BRIDGEMAN v. SMITH & ORS
HAMILTON & ANOR v. GREENSTEEL CONSTRUCTIONS PTY LTD
Supreme Court of the Northern Territory of Australia MUIRHEAD A.J.
20, 21 August;	2, 3, 4, 18, 28 September 1987 at Darwi

Damages - Assessment - Personal injuries - Plaintiff	aboard yacht during transportation by	semi-trailer - Yacht fell Plaintiff jumped from yacht - Severe fractures of both heels
Restriction of movement	40% right foot,	10% left foot Daily pain - Yachting		and sporting activities restricted Condition likely	to	deteriorate		- Damages		for	pain	and suffering and loss		of amenities	$80,000.	Motor	Accidents (Compensation) Act 1979 (NT) ss.5, 6.

Negligence -	Duty	of care	Transportation of	yacht	by semi-trailer - Plaintiff aboard yacht during	transportation
Yacht fell - Suitability	of cradle - Whether boat	should have been secured	- Whether conduct	of driver negligent Contributory negligence considered.

Nealiaence -	Contributory	negligence -		Transportation		of yacht	by		semi-trailer	Plaintiff	aboard	yacht	during transportation - Requested to alight from boat - Yacht		fell Whether		plaintiff's	conduct	amounted		to	contributory
negligence.

Cases referred to:
Commissioner of Railways v. Ruprecht (1979) 142 CLR 563
Matteoni v. Nominal Defendant (1951-1976) NTJ 981
Podrebersek v. Australian Iron & Steel Pty Ltd (1984-85) 59 ALR 529

Counsel for Plaintiff Solicitors for Plaintiff

Counsel for 1st & 2nd Defendants and 3rd Party (2nd)
Solicitors for 1st & 2nd Defendants and 3rd Party (2nd)
Counsel for 3rd Defendant Solicitors for 3rd Defendant

Counsel for 3rd Party (1st) Solicitors for 3rd Party (1st)

J.E.Reeves Cridland & Bauer

P.B.Bracher Ward Keller
J.A.C.Tippett Mildrens

T.F.Coulehan David de L.Winter

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
PLACE OF TRIAL - DARWIN
No.142 of 1983	BETWEEN:
CARL BRIDGEMAN

AND:

Plaintiff

COLIN LEWIS SMITH
First Defendant

AND:
GREENSTEEL CONSTRUCTIONS PTY LTD
Second Defendant
AND:
KIM HAMILTON
Third Defendant

AND:
QUEENSLAND INSURANCE PTY LTD
Third Party

AND:
TERRITORY INSURANCE OFFICE
Third Party

No.246 of 1984	BETWEEN:
KIM A. HAMILTON and MARY E. HAMILTON
Plaintiffs

AND:
GREENSTEEL CONSTRUCTIONS PTY LTD
Defendant

MUIRHEAD A.J.
REASONS FOR JUDGMENT
(Delivered Monday, 28 September 1987)
These matters	have	been heard	together	by consent.	In these reasons I will deal with the	action

in which Carl Bridgeman is plaintiff (No.142 of 1983) and in so far as is relevant my findings will be applied to the second action (No.246 of 1984) which

involves	separate	consideration	to	be	dealt shortly in separate reasons.

with

The actions arise out of an occurrence which took place at the Darwin Sailing Club, on the foreshore of Fannie Bay on 14 November 1981. It is frequently necessary for yacht owners to have their vessels transferred from moorings in the bay to what is known as a "hard stand'' area, adjacent to a concrete ramp which leads up from the beach. During the 'wet' season this is a frequent occurrence. The defendant Kim Hamilton and his wife Mary were and are the owners of the yacht ''Southernore'', a sailing vessel approximately 9-10 tons (or more, according to fuel, water and provisions stored). Various practices are adopted. On
14 November the defendant Greensteel Constructions Pty Ltd was engaged to remove about 6 yachts, including ''Southernore", from the foreshore to the hard stand. Greensteel provided mobile cranes and a semi-trailer for this purpose. The removal was carried out when tides were appropriate - the usual practice being to load yachts on the falling tide from positions to which they had been taken when the tide was full. ''Southernore'' had been sailed into a metal cradle and

the tide having receded she was high and dry in that cradle when pick up commenced. The yacht, attached to the cradle, was lifted by slings placed around the hull and placed on a semi-trailer under the control of the first defendant Colin Smith. Neither the cradle, nor the hull of the yacht was secured by chain or rope to the body of the trailer. The crane mechanisms were freed and Colin Smith drove the vehicle, at a very slow pace, to the hard stand area. There he stopped for a short time and he determined to reverse the direction of his load before the yacht and cradle were removed by crane to their allocated berth on the hard stand.

