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Goodhue v Volunteer Marine Rescue Association Incorporated[2015] QDC 29

Goodhue v Volunteer Marine Rescue Association Incorporated[2015] QDC 29

DISTRICT COURT OF QUEENSLAND

CITATION:

Goodhue v Volunteer Marine Rescue Association Incorporated  [2015] QDC 29

PARTIES:

BILL KRISTIAN GOODHUE

(Plaintiff)

v

VOLUNTEER MARINE RESCUE ASSOCIATION INCORPORATED

(Defendant)

FILE NO/S:

257 of 2009

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

20 February 2015

DELIVERED AT:

Southport

HEARING DATE:

11, 12, 13, 14 March 2014 and 1, 2 May 2014

JUDGE:

Judge McGinness DCJ

ORDER:

  1. The plaintiff’s claim is dismissed;
  2. Judgement for the defendant on its counter-claim in the amount of $200.00 plus interest in the amount of $205.73;
  3. The plaintiff pay the defendant’s costs of the action to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – where the plaintiff’s marine vessel left unmanned - where the defendant is the Volunteer Marine Rescue Association – where the plaintiff’s boat re-anchored by defendant to avoid damage – where plaintiff’s vessel ran aground – scope of defendant’s duty of care – whether duty of care extended to monitoring re-anchored vessel – whether duty of care extended to contact owner of unmanned vessel.

TORTS – NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – EVIDENCE – whether plaintiff’s evidence sufficient to prove the defendant was negligent.

TORTS – NEGLIGENCE - STATUTES, REGULATIONS, ETC - APPLICABILITY AND EFFECT IN ACTIONS FOR NEGLIGENCE – GENERALLY – where the defendant is a Volunteer organisation – where section 39 of the Civil Liability Act 2003 (Qld) applies – whether the defendant is vicariously liable for the acts or omission of its volunteers.

DAMAGES - GENERAL PRINCIPLES - DIFFICULTY OF ASSESSING - DAMAGES – whether damage and loss has been proved on the evidence – where no precise evidence of quantum of damages – assessment of damages.

LEGISLATION:

Civil Liability Act 2003 (Qld), ss 38, 39, 40, 41, 42, 43.

CASES:

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64

Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422

Nilon v Bezzina [1988] 2 Qd R 420

JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237

Ratcliffe v Evans [1892] 2 QB 524

State of New South Wales v Moss [2000] NSWCA 133

Chaplin v Hicks [1911] 2 KB 786

Troulis v Vamvoukakis [1998] NSWCA 237

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10

Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275

Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106

Commonwealth of Australia v Griffiths [2007] NSWCA 370

Ringlestein v Redford Cattle Company Pty Ltd [1995] 1 Qd R 433

Jones v Dunkel 101 CLR 298

Sutherland Shire Council v Heyman (1985) 157 CLR

COUNSEL:

A Christie for the plaintiff

S McNeil for the defendant

SOLICITORS:

PPCS Lawyers for the plaintiff

McCullough Robertson for the defendant

Introduction

  1. [1]
    The plaintiff claims damages in the sum of $87,373.45 (plus interest and costs) for the alleged negligence of the agents of the defendant, a volunteer marine safety and rescue organization.
  1. [2]
    The claim arises out of events that took place between 11 August 2003 and 6 November 2003 in an area known as the “Marine Stadium” on the Spit, at Southport, Queensland.
  1. [3]
    The plaintiff (Mr Goodhue) is the owner of a boat called “Warlock”, a 12 metre ketch rigged yacht, also commonly described as a ferro-cement vessel.
  1. [4]
    The defendant, the Volunteer Marine Rescue Association (“VMR”) is an incorporated association carrying on volunteer marine rescue services in the Southport area, by providing assistance to persons and vessels in the marine environment when requested.
  1. [5]
    The VMR has a central Queensland body and 25 individual squadrons throughout Queensland. In 2003 there were approximately 200 to 230 volunteers at the VMR Southport Squadron. Throughout 2003 and currently, there are no paid persons of the VMR.
  1. [6]
    The VMR has a base located to the south of the area known as Marine Stadium on the Spit at Southport. At the relevant time, part of the base included a two storey building. A radio room was located on the upper level. The geographical area that the VMR Southport Squadron covered was from Jumpinpin (the southern end of North Stradbroke Island) to the Ross Street Bridge in the Nerang River.
  1. [7]
    The VMR undertook approximately 900 jobs per year. The crews rostered on for those jobs comprised entirely volunteers. During the weekends, crews were rostered on 24 hour shifts. During the week there was no rostered crew. When a job call was received on a weekday, a phone call was made to the Senior Rescue Controller who then organised a crew (if necessary) to respond to a call out.
  1. [8]
    The Marine Stadium is an area of open water, surrounded by land on three sides (to the east, north and west) and open to the south. Entrance into Marine Stadium is at the southern end. The area is man-made, approximately 1 kilometre in length, about 110 metres wide. The floor of the Marine Stadium is a combination of sand, mud and weed.
  1. [9]
    The evidence of the witnesses at the trial was that there had not been a great deal of change to the physical appearance of the Marine Stadium between 2000 and the date of the trial.

Claim

  1. [10]
    On 11 August 2003, Mr Goodhue anchored Warlock in the Marine Stadium and left Australia for New Zealand. Mr Goodhue returned to the Marine Stadium on the 6 November 2003 after being notified by a friend that Warlock was aground on the western beach in the Marine Stadium.
  1. [11]
    Mr Goodhue claims that the VMR breached its duty of care to him because the VMR’s authorized agents moved Warlock without his permission on 25 October 2003, and re-anchored it too close to the western shore within the Marine Stadium. Mr Goodhue claims this caused Warlock to run aground, resulting in damage to the vessel and its contents.
  1. [12]
    The questions to be determined in this case are whether Mr Goodhue’s vessel, Warlock was damaged as a consequence of the VMR’s authorized agent’s negligence, and if so, the quantum of Mr Goodhue’s loss. Before determining the relevant issues of fact and law it is appropriate to summarize the relevant evidence.

Mr Goodhue’s Account

  1. [13]
    Mr Goodhue purchased Warlock, from a finance company in 1983 for $17,500. Mr Goodhue lived on Warlock for lengthy but intermittent periods. He estimates he has anchored Warlock thousands of times.[1]
  1. [14]
    Mr Goodhue described Warlock as a 12 metre ferro-cement ketch, with a cement hull, two masts, and with medium displacement. It had a two metre bowsprit and a one and a half metre boomkin; these were poles out of the front and back of the boat that gave extended length for sails.[2] The boat drew over one and a half metres (one and a half metres of the boat is underwater).[3] Mr Goodhue conceded that Warlock was in fairly ordinary cosmetic condition in August 2003 due to the tropical environment’s adverse effect on the timberwork of the boat. He also stated the paint on the hull and topsides of Warlock was not very good. Mr Goodhue advised that he was not concerned with the cosmetic condition of the vessel as all of the operating equipment was in good order.[4]
  1. [15]
    Mr Goodhue first stayed at the Marine Stadium in 1999.[5] He described the Marine Stadium area as a nice, quiet shallow little bay. He chose to anchor Warlock at Marine Stadium because it was close to Surfers Paradise and extremely sheltered, shallow and had no sea motion of any significance.[6]
  1. [16]
    Mr Goodhue became a member of the VMR in approximately mid 2002.[7] Mr Goodhue provided his contact details to the VMR on a “pamphlet type thing”. Mr Goodhue says he stressed to the VMR that the details should go on file so that, if there were problems with the boat, his contact details were available to the VMR. He recalled that the VMR membership form also requested that members display their contact details in a prominent place on the vessel.[8] None of the VMR witnesses recalled the existence of the form Mr Goodhue described.
  1. [17]
    Prior to his departure on 11 August 2003, Mr Goodhue taped his VMR membership card to the Warlock’s porthole and wrote the name and mobile phone number of his friend Dave Brooks directly onto the porthole glass underneath the card with a thick marker pen.[9] The porthole was situated on the deck where the main wheel was, next to the companionway, which gives access to the boat. Mr Goodhue recalled that the VMR membership card contained Mr Goodhue’s name and his VMR membership number.
  1. [18]
    Warlock had five anchors on board in August 2003, including three “Admiralty style” anchors and two “Danforth style” anchors.[10] Mr Goodhue gave evidence that the anchor he used to anchor Warlock at the Marine Stadium was a self-designed purpose-built mooring anchor of a Danforth style made by Justin Flehaven, an engineer and friend of Mr Goodhue.[11] Mr Goodhue did not have the anchor certified by a marine surveyor, but indicated that Mr Flehaven had been making anchors for 25 years.[12] This anchor weighed 70 kilos, was 5 feet in length and had a large blade area.[13]
  1. [19]
    Mr Goodhue considered the Danforth style anchor was best for anchoring a vessel into a soft sea floor,[14] because the anchor would sink down deep into the mud so that there was no part of the anchor visible. He considered that it would therefore be “almost impossible” for the anchor to “foul” itself as the chain would not be able to go near the anchor.[15] (An anchor “fouls” itself when the chain gets caught on the anchor or pulls on the anchor from the wrong direction and drags the anchor, causing the anchor to dislodge or to free itself).[16]
  1. [20]
    When Mr Goodhue took Warlock out for a few days, he would slip the chain attached to the Danforth style anchor off the boat, and attach it to a mooring buoy. He would then use one of his other anchors, for example one of the Admiralty style anchors to anchor Warlock on his trips. He said he rarely pulled the Danforth style anchor out of the base of the Marine Stadium because it was so heavy and difficult to move.
  1. [21]
    Mr Goodhue set the 70kg Danforth style anchor on Warlock a couple of weeks ahead of leaving for New Zealand in August 2003, in order to ensure Warlock was safely and securely anchored.[17] Mr Goodhue set the anchor by moving the boat forward over it using the six-cylinder diesel engine. The aim of this was to use the weight of the boat to drive the anchor into the ground; to ensure that there was no pile of chain underwater; and to ensure that the anchor was set.[18] In the weeks immediately following setting the anchor, Mr Goodhue lived on the boat and the boat did not leave its anchorage.[19] Prior to leaving for New Zealand, Mr Goodhue dived to inspect the placement of the anchor under the water. He stated that the anchor was buried deep down in the mud, out of sight.
  1. [22]
    Mr Goodhue placed his anchor at a depth of 10 – 12 feet at low tide and 80 metres distance from the shore at low tide.[20] He estimated that Warlock was anchored 250 – 300 metres north of the VMR base.[21] Mr Goodhue let out 100 feet (approximately 30 metres) of chain.[22] He used a ratio he believed would allow plenty of room for the vessel to remain securely anchored in extreme conditions. The anchor chain was fed through a fairlead into a roller (winch) that would wind the chain onto the boat. The chain was secured to the boat by wrapping it around bollards on the bow of the boat. 
  1. [23]
    Mr Goodhue estimated the depth of water at Marine Stadium in August 2003 was never less than 10 or 11 feet, and most of the time there was minimal variation between high and low tide.[23] He described the conditions in the Marine Stadium as generally very fair, with very little tidal movement and only a bit of wind.[24] He considered that, as a consequence, the chances of a boat stretching out on the full length of its chain were low.[25]
  1. [24]
    Mr Goodhue considered that, due to the size of the anchor and awkwardness of the exercise, the Danforth style anchor was very difficult to pull up and lift onboard the vessel. It would often take 20 minutes to get the anchor to the point where it was hanging clear of the boat and 35-40 minutes to get it on board.[26] The winch located on the boat to draw in the chain of the anchor was manual and Mr Goodhue stored the handle inside the locked boat while he was away.[27] Without use of the winch Mr Goodhue believed that one person alone could not have pulled up the Danforth style anchor. On the other hand, one person alone would have been able to pull up the Admiralty style anchors which were on board.[28]
  1. [25]
    In August 2003 when he left the Marine Stadium, there were no boats anchored in the vicinity of Warlock, and “hardly any boats” in the marina. He considered that Warlock had 360 degrees of clear swing room and when swinging on its anchor Warlock would swing in a 100 foot (30 metre) arch.[29] Mr Goodhue said there were no regulations in Marine Stadium restricting the area in which a vessel could swing. He said sailing etiquette required vessels that anchored second in time to ensure their vessels were anchored clear of those anchored first in time.[30]

Arrangements to look after Warlock while Mr Goodhue was away

  1. [26]
    During the period Mr Goodhue was away, he arranged for his friends Mr Brooks and Mr Woods to keep an eye on Warlock.[31] Mr Goodhue said that neither man lived on the vessel during the time, but Mr Brooks stayed on it occasionally.[32] Mr Goodhue said that he and Mr Brooks often spoke to each other during the period he was away. Mr Goodhue thought that when he left for New Zealand on 11 August 2003, Mr Brooks was living on his own boat in Marine Stadium but at some point before Mr Goodhue’s return on 6 November 2003, Mr Brooks moved his boat to Victoria Point in Moreton Bay for repair work.[33]
  1. [27]
    Prior to August 2003, Mr Goodhue had previously left his boat under the care of Mr Brooks.[34] He left his boat under Mr Brooks’ supervision so that it could be moved if there was an event in Marine Stadium, and because it was prudent to have someone keep an eye on Warlock. He considered it would be paranoid to have someone staying on the vessel the entire time.[35] 
  1. [28]
    Mr Brooks and Mr Woods had keys to the Warlock interior. Mr Goodhue believed they were the only persons with access to the handle needed to operate the winch to lift the Danforth style anchor out of the water if necessary.[36]

