the plaintiff to install new equipment given that the major items were due for replacement within a few years in any event. It would be unreasonable and indeed unrealistic to expect the plaintiff to source and install aged equipment when those items within a reasonable timeframe were due to be replaced with new equipment.
The plaintiff in fact sourced the motor and other equipment for the boat himself. He went to a considerable amount of trouble to ensure that the cost of the new equipment was kept as low as possible. The evidence of Mr Oakley supports that position. The defendant did not suggest that the cost of the new equipment was excessive. Rather the defendant argued that new equipment was unnecessary.
In my opinion, the defendant has not proved that the plaintiff failed to mitigate his loss.
Is the plaintiff’s claim to be adjusted for “betterment”?
Betterment is a form of compensating advantage to the innocent party, from action taken by the innocent party in consequence of the wrong.[25] Betterment and how it is to be applied (if at all) in any particular case has created a number of differing views.[26] I will apply the following principles.
1.The general rule of restitutio in integrum applies and a plaintiff should be compensated for its loss but not overcompensated.
2.This principle will vary according to the circumstances and each case depends on its own facts.
3.The plaintiff should credit the defendant for the fact that the plaintiff now receives new goods in place of old[27] except where the plaintiff would never have replaced the chattel in question.[28]
4.The measure of damages which gives best effect to the principle of compensation is the value of the replacement less a deduction for betterment plus an amount for the forced early investment of money.[29]
[25] Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443
[26] see discussion in Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313
[27] Hoad v Scone Motors Pty Ltd (supra)
[28] Halsbury’s Laws of Australia Volume 9 [135-1090]
[29] Tilbury Civil Remedies Volume II
Thus the question arises as to whether the plaintiff’s claim is to be reduced and if so, to what extent, due to the fact he now has a “new boat” and is therefore better off than he was prior to the accident.
As mentioned, the plaintiff has benefited in a number of ways. For example, he has a new hull, a new motor, new sonar equipment, new electrical wiring and a new pot hauler winch. The plaintiff gave evidence that had the accident not occurred he would have had to replace those items, with the exception of the hull, in due course. Indeed his practice prior the accident was to replace various items on a regular and frequent basis. He would have replaced the electrical wiring over time as well.
I turn now to the question of whether amounts should be deducted for betterment.
(1) Hull
I accept that the Southern Heights is about one metre longer and 10 centimetres wider than the Bounty Hunter. It is constructed of slightly thicker material. However the cost of the new hull was only slightly more than the original cost of the hull of the Bounty Hunter. I accept Mr Baker’s evidence with regard to how the Southern Heights was constructed. The Southern Heights is not necessarily a “better” boat but it is newer. It can carry more pots.
Given the life expectancy of the respective hulls, which is well in excess of 30 years[30], no allowance should be made for “betterment” in that situation. It could not be said in this case that the plaintiff would ever, in his lifetime, have had to replace the hull.
[30] Transcript 415
(2) The motor
It was accepted by the plaintiff that he regularly replaced the motor of his fishing vessels. He did so when the engine reached about 2,000 hours of use. The Bounty Hunter had done about 1,300 hours at the time of the accident. An old motor could be sold for about $10,000. It would take three to four years to reach around 2,000 hours and the Bounty Hunter had one to two years left before replacement.[31]
[31] Transcript 381 ff
A calculation is not possible with mathematical precision. The new motor for the Southern Heights cost $39,075.85. After selling the old motor the plaintiff would have been up for a cost of approximately $30,000 in one to two years. The motor had on the Bounty Hunter reached approximately two thirds of its useful life. Taking into account the fact the plaintiff has had to invest his capital in advance, I reduce the claim by $17,500 for “betterment” in relation to the motor.
(3) Winch
The cost of the new winch was $10,312.50. The evidence about the life expectancy of a winch was vague. Indeed the defendant was critical of the plaintiff for not transferring the old winch to the new boat. I reject that argument. I accept the winch from the Bounty Hunter having been submerged was a write off. A winch had a greater life expectancy than a motor.
I accept that it did have a limited life span and would have needed replacing in any event, probably within 3-4 years. Again I must allow for the early investment of capital by the plaintiff.
I deduct the sum of $5,000 for betterment.
(4) Electrical and other items
The evidence again was vague. Certainly the plaintiff conceded many of the items particularly sonar equipment would be replaced regularly. It was important for him to have up to date equipment to assist in laying his pots. It is likely that his replacement regime was a combination of the items wearing out and a need to update the technology.