At some stage before the yacht was	initially lifted the plaintiff, an experienced yachtsman, offered to lend a hand.	He was known to Mr and Mrs Hamilton his	offer		was		entirely		spontaneous		as	was		its acceptance.			He remained on the yacht as it was		loaded and taken to			the hard stand		area.	After Colin			Smith decided to reverse			his direction of		travel, he			drove through the open gates of the hard stand area, executed a slight left hand turn on to a bitumen roadway and		he then executed a sweeping turn to drive back through the gateway.	During		this		period	also		the	plaintiff remained on the yacht (i.e. he rode the load).	As	the prime mover slowly entered		the gateway the yacht,		for reasons which must be	determined, became unstable		and

fell off the left hand side of the trailer. The plaintiff, sensing the fall was imminent, leaped from the deck of the yacht (a height of approximately
12 ft.) to the bitumen surface below. This action may have saved his life, but as he was bare footed he sustained serious injury to both ankles and it is in respect of these injuries he claims damages from the three defendants. The yacht was badly damaged and the cost of its repair is the subject of the action (No.246 of 1984) brought by the owners against Greensteel.

This suffices to explain the background.

In his Statement of Claim against Colin Smith (as servant of Greensteel) the plaintiff alleges the following particulars of negligence:

"(i) Failing to properly secure, tie or chain the b at or the cradle to the trailer or at all.
(ii) Driving the vehicle at excessive speed. (iii)Taking the corner too fast.
(iv) Swerving round the corner causing the vessel to fall off the trailer.

( V) Failing to destination route.

take		the	vessel by	the	shortest

to	its possible

Failing to tie or chain the boat to	the trailer.
Failing to use a vehicle of suitable

type, size and	dimensions to	transport the boat and cradle.

Allowing the cradle to project over the side of the raised edge of the semi-trailer."

The particulars of negligence alleged against the defendant Hamilton are as follows:

''(i) Failing to provide a proper cradle to secure the boat.

Failing to provide any other method of securing the boat properly.

Using a cradle which he knew or should have known was defective.

Failing to	ensure	that cradle	were		secured	to properly or at all."

the	boat	and the		trailer

By his	defence	the	defendant	Colin	Smith
.
(Smith) admits he was	driving the vehicle in	question
owned by the defendant company (Greensteel) and he admits the plaintiff was seated on the boat. The allegations of negligence are denied and he pleads the plaintiff was guilty of contributory negligence in that he failed to take any or reasonable precautions for his own safety, he rode on the boat when it was unsafe to do so and he ignored requests to get down from the boat.

Greensteel admits it was the owner of the vehicle and further admits that it had contracted with the defendant Kim Hamilton for "the transporting'' of his boat. This defendant denies the particulars of negligence pleaded and also pleads the plaintiff's contributory negligence. The defendant Hamilton simply denies he was negligent. The defendants have exchanged contribution notices inter se.

In addition the defendant Kim Hamilton claims indemnity against the Third Party, Queensland Insurance Pty Ltd, in respect of any liability established against him and having its source in the plaintiff's injuries. This cause of action is founded on a policy of insurance with that company and a subsequent denial by the company of liability to extend indemnity. This claim for indemnity extends to Hamilton's legal costs of defending this action, and the insurer in its defence disputes its liability to extend indemnity.

Finally, Hamilton	seeks indemnity	from	the

Territory Insurance Office in respect of any found	against		him	to	pay	damages	(by contribution	or		otherwise)	in	respect

liability way	of
of	the

plaintiff's injuries,	pursuant	to	Section 6	of	the Motor Accidents (Compensation) Act.