Events of 6 and 7 November 2003

  1. [29]
    Mr Goodhue returned to Australia on 6 November 2003. Mr Brooks collected him and Ms McKelvie (Mr Goodhue’s de facto partner) from the railway station by arrangement, and drove them to Marine Stadium. Mr Goodhue did not find out about the incident until he saw Mr Brooks.[37] When Mr Goodhue arrived at Marine Stadium, he found Warlock lying next to the western beach; towards the southern end of the “finger” on its port (left) side on a 45 degree angle so that the bow was sloping down the incline of the beach and the water was up to the wheelhouse (cabin) windows. Approximately 16 litres of petrol from the motor and gearbox were spread throughout the boat.[38] Mr Goodhue waited until the following day for a low tide for the VMR to attend to pump out the vessel.
  1. [30]
    On 7 November Mr Goodhue, Ms McKelvie and a number of friends attended the area where Warlock was grounded. He and his friends, Mr Morrow and Mr Woods searched for and located the Danforth style anchor. Mr Goodhue found the chain and the Danforth style anchor attached to the vessel. They found the anchor “close to the low water line (of the western shore) and close to the boat.”[39] The chain arched out into the deep water and back again. The anchor was approximately 10 metres from the low water line not long after low tide, and Mr Goodhue was able to stand while he lifted the anchor into a dinghy.[40]
  1. [31]
    On 7 November the VMR attended at Mr Goodhue’s request. They pumped the water out of the vessel with a motorised pump at low tide.[41] To re-float the boat, ropes were attached between Warlock and Mr Goodhue’s truck, Mr Morrow’s truck and Mr Woods’ four wheel drive. As the water rose it provided buoyancy and the vehicles helped refloat the boat.[42]
  1. [32]
    Mr Goodhue never experienced Warlock dragging its anchor in Marine Stadium.[43] Mr Goodhue said that it was an “absolute physical impossibility” for Warlock to have pulled its anchor to the point he found it on 7 November 2003. For the boat to have pulled the anchor to the place it was found, the boat would have had to have been up past the beach, and on the road. Mr Goodhue believed that before the boat had a chance to put any strain on the anchor it would have hit the sand and stopped. He concluded that the anchor must have been deliberately placed in the position he found it on 7 November 2003.[44]
  1. [33]
    Mr Goodhue was of the opinion that with the anchor in the position that he found it on 7 November, it meant the boat would only have been sitting in sufficient water to stay afloat while the wind was blowing in a westerly direction. If the wind was blowing in any direction other than westerly, the boat would be in jeopardy of grounding on the western shore.[45]

Other plaintiff witnesses’ accounts

David Brooks

  1. [34]
    Initially the plaintiff did not open Mr Brooks’ evidence. Under cross-examination Mr Goodhue stated Mr Brooks did not wish to attend court because he was living out west in Dirranbandi. At the end of day 2 of the trial, the plaintiff sought and was granted leave to call Mr Brooks to give evidence by telephone.
  1. [35]
    Mr Brooks owned and lived on a houseboat in 2003. He met Mr Goodhue at Marine Stadium. As at the time of trial he had known Mr Goodhue for approximately 15 years. He had an arrangement with Mr Goodhue to keep an eye on Warlock when Mr Goodhue was out of the country. The arrangement was to keep an eye on the bilge pumps and make sure the vessel was not dragging on its anchor. Mr Brooks recalled that his phone number was stuck onto the doorway of Warlock where a VMR sticker was also attached.
  1. [36]
    He recalled four or five anchors were kept on Warlock. He recalled Mr Goodhue used a “big plough anchor” when he moored Warlock at Marine Stadium. Mr Goodhue often attached the large anchor to a mooring buoy when he took Warlock out of Marine Stadium.
  1. [37]
    On an unknown date in November 2003, Mr Brooks was notified by the Water Police that Warlock was on the beach in Marine Stadium. At the time Mr Brooks was not staying on his boat at Marine Stadium because he had taken his houseboat up to Victoria Point, Brisbane to undertake some repairs.[46] Mr Brooks helped salvage Warlock and retrieve the anchor on 7 November 2003. He estimated the anchor was located about 30 feet into the Stadium from the low water mark (on the western shore). Mr Goodhue and Mr Morrow lifted the anchor onto a dinghy. Mr Brooks marked the position Warlock was beached on an aerial Google photograph.
  1. [38]
    Mr Brooks brought his houseboat back down to Marine Stadium about a week after Mr Goodhue returned on 6 November 2003. He confirmed that Mr Goodhue and Ms McKelvie stayed on his boat for a period of time and arranged to pay him $500 a week. He had not been paid as at the time of trial and expected to receive $2,000 once the court case was finalized.

John Woods

  1. [39]
    Mr Woods, a friend of Mr Goodhue, knew him for about 18 months prior to the incident. He also kept an eye on Warlock between August and November 2003 to make sure no one went aboard and to make sure it wasn’t sinking.[47] Mr Woods said it is a common practice among boaties to keep an eye on others’ boats because theft is a big problem.
  1. [40]
    Mr Woods did not notice at any stage, that Warlock had moved or was beached during the time Mr Goodhue was in New Zealand. He agreed under cross-examination that, if the boat had been anchored too close to the western shore at any time before it was beached he would have noticed it, and he would have contacted the VMR or Mr Brooks so that Warlock could be moved. He confirmed that Mr Brooks was not staying at Marine Stadium for a few months prior to Warlock being beached. Therefore he was the only person keeping an eye on Warlock.
  1. [41]
    On 7 November 2003, Mr Woods helped with the salvage. He wound up the anchor chain while Mr Goodhue and Mr Morrow physically lifted the anchor onto a dinghy. He described the anchor retrieved by Mr Goodhue as a Danforth style, “a very big, a very heavy one”.[48] He confirmed it was the same anchor as that in a photograph shown to him.[49] He provided his truck to help salvage Warlock. He received about $100 from Mr Goodhue for petrol.
  1. [42]
    Mr Woods had seen a sign with Mr Brooks’ contact details and Mr Goodhue’s VMR membership on or near one of the portholes of Warlock, and the sign was quite visible.[50] Mr Woods identified where he recalled Warlock was anchored prior to Mr Goodhue going to New Zealand, and where he recalled Warlock was anchored when it was salvaged.[51] He marked a position similar to the plaintiff’s other witnesses. He was positive it was “a huge” Danforth style anchor that Mr Goodhue pulled from the water on 7 November 2003.[52]

Christopher Morrow

  1. [43]
    Mr Morrow has known Mr Goodhue for approximately 50 years. He is familiar with Warlock and had stayed on board Warlock once in Marine Stadium for three months. Mr Morrow recalled that, when he boarded Warlock with Mr Goodhue for short trips, Mr Goodhue would leave the Danforth style anchored in place and attach a buoy to the chain until Warlock returned to Marine Stadium. He recalled Mr Goodhue carried other anchors on Warlock including at least one Admiralty style anchor.
  1. [44]
    On 4 November 2003, Mr Morrow received information about Warlock. He went to the Marine Stadium. He saw Warlock leaning over in the water. He did not contact the VMR. He tried to call Mr Goodhue a few times but got no answer.
  1. [45]
    On 7 November 2003 he took part in the salvage. He observed the leaning vessel was full of oil and water. The anchor was positioned about 10 metres from the low-water mark of the shoreline. Mr Morrow marked the position of the boat and anchor on an aerial Google map.[53] He maintained the anchor they found was “the big Danforth, the one in the picture”.[54] He assisted Mr Goodhue to lift the anchor out of the water and place it onto the front of the dingy.
  1. [46]
    He was present when the VMR attended and pumped out the vessel. Messrs Morrow, Goodhue and Brooks then attached ropes from the mast of Warlock to three vehicles and pulled Warlock upright when the tide came in. Mr Goodhue did not pay him for assisting with the salvage.

Shirley McKelvie

  1. [47]
    Ms McKelvie is Mr Goodhue’s partner. She recalled Mr Goodhue always anchored Warlock with the Danforth style anchor (pictured in Exhibit 7)[55] when he left the boat for any period of time, and he used other anchors if they were making a short trip, for example, to Tipplers Resort at Stradbroke island.
  1. [48]
    On 6 November 2003, she and Mr Goodhue arrived in Brisbane from New Zealand. They caught the train to Cleveland where Mr Brooks picked them up in Mr Goodhue’s car and drove them to the Marine Stadium. She saw Warlock lying on its portside, fairly well submerged.
  1. [49]
    On 7 November 2003, she attended the VMR to arrange for assistance from them to pump out Warlock. She saw Mr Goodhue, and his friends locate the Danforth style anchor approximately 10 metres in from the low water mark on the beach.
  1. [50]
    About three weeks later, Ms McKelvie contacted the VMR to request information about the incident. She recalls Mr Pomas told her that records listed a call from a woman on a boat called “Manuhere” who reported that Warlock was dragging; and the VMR sent out a rescue boat and volunteers to determine if Warlock was dragging, and whether Manuhere required assistance. Mr Pomas told her that the VMR had contacted the Water Police and asked for consent to shift Warlock, and that the VMR did not have to file an incident report if the Water Police had authorized them to proceed. Mr Pomas told her he had been at the VMR headquarters on 1 November 2003 and recalled that Warlock was fine on this date. He told her that nothing else was written in the log about the incident.[56]
  1. [51]
    Ms McKelvie and Mr Goodhue spent the following week cleaning the boat, salvaging undamaged items and throwing away damaged items. She agreed a number of anchors were kept on board Warlock including the Danforth style anchor and a number of Admiralty style anchors.[57]

Defendant’s witnesses’ evidence

Peter Tune’s Account

  1. [52]
    On the 25th of October 2003 Mr Tune was the skipper of the VMR vessel which intercepted and re-anchored Warlock.
  1. [53]
    Mr Tune was a volunteer with the VMR from approximately 2002 until approximately 2007. He had also worked as a volunteer for the Southport Coast Guard. In October and November 2003 he was rostered to work for the VMR one day a weekend, every three weeks, for a 24 hour shift between 6pm Saturday and 6pm Sunday.
  1. [54]
    In 2003, Mr Tune was ranked at the level of coxswain. He had previously worked at the Southport Coast Guard for approximately 15 years, 5 or 6 of those years at the rank of offshore skipper. According to Mr Tune, the Coast Guard and the VMR carried out identical duties, including towing broken down vessels, anchoring or re-anchoring dragging vessels, retrieving people who had fallen overboard, and assisting Water Police with search and rescue. His rank of coxswain allowed him to take command of the VMR’s secondary rescue vessel, the “Apex 3”. He was qualified to work as an instructor and assessor of other crew at the Coast Guard, which he undertook in his position as training officer at the Coast Guard. He was the training officer for his crew at the VMR.
  1. [55]
    Relevant to the present proceedings, he instructed others on how to properly anchor vessels, the amount of “scope” a vessel needs to anchor safely,[58] and how to properly bring up an anchor. He also confirmed his familiarity with the training module covering vessel launch and recovery; skills in which he would train his crews.[59] He gave an account of how he instructed and demonstrated to crews, during training sessions with the VMR rescue vessels, to properly tow and re-anchor a vessel depending on wind conditions and tide.[60] All training was carried out at the Marine Stadium. The VMR records confirm Mr Tune completed or was recognized as having previously completed all the VMR training modules[61] to reach the level of coxswain in 2003 and later, Offshore Master, the highest level, by September 2004.
  1. [56]
    Mr Tune estimated that he was called out to anchor and re-anchor vessels at least once every second crew, which he explained was at least once every 8 weeks when at the coast guard and once every 6 weeks at the VMR. He was required to re-anchor boats up to about 20 metres in length, in all types of conditions.
 