The amount claimed for electrical items was $17,396.55. This included a number of smaller amounts for items that it is unlikely the plaintiff would have replaced, for example the stereo/radio.
It is not possible to be precise but there is an element of betterment. I note that the plaintiff had recently replaced the GPS on board the Bounty Hunter so little allowance should be made for that.
I reduce the claim under this item by $3,500.
To allow for the above items of “betterment” I reduce the plaintiff’s claim by $26,000.
Calculation of Quantum
The total amount claimed by the plaintiff changed from the time of the issue of the proceedings to the conclusion of the case. The original claim was for $185,496.02.
The plaintiff sought at the commencement of the trial the reduced sum of $174,271.73. At the close of the evidence the plaintiff abandoned claims for a radar and a life raft (including fittings) as neither had been fitted on the Bounty Hunter. Those claims amounted to $5,228.00. From the figures the salvage value had to be deducted. As I found earlier, the salvage value was $5,000.
The plaintiff’s claim therefore, by the end of the evidence, stood at $174,271.73 less $10,228.00, leaving a figure of $164,043.73.
Mr Swan conceded in his address that some smaller amounts had not been proved in total.[32] These related to items set out in Section B of the Schedule of Loss. In relation to a couple of those items the evidence showed that the plaintiff had paid more than claimed in the schedule. Mr Halliday, correctly in my view, conceded the cost of the items as reasonable but maintained his overall denial that the purchase of the items were necessary.
[32] Transcript 782
I cannot be precise. I deduct $1,800 from the claimed figure.
That leaves a figure of $162,243.73.
Other items were disputed by the defendant. They are as follows.
Travel and accommodation costs
The plaintiff travelled from his home to Goolwa on a number of occasions to transport items of equipment to Mr Baker at the factory of Alufarm. On a number of occasions rather than stay in Goolwa he proceeded to Adelaide to stay overnight. It was not unreasonable on occasions for him to have stayed overnight. For the period 2 September 2004 to 5 September 2004 the plaintiff candidly conceded that having travelled to Goolwa he then “took a holiday” in Adelaide. It was conceded not all the expenses could be justified. I cannot be precise. I do not allow the full figure claimed of $1,253.74. I allow $800.
Trucking
Initially the plaintiff claimed not only the cost of the Southern Heights being transported from Goolwa to Pelican Point but also the cost of the Bounty Hunter being transported to Goolwa for Mr Baker to assess it and work on it as a recreational vessel. That was a private matter. I reduce the claim from $1,742.40 to $871.20.
Compass
I accept the evidence of the plaintiff. I allow the claim for a new compass.
Taxation Benefits
Various partnership returns of the plaintiff were tendered. No expert evidence was given relating to interpretation of these documents. The plaintiff was cross-examined but had little understanding of the documents. It was suggested in argument that the plaintiff had incurred significant tax benefits from “writing down” the increased value of the new boat Southern Heights. The evidence does not allow such a finding. Whilst the boat does have a written down value I am unable to find that, in the end, that led to a significant tax benefit. No expert evidence was called to explain how to calculate such a benefit. Nor was I given evidence of what the tax position may have been had the accident not occurred.
In any event in my view, even if that was the case, the plaintiff is entitled to structure his affairs, legally, in the way that best suits him. I do not see how that structure should in some way benefit the defendant. I reject the argument of the defendant.
Taking the abovementioned matters into account I reduce the plaintiff’s claim before allowance for betterment to $160,918.79.
Betterment in this matter I have found amounts to a sum of $26,000. I reduce the claim by that amount leaving a figure of $134,918.79.
Conclusion
Both the plaintiff and the defendant were negligent. The plaintiff acted reasonably purchasing a new vessel to replace the Bounty Hunter. The defendant has not shown that the plaintiff failed to mitigate his loss in fitting out the new vessel with new equipment. However, the plaintiff must account for the fact that as a result of the accident he now has a boat that is, in some respects, “better” or “newer” than the one lost.
This leaves the final claim for the plaintiff before apportionment at $160,918.79 less $26,000.00 for betterment namely $134,918.79.
As mentioned before I reduce the plaintiff’s claim by 10% for contributory negligence.
There will be judgment for the plaintiff in the sum of $121,426.91.
I will hear the parties in relation to the question of interest and costs.