This insurer denies its liability to indemnify the defendant Hamilton, but whether or not this defence is maintainable depends on my findings as to the circumstances of the accident and those matters which resulted in the plaintiff's injuries.

The transcript occupies over 400 pages and I do not intend to deal with the evidence of each witness seriatim. It suffices if I essentially make  my findings of fact, but before doing so I comment on the views I formed as to some of the important eyewitnesses to the accident. The plaintiff Carl Bridgeman is an experienced yachtsman and probably familiar with the transfer of yachts to the 'hard stand'. He became involved as a  person  lending  a  hand  to  Mr  and Mrs Hamilton during the loading process. His actions throughout were so motivated. I have hesitation in accepting his evidence upon some aspects. The accident occurred many years ago and I suspect that the painful injuries he sustained, together with the passage of time have, to some extent, shrouded accurate recollection. Smith, the driver of the prime mover to which the trailer was attached was an intelligent person, well experienced with the processes of loading and unloading, the use of cranes. But he was not a satisfactory witness, he did not fare well under cross-examination and I find some important aspects of

his evidence were based on convenient reconstruction. The crane operator, Arthur Hamilton, who operated the crane during the loading process was generally satisfactory, but where his evidence as to conversations conflicts with the evidence of the boat owners Mr and Mrs Hamilton, I prefer the testimony of the last mentioned witnesses. Mr and Mrs Hamilton were impressive witnesses. They have, of course, a direct interest in the outcome. They both underwent searching cross-examination but emerged as spontaneous witnesses who showed no uneasiness (as contrasted with Smith). Kim Hamilton's evidence was basically consistent with a statement he gave a few days after the accident to an insurance assessor, which was admitted in evidence (Exhibit D23A).

Douglas McLeod, a crane driver employed by the defendant company was, in my view, a reliable witness. He witnessed the fall of the boat and  a little earlier he had spoken to the plaintiff telling him to leave the load. I accept the basic accuracy of his evidence.

As background it must be remembered that the defendant company had agreed to transport several yachts from the shore to the hard stand on the morning in question. This involved various steps - it was not

altogether a simple procedure and the various witnesses were at the time intent on the particular function they each performed. Whilst I do not find the defendant company's employees 'rushed the job', it was a task that at least on the beach had to be carried out with reasonable expedition. I find that all involved were aware of this. As I have said, it had to be  achieved on a low tide, preferably when the tide was receding, but as the heavy cranes and transport had to be positioned on wet sand it was natural that those concerned would wish to avoid the sinking or bogging of those heavy units. So it was that on the beach the loading operation took place, naturally enough under the general direction of the crane driver, but with the assistance of Mr and Mrs Hamilton and the  plaintiff. No rigger was employed and yacht owners played their part. When the yacht fell it was not attached by rope or chains to the semi-trailer - nor was the cradle. I accept that there had been past occasions when yacht owners, in the experience of the defendant company and its employees, resisted the notion of chaining yachts to a semi-trailer for fear of causing damage to the superstructure of yachts. As I find later, I am satisfied that Kim Hamilton did not fall into this category. I set out my general findings under the following headings:

The cradle
Loading "Southernore'' on to the semi-trailer
Transporting the load
Circumstances of the fall of the yacht
The plaintiff's actions

The cradle itself, the	loading of the	yacht and its	position	after	it fell		are	illustrated	in

various	photographic summarize.

exhibits	some	of	which	I

Exhibit D16	General	view	of	beach	area	showing "Southernore'' after	the		mast		had		been		removed	and

placed	on	superstructure illustrates the	proximity water line.

of	a
of heavy

utility. vehicles

This

to	the

Exhibit D3(A}

Another	general

view	showing	a

semi-trailer (with another yacht) approaching the ramp.

Exhibit D3(B) - Depicts "Southernore'' slung from the defendants' crane approaching the semi-trailer, the plaintiff riding the load.

Exhibit D17 - Enlargement of section of D3(B).

Exhibits D4 and D5 - Southernore and a section of cradle after it failed. This exhibit and Exhibit D5 well illustrate the comparative sizes of Southernore and the trailer from which it fell.