25 October 2003: Mr Tune and other volunteers of the VMR re-anchor Warlock

  1. [57]
    On the 25th of October 2003 Mr Tune was the skipper of the vessel involved when Warlock was re-anchored by the VMR.  At approximately 8am, a radio operator at the VMR received a distress call from persons aboard a vessel called “Manuhere” to the effect that Warlock was drifting towards them.  Mr Tune and three other volunteers departed base on the rescue vessel Apex 3. Mr Tune recalled the weather was clear; there was a 10-15 knot breeze from the north/northwest, and the tide was ebbing. Manuhere was anchored in the middle of the inlet in line with the southern western knoll (southern finger peninsula). Mr Tune first saw Warlock just north of Manuhere, and moving south directly towards Manuhere. Warlock was unmanned. Manuhere had a number of people on board. Mr Tune assessed the situation and determined that, because of the angle in which Warlock was moving towards Manuhere, it was clear that Warlock was going to hit and damage Manuhere.  He noticed the anchor chain of Manuhere was at an almost horizontal angle and going under Warlock as Warlock drifted toward Manuhere. He concluded from the position of the vessels, and the position and the scope of Manuhere’s anchor chain, that the skipper of Manuhere was unable to let out any more chain and was unable to move his vessel out of Warlock’s path.[62]
  1. [58]
    Mr Tune described Warlock’s anchor chain hanging over the bow of the boat, and hanging down directly vertical into the water as it was drifting towards Manuhere. He used the term “cock-a-bill” which he said means the anchor is hanging over the boat, clear of the sea bed and not anchored into the seabed. Under cross-examination he maintained that the anchor chain was hanging vertically and may have been just touching the floor, but it was definitely not embedded in the floor of the seabed.[63] Mr Tune considered that, if they had not stopped Warlock, it would have gone stern first, onto the bow of Manuhere which had a very pronounced prow on the front of the boat and was stainless steel reinforced.[64]
  1. [59]
    Mr Tune explained that he did not ask Manuhere to move their boat because he formed the view they were unable to move because Warlock was moving down the line of their anchor chain. It was his opinion that it wasn’t going to be very long before there was a major accident.[65]
  1. [60]
    Mr Tune decided the only option was to board Warlock, tow it away and re-anchor. He directed one of his crew, who was acting as radio operator, to contact the VMR radio room to request permission from Water Police to board Warlock. Mr Tune says he heard over the radio that permission had been granted by Police to board the unmanned vessel. Mr Tune said it was the VMR policy to notify and obtain permission from Water Police when there was a need to board an unmanned boat.
  1. [61]
    Mr Tune sent his most experienced crew member, Rob Armour, (not called to give evidence) aboard Warlock to attach the tow rope. He described Warlock as listing (tilting) to the portside at approximately 15 degrees. He thought the vessel may have taken on some water. He described the condition of the vessel as poor, the deck as unkempt, and the quality of the anchor chain as poor and rusty. He agreed the listing of the boat to one side may have been the result of laden fuel or water tanks on one side of the vessel.
  1. [62]
    Mr Tune saw Mr Armour take a tow rope on board Warlock and tie it to a cleat or bollard on Warlock’s deck. Mr Tune then propelled the Apex 3 slowly forward until the stern of Apex 3 was in line with the bow of Warlock. He continued to propel Apex 3 forward until it was about 8-10 metres in front of Warlock, and Apex 3 was taking the weight on the tow rope. Warlock had moved within two metres of Manuhere before the tow rope moved Warlock away. Once he saw the tension on the tow rope, Mr Tune was satisfied that he had stopped Warlock drifting.[66]
  1. [63]
    He directed Mr Armour to pull up Warlock’s anchor while he moved the boat away from Manuhere. He moved Apex 3 forward slowly because he was concerned Warlock’s anchor may foul Manuhere’s anchor rope.[67] He saw Mr Armour pull the anchor chain into the boat and saw an Admiralty style anchor attached to the chain. The vessels were in a depth of 15 feet of water according to Apex 3’s echo sound equipment.  Mr Tune formed the opinion that Warlock had less than 15 feet of chain hanging over board with the anchor attached because Warlock was drifting and the anchor appeared not to be embedded into the seabed. Mr Tune saw Mr Armour pull up the chain and anchor. He saw the anchor come out of the water and hanging clear of the water. Mr Tune was standing on Apex 3 only 8-10 metres away from the front of Warlock. He had a clear, unobstructed view of the anchor.[68] He described it as an “Admiralty type anchor” and agreed it was like a Popeye style anchor. He disagreed that Warlock’s anchor was a Danforth style anchor that weighed 70 kilograms. He described Mr Armour as of slight build and said Mr Armour had no difficulty pulling up the chain with the anchor attached. He denied that Warlock was towed by Mr Armour looping a rope around the anchor chain and dragging the vessel with the anchor on the seabed, rather than attaching the tow rope to an object on the deck of the vessel, although he conceded he did not see exactly what Mr Armour attached the rope to.[69]
  1. [64]
    Mr Tune moved the Apex 3 until he was happy that Warlock’s anchor was not caught up in Manuhere’s chain. He estimated Apex 3 towed Warlock about 20-30 metres north of Manuhere. He checked the depth sounder and noted the water depth was still 15 feet. He lined up Warlock in a position equidistant from two other vessels. He told Mr Armour to re-anchor. Mr Tune directed Mr Armour to unravel a further length of the anchor chain, which he saw was wrapped around “some sort of metal spar on the deck”,[70] in order to release more chain into the water when re-anchoring Warlock. Although he wasn’t in a position to say how much chain Mr Armour let out, it was enough chain to allow the anchor to properly embed in the sea floor. He recalled that Mr Armour let out all the chain available on deck.[71] He watched the chain until it stopped running because it hit the bottom. He then put Apex 3 into neutral gear and manoeuvred Apex 3 to drift backwards, waiting for the anchor to embed itself. He observed some scope on the anchor and no tension on the tow rope. He waited for a while and then confirmed with Mr Armour that he was happy the vessel had re-anchored. Mr Tune also ascertained that the vessel remained in line with the car park he had used as a point of reference when they re-anchored.[72] He sat for probably 2-3 minutes to make sure the boat was not drifting. Mr Tune formed the view that Warlock was holding its anchor.
  1. [65]
    Mr Tune indicated the location where they re-anchored Warlock by reference to a car park seen on the Google image which he marked with the position of Warlock before and after Apex 3 towed Warlock.[73] Mr Tune marked the aerial image to show he re-anchored Warlock approximately equidistant from the left and right shore of the Stadium. Mr Tune stated that the total width of the Marine Stadium is approximately 100-110 metres, and he re-anchored Warlock about 5-6 metres off centre towards the western side. He denied anchoring Warlock 10 metres below the low water mark on the western side of Marine Stadium.

Checking Warlock’s position after re-anchoring

  1. [66]
    Mr Tune checked on Warlock through naval binoculars after he returned to the VMR base. He also returned to Warlock later that day to check on the position of the vessel.[74] He saw it was in the same position where it had been re-anchored that morning.  Approximately a week later, on either Saturday 1 November or Sunday 2 November, he was out in his own boat and he saw Warlock was still in the same position where it had been re-anchored on 25 October 2003.

Other defendant witnesses

Mervyn Handley

  1. [67]
    Mr Handley was one of the crew called out on 7 November 2003 to help pump water from the Warlock. He was skipper of the VMR vessel “SAR Club 1” at the time, and in charge of the pump. Mr Handley recalled that Warlock was located “somewhere between three – halfway and three-quarters of the way north into Marine Stadium on the western bank”,[75] and about 800 metres away from the VMR base. He identified on the google map where Warlock was positioned. Warlock was lying on its port side. Mr Handley was not present when Warlock’s anchor was retrieved.
  1. [68]
    Mr Handley gave evidence that the policy for contacting Water Police, as at November 2003, was to either contact or endeavour to contact Water Police if the VMR received a request for assistance from the public because a vessel was drifting or dragging its anchor. He added that the VMR would also contact Police to let them know what the outcome of an incident was.[76]
  1. [69]
    He agreed that the VMR vessel Apex 3 had the power to move Warlock from an anchored position by wrapping a rope around the anchor chain in a manoeuvre which would lift the anchor from where it was embedded and move the vessel without having to pull up the anchor by hand. Mr Handley agreed this was one practice that could be used if one can’t “get the anchor up”.[77] He agreed that binoculars were kept in the radio room; however he believed that it would be difficult to see a particular vessel clearly from the radio room.

Steven Pomas

  1. [70]
    At the time of trial, Mr Steven Pomas held the position of President and the rank of Senior Skipper. He had been a volunteer at the VMR Southport for 13½ years.
  1. [71]
    Between August and November 2003 he held the position of Search and Rescue Controller, and was responsible for organising volunteers to respond to callouts. He held the rank of Off-Shore Skipper at that time. Mr Pomas was usually rostered to work on Sundays.
  1. [72]
    Mr Pomas said in 2003, two boat crews were rostered to work each weekend on a three week rotating roster and during the week, callout crews were on call, apart from the radio room, which was manned 24 hours a day, 7 days a week. In 2003 the VMR owned three boats to use for training purposes and rescue purposes. Mr Pomas’ evidence confirmed that the VMR organisation was not wealthy, and used all its funds to carry out its volunteer duties.

Mr Pomas’ knowledge of events on 1-4 November 2003

  1. [73]
    Mr Pomas recalled he worked on 2 November 2003. He was asked about an entry in the VMR phone logs dated 3 and 4 November 2003, which recorded a vessel in the Marine Stadium taking on water.[78] He stated he could not recall any details of these incidents.[79]
  1. [74]
    Mr Pomas agreed there was an entry on 3 November 2003 (a Monday) that at 3.20pm someone at the VMR base phoned Water Police to say a black steel yacht was afloat. He could not say whether this referred to Warlock or another boat. He agreed the phone log dated 4 November 2003 at 7.55am recorded “report received of a vessel in Stadium bay taking on water. Job details taken”.  He accepted that the record most likely meant that someone had made a call in to the VMR reporting a vessel taking on water on 4 November 2003. Mr Pomas agreed there were no other reports in the phone logs of any vessels in Marine Stadium taking on water or sinking in October or November 2003.  He agreed the phone logs recorded that he was personally informed at 7.58am on 4 November 2003 that a vessel was taking on water.  He said his normal practice, if he received such a call, would be to contact one of the VMR vessels that was out and about, and ask them to check on their way through the Marine Stadium, whether the particular boat was taking on water. Mr Pomas had no independent recollection of what he was informed or how he responded on that particular day.[80]
  1. [75]
    Mr Pomas recalled a telephone conversation with Ms McKelvie with regard to towing Warlock but he could not recall any details of the conversation. He denied he would have been on duty on 1 November 2003 because this was a Saturday when he always did a Sunday roster, so he would have been on duty on 2 November 2003.

Events of 7 November 2003

  1. [76]
    On 7 November 2003 Mr Pomas assisted with the pump out of Warlock. His crew on that day were Mr Handley, Mr Park and Mr Neale. When he attended Warlock, he noticed the vessel was on a substantial lean and it was difficult to manoeuvre the assistance vessel alongside and to get the water pump on board. Mr Pomas identified where he recalled the vessel was situated[81] as being half way up the western peninsular of Marine Stadium. Mr Pomas did not see what anchor was attached to Warlock on 7 November 2007.

The VMR Policy, Procedures, Training and Funding as a volunteer association.

  1. [77]
    Much of the defendant’s remaining evidence related to the VMR’s policies, procedures, training systems, financial resources and funding. The witnesses best qualified to give evidence with respect to these issues were Mr Pomas and Mr Hubner whose evidence I will briefly refer to below. A large volume of documentary material, which was unchallenged, confirmed the substance of their evidence.
  1. [78]
    Mr Pomas gave detailed evidence concerning the VMR’s policies and procedures in 2003. He confirmed that the VMR had no policy that required radio operators to monitor the welfare of vessels that could be seen out the window of the radio room; no policy requiring the VMR to monitor vessels they had previously re-anchored; no policy that the VMR supervise a vessel that had been involved in a callout and which was unattended, until such time as the owner or supervisor of the vessel could be contacted.[82] 
  1. [79]
    According to Mr Pomas and Mr Hubner the VMR policy that existed in 2003 and at the time of trial, when a vessel was unmanned and required a volunteer to board, was to phone through to Water Police for authorisation to board. The policy was in place because it was considered the Water Police were those in charge in a search and rescue situation and therefore had the responsibility of determining whether it was appropriate to board the unmanned vessel. Mr Pomas confirmed Mr Hubner’s evidence that there was no policy in 2003 when boarding an unmanned vessel to try to contact the owner or supervisor of the vessel after the incident. Mr Pomas said that generally the VMR would report back to Water Police after the incident.
  1. [80]
    Mr Pomas said that normally the Water Police requested them to phone back afterwards to give the registration number of the boat, the description of the boat and describe what had occurred.[83]   Mr Pomas noted, because boats are registered in Queensland, Police have the means to contact and follow up with owners but the VMR does not involve itself in this aspect, but consider it the Water Police’s role. 
  1. [81]
    Mr Pomas also described the training a volunteer had to undergo in respect of anchoring a vessel. He believed that before volunteers were awarded even the lowest rank of crew member, they would be trained to identify different types of anchors, when to use them, and the amount of anchor chain required in particular circumstances to anchor a vessel.[84]
  1. [82]
    Mr Pomas explained the nature and extent of the entitlements of a VMR associate member. In order to become an associate member, a person submits a form and pays a fee, $55.00 was the amount paid in 2003. Membership enables an associate member to seek assistance for their vessel and an opportunity to use the VMR base facilities, for example, to hold a function.
  1. [83]
    Mr Pomas said that in the event that a boat was drifting in an emergency situation with an Admiralty style anchor attached, the VMR would have no option but to re-anchor the boat with the existing equipment on board the unmanned vessel.

Harry Hubner

  1. [84]
    Mr Hubner occupied the position general manager of the VMR Queensland from 1991 until March 2013. He provided the court with information concerning the VMR Queensland and the VMR Southport Squadron. Although he gave an informative overview of the organization’s structure, in light of my decision below, it is not necessary to summarize the greater part of his evidence.
  1. [85]
    Mr Hubner informed the court of the VMR’s structure, funding, and regional squadrons. He confirmed that none of the organization’s volunteers are paid.
  1. [86]
    Relevantly he detailed the comprehensive, formalised training and assessment programs undertaken by all volunteers, including Messrs Tune, Armour and Pomas. All volunteers commenced training with an induction course and worked their way up through various ranks. Each rank carries its own operational restrictions. Each volunteer learns about anchoring a vessel during the early stages of training when basic seamanship skills are undertaken. If an experienced person joins the organisation they are required to undergo challenge tests to prove their levels of competency. Training and testing are carried out by trainers within the organisation. The VMR also recognises the experience of volunteers from other organisations such as the Coast Guard. Recognition of prior learning occurs only when a volunteer, for example Mr Tune, has proven through documentary evidence, all prior experience and qualifications. The volunteer’s documents are assessed by a training co-ordinator, and the volunteer then has to undertake a number of challenge tests to ensure he still had current competency. This is what occurred in relation to Mr Tune.
  1. [87]
    Mr Hubner’s unchallenged evidence was to the effect that by 11 February 2002, Mr Tune[85] and Mr Armour had completed all necessary training and had the skills and experience to competently undertake the Manuhere’s rescue and Warlock’s re-anchor on 25 October 2003. Mr Tune had achieved the senior rank of offshore master on 18 February 2002.  According to Mr Hubner’s evidence and the documentary evidence, there were no restrictions on Mr Tune to skipper an emergency callout within the Marine Stadium on 25 October 2003.[86]

Radio Room

  1. [88]
    The plaintiffs allege that the VMR volunteers had a duty to monitor vessels by sight, from the Radio Room at the VMR base. Mr Pomas explained the duties of a radio operator was to answer radio calls and telephone calls and record all events and telephone and radio calls that occurred. The duties of volunteers in the radio room did not include watching over vessels in the Marine Stadium. He described the radio room as busy because of numerous phone calls, membership enquiries and requests for tide times and weather forecasts.
  1. [89]
    Mr Hubner confirmed that the radio room was not used as a lookout by the VMR for watching over the safety of vessels. He said this would not be practical because radio operators were too busy concentrating their duties which included logging every call that they made or received.

