Written by Peter CarterApril 26, 2015
A Townsville outboard motor repair shop has been held liable for income loss sustained by a customer as a result of severe injuries caused by its workmanship.
Colin Ireland’s Haines Hunter half-cabin exploded at the Oyster Point jetty around 4am on an April 2006 Monday, just as he was about to embark on sea trials in the boat off Hinchinbrook Island.
A “confident, amazing man” who with his wife, led their own congregation of worshippers to become a vibrant Christian Life Centre, the boat explosion sent him into a “world of his own” with diminished capacity for ministering and a developing attraction to vodka.
The errors that caused the explosion occurred more than 18 months earlier.
To combat instances of fuel starvation in the operation of his Mercury 150 outboard, Craig Haslett and his father Robert recommended the installation of an electric fuel pump and new fuel lines.
Their business – B&M Outboard Repairs – installed the items in September 2004 in a cavity to the left of the engine well at the stern above one of the two marine batteries that supplied electric power.
After launching the vessel and tying it off, Colin switched the ignition on to engage the fuel pump, while he walked back to his car to retrieve an esky he had forgotten.
Standing on the jetty, he reached in to start the engine by turning the key – when suddenly he was thrown back by flames that “whooshed” from the boat – landing flat on his back in shallow water.
Although the exact cause of the fire was never determined, Justice David North after and eight day trial, accepted the evidence of Intersafe expert Roger Kahler that the most likely cause of the fire was fuel leaking from a break in the fuel line on the discharge side of the pump.
Marine mechanic Wayne Riddle and boat repairer Roy Pietzner both attested to the fire risk associated with fuel lines near batteries and swore for that reason, they – like other mechanics they knew – refused to install electric fuel pumps on small recreational vessels.
That – and a failure to “explicitly” warn of the fire risks of a pump installed adjacent to a battery – were enough for the judge to conclude that B&M was in breach of its duty of care and of its contractual due care and skill obligation implied in the repair services agreement.
He accepted the plaintiff as credible except when it came to the detail of the arrangements between himself and the church of which he was both an employee and a director with 4 others that included his wife.
Christian Life Centre had agreed after the accident, to continue Pastor Ireland’s full salary – which increased from $10k to $50k – on the basis that “when he received compensation he would compensate the church by repaying 50%” of the payments made.
In 2011 a formal loan agreement documented the requirement to repay $300k (calculated at $60k/year) said to have been loaned to him. That obligation was secured by a mortgage given over he and his wife’s home.
Notwithstanding some explanation from another director, Justice North considered Ireland an “unimpressive witness” on this issue and the explanations given by all concerned, “unsatisfactory and opaque”.
He refused to accept that the documented loan debt – even were it required to be repaid – correctly represented an assessment of his post-accident work capacity, “let alone damages”.
Given that Ireland had received his full salary since accident, how could he recover any loss of earning capacity damages?
There was no doubt of a severe and genuine injury to someone who was before “the life of the party” and now a forgetful “hermit”.
Specialists Frank Tomlinson and Malcolm Wallace both attested to a 7% whole body impairment from the injury to his neck, which was accepted by the court – by reason of other contemporaneous complaints – as genuine even though it was only first reported to medical personnel 17 months later.
Tomlinson also diagnosed a further 6% due “disequilibrium symptoms”.
Most significant though was the severe and chronic post-traumatic stress disorder which Prof Basil James and Dr
Karen Chau assessed at 17% PIRS with no improvement likely.
Doing the best he could and having regard to the significant domestic fringe benefits enjoyed under his employment, Justice North assessed a weekly $750 financial loss for the entire 9 year period up to trial, total $351k.
That assessment was specifically premised on the basis that the church would likely insist on some repayment under its “overpayment” arrangement.
“If my conclusion had been that the church would let the overpayment stand and would not insist upon a substantial repayment, my assessment would have been less for the reason that in those years the plaintiff’s incapacity for work was not actually productive of economic loss”.
With the psychiatric illness dominant, he allocated an ISV of 30 but in the context of the other injuries allowed an uplift to 35 resulting in an award of general damages $56k.
A future loss weekly income loss rate at $600 per week was adopted for his remaining 9.5 yr work life until age 70, yielding $238k in a total award that came to just over $700k.
While B&M’s insurer retreated from the argument that recreational boating was an inherently “dangerous recreational activity,” it maintained the contention – in a quest for Civil Liability immunity -in the specifiic context of a friend’s warning to Ireland a few days earlier that the fuel pump was dangerous because “fuel and power don’t mix”.
But Justice North dismissed the notion that the risk of a fuel explosion was an “obvious risk” – the necessary precondition for the “dangerous recreational activity” immunity – for the very reason that the plaintiff had little knowledge of marine mechanics and relied upon the boat shop to provide sound advice.
In any event his honour was inclined to the view that CLA sections 17, 18 & 19 (dangerous recreational activity) do not extend liability immunity in contract claims because they refer to “negligence for harm” as opposed to the broader, “breach of duty” encompassed by sections 11, 12 and 14.
He also noted that CLA s 7 (3) could not be relied upon by the plaintiff in his contract claim to circumvent Civil Liability laws entirely because the “due care and skill” provision was merely implied and not an “express term” or “provision” the necessary pre-condition for avoidance of the the operation of CLA Chapter 2 part 1.