Exhibit P7 -	a close-up	depicting	a section	of	the cradle after it failed and fell.

It is necessary	to describe	the cradle	the yacht and the system of loading in a little detail.

The Cradle
The	defendant	Kim	Hamilton	was	not

experienced semi-trailer.

with
He

the had

transport borrowed	the

of	yachts	by cradle	from		a

friend.	He made	no technical examination	of it,	but
knowing "it had been designed for----- a vessel of  very similar dimensions, same overall length and near identical weight'' he believed it would be suitable. He casually surveyed the cradle which he had previously towed to the beach, but he made no specific examination of the welded joints. He had confidence that it would suffice "for the purpose of holding the vessel upright at the time, and to sit in the boat yard; because there's no stresses or strain on any cradle  '' (p.318). I accept the evidence of the witness Robert Fischer, a metallurgist, that subsequent examination of

the cradle showed corrosion and deficiencies of the original welds which did not comply with Australian standards {Exhibit Dll). On the other hand the witness Hallett, a welder by occupation, who subsequently repaired and strengthened the cradle and worked in the area of the original welds, saw no evidence that they were other than satisfactory. And  the  defendant's crane driver, Arthur Hamilton, who lifted the boat and cradle saw nothing then to excite his interest. When asked if he examined the cradle, he replied (p.154) "A passing glance. I am not an engineer - or nothing. I just looked at the cradle and it seemed all right to me". The witness Delahay, a structural engineer, spoke of the cradle being "unsuitable" for a "yacht of the dimensions and tonnages we've been talking about", although his evidence on this aspect must be considered with his subsequent evidence to the effect that better precautions for "securing the load" would have been wise. The additions made by  Hallett, when  repairing the cradle were wisely made, the cradle was in my view, to use the words of one witness, somewhat 'sparse', but it is easy to be wise after the event.  Kim  Hamilton was not an expert. There was nothing to indicate upon ordinary lay inspection that the cradle was inherently unsafe, it had been used by a comparable vessel and before its removal to the trailer and until  its collapse it showed no apparent weakness and save in

transport, no instability. Kirn Hamilton could not, I find, be reasonably required to anticipate the stresses
which I find were applied to the cradle before its collapse. I find with confidence that he did not know, or even suspect that the  cradle was defective for the
purposes to which he anticipated it would be put. He could not reasonably anticipate the events which later occurred. Particulars of negligence (i) and (iii) as pleaded in paragraph 9 of the Statement of Claim are not proved.

Loading Southernore on to the Trailer
The mast	was	first removed	with	a	little

difficulty but without incident. The plaintiff and Kirn Hamilton assisted in placing slings under the boat. Upon first lift I find the boat's position was unsatisfactory and it was reslung to ensure it rode horizontally. I am satisfied that whilst Kirn Hamilton alighted the plaintiff remained on deck during this process. At this stage it was the boat, not the cradle which was supported by the slings; the cradle being loosely attached to the boat. I find that as the cradle was placed on the trailer it was found to be a little askew and an adjustment was made by the crane driver Arthur Hamilton to ensure the cradle rested truly in line with the trailer. There is a conflict of evidence as to whether the base of the cradle rested

''

snugly within the coaming rails of the trailer or as to whether there was a small protrusion or overlap. This has not been easy to resolve. I have no reliable evidence as to the exact width of the trailer floor between the coaming rails and the width of those rails is not proved. In resolving this conflict I do  not rely on the plaintiff's observations to the effect that there was some overlap. On balance I find there was some overlap and it was referred to by Kirn Hamilton in his statement soon after the event  set  out  in Exhibit D23A, to which I have referred. The  evidence of Mrs Hamilton to this effect was persuasive. As appears below, I prefer their evidence as to the alleged conversation about chaining down the boat to that of Smith, and I find it probable that there was some slight overlap, which as chains were not applied may have resulted in the boat being carried very slightly off vertical.