Credibility and reliability of the defendant’s witnesses’ evidence

  1. [90]
    Before making findings on the evidence in dispute, it is necessary to state my conclusions as to the credibility and reliability of the respective witnesses’ evidence. I considered Mr Tune and Mr Pomas to be honest and reliable witnesses. As already referred to above, Mr Tune had worked as a volunteer with the VMR from 2002, and as a volunteer for the Southport Coast Guard for 15 years where he held senior positions. Relevantly, he had many years’ experience in towing broken down vessels and anchoring and re-anchoring dragging vessels. He was qualified to work as an instructor and assessor of other crew at the Coast Guard, which he undertook in his position as training officer at the Coast Guard. He was the training officer for his crew at the VMR. Relevant to the present proceedings, he instructed others on how to properly anchor vessels, the amount of “scope” a vessel needs to anchor safely,[87] and bringing up an anchor. The VMR records confirm Mr Tune was recognized as having previously completed all the VMR training modules[88] to reach the level of Coxswain in 2003 and later, Offshore Master, the highest level, by September 2004. Mr Tune demonstrated a comprehensive knowledge of the VMR’s policies and procedures which were in place in 2003. He also displayed a thorough knowledge of rescue practices, towing and re-anchoring vessels safely and competently, and the Marine Stadium.
  1. [91]
    Mr Tune was required to anchor and re-anchor vessels at least once, every 8 weeks when at the Coast Guard and once every 6 weeks at the VMR. He was required to re-anchor boats up to about 20 metres in length in all types of conditions.
  1. [92]
    In evidence, he gave a thorough and consistent account of the actions he carried out and the decisions he made on 25 October 2003 when he attended upon, towed and re-anchored Warlock. He was an impressive witness. Where his evidence is inconsistent with the plaintiff’s witnesses’ evidence, I prefer his evidence.
  1. [93]
    Likewise, I consider Mr Pomas was an impressive witness. He demonstrated a thorough knowledge of all relevant matters. His evidence remained consistent and believable under cross-examination. His evidence was largely unchallenged, except in relation to where he located Warlock on 7 November. I prefer his evidence over the other witness’ recollection of where Warlock was located on 7 November 2003.
  1. [94]
    One feature of the defendant’s case worth mentioning is that the defendant did not call any of the other crew who were on the rescue vessel with Mr Tune on 25 October 2003. This was not referred to by the defence witnesses during the trial, nor did the plaintiff seek any explanation from the defendant’s witnesses as to why the other crew members were not called. There is no evidence before the court as to whether, after the passage of so many years, those witnesses were “readily available” to give evidence. The defendant provided no explanation for Mr Armour’s absence. Although, without these witnesses there is no corroboration of Mr Tune’s version, I find him to be an accurate, honest and reliable witness and am prepared to accept his evidence in the absence of the other crew member’s evidence.[89]
  1. [95]
    The plaintiff submits I should reject Mr Tune’s evidence of where he re-anchored Warlock on 25 October 2003 because it is inconsistent with the defendant’s pleadings. The plaintiff pleaded “the defendant positioned the anchor in the shallows near the western beach”.[90]  The defendant pleaded it “admits paragraph 7 in so far as the defendant did secure the vessel near the western beach”.[91]
  1. [96]
    Although the pleadings are somewhat inconsistent with Mr Tune’s evidence of where he secured the boat, Mr Tune maintained in his evidence that he positioned Warlock towards the centre of the Marine Stadium slightly towards the western side. This is not a significant inconsistency and is understandable considering the passage of time. I accept his evidence as honest and reliable as to where he positioned Warlock on 25 October 2003.

Credibility and reliability of plaintiff’s witnesses’ evidence

  1. [97]
    I consider Mr Goodhue to be an essentially honest and reliable witness in many aspects of his evidence. However, he was clearly (and understandably) vexed about the circumstances that led to Warlock’s damage. He had invested significant time, energy and emotion into owning and sailing Warlock over the years prior to the incident. He appeared determined to sheet home blame for the incident to the VMR, although he was not present when the relevant incidents occurred, and had left his vessel in the care of two friends who appear to have spent little, if any, time looking after Warlock. I consider that Mr Goodhue’s evidence may be tainted to an extent by his desire to find the VMR responsible for the unfortunate incident. Where his evidence conflicts with that of Mr Tune and Mr Pomas, I prefer their evidence to his. In reality there is little material conflict between the evidence of the plaintiff’s witnesses and defendant’s witnesses.
  1. [98]
    Each of the plaintiff’s witnesses gave strikingly similar evidence of their recollections of Warlock’s location on 7 November 2003 even though the incident occurred 9 years previously. I consider that their evidence may have been tainted by their friendship with Mr Goodhue. I consider their evidence may be a reconstruction, whether intended or not, rather than an honest recollection of the events of 7 November 2003. In any event, I consider that Warlock’s exact north/south location on 7 November is irrelevant to my determination of the relevant issues.
  1. [99]
    The principal problem with the plaintiff’s claim is that the plaintiff called no witnesses who saw what happened to Warlock between 25 October and 4 November 2003. As a result there is no eye-witness evidence of what actually happened from any of the plaintiff’s witnesses.
  1. [100]
    Having dealt with the issues of credibility and reliability of the evidence, and having regard to the documentary exhibits it is necessary to make a number of findings of fact on the evidence in dispute. I have decided to address each of the issues raised by the plaintiff in written submissions.

Findings of fact on issues in dispute

Warlock’s anchor as at 11 August 2003.

  1. [101]
    The plaintiff submits I would be satisfied on the evidence that the plaintiff used a 70kg Danforth style anchor on 33 metres of chain to anchor Warlock before he left for New Zealand in August 2003. Mr Goodhue was adamant in his evidence that he definitely left Warlock anchored with the 70kg Danforth style anchor. I accept his evidence that he is an experienced sailor and usually secured Warlock in the stadium with the Danforth style anchor because the anchor’s weight and design meant the vessel would not drag. When Mr Goodhue took Warlock out of the Stadium on trips prior to August 2003 he would usually leave the Danforth style anchor attached to a mooring buoy and use one of his other anchors, such as one of his Admiralty style anchors, to anchor the vessel at his destination.
  1. [102]
    Mr Tune was equally adamant that the anchor he saw his crewman Mr Armour pull out of the water on 25 October was an Admiralty style anchor, and not a 70kg Danforth style anchor. Both anchors are clearly distinguishable from each other on the evidence of both the plaintiff’s witnesses and the defendant’s witnesses. Every witness agreed, it would be impossible for one man to lift the Danforth style anchor up without the assistance of a winch. Mr Goodhue gave evidence that, it could take an hour for one person to lift the Danforth style anchor onto the deck with the assistance of the winch.
  1. [103]
    The plaintiff submits that, if I accept Mr Goodhue left the vessel attached to the Danforth style anchor, then there cannot be an intervening event whereby a third party altered the length of chain on the anchor attached.[92] Approximately two months passed between when Mr Goodhue returned to New Zealand and the date when the VMR received the emergency call from Manuhere on 25 October 2003. On Mr Goodhue’s evidence, at least two other persons had the means to access and move Warlock, and to change the anchor and chain. Mr Brooks and Mr Woods had keys to Warlock’s interior, and therefore, access to the handle needed to operate the winch to lift the Danforth style anchor out of the water.[93] Mr Goodhue gave evidence that, without the use of the winch, one person alone could not pull up the Danforth style anchor. Mr Goodhue gave evidence that Mr Brooks stayed on Warlock occasionally while he was away.[94]
  1. [104]
    Having accepted Mr Tune’s evidence that an Admiralty style anchor was attached to Warlock on 25 October 2003, it may be the case that Mr Goodhue mistakenly thought he had anchored Warlock with the Danforth style anchor when he left for New Zealand in August, when in fact, he had omitted to change the anchor when returning from one of his earlier trips. If Mr Goodhue did leave the Danforth style anchor attached when he left for New Zealand, another person may have used Warlock while he was away and left the Admiralty style anchor attached.
  1. [105]
    I am unable to be satisfied to the requisite standard that Mr Goodhue did in fact check that he had attached the Danforth style anchor to Warlock before leaving for New Zealand or that, alternatively there was not an intervening person or event, for example, someone else who used Mr Goodhue’s vessel while he was away, changed the anchor to an Admiralty style anchor, and forgot to properly re-anchor the vessel with the Danforth style anchor upon return to the Marine Stadium. I do not have to decide this point, because I am satisfied that the Admiralty style anchor was attached to Warlock as at 25 October 2003.

How, why and where Warlock was moved on 25 October 2003

  1. [106]
    I accept Mr Tune’s evidence in respect of how, why and where he and his crew moved and re-anchored Warlock on 25 October 2003. I accept Mr Tune’s evidence that based on his experience and training, he formed the view that having regard to the wind and tide at the time, Warlock was not yawing on its anchor; rather it was drifting and dragging its anchor. I accept he saw a likely collision between Warlock and the other vessel, Manuhere if he did not act quickly to board and tow Warlock. I accept Mr Tune’s evidence as to how he intercepted and re-anchored the vessel.
  1. [107]
    The plaintiff seeks to offer two alternative submissions as to how Warlock became beached. First the plaintiff submits that the VMR volunteers must have deliberately placed Warlock’s anchor in the position Mr Goodhue found it, which was within a few metres of the low water mark of the western shoreline. On Mr Goodhue’s evidence, the Danforth style anchor could not have dragged there because it was too heavy. I accept that the Danforth style anchor weighing 70kgs would be unlikely to drag in Marine Stadium. I also accept Mr Goodhue’s evidence it is a physical impossibility that the Danforth style anchor could have lodged itself so close to the shoreline. On Mr Goodhue’s evidence, he surmised that someone must therefore have deliberately placed the Danforth style anchor in such close proximity to the shoreline. Because I have concluded that Mr Tune did not place the anchor there, the only alternatives are that Mr Goodhue was mistaken that the anchor he used to secure Warlock before he left for New Zealand was the Danforth style anchor as opposed to one of the Admiralty style anchors he had on board Warlock. Mr Goodhue and his friends were therefore mistaken in their recollection that they found the Danforth style anchor attached to Warlock on 7 November 2003. Alternatively, after Warlock dragged and beached on an Admiralty style anchor, someone else intervened and attached the Danforth style anchor on Warlock before Mr Goodhue located it on 7 November 2003.
  1. [108]
    Crucially, there is no evidence from any witness called by the plaintiff or defence that Mr Tune or another VMR volunteer anchored Warlock close to the western shoreline in a position where Mr Goodhue says he found Warlock positioned on 6 November 2003. It is inherently improbable that a VMR volunteer of Mr Tune’s experience would deliberately re-anchor any vessel within 10 metres of the shoreline as alleged by the plaintiff. I accept Mr Tune’s evidence that he did not do so.
  1. [109]
    Mr Goodhue has failed to prove to the requisite standard that Mr Tune’s actions caused Warlock to beach on the western shore. To surmise what in fact happened between 1 November 2003 when Mr Tune last saw Warlock safely anchored in the middle of Marine Stadium, and 6 November 2003 when Mr Goodhue and his partner arrived, would be to speculate in the absence of sufficient evidence to prove otherwise.
  1. [110]
    Having accepted Mr Tune’s evidence as to the position he re-anchored Warlock in the middle of the stadium the plaintiff has failed to prove how the anchor became embedded 10 metres off the western shore and has failed to prove it was anchored there, either by Mr Tune, or due to any negligent act on behalf of the defendant. If the anchor was deliberately placed in this position, the plaintiff has not proved it was done so by any authorised agent of the VMR.

Location of Warlock on the western beach on 7 November 2003.

  1. [111]
    There was a dispute on the evidence as to Warlock’s location on the western beach on 6 and 7 November 2003. The plaintiff’s witnesses described and marked on Google photos the position each witness recalled Warlock was beached. They recalled Warlock was beached towards the southern tip of the finger of the western shore. The defendant’s witnesses, Mr Pomas and Mr Handley, recalled Warlock was beached further north of this point. The plaintiff submits the location is relevant to the matters in issue because the VMR should have noticed Warlock was beached from its radio tower which was closer to the southern tip of the western shore than the location where Mr Pomas indicated Warlock was beached.[95]
  1. [112]
    I accept Mr Pomas’ evidence that Warlock was beached further north than the position which the Mr Goodhue and the other plaintiff witnesses asserted the case to be. However, I also consider that the location is not relevant to any material issue on the trial. The fact that the southern point is closer to the VMR radio tower does not affect my conclusions discussed later regarding when the defendant became aware that Warlock had gone aground on the western beach.