"Southernore'' was of steel construction. I find as part of its construction there were metal cleats fore and aft near the port and starboard beams. I also find that the main purpose of the boat's removal was to attend to painting of the lower hull, anti-fouling paint previously applied having proved defective. I accept the evidence of Kim Hamilton that he was not worried about damage to the paintwork as the

•'

whole of the hull had to be repainted in any event. I am satisfied that the defendants' vehicles were equipped with proper and adequate equipment to enable the boat and if necessary the cradle to be truly aligned and secured to the trailer which was equipped with rails designed for the security of loads. I find once the cradle was lowered on the trailer the security of the load was the responsibility of the driver, Smith, who said (p.96) ''--- I requested that I place a chain over the boat to secure it to the truck because of its size. This was refused by the owner rather strongly that he did not wish  to mark his boat  He said as I recall, that we weren't going a very big distance and he believed that the boat was seated in the cradle and there was no real danger of it falling during the trip". When asked whether he considered there was no such danger he replied ''I must admit that I was a little sceptical because the boat beam was actually wider than the trailer and being a yacht, the weight was high in the air''. I prefer the evidence of Mr Kirn Hamilton on this aspect, supported as it was by his wife's evidence:

''How was the boat positioned on the back of the trailer?
---The cradle	was	lowered down	on	to	the
semi-trailer, and because of the dimensions of it, the cradle is a little bit wider than the distance between the combing (sic.) rails on the semi-trailer, so it was sitting up  on

'

_11:.	'

one combing (sic.) rail and probably protruding 5, 6 inches on the driver's side.

Did you do anything or did that cause you to do anything?
---Yes.	My wife pointed it	out to me and this was before	we went up	to unsling it and I went up to the crane driver and pointed it out to him and said, ''Look, you know, it's not sitting square on		the semi.	It	doesn't fit in neat between."			I said, ''Do you	want to lift it again and	we'll put it square		on the - move it across a bit and sit it equally on the semi-trailer?''		He said, ''No.	For the distance it's all right.''

Was there any discussion between you or any of the other people - between you and the truck driver or the crane driver in relation to securing the boat to the trailer?
---Yes. After we'd noted - you know, we had the boat on the semi and we'd taken the spreader bar off the hook, off the crane hook, what we did - I came back down and I noticed the boat wasn't sitting - you know, it wasn't very secure in the cradle, the cradle's a little bit oversize, and I asked the driver - I said, "Do you want to - you know, there's a little bit of movement. Do you want to chain it down?" He said,  "No", to me. He said, ''No, it's'' - you know, the same thing again as the crane driver.  He sort of, you know, "It's only going up the hill", so ---

You've heard evidence given that in fact you were asked by the truck driver whether you wanted it chained down and that you said no, it would be all right. Now, is  that accurate? --- No, it's not. The driver was pretty casual about it at the day, and you know, as I thought - well, I asked him. I said, "Look, you know, it's not too steady. Do you want to chain it?'' - because we've got
- on the side of the boat there's what would you call them? - cleats, steel cleats welded to the hull, and they're very strong points; and we said, ''Well, you know, there's points you can chain to,'' but he just - he didn't want to do it on the day. He said, ''It's only coming up the hill." I thought  well, you know best, and that was it'' (at pp.297-298).

''

I am confident that in so far as it was in his hands to avoid, Mr Kim Hamilton would have taken no risks with his yacht. It was in fact the  Hamiltons home at the time and there was on my findings no advantage to him in directing that chains be not used. I find that it was Smith who decided not to use chains and it is probable that when he made that decision he anticipated a short journey to the top of the ramp where the vessel would be unloaded by the crane under the control of Mr McLeod which was in the  vicinity. But this was not to be. Arthur Hamilton who was in charge of the larger crane which had initially lifted "Southernore'' and who had experienced its weight realized that the same crane and not the one of lesser capacity operated by McLeod should be used in the unloading process.

3 •	Transporting the Load
Thus it was that when Smith driving the prime

mover reached the top of	the ramp, where Kim assumed	it	would	remain,	he	decided

Hamilton after	a

conversation that he would drive out of the hard stand, on to the road and then execute au-turn in the parking area adjacent to the sailing club. He did this so that the yacht's bow would be facing the sea when unloaded. I accept the evidence of the defendant company's employees that there was good reason why this should be

''

done, that there were difficulties inherent in swinging the boat through 180 whilst it was suspended. I find that when Smith drove very very slowly up the ramp to the gate of the hard stand the boat was not secured to the trailer, nor was the cradle. The boat was  lashed to the cradle towards the stern, Kim Hamilton having utilized sail winches for this purpose - but this gave no security to the yacht vis a vis the trailer itself. The load safely reached this point, but Smith's decision to drive out on the roadway, turn on the car park, and re-enter the gates traversing the car park and bitumen in the process, added a new dimension to the journey and greatly increased the risk to the load.

The dirt or gravel surface of the car park area was not smooth. It could not be termed rough, but I find it contained some shallow depressions and that there was a marked depression 2-3'' deep where the surface abutted the bitumen roadway, an area traversed by at least one side of the trailer's wheels as the prime mover made its right hand turn into the gates near the termination of the journey.

Fall of the yacht
Colin Smith described the last stages of the journey in the following terms (at p.99):

''

'' At this stage because of  the crown  of the road, the truck and the fact that the boat, the trailer and the prime mover were at an angle to each other, the wheels passed through the gutter at the side of the road at the commencement of the crown and because of the angle, the trailer and the boat were caused to twist and during this twist - we had come out of the twist and out of the rocking motion and I sort of recall breathing heavy and thought, I am getting close.  We are nearly there. I then heard a  loud crack.'' (Emphasis is my own)

McLeod was standing on the roadway nearby. His testimony was to much the same effect. I find the prime mover had negotiated the right hand turn and was facing the sea, but it was at an angle of about 2:P  to
the trailer. Whilst on this angle it is probable that wheels of the trailer negotiated the depression adjacent to  the bitumen.   Upon  the evidence  I  have
heard there is I think no doubt that this caused a tilting of the trailer floor perhaps only  a  few inches off horizontal, but it was relayed to a more pronounced degree to the yacht above. This caused the yacht to rock against the arms of the cradle, the force applied was very considerable and the two arms on the left failed at their base, one completely. They gave away suddenly with the cracking noise referred to by Smith and McLeod. The boat now without any support teetered on the brink, as it were, for a second or two and then rolled to the left. It was at this stage the plaintiff jumped in the same direction and mercifully

he rolled clear of the	yacht when it fell.	From	this recital of facts, my findings are:

( 1)	It was Smith's decision not to chain or rope or otherwise secure the boat to the trailer.

The boat	initially reached	the top	of	the	
ramp and the hard stand area	safely.			

( 2)

( 3)		Smith, as he himself agreed, was responsible for the safety of the load.

( 4)		Mr and Mrs Hamilton relied on his skill and judgment. They did not either discourage or forbid chaining of the boat.

( 5)	The chaining of the boat to the trailer would have taken a little time, but the equipment and chaining points were available without risk of damage to the boat.

( 6)	If the boat had been properly chained it would have travelled securely, without damage, and would not have fallen.

( 7}		Smith was aware, when he drove out on to the roadway, that the plaintiff was travelling on the boat.

( 8)		The only safe practice, and there is an abundance of evidence on this which I will not now refer to, was to secure the boat to the trailer. It should have been done. When he moved off for the second time Smith took an unnecessary risk which I consider he appreciated during the journey. He was,  as he said, 'breathing heavy'. He was negligent in his failure to chain or tie the boat to the trailer. Such negligence resulted in the plaintiff's injuries and Smith and the third defendant as his employer are liable in damages to the plaintiff. The plaintiff has established the particulars of negligence pleaded in paragraph 7(I}, (VI} and (VIII} of the Statement of Claim. I acquit the defendant Kim Hamilton of negligence. He relied upon Smith's experience and expertise and he was entitled in law to do so.  The fact that he himself was worried is not to the point. I find in fact that he  was unaware at all material times that the plaintiff had not left the yacht.

The plaintiff's action
The first and second defendants allege the plaintiff was himself negligent in that he failed to take any or reasonable precautions for his own safety, he rode on the boat when it was unsafe to do so and he ignored requests to get down from the boat.