Requirement to intervene and re-anchor Warlock

  1. [113]
    The plaintiff submits that Warlock was anchored correctly and was simply yawing on its own anchor when Mr Tune attended Warlock on 25 October 2003, so Mr Tune should not have intervened and should not have moved Warlock. The plaintiff also submits that, because the vessel Manuhere had arrived at Marine Stadium, and anchored in its location after Warlock was already anchored there, convention dictated that the VMR should have directed Manuhere to move, and should not have moved Warlock.
  1. [114]
    In the absence of any evidence of what other witnesses observed I accept Mr Tune’s evidence of the speed and manner in which he saw Warlock moving towards Manuhere on 25 October 2003. Although there may be a convention among sailors that a vessel which anchors second in time has an obligation to anchor at a safe distance from a vessel already anchored, I consider this is irrelevant to the present circumstances. Mr Tune used his experience to conclude that, in the interests of preventing a collision occurring between Warlock and Manuhere, the only safe option was to board and tow Warlock away from its collision course with Manuhere.
  1. [115]
    I am satisfied that the defendant contacted Water Police on 25 October 2003 and requested permission to board Warlock and that permission was obtained.[96]  I am satisfied that Mr Tune formed a view reasonable in the circumstances that, if he did not intervene by towing and re-anchoring the plaintiff’s vessel, a collision would occur between Warlock and Manuhere.  I am satisfied that Mr Tune had extensive training and expertise to intercept, tow and re-anchor Warlock correctly.
  1. [116]
    The only conclusion available on the evidence is that Warlock was dragging its anchor. I consider, that in order to ensure that all boats in the marina, including Warlock, were safe, the VMR Southport was required to intervene and re-anchor Warlock. Without intervention Warlock would have collided with Manuhere and without re-anchoring would have continued to drift around the stadium.

Contacting the owner or person whose contact details were displayed on Warlock’s porthole before or after Warlock was re-anchored

  1. [117]
    Mr Goodhue gave evidence he had taped his VMR membership card to the vessel’s porthole and wrote the contact details of David Brooks on the porthole glass. I accept his evidence on this matter. However, I consider that, in the circumstances that were unfolding on 25 October 2003, Mr Tune had to act swiftly to avoid Warlock colliding with Manuhere. It was not reasonable for him to try to locate contact details at that point in time.
  1. [118]
    Mr Tune admitted in evidence that he did not look for Mr Goodhue’s contact details either before or after he re-anchored Warlock. Mr Tune and Mr Pomas gave evidence of the policies the VMR volunteers adhered to at the time of this incident. Relevantly, there was no policy in place at the VMR Southport that required the VMR to contact the owner of a vessel after they had obtained permission from the Water Police to board and re-anchor an unmanned vessel.[97] Mr Pomas gave unchallenged evidence that once the VMR have contacted the Water Police after a job, the Water Police “handle it from there”.[98] He gave evidence that Water Police have access to the database of all registered boats in Queensland so they can follow up with the owners. Mr Pomas said that, because of this, the VMR do not get involved in contacting owners when people have left their boats.[99] I will address the issue of the plaintiff’s duty of care to contact Mr Goodhue or Mr Brooks when I come to consider liability.

Whether the Warlock first grounded on or before 3 November, and if so, whether the defendant knew of this event as of 3 November 2003.

  1. [119]
    The plaintiff submits Warlock was grounded by 3 November 2003 to the knowledge of the defendant. The plaintiff submits that, when the vessel went aground on 3 November 2003, no attempt was made by the VMR volunteers to inform the contact person, Mr Brooks, or to retrieve the vessel.
  1. [120]
    None of the plaintiff’s witnesses gave evidence they saw Warlock grounded on or before 3 November 2003. Mr Tune is the only witness to give evidence that he saw Warlock as late as 1 or 2 November 2003 still anchored in the same position he re-anchored Warlock on 25 October 2003. The only other witness who saw Warlock grounded prior to 6 November 2003, was Mr Goodhue’s friend, Mr Morrow. Mr Morrow believed he saw Warlock on the western beach of Marine Stadium on about 4 November 2003. He did not contact the VMR when he saw Warlock grounded. He said he tried to call Mr Goodhue a few times, but he got no answer. Mr Morrow’s recollection of the date as 4 November 2003 is not, in my view, more than an approximate recollection of the date.
  1. [121]
    Despite the absence of eye-witness evidence, the plaintiff submits there are two sources of evidence which prove the VMR were aware by 3 November 2003 that Warlock had beached.
  1. [122]
    First the plaintiff relies on an alleged admission in the pleadings. The plaintiff submits that the defendant admits in the Amended Defence[100] that the defendant was aware that Warlock was beached as early as 3 November 2003. This is not correct. Paragraph 8 the of the plaintiff’s Further Amended Statement of Claim[101] states:

“On or about 3rd November 2003, the boat went aground on the western beach of the Marina Stadium and was observed from the VMR watch Tower. No attempt was made by the volunteers to inform the contact person.”

  1. [123]
    Paragraph 7 of the Defence pleads that “the defendant was aware that the vessel had run aground on the western beach of Marine Stadium…”  I note however that the defence pleadings make no mention of knowing that Warlock was beached as early as 3 November 2003.  There is no admission in the Defence pleadings that the VMR were aware Warlock was beached as at any date prior to 7 November 2003.
  1. [124]
    Second, the plaintiff submits that a combination of Mr Pomas’ evidence and Exhibit 55, a phone log recording phone calls and messages in the VMR’s radio room on 3 and 4 November 2003, proves the VMR were aware Warlock was beached and taking on water on 3 and 4 November 2003.
  1. [125]
    The phone log contains an entry dated 3 November 2003 which states “1520 out w/police – Wayne re Blacksteel yacht. Now afloat will contact D.N. Rembrack.”[102] The phone log contains another entry dated 4 November 2003 at 7.55am that there was a vessel in Marine Stadium taking on water, and that as at 7.58am, Mr Pomas had been contacted about this by someone in the radio tower.[103]  The phone log does not identify the name or location of either vessel. Mr Pomas gave evidence he had no recollection of either of these vessels being identified as Warlock. He conceded that he could not recall any other vessels in Marine Stadium grounded or taking on water back in November 2003.
  1. [126]
    There is no evidence from any witness that the identity of either vessel noted in the phone log was Warlock. There is no evidence as to the geographical location of the “blacksteel yacht.” I accept the defendant’s submissions that the notation does not refer at all to the location of the vessel. The reference to the “blacksteel yacht” could be reference to a vessel located anywhere within the large geographical area the VMR Southport covered.
  1. [127]
    There was no evidence from either the plaintiff’s witnesses or the defendant’s witnesses, apart from these ambiguous phone log entries, that anyone saw Warlock on the western beach on 3 November 2003. There is no evidence that anyone saw Warlock floating off the side of the shore of the beach on 4 November 2003.
  1. [128]
    Neither Mr Brooks nor Mr Woods, who were supposedly looking after Warlock, apparently noticed Warlock’s location or saw Warlock beached between 25 October and 6 November 2003. Mr Brooks admitted he was not even staying on his boat at Marine Stadium during the relevant period. Mr Brooks first became aware that Warlock was on the beach when the Water Police contacted him on a date he did not specify.[104]
  1. [129]
    Although Mr Woods said he kept an eye on Warlock over the relevant period to make sure no one went aboard and to make sure it wasn’t sinking,[105] he gave evidence that he did not notice that Warlock had moved or was beached during the time Mr Goodhue was in New Zealand.  He agreed under cross-examination that, if the boat had been anchored too close to the western shore at any time before it was beached, he would have noticed it.[106] Mr Woods gave evidence that because Mr Brooks was not staying at Marine Stadium at the relevant time, he was the only one keeping an eye on Warlock. 
  1. [130]
    The plaintiff also submits that the VMR should have and would have seen Warlock beached on the western shore from the glass panelled Radio Room. I accept Mr Pomas’ evidence that the radio tower was not a viewing tower used for the purpose of monitoring the welfare of vessels in the Stadium.
  1. [131]
    The defendant’s unchallenged evidence was that the Radio Room was manned 24 hours a day by one person, with 12 hour overnight shifts.[107] Mr Pomas gave evidence that the Radio Room was busy and the operator kept a record kept of all incoming telephone and radio calls.[108] Mr Pomas also gave evidence that during the week the VMR did not have a crew at the base.[109] I am satisfied on the evidence that the Radio Room was not used as a watchtower.
  1. [132]
    There is insufficient evidence to satisfy me that the defendant or its volunteers knew that Warlock had gone aground on 3 November, in fact Mr Brooks and Mr Woods who were supposed to be looking after Warlock did not notice when it went aground. There is insufficient evidence that the defendant received any notice that Warlock was beached or received any request to move Warlock on 3 or 4 November 2003. In the absence of any other evidence I am not satisfied to the requisite standard that Warlock had beached by 3 or 4 November. Even if it had beached by then, there is insufficient evidence to satisfy me the defendant was aware by 3 or 4 November 2003 that Warlock had beached and was taking on water.

The vessel left under the care or supervision of Mr Brooks and Mr Woods

  1. [133]
    The plaintiff submits that he had left his vessel under the care and supervision of Mr Brooks and Mr Woods. Mr Brooks gave evidence that his role as supervisor was to keep an eye on the vessel, “keep an eye on the bilge pumps and make sure its not dragging”.[110]  I find that although Mr Goodhue may have left Warlock under the supervision of Mr Brooks and Mr Woods, there is no evidence as to how or if either Mr Brooks or Mr Woods did, in fact, supervise the vessel during the relevant time.  I am not satisfied that Mr Brooks was present for the relevant time period between 25 October and 6 November 2003.  Neither Mr Woods nor Mr Brooks witnessed Warlock’s position during the period of 25 October to 4 November 2003.  I am not satisfied that the vessel was left under appropriate care and supervision by Mr Brooks or Mr Woods whilst Mr Goodhue was away from Warlock during the relevant period. 

Summary of findings of fact relevant to liability

  1. [134]
    In about July or August 2003 Mr Goodhue anchored Warlock in Marine Stadium, in Southport.  He anchored his vessel and left the country on 11 August 2003, not returning until 6 November 2003, by which time the vessel was lying on its port side (left side) on the western beach of the Marine Stadium.
  1. [135]
    There is no evidence of Warlock’s movements between 11 August 2003 and 25 October 2003.
  1. [136]
    On 25 October 2003 a person on a vessel called ‘Manuhere’ contacted the VMR Southport base to report that Warlock was “dragging anchor in Marine Stadium”.[111]
  1. [137]
    In response to the call, Mr Tune and his crew travelled in the vessel Apex 3 into the Marine Stadium to assess the situation. The Water Police were contacted at 8:05am and gave the VMR permission to move Warlock.[112]
  1. [138]
    Mr Tune saw Warlock drifting towards Manuhere. He formed the opinion Warlock’s anchor was dragging. He decided that, if the volunteers did not intercept Warlock immediately, and tow it away from Manuhere, it would collide with Manuhere, causing damage.
  1. [139]
    Mr Tune established that the Water Police had given the VMR permission to board the unmanned Warlock. He saw Mr Armour pull up Warlock’s anchor chain. He saw an Admiralty style anchor attached to the chain. He competently re-anchored Warlock approximately equidistant from the east and west shorelines of Marine Stadium. He did not anchor the vessel where the plaintiff’s witnesses located the anchor on 7 November 2003. He ensured the vessel was holding its anchor before returning to the VMR base.
  1. [140]
    Mr Tune returned later the same day to where he had anchored Warlock and confirmed Warlock was in the same position he and his crew had re-anchored it.[113]  One week later on either Saturday 1 November or Sunday 2 November 2003, he observed Warlock to be in the same position where he and his crew had re-anchored her.
  1. [141]
    There is no reliable evidence of Warlock’s movements between 2 November 2003 and 4 November 2003.
  1. [142]
    Mr Goodhue and his friends found Warlock beached close to the Western Shore on 6 November 2003. On 7 November, Mr Goodhue and his friends located either the Danforth style anchor, or an Admiralty anchor within 10 metres of the shoreline, and attached by a chain to Warlock.
  1. [143]
    Warlock suffered loss and damage as outlined by Mr Goodhue.

Liability

Duty of Care

  1. [144]
    The plaintiff has provided brief written submissions to address the issue of the defendant’s liability in negligence.[114] The onus is on the plaintiff to establish that the defendant owed him the alleged duties of care.
  1. [145]
    The plaintiff alleges that the defendant owed him a duty of care in moving the plaintiff’s vessel, to take reasonable care to avoid acts or omissions that would be likely to cause loss to the plaintiff as owner of the boat,[115] and to undertake a careful and seaman like intervention to:
  • Ensure that the boat was re-anchored in a competent manner (i.e. the anchor set in the deeper water allowing room for the vessel to swing through 360 degrees as dictated by the wind and tide, without grounding on the beach);
  • Ensure that the boat remained securely anchored at its new position;
  • To contact the person whose details were displayed prominently on the wheel house porthole and registered on the associated membership.[116]
  1. [146]
    The plaintiff submits that, if I accept Mr Tune’s version of what occurred on 25 October 2003, that it must have been a foreseeable risk that a vessel, which had already dragged its anchor might do so again unless the correct length of chain was employed when re-anchoring the vessel. The plaintiff submits that there is no evidence as to the length of chain or rope Mr Armour let out on the anchor, but that, on Mr Tune’s version, insufficient rope or chain was used to properly secure Warlock to ensure Warlock didn’t drift again.
  1. [147]
    I accept the plaintiff’s submissions, that when the defendant intervened to re-anchor the vessel, it assumed a duty of care to competently re-anchor Warlock.[117]   However the plaintiff has not proved to the requisite standard that the defendant did not do so. I consider that Mr Tune re-anchored Warlock in a competent manner; and that defendant exercised reasonable care to avoid damage to Warlock.
  1. [148]
    The plaintiff submits that the defendant’s duty of care extended to ensuring the vessel remained securely anchored in its new position, and contacting the owner of Warlock or Mr Brooks.
  1. [149]
    I consider the defendant’s duty of care in the circumstances of this case was limited to re-anchoring the vessel in a competent manner. The defendant’s duty of care to continue to monitor Warlock’s position for an indefinite period, in the circumstances of this case could not reasonably be expected, having regard to the following factors:
  • Mr Goodhue left his vessel unattended for a lengthy period of time;
  • Mr Goodhue left his vessel under the supervision of friends, not under the supervision of the VMR;
  • Although Mr Goodhue was a member to the VMR, this membership did not include any obligation by the VMR to care for or monitor Mr Goodhue’s unattended vessel;
  • The only reason the VMR intervened and moved Warlock was in response to an emergency situation, to rescue another vessel from damage;
  • The VMR’s role as a voluntary organization is to respond to emergency marine incidents. If the VMR’s duty of care was to extend to the indefinite monitoring of all vessels in the geographical area of the Southport branch, the VMR would be unable to satisfactorily undertake its primary role of responding to emergency incidents;
  • The evidence of the VMR staff and the VMR documents tendered at trial confirm the organization does not have the staff, funding or facilities to monitor each vessel anchored in the large area of water the Southport VMR services. The uncontested evidence of the VMR employees was that they do not have the staff or financial capabilities to monitor all vessels located in the Southport area.[118]
  1. [150]
    I accept the defendant’s submission that, if the court were to determine such a duty of care exists, this will have enormous impact upon the operations of the VMR Southport, and each squadron in Queensland.
  1. [151]
    The scope of the defendant’s duty of care, in my view, did not extend to require the defendant to contact Mr Goodhue or Mr Brooks.