It is not in dispute that shortly before the prime mover and semi-trailer moved  from  the  beach Mrs Hamilton said words to the effect "you'd better come down now as the trucks almost ready to move". Her husband, a fire officer with experience in the construction field heeded this suggestion. Clearly he regarded it as imprudent to ride any load. But I also accept the evidence of Arthur Hamilton (p.153) that he himself asked the plaintiff to leave the boat before the initial lift, which the plaintiff declined to do. On this aspect I also accept the evidence of Smith that before he commenced to drive up the ramp he told the plaintiff to get off. I further find that Mr McLeod ''told him to get off the boat'' at the top of the ramp and he, McLeod, mistakenly believed this request had been heeded. The plaintiff did not comply with these requests which were made by men experienced in their field. His reasons for doing so may have been prompted by his desire to be conveniently available to assist in the unloading process, but the requests served in my

view to give the plaintiff adequate warning that some risks were involved in maintaining his position on the yacht. The boat had not been chained, it was a heavy and high load, and at least when McLeod spoke to him he must have been aware the vehicle was to be driven out the gateway. Mr Bracher, for the first and second defendants, does not contend that the plaintiff was

volens to the risk of injury,

but I agree that he

was

in the	circumstances careless	of his	own safety.	I

have	not	reached	this	conclusion	without	careful

consideration of Mr Reeves submissions on this issue. Prudence required that he should remove himself from the  yacht.   He  was,  as  I  commented  earlier,  an

experienced	yachtsman	and received, his	experience		in

both	the this field

warnings and	in

he his

occupation		should potential	danger.

have
I

prompted am	satisfied

realization	of
the	plea	of

contributory negligence has been established. The plaintiff's conduct went beyond ''inattention born of familiarity and repetition, and the man's preoccupation with the matter in hand" as referred to by Gibbs CJ. in Commissioner of Railways v. Ruorecht (1979) 142 CLR 563 @ 568. In my opinion the plaintiff's omission to alight, in the face of the requests put to him was ''incompatible with the conduct of a prudent and reasonable man'' (per Mason J.@ 573).

On the question of apportionment I heed the observation of the High Court in Podrebersek v. Australian Iron and Steel Pty Ltd (1984-85) 59 ALR 529 @ 533 that a "question of apportionment is a finding upon a question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations". Doing the best I can, and bearing in mind that the omission to tie down the boat was the responsibility of the .second defendant, but paying some heed to the plaintiff's action in ignoring the warnings implicit in the requests that he should get off the yacht, I find it just and equitable that he should bear 25% of his damages which I now assess.

The plaintiff's	entitlement to	damages,	in

view of my findings as reason	of	Section 5

to liability, is restricted	by of	the	Motor	Accidents

(Compensation) Act (as it then applied) to general damages for pain and suffering or loss of amenities of life. I do not take into account the material placed before me as to economic loss. Clearly the 'accident' was caused by or arose out of the use of a motor vehicle (See Matteoni v. The Nominal Defendant, Northern Territory Judgments 981@ 985 et seq.)

The plaintiff was 49 years of age when injured. He was and remains a quarantine officer by occupation, a calling which from time to time demands considerable  physical  activity.   He  has  faced  his
injuries and the restrictions and discomfort they impose with some stoicism and determination. As I have said, the plaintiff leaped for safety a moment before the yacht fell. He was not wearing footwear and he jumped from a significant height. He suffered severe fractures of both heels and was admitted to Darwin Hospital where he came under the care of Mr S.Baddeley, an orthopaedic surgeon who has supervised his treatment throughout. There is no issue on medical matters and four reports of this surgeon were tendered by consent, (Exhibit PlO). He did not undergo surgery. The fractures involved the sub-talar joints and Mr Baddeley considered when he first saw the plaintiff that he was ''likely to have a poor clinical prognosis due to the severity of his injuries". He was discharged from hospital on 30 November 1981 and he gradually regained mobility. By February 1982 the plaintiff was able to walk with a stick but sub-talar movement was severely restricted.  He went  back to work  on light duties  on
28 February and remained on light duties until about September 1982. He then took accrued long  service leave and cruised on his yacht for the next 9 months or so.  He then returned to full duties and with these  he

has persisted	until the	present time.	This has	not
been easy. Initially, the plaintiff suffered pretty intense pain and he now lives with pain of fluctuating degree, dependent in large measure upon his daily exertions. He was frequently reviewed by Mr Baddeley who saw him and reported by reports dated 22 September

1986 and	18	August 1987.
present problems as follows:

Mr Baddeley	outlined	his

''1. Antero-lateral ankle pain which tends to be dull and permanent and worse on the right side.