Summary of conclusions regarding duty of care

  1. [152]
    The plaintiff left his vessel anchored where he said, then went overseas. When he returned the anchor was in shallow water, close to the shore and the vessel had ran aground, no doubt as a result of the anchor being placed so close to the shore. Given the position of the anchor, this was inevitable if the wind was blowing in a certain direction.
  1. [153]
    The plaintiff’s case involves the proposition that, from the time he left Warlock to the time he returned, nobody touched the boat aside from the defendant’s crew on one occasion, and therefore, where he found the boat was where they left it. Therefore the defendant must have taken the boat to the position where the plaintiff found it. Therefore unless I reject the defendant’s witnesses’ evidence about that point, then the plaintiff has failed to prove his case.
  1. [154]
    In between these occurrences, the defendant admits one of its vessels attended the boat, found the boat adrift with only a light anchor and a short chain fitted. It re-anchored the boat in a different position from where the plaintiff says he found the boat and with a different anchor. The defendant did this about two weeks before the plaintiff found the boat in a different position.
  1. [155]
    The plaintiff says I should not accept the defendant’s evidence as to where they re-anchored the boat with an Admiralty style anchor.
  1. [156]
    I am not prepared to draw that inference for a number of reasons. Having considered all the evidence, particularly the evidence of the defendant’s principal witness Mr Tune, I accept his evidence as to what occurred.  It necessarily follows that his account of what he did was not negligent.
  1. [157]
    Secondly, the plaintiff has not excluded the possibility, which I consider is real, that someone else interfered with the vessel in between when the defendant relocated it and when the plaintiff found it. The most probable explanation is that some third party, other than the defendant, was responsible for the plaintiff’s vessel being damaged. The plaintiff’s evidence leaves a huge gap of almost three months between when he last saw the boat and when the defendant’s witnesses found it. There is then a gap in the plaintiff’s evidence after 2 November 2003 until the plaintiff’s witnesses found the boat grounded on the beach. The evidence from Mr Brooks and Mr Woods, who were supposed to be watching the boat, was that there was a substantial amount of time when they were not watching it.  The evidence therefore does not exclude the possibility that a third party interfered with Warlock. The alternative, that a third party moved the boat, is equally, if not more, plausible. Given the position the defendant re-anchored the boat and where it was subsequently found, the more probable inference is that some third party interfered with it in the meantime.
  1. [158]
    The plaintiff also says that, when they found the vessel and re-anchored it, the defendant should have contacted him or Mr Brooks. But what was the source of the defendant’s duty to contact the plaintiff or Mr Brooks? In my view, the defendant did not have such a duty to the plaintiff. The defendant was responding to a rescue call from another party – the people on the vessel Manuhere, concerning the plaintiff’s drifting vessel.
  1. [159]
    That may have given rise to the duty to take reasonable care, not to cause any unreasonable harm to the plaintiff’s vessel. That, in my view, is the limit of the duty. It was not their duty to inform Mr Goodhue. As long as the defendant’s action of re-anchoring Warlock did not of itself add to any danger the plaintiff’s vessel was suffering at the time, then the defendant has not breached any duty it owed to the plaintiff. The defendant’s volunteers secured the plaintiff’s vessel, as best they could, with the anchor that was attached to it at the time. The defendant’s volunteers left the vessel in a safer state than they found it. In circumstances where they did that, there cannot be a duty to do something more than that. The defendant did not have a general duty to look after Mr Goodhue’s boat. In circumstances where they were helping someone else, they had a duty not to cause any unreasonable harm to his boat. They did not breach that duty. There was not any duty on them to contact the plaintiff. There was not any general duty to care for the plaintiff’s boat. Their duty was limited to leaving the boat in no worse of a situation than they had found it in.
  1. [160]
    In those circumstances, the plaintiff’s case fails.

Causation

  1. [161]
    Having determined that the plaintiff has failed to prove to the requisite standard that the defendant breached any duty of care, there is no need for me to consider the issue of causation. However, due to the findings of fact and law I have already made, the plaintiff has in any event failed to prove that the defendant caused damage to Warlock.

Is the defendant vicariously liable for its individual volunteers?

  1. [162]
    Sections 38 - 43 of the Civil Liability Act 2003 (Qld) (CLA) relevantly provide:

38 Interpretation

  1. (1)
    In this division—

community organisation means any of the following that organises the doing of community work by volunteers—

  1. (a)
    a corporation;
  1. (b)
    a trustee acting in the capacity of trustee;
  1. (c)
    a church or other religious group;
  1. (d)
    a registered political party as defined under the Electoral Act 1992 or the Commonwealth Electoral Act 1918 (Cwlth);
  1. (e)
    a public or other authority as defined under section 34;
  1. (f)
    a parents and citizens association formed under the Education (General Provisions) Act 2006, chapter 7;
  1. (g)
    another entity prescribed under a regulation.

community work means work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, and includes making donations of food if the donations are not for private financial gain and are done for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose.

food donor—

  1. (a)
    means an entity that, in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose, donates or distributes food with the intention that the consumer of the food will not have to pay for the food; but
  1. (b)
    does not include—
  1. (i)
    an entity that directly distributes the food to the consumer of the food; or
  1. (ii)
    a volunteer.

organised includes directed or supervised.

possession includes control.

volunteer means an individual who—

  1. (a)
    does community work on a voluntary basis; or
  1. (b)
    donates food in the circumstances mentioned in section 39(3).

work includes any activity.

  1. (2)
    For the purposes of this division—
  1. (a)
    community work done by a person under an order of a court is not to be regarded as work done on a voluntary basis; and
  1. (b)
    community work for which a person receives remuneration by way of reimbursement of the person’s reasonable expenses in doing the work is to be regarded as work done on a voluntary basis.

39Protection of volunteers

  1. (1)
    A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work—
  1. (a)
    organised by a community organisation; or
  1. (b)
    as an office holder of a community organisation.
  1. (2)
    A person does not incur any personal civil liability in relation to any act or omission done or made by the person, when donating food in the circumstances mentioned in subsection (3), giving rise to harm resulting from the consumption of the food.
  1. (3)
    The circumstances are—
  1. (a)
    that the person donated the food to a community organisation—
  1. (i)
    in good faith for a charitable, benevolent, philanthropic, sporting, recreational, political, educational or cultural purpose; and
  1. (ii)
    with the intention that the consumer of the food would not have to pay for the food; and
  1. (b)
    that the food was safe to consume at the time it left the person’s possession; and
  1. (c)
    if the food was of a nature that required it to be handled in a particular way to remain safe to consume after it left the person’s possession—that the person informed the community organisation of the handling requirements; and
  1. (d)
    if the food only remained safe to consume for a particular period of time after it left the person’s possession—that the person informed the community organisation of the time limit.

40Liability not excluded for criminal acts

This subdivision does not confer protection from personal liability on a volunteer in relation to an act or omission of the volunteer if it is established (on the balance of probabilities) that at the time of the act or omission the volunteer was engaged in conduct that constitutes an offence.

41Liability of intoxicated volunteer not excluded

The protection from personal liability conferred on a volunteer by this subdivision in connection with any community work does not apply if the volunteer—

  1. (a)
    was intoxicated when doing the work; and
  1. (b)
    failed to exercise due care and skill when doing the work.

42Liability of volunteer not excluded if acting outside scope

of activities or contrary to instructions

This subdivision does not confer protection on a volunteer from personal liability in relation to an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting—

  1. (a)
    outside the scope of the activities authorised by the community organisation concerned; or
  1. (b)
    contrary to instructions given by the community organisation.

43 Liability not excluded if insurance required

This subdivision does not confer protection from personal liability on a volunteer if the liability is a liability that the volunteer is required under a written law of the State to be insured against.

  1. [163]
    Section 39 is subject to a number of exceptions, none of which apply to this case.
  1. [164]
    It is not in dispute between the parties that the VMR witnesses were volunteers for the defendant, and the defendant is a community organisation. The work undertaken by Mr Tune, Mr Pomas and the other volunteers was work done, not for private financial gain but for the purpose of providing safety and rescue services.

Plaintiff’s submissions

  1. [165]
    The plaintiff submits the defendant is vicariously liable for the acts of its volunteers under s 39 of the CLA on the basis that the CLA is directed specifically at the individual volunteers and not the volunteer organisation. The plaintiff submits the legislature would have expressly made provision for the immunity to extend to community organisations if that was the legislature’s intention.
  1. [166]
    The plaintiff submits that the court must determine whether the defendant is liable for an independent breach or whether it is only liable through the breach of its volunteers. The plaintiff submits there are two independent breaches by the defendant in the present case, one at the hand of the volunteers who committed the breach and a separate breach by of the defendant.

The defendant’s submissions

  1. [167]
    The defendant submits that, in circumstances where liability of the volunteers of the defendant is protected under the s 39 of the CLA, then liability against the defendant (being vicariously liable for the acts of its volunteers) does not attach. The defendant notes that corresponding legislation in s 61 of the Civil Liability Act 2002 (NSW) is in essentially the same terms as s 39 of the CLA.
  1. [168]
    The defendant relies on the decision of the New South Wales Court of Appeal in Commonwealth of Australia v Griffiths[119] where it was said:

“there is a long line of authority (in which I include the obiter comments of Fullagher J in Darling Islands Stevedoring and the statements made in Park v The Commonwealth) that a person who is vicariously liable for the tortious conduct of another is protected by any immunity that is available to the actual wrongdoer.” 

  1. [169]
    The defendant submits, in light of the above authority, immunity must extend to those organisations for which volunteers are protected to undertake such work.
  1. [170]
    The defendant also refutes the plaintiff’s assertion that in this case there are two independent breaches by the defendant, “one at the hand of the volunteers who committed the breach and a separate responsibility of the defendant”.[120] The defendant submits the plaintiff’s pleaded case is limited to allegations of negligence relating to the acts of the “authorized agents” of the defendant and vicarious liability as a result.

Consideration

  1. [171]
    The CLA is silent as to whether the community organisation can be vicariously liable for an individual volunteer. There appears to be no case law in relation to the interpretation of ss 38 and 39 of the CLA.
  1. [172]
    On its face the section only excludes liability for the defendant’s volunteers. There are two different ways to interpret the section. On one interpretation, it can be read to mean the immunity only applies to the volunteers, that, by implication, it leaves the incorporated associations liable in respect of any negligence of the volunteers. So, effectively, it makes the association liable, rather than the volunteer liable.
  1. [173]
    The alternative interpretation is that, by excluding the liability of the volunteers, it excludes the vicarious liability of the association.
  1. [174]
    In my view, the correct interpretation is governed by the New South Wales decision of Commonwealth of Australia v Griffiths[121] because it is a decision on the New South Wales equivalent of s 39 of the CLA.  The wording of s 61 of the NSW legislation is not sufficiently different from s 39 of the CLA.  Because it is a decision of an intermediate court, I should follow it unless persuaded that it is wrong.  I am not so persuaded; it seems to be plausibly correct.
  1. [175]
    On the other hand, the Queensland decision, of Ringlestein v Redford Cattle Company Pty Ltd,[122] relied upon by the defendant is concerned with vicarious liability under the former Motor Vehicle Insurance Act 1936 (Qld), and discusses issues of vicarious liability in that context.  It decided the meaning of s 4F(3B) under that Act, and is technically obiter. The more recent New South Wales case has the benefit of following High Court decisions determined subsequent to the Queensland decision. 
  1. [176]
    Some of the plaintiff’s allegations against the defendant association seem to involve allegations of negligence in their policies and procedures, and allege the VMR is personally negligent. Negligence on this basis does not give rise to immunity under the Civil Liability Act 2003 (Qld). However, as the defendant correctly submits, the plaintiff did not plead negligence against the defendant on this basis.  The plaintiff’s pleadings are limited to allegations of negligence at the hands of the defendant’s authorized agents. In any event, I am not satisfied on balance that the plaintiff has proved the defendant was itself negligent.