Heel pad pain worse on the right side and made worse by prolonged weight bearing.

Sharp episodic lateral pain in the line of the peroneal tendons.
Pain worse on rough ground.
A limp which worsens when he is tired.

When he is sailing he has difficulties moving around the boat and has to hang on to rigging and is unable to jump from one part of the boat to another.

7 . Has problems getting shoes and requires a widened heel.
He is unable to run.

adequate	closed soft	shoe		with

All his	symptoms tend	to be	worse	in cold weather.''

This surgeon reports that his disability has deteriorated over 12 months prior to trial. The heel pads are tender and he has functional disabilities

approximating 40% of the right foot and 10% of the left foot. Future operative treatment may be required, but Mr Baddeley assesses this as a possibility rather than a probability. The plaintiff, previously a regular
squash	player,	cannot	play	active	sport.	He

experiences difficulties dancing, in fact any prolonged use of his feet causes pain - especially at the end	of

a day's	work.	He	still sails	his

yacht,	but

his

agility is considerably restricted.

The plaintiff

has

done all he can to overcome his disabilities. Indeed, it is fair to comment that some less persistent persons would not have resumed his full employment. It is probable some work tasks are beyond him and his ability to carry out ship inspections is limited.  Discomfort is present, not only with activity, but at the end of the day and when he rises in the mornings. His  sense of well being has been diminished and his enjoyment of life has obviously deteriorated, a disappointing situation to a man to whom out of door activities were so important and who, no doubt, looked forward to much activity in the years ahead. The probability is that his symptoms will worsen and he is presently concerned with the degree of apparent deterioration over the last
12 months.	I see	no purpose	in separately	assessing
the statutory components of damages left to him by statute.

I assess general damages for pain and suffering and loss of amenities in the sum of $80,000 and these must be reduced to $60,000 to allow for my assessment of contributory negligence.

For the purpose of calculating interest I must assess the proportion of general damages to date. In the early days the plaintiff suffered intense pain, but continuing discomfort and restriction of activities lie ahead. No precise formula is available. Justice will be done if I apportion interest bearing damages to date at 50%. The plaintiff is entitled to interest on
$30,000 at 6% per annum from the date of his injury	to

the present	date.
$10,568.22.

I allow	interest	in the	sum	of

I enter judgment against the first and second defendants in the sum of $70,568.22 and those defendants must pay the plaintiff's costs of action. The claim against the third defendant is dismissed and the plaintiff must pay that defendant's costs of action. I order, however, that the first and second defendants who sought indemnity against the third defendant shall indemnify the plaintiff to the full extent of costs payable by him to the third defendant.

It has not become necessary to deal with the third defendant's claim for indemnity against the third parties Queensland Insurance Pty Ltd and Territory Insurance Office. I do not consider the claim against the former could have been sustained as sub-paragraph
of	Section 2		of		the policy	(Legal		Liability Exhibit D20) clearly	excluded the		risk, whatever	the findings as to causation or responsibility.	Section 2 did not cover the third defendant's liability ''directly or indirectly caused by		or arising out		of the use		of any	trailer	whilst	attached		to		a	motor	vehicle''. Whatever findings I had made, it was common ground that the	plaintiff's		injuries		were	occasioned		by	the collapse of the yacht on		the trailer under tow by	the prime mover		circumstances directly		excluded.	The Territory Insurance Office is	liable to indemnify the first and second defendants in respect of the judgment entered pursuant to Section 6 of the Act.

As the third defendant joined Queensland Insurance Pty Ltd alleging a cause of action which could not in my view have been sustained, it seems to me that I must order that he pay that party's costs of action. I am not satisfied that he is entitled to indemnity in respect of those costs from the first and second defendant. However, I will hear counsel as to the costs of Queensland Insurance Pty Ltd and Territory

Insurance Office (as third parties joined by the	third defendant) before making a final order.