Counter claim

  1. [177]
    The defendant’s counterclaim for $200 for salvaging Warlock on 7 November is not disputed by the plaintiff. I award the defendant $200 plus interest from 14 November 2003 to 20 February 2015 of $205.73.[123]

Quantum

Mr Goodhue’s evidence

  1. [178]
    Mr Goodhue purchased Warlock in 1983 as a second hand vessel from a finance company for $17,500. Warlock was a 12 metre ferro-cement ketch in fairly ordinary cosmetic condition as at August 2003.
  1. [179]
    Mr Goodhue described seeing Warlock on 6 November 2003. He said Warlock was lying on its port left side, just off the western beach, so that the bow was sloping at a 45 degree angle. There was water in the cabin up to the wheelhouse windows. Mr Goodhue estimated there was 12 litres of “filthy black, horrible” engine oil, sump oil and rubbish from the bilge that had spread through the interior of the vessel.[124] Some of the control panel’s switches were destroyed, and the wiring that was submerged in salt water was likely to deteriorate. Six photographs were tendered to show some of the damage to the vessel’s interior, including black oil residue, some peeling of the interior woodwork, and a damaged mattress. Otherwise these photographs did not really assist me determine the amount of damage to the vessel and contents.[125] Mr Goodhue gave evidence that he and his partner, Ms McKelvie spent many hours cleaning Warlock, including an attempt to steam clean which wasn’t successful. They had to clean the interior by hand over a period of “quite a few months but not years”.[126] They removed damaged items, and Mr Goodhue worked on the vessel’s damaged engine.
  1. [180]
    The plaintiff tendered a number of documents from the pleadings (Further and Better particulars of his Statement of Loss and Damage) which he had created.[127] This exhibit included a document setting out a list of the vessel’s parts and contents, which he claimed were lost or damaged. Mr Goodhue compiled the “losses list” in 2004 and coded the items as follows:[128]
  1. Replacement price ie: catalogues/Invoices and Quotes: Mr Goodhue sourced replacement prices from “the catalogues of Whitworths and Bias Discount Boating”;[129]
  2. Remembered purchase price: “Items I have bought and can recall the purchase price are noted accordingly”.
  3. “A fair estimate of value has been used, based on age, condition and where it has not been equitable to renew, restore or replace”.[130]
  1. [181]
    Counsel for the defendant objected to the plaintiff tendering the schedule on the basis it did not prove the value of the items lost or their cost, in 2003, when the incident occurred.
  1. [182]
    The plaintiff also tendered quotes he had obtained to repair a hydraulic gear box, and to rewire part of the vessel’s electrical system. The quotes were from a diesel engineer and friend of Mr Goodhue, a Mr Harrison who resides in New Zealand. The work has not yet been carried out. The plaintiff also tendered documents in an attempt to prove he paid for a number of items. Some of the quotes were in $NZD; some of the quotes are not dated; some of the work has been carried out, other work has not.
  1. [183]
    Mr Goodhue said he compiled the loss assessment schedule “based on careful research with quotes, research with suppliers”, and provided it to Mr Nicholas Lockyer, a marine surveyor, valuer and certifier. He engaged Mr Lockyer to provide a loss assessment report for the purposes of proving quantum of damages.
  1. [184]
    Under cross-examination, Mr Goodhue conceded that he had not provided invoices for some of the amounts claimed, he had not given the relevant catalogues to Mr Lockyer, and could not provide the relevant conversion rates from New Zealand to Australian dollars for the items listed. He conceded that most of the replacement items were purchased in New Zealand.

Evidence of Nicholas John Williston Lockyer

  1. [185]
    Nicholas Lockyer is a marine surveyor, valuer and certifier, and has been for 25 years. His roles cover several disciplines and include the inspection, valuation and certification of recreational and commercial vessels for buyers, insurers, financiers and in litigation situations. Mr Lockyer’s duties are restricted to vessels at 40 metres or less.[131] Mr Lockyer estimates that he has performed over 2000 surveys since he started practicing as a marine surveyor in the early 1990’s.[132] Prior to this occupation Mr Lockyer owned and operated boat building and marine engineering businesses.[133]  Mr Lockyer has supervised and handled refits on vessels as large as 35 metres and as small as 5 metres on over 50 occasions.[134]
  1. [186]
    The marine surveyor profession is not currently regulated, but individuals are recognised through memberships to associations. Mr Lockyer was a founding member of the Marine Surveyors Association approximately 13 years ago and has been a member of the international equivalent for 7 or 8 years.[135]
  1. [187]
    At the time of providing the report, Mr Lockyer had not spent any time on Warlock. His knowledge was gained through the photographs provided in the brief sent by Mr Goodhue’s solicitors.[136] Subsequent to providing his report, Mr Lockyer inspected Warlock in late February 2014 in Sydney. He estimated he spent 40 minutes on board the vessel.[137] This inspection occurred after he had provided his report, and he did not change any aspect of the report following the inspection.[138] Mr Lockyer conceded that when preparing most surveying reports he has the opportunity to physically inspect the vessel before preparing a report.[139] 
  1. [188]
    When preparing his report, Mr Lockyer was asked to determine if the replacement values nominated by Mr Goodhue were fair and reasonable. He made his judgements based on these parameters rather than accuracy.[140] Mr Lockyer conceded he was not made aware by the plaintiff that some of the values in the schedule were in New Zealand dollars and conceded those values would attract a lesser value than Australian dollars. Mr Lockyer was aware that some of the quotes were in New Zealand dollars, which he took into account when assessing them.[141] In cross-examination, Mr Lockyer admitted that, when describing the definitive losses, he reported them as accurate and adequate, and in his opinion they were accurate in the sense that the amounts were an accurate representation of the cost of an item in 2003.
  1. [189]
    In cross-examination, Mr Lockyer conceded:-
  1. (a)
    the price of a fire extinguisher would vary depending on where it was purchased;[142]
  1. (b)
    he did not know the type of tobacco lost on the plaintiff’s boat;[143]
  1. (c)
    he did not know the type or value of the sunglasses lost on the boat;[144]
  1. (d)
    he did not know the type of photo frame lost on the plaintiff’s boat;[145]
  1. (e)
    he did not know the type of two-man tent on the boat, and he would not consider himself a professional valuer of two-man hiking tents;[146]
  1. (f)
    “there are certainly some inaccuracies in the statements that I have made in my report based on the tyranny of history over 10 years”;[147]
  1. (g)
    he did not pay a lot of attention to the personal items because they are small items of value;[148]
  1. (h)
    he did not know why the plaintiff listed his personal items;[149]
  1. (i)
    he does very little work for insurance companies;[150]
  1. (j)
    he knew nothing about the item “technical books” other than the words used in the list to itemise the documents and did not know the specific documents valued under this section;[151]
  1. (k)
    he relied upon his general knowledge to value many of the spare parts, including the 12 volt wind generator;[152]
  1. (l)
    he did not know the age or condition or type of many of the items listed in page 18 of the report and only relied upon the documentation he was provided;[153]
  1. (m)
    he assumed that all items listed in the definitive losses were items of professional manufacture;[154]
  1. (n)
    the value of the vessel made by Mr Lockyer at page 4 of his report was not intended to be a sworn valuation and was a statement of the vessel’s worth at the time, or it’s replacement value;[155]
  1. (o)
    he could not provide an assessment of how much the replacement figure would actually be, and could not clarify the figure given in the report of “less than $100,000”;[156]
  1. (p)
    he was not aware of when Mr Goodhue purchased the vessel, only that it was built to commercial standards, was purchased second-hand and that he had it for some time;[157]
  1. (q)
    he no longer holds any accreditation from the Queensland Government Maritime Safety organisation;[158]
  1. (r)
    he knew no details of the truck hire arrangement or the phone and mileage charges claimed in “materials, hire and administration”;[159]
  1. (s)
    he had no knowledge of the vessel prior to the event;[160]
  1. (t)
    when taking into account the difference between quotes in New Zealand dollars, Mr Lockyer applied a variance of 10%, which he believed to be the historical difference for 20 years;[161]
  1. (u)
    he was not in the Marine Stadium on the day in question, he had not spoken to anyone from the VMR or the boat Manuhere about the day in question. All of Mr Lockyer’s opinion was based solely on information provided by the plaintiff;[162]
  1. (v)
    notwithstanding some of these shortcomings being brought to his attention, he was only prepared to reduce or remove one amount claimed  by the plaintiff in the entirety of his report; all other amounts claimed, Mr Lockyer believed were fair and reasonable or understated;[163]

Plaintiff’s submissions regarding Quantum

  1. [190]
    The plaintiff provided no written submissions to assist the court to assess quantum. The plaintiff did not refute any of the submissions contained in the defendant’s written outline of submissions on quantum.

Defendant’s submissions regarding Quantum

  1. [191]
    The defendant provided extensive submissions which I have had regard to in forming my assessment in relation to the matter.

Conclusions regarding Quantum

  1. [192]
    If the defendant is liable for the damage caused to the Plaintiff’s property, then that falls into two categories: the cost for repairs and the cost of replacement for those items that were damaged beyond economic repair. I am satisfied on the balance of probabilities that the plaintiff has suffered a loss, however my difficulty is in quantifying that loss having regard to the quality of the evidence relied on by the plaintiff.
  1. [193]
    This difficulty was explained in Commonwealth v Amann Aviation Pty Ltd[164] by Mason and Dawson JJ as follows:

“[M]ere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can.[165] In Jones v Schiffmann[166] Menzies J went so far as to say that the ‘assessment of damages… does sometimes, of necessity involve what is guess work rather than estimation’. Where precise evidence is not available the court must do the best it can.[167]”

  1. [194]
    Devlin J’s complete statement in Biggin & Co Ltd v Permanite Ltd[168] was:

“[W]here precise evidence is obtainable, the court naturally expects to have it.  Where it is not, the court must do the best it can.”

  1. [195]
    McPherson J said in Nilon v Bezzina[169]:

“The degree of precision with which damages are to be proved is proportionate to the proof reasonably available”.

  1. [196]
    In JLW (Vic) Pty Ltd v Tsiloglou[170] (a claim for damages for alleged misleading representation inducing entry into a lease) Brooking J reviewed the principles concerning the circumstances in which a court may assess damages notwithstanding a lack of evidence.  His Honour referred[171] to the passage from Ratcliffe v Evans[172] cited by Heydon JA in State of New South Wales v Moss,[173] as meaning “the amount of the damage must be proved with certainty, but this only means as much ‘certainty’ as is reasonable in the circumstances”.  His Honour distinguished cases such as Chaplin v Hicks[174] where “[t]he nature of the damage may be such that the assessment of damages will really be a matter of [permissible] guesswork” from cases where “precise evidence is obtainable”[175] where guesswork is not permissible. 
  1. [197]
    Troulis v Vamvoukakis[176] was an action for damages pursuant to s 68 of the Fair Trading Act 1987 (NSW) in respect of the sale of a take-away food shop.  The plaintiffs/purchasers established that the defendants/vendors had misrepresented the takings of the business and that misrepresentation had induced them to purchase the business.  The defendants were unsuccessful in challenging that finding on appeal.  The damages to which the purchasers were accordingly entitled was the difference between what they had paid for the goodwill of the business and its true value at the date of purchase[177].  There was no evidence of that value.  Gleeson CJ held that there were “limits to the lengths to which a court may properly go in ‘doing the best it can’ to assess damages”.[178]  His Honour observed that the case did not involve damages which were “inherently difficult to quantify, or which involve[d] estimating a risk, or measuring a chance, or predicting future uncertain events.”  Although the plaintiffs/purchasers had not shown the goodwill was valueless, his Honour said that it was necessary for them “to provide some evidence upon which a rational assessment of value could be made.”[179]
  1. [198]
    Gleeson CJ concluded in substance, that where the damages were susceptible of evidentiary proof, and there was “an absence of the raw material to which good sense may be applied … [j]ustice does not dictate that … a figure should be plucked out of the air.”[180]
  1. [199]
    In Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd[181] Hayne J (Gleeson CJ, McHugh, and Kirby JJ agreeing) postulated that there may be a distinction between cases where a plaintiff cannot adduce precise evidence of what has been lost (in which “estimation, if not guesswork, may be necessary in assessing the damages to be allowed”) and cases where, although apparently able to do so, the plaintiff has not adduced such evidence.  His Honour suggested that references to “mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it can” might be more apt in the former rather than the latter class of case.
  1. [200]
    The test of certainty stated in McGregor on Damages, 15th ed, at [344] is that damage must be proved with reasonable certainty and the standard of proof only demands evidence from which the existence of damage can be reasonably inferred and which provides adequate data for calculating its amount. That is a test of sufficient flexibility to accommodate the variety of circumstances that may arise.”
  1. [201]
    However, Pincus J in Schindler Lifts Australia Pty Ltd v Debelak[182] stated

“if the evidence called by the plaintiff fails to provide any rational foundation for a proper estimate of damages the court should simply decline to make one”.

  1. [202]
    In Zorom Enterprises Pty Ltd v Zabow[183] Campbell JA stated that there are circumstances where it was appropriate for a court assessing damages or compensation to adopt

“a figure which is little more than a guess, in circumstances where the evidentiary basis for adopting a particular figure is very thin, but where it would be wrong to use the thinness of the evidence as a reason for valuing that head of damages or item of compensation at zero.” 

  1. [203]
    For the reasons set out herein I derived little assistance from the evidence of Mr Lockyer which was heavily relied upon by the plaintiff in quantifying his loss. That said, I am satisfied that as a result of the events that transpired in late October/early November 2003 (whatever the cause) he suffered significant losses. I have already found that the plaintiff was essentially an honest and reliable witness and there is considerable independent support for there being substantial damage caused to Warlock.
  1. [204]
    Doing the best I can on the evidence available, I am inclined to accept as being reasonable the estimates of the plaintiff’s definable losses as set out in exhibit 18. Although subject to criticism by the defendant, the list does not offend me in terms of a reasonable replacement value of many of the items claimed. Many of the items are familiar everyday items and the value placed on them by the plaintiff accords with my own experience. That gives me comfort when relying on the estimates given to items with which I am not familiar, e.g. “autopilot drive unit and rudder feedback”. The list prices were however clearly an estimation and for that reason I consider it appropriate to adopt a certain amount of rounding in the defendants favour. I therefore arrive at a figure of $40,000.00 in that respect.
  1. [205]
    I also find, as a reasonable estimate of the cost to the plaintiff, those matters in respect of which he has obtained a quote, namely:
  1. (a)
    Starter motor repair (ex 19)     $390.50
  1. (b)
    Hydraulic gearbox repair (ex 20) $2,190.00
  1. (c)
    Rewiring repair (ex 21) $1,240.00
  1. (d)
    Electronics repair (ex 24)  $4,125.00
  1. (e)
    Carpet replacement (ex 25) $2,313.45 (NZ$)
  1. (f)
    Upholstery repair (ex 26)  $3,665.70 (NZ$)

Total                                             $13,924.65

  1. [206]
    Again, allowing for some estimation and having regard to the fact that the last two items are expressed in New Zealand dollars, I allow a total of $13,000.00 for these items.
  1. [207]
    In so far as the additional labour costs are concerned, I found the evidence incredibly imprecise and unreliable, especially from Mr Lockyer. In the end result I accept that there will be some additional labour costs but feel uneasy about awarding anything more than a modest sum of $5,000.00.
  1. [208]
    In total therefore I allow the plaintiffs damages in the total sum of $58,000.00 ($40,000.00 + $13,000.00 + $5,000.00). Because I have dismissed the plaintiff’s claim I find it unnecessary to perform an interest calculation.

Orders

My orders therefore are

  1. 4.
    The plaintiff’s claim is dismissed;
  1. 5.
    Judgement for the defendant on its counter-claim in the amount of $200.00 plus interest in the amount of $205.73;
  1. 6.
    The plaintiff pay the defendant’s costs of the action to be assessed on the standard basis.[184]

Footnotes

[1] T1-9.26.

[2] T1-13.17-23.

[3] T1-17.19-24.

[4] T1-13.30-37.

[5] T1-19.4.

[6] T1-19.15-20.

[7] Exhibit 1.

[8] T1-10.35-40.

[9] T1-11.7-9.

[10] T2-33.26-46; Danforth is a brand of anchor.

[11] T2-86.27-38.

[12] T2-34.7-10.

[13] T1-13.46.

[14] T1-14.32.

[15] T1-14.1-10.

[16] T1-14.12-28.

[17] T1-22.25-35.

[18] T2-85.35-T2-86.9.

[19] T1-24.20-37.

[20] T1-29.34-40.

[21] T1-31.2-3.

[22] T1-25.35.

[23] T1-25.41-45.

[24] T1-27.11-15.

[25] T1-26.29-33.

[26] T1-15.27-47.

[27] T2-41.41-T2.42.1.

[28] T2-42.29-33.

[29] T1-27.11-15, T1-28.7.

[30] T1-28.15.

[31] T2-23.5-20.

[32] T2-21.33-35.

[33] T2-22.1-3.

[34] T2-23.21-30.

[35] T2-25.26-T2-26.3.

[36] T2-41.25-46.

[37] T1-54.44-46.

[38] T1-31.5-20.

[39] T1-32.36-45.

[40] T1-32.30-34.

[41] T1-32.20-23.

[42] T1-33.43-T1-34.13.

[43] T1-31.5.

[44] T1-50.18-47, T1-53.26-30. 

[45] T2-61.1-9.

[46] T3-48.

[47] T3-51.15.

[48] T3-52.1-5.

[49] Exhibit 7.

[50] T3-53.28-32.

[51] Exhibit 35.

[52] T3-63.1-10.

[53] Exhibit 33.

[54] T2-93.12; Exhibit 7.

[55] Exhibit 7 is a picture of Ms McKelvie standing beside a large anchor which MR Goodhue claims is a Danforth Anchor he had made and which he claims weighs approximately 70 kg.

.[56] T3-73.3-17.

[57] T3-74.35-40.

[58] Rope and/or chain attached to the anchor.

[59] Exhibit 46, VMR056 training module.

[60] T5-25.1-15.

[61] Exhibits 39 and 40.

[62] T5-58.

[63] T5-100.5-6.

[64] T5-109.10-17.

[65] T5-109.25-40.

[66] T5-105.35-40.

[67] Foul means to get tangled up.

[68] T-5.106.35.

[69] T5-92.15-25.

[70] T5-57.1-10.

[71] T5-105.1-27.

[72] T5-62.15-30.

[73] T5-108.1-20; Exhibit 47.

[74] Noted in job log Exhibit 48.

[75] T4-29.1-5.

[76] T4-36.10-15.

[77] T4-41.15-40; (This is the method which Mr Goodhue says must have occurred, whereas Mr Tune not only denies this is what occurred, he also says this is not an appropriate practice and he would never use it).

[78] Exhibit 55.

[79] T6-34.10-12.

[80] T6- 52.1-15.

[81] Exhibit 56.

[82] T6-24.30-45.

[83] T6-32.25-37.

[84] T6-25.5-30.

[85] Exhibit 39.

[86] T3-96.15-20.

[87] Rope and/or chain attached to the anchor.

[88] Exhibits 39 and 40.

[89] Jones v Dunkel 101 CLR 298.

[90] Amended Statement of Claim filed 21 September 2010, para 7.

[91] Defence, Doc 22.

[92] Outline of Plaintiff’s submissions para 9.

[93] T2-41.25-46.

[94] T2-21.33-35.

[95] Evidence and by marking a Google map.

[96] Exhibit 52.

[97] T6-31.43.

[98] T6-32.32-33.

[99] T6-32.27-33.

[100] Filed 14 October 2010.

[101] Filed 21 September 2010.

[102] Exhibit 55.

[103] Exhibit 55.

[104] T3-42.33-35.

[105] T3-51.15.

[106] T3-61.33-35.

[107] T6-17.44.

[108] T6-18.7-22.

[109] T6-25.41-45.

[110] T3-42.11-12.

[111] Exhibit 53.

[112] Exhibit 53.

[113] T5-66.1-19.

[114] Plaintiff’s outline page 35-36.

[115] Paragraph 5(a), Statement of Claim.

[116] Paragraph 6, Amended Statement of Claim.

[117] Sutherland Shire Council v Heyman (1985) 157 CLR per Brennan J at page 479.

[118] The evidence of Mr Hubner, Mr Pomas, Mr Handley and Mr Tune was to the effect that an obligation of such extent would be impossible to undertake.

[119][2007] NSWCA 370 at [115].

[120] Paragraph 125 Plaintiff’s written submissions.

[121] [2007] NSWCA 370.

[122] [1995] 1 Qd R 433.

[123] See Annexure A.

[124] T1-31.12-20; Photographic exhibits 5-6.

[125] Exhibits 9-14.

[126] T1-47.30-40.

[127] Exhibit 27.

[128] T1-55.17-22; Exhibit 18.

[129] Both are Australian wide marine supply companies.

[130] See first page, Exhibit 27.

[131] T3-5.40-46.

[132] T3-7.20.

[133] T3-6.29-47.

[134] T3-39.8-10.

[135] T3-6.10-13.

[136] T3-12.3.

[137] T3-8.4-11, T3-9.42.

[138] T3-12.9.

[139] T3-12.26-38.

[140] T3-14.3-7.

[141] T3-14.36-47.

[142] T3-15.45-47.

[143] T3-16.6.

[144] T3-16.11.

[145] T3-16.21.

[146] T3-16.11.

[147] T3-16.29-32.

[148] T3-16.37-39.

[149] T3-17.1-7.

[150] T3-17.35.

[151] T3-18.5-46.

[152] T3-19.25-47.

[153] T3-20.10-45.

[154] T3-21.12-21.

[155] T3-22.43-T3-23.8.

[156] T3-231-T3-24.19.

[157] T3-24.22-47.

[158] T3-25.25.

[159] T3-26.6.

[160] T3-31.17.

[161] T3-31.1-12.

[162] T3-36.1-13.

[163] T3-29.39-47.

[164]  (1991) 174 CLR 64 at page 83.

[165] Fink v Fink (1946) 74 CLR 127 at 143; McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 411–12; Chaplin v Hicks [1911] 2 KB 786 at 792.

[166]  (1971) 124 CLR 303 at 308.

[167] Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422, per Devlin J at 438.

[168] Ibid at 438.

[169] [1988] 2 Qd R 420 at 424.

[170] [1994] 1 VR 237.

[171] Ibid at 241 – 242.

[172] [1892] 2 QB 524 at 532 – 3.

[173] [2000] NSWCA 133 at [72].

[174] [1911] 2 KB 786.

[175] Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422.

[176] [1998] NSWCA 237.

[177] Troulis v Vamvoukakis [1998] NSWCA 237 Gleeson CJ at 8.

[178] Ibid at 13.

[179] Ibid at 13.

[180] Ibid at 14.

[181]  [2003] HCA 10; (2003) 77 ALJR 768 at [38].

[182]  (1989) 89 ALR 275 at 319.

[183]  [2007] NSWCA 106; (2007) 71 NSWLR 354.

[184] Unless I am satisfied by submissions in writing that an alternative order is appropriate.

Close

Editorial Notes

  • Published Case Name:

    Goodhue v Volunteer Marine Rescue Association Incorporated

  • Shortened Case Name:

    Goodhue v Volunteer Marine Rescue Association Incorporated

  • MNC:

    [2015] QDC 29

  • Court:

    QDC

  • Judge(s):

    McGinness DCJ

  • Date:

    20 Feb 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2015] QDC 2920 Feb 2015Claim that the defendant negligently re-anchored the plaintiff's vessel causing to break anchor and run aground. Claim dismissed: McGinness DCJ.
Notice of Appeal FiledFile Number: 2911/1520 Mar 2015DC257/09
Appeal Determined (QCA)[2015] QCA 23420 Nov 2015Application for leave to appeal refused. Applicant to pay the respondent’s costs of the application on the standard basis: McMurdo P, Gotterson JA, A Lyons J.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Biggin & Co Ltd v Permanite Ltd (1951) 1 KB 422
4 citations
Jump To
Cite 1 - (1951) 1 KB 422
Cite 2 - (1951) 1 KB 422
Cite 3 - (1951) 1 KB 422
Cite 4 - (1951) 1 KB 422
Chaplin v Hicks (1911) 2 KB 786
3 citations
Jump To
Cite 1 - (1911) 2 KB 786
Cite 2 - (1911) 2 KB 786
Cite 3 - (1911) 2 KB 786
Commonwealth of Australia v Griffiths [2007] NSWCA 370
3 citations
Jump To
Cite 1 - [2007] NSWCA 370
Cite 2 - [2007] NSWCA 370
Cite 3 - [2007] NSWCA 370
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
2 citations
Jump To
Cite 1 - (1991) 174 CLR 64
Cite 2 - (1991) 174 CLR 64
Fink v Fink (1946) 74 CLR 127
1 citation
Jump To
Cite 1 - (1946) 74 CLR 127
JLW (Vic) Pty Ltd v Tsiloglou (1994) 1 VR 237
3 citations
Jump To
Cite 1 - (1994) 1 VR 237
Cite 2 - (1994) 1 VR 237
Cite 3 - (1994) 1 VR 237
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Jones v Schiffmann (1971) 124 CLR 303
1 citation
Jump To
Cite 1 - (1971) 124 CLR 303
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377
1 citation
Jump To
Cite 1 - (1951) 84 CLR 377
Nilon v Bezzina[1988] 2 Qd R 420; [1987] QSCFC 108
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 420
Cite 2 - [1988] 2 Qd R 420
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768
1 citation
Jump To
Cite 1 - (2003) 77 ALJR 768
Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10
2 citations
Jump To
Cite 1 - [2003] HCA 10
Cite 2 - [2003] HCA 10
Ratcliffe v Evans (1892) 2 QB 524
2 citations
Jump To
Cite 1 - (1892) 2 QB 524
Cite 2 - (1892) 2 QB 524
Ringelstein v Redford Cattle Company Pty Ltd[1995] 1 Qd R 433; [1994] QCA 14
4 citations
Jump To
Cite 1 - [1995] 1 Qd R 433
Cite 2 - [1995] 1 Qd R 433
Cite 3 - [1995] 1 Qd R 433
Cite 4 - [1995] 1 Qd R 433
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275
2 citations
Jump To
Cite 1 - (1989) 89 ALR 275
Cite 2 - (1989) 89 ALR 275
State of New South Wales v Moss [2000] NSWCA 133
2 citations
Jump To
Cite 1 - [2000] NSWCA 133
Cite 2 - [2000] NSWCA 133
Sutherland Shire Council v Heyman (1985) 157 CLR 424
2 citations
Jump To
Cite 1 - (1985) 157 CLR 424
Cite 2 - (1985) 157 CLR 424
Troulis v Vamvoukakis [1998] NSWCA 237
6 citations
Jump To
Cite 1 - [1998] NSWCA 237
Cite 2 - [1998] NSWCA 237
Cite 3 - [1998] NSWCA 237
Cite 4 - [1998] NSWCA 237
Cite 5 - [1998] NSWCA 237
Cite 6 - [1998] NSWCA 237
Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106
2 citations
Jump To
Cite 1 - [2007] NSWCA 106
Cite 2 - [2007] NSWCA 106
Zorom Enterprises v Zabow (2007) 71 NSWLR 354
1 citation
Jump To
Cite 1 - (2007) 71 NSWLR 354

Cases Citing

Case NameFull CitationFrequency
Goodhue v Volunteer Marine Rescue Association Incorporated [2015] QCA 2341 citation
1

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