Local Court New South Wales Medium Neutral Citation: Levenspiel v Grinter [2021] NSWLC 11 Hearing dates: 8 November 2021; 15 November 2021 (written submissions); 21 November 2021 (further written submissions); 13 December 2021 (costs submissions); 21 December 2021 (further costs submissions) Date of orders: 22 December 2021 (final orders) Decision date: 22 December 2021 Jurisdiction: Civil Before: Nash LCM Decision: The final orders of the Court are as follows: (1) Judgment and verdict for the Defendant; (2) Plaintiff's Statement of Claim filed 8 November 2019 is dismissed; (3) The Plaintiff is to pay the Defendant's costs of the proceedings on the ordinary basis up to 12 May 2020; and (4) The Plaintiff is to pay the Defendant's costs of the proceedings on an indemnity basis from 13 May 2020 (including the costs of the costs application). Catchwords: Civil claim – Collision between unmanned marine vessels – Negligence – Non-delegable duty of care – Breach of duty – Damages – Expert evidence in the Local Court – Joint Reports – Costs Legislation Cited: Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Ports and Maritime Administration Regulation 2012 (NSW) Subordinate Legislation Act 1989 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bettergrow Pty Ltd v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks operations Trust t/as TransGrid (No. 2) [2018] NSWSC 514 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 Commonwealth v Introvigne (1982) 150 CLR 258 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Field v Dettman [2013] NSWCA 147 Jones v Dunkel (1959) 101 CLR 298 Kondis v State Transport Authority (1984) 154 CLR 672 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 NMFM Property Pty Ltd v Citibank Ltd (No. 10) [2000] FCA 1558 Reed v Warburton [2011] NSWCA 98 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 Woodhouse v Fitzgerald and McCoy (No. 2) [2020] NSWSC 450 Category: Principal judgment Parties: Max Levenspiel (Plaintiff) Geoffrey Grinter (Defendant) Representation: Counsel: Mr J Levingston, Barrister (Plaintiff) Mr B Lloyd, Barrister (Defendant) Solicitors: Vaarzon-Morel Solicitors (Plaintiff) HWL Ebsworth (Defendant) File Number(s): 2019/00351814 Publication restriction: Nil Judgment A. BACKGROUND 1. The figurative expression - "like ships passing in the night" – is well known. These proceedings, however, arise because 2 private marine vessels unfortunately did not pass in the night. Rather, they arise as a result of what was, in fact, either a late night or an early morning collision between 2 unattended and unmanned marine vessels on Brisbane Water near Point Frederick. The plaintiff owned one of the vessels and the defendant owned the other. For ease of understanding, I will refer to the plaintiff, and his vessel, as 'Mr Levenspiel' and 'Mr Levenspiel's vessel' respectively, and the defendant, and his vessel, as 'Mr Grinter' and 'Mr Grinter's vessel' respectively. 2. In summary, it is not in dispute that Mr Grinter's vessel, which he had named 'Siesta', broke loose from its mooring either late in the evening of 6 March 2019 or early in the morning on 7 March 2019, and collided with Mr Levenspiel's vessel, which he had named 'Investigator'. Siesta was a 1991 Riviera 27 Flybridge cruiser constructed of fiberglass and was about 8.3 metres long. Investigator was a blue-water ocean-going vessel. 3. It is also not in dispute that Mr Grinter's mooring failed at its swivel joint and his vessel broke free from the mooring, drifted in the direction of Mr Levenspiel's vessel and ultimately collided with it. 4. Mr Grinter's vessel was secured to a 'swing' mooring in which the vessel was attached, through chains and cables, to heavy concrete blocks sitting on the seabed. The swivel joint was a steel apparatus that allowed the moored vessel to rotate without tangling the mooring rope. The source of the failure of the swivel joint was the weld that held the swivel's centre bolt in place, which allowed the swivel to unscrew and Mr Grinter's vessel to detach from its mooring. The evidence identified below discloses that the cause of the failure was either significant wear, absence of galvanizing, electrolysis and degradation of the weld (this being Mr Ward's opinion – an expert marine surveyor called to give evidence by Mr Levenspiel), or a latent defect in the weld (this being Mr Cox's opinion – an expert metallurgist called to give evidence by Mr Grinter). 5. The swivel can be seen in this photograph, which also shows the connecting bolt: 1. An aerial photograph showing the respective locations of the vessels, prior to the collision, is below, with point 'A' indicating the location of Mr Levenspiel's vessel moored at his jetty, and point 'B' indicating the location of Mr Grinter's vessel moored at his swing mooring: 1. When moored, each vessel was approximately 232 metres from the other. 2. Mr Grinter's mooring apparatus, including, relevantly, the swivel, had last been inspected and serviced almost a year before the incident, on 8 March 2018, by a company known as 'Brisbane Water Moorings Salvage and Service (ABN 52 462 394 871)'. The key individual behind that company was a person known as Mr David Clements. I will refer to this company in these reasons as 'Brisbane Water Moorings'. Neither Brisbane Water Moorings, nor Mr Clements, were parties to these proceedings. 3. The main question and central issue in this case is whether Mr Grinter is liable to Mr Levenspiel in negligence for the damage which Mr Levenspiel suffered as a consequence of the collision of the 2 vessels in the manner I have described. As I have said below, this involves determining whether Mr Grinter owed Mr Levenspiel a non-delegable duty of care. 4. There are other questions, including the extent of any damages award that should follow in the event that Mr Grinter was found liable in negligence, and I will address this issue later. 5. Mr Levenspiel's total claim was for the sum of $37,998.50, being the cost of repairs to his damaged vessel and the jetty. B. THE PARTIES' RESPECTIVE PLEADINGS 1. Mr Levenspiel's claim can be summarised as follows: 1. He was owner of a marine vessel named 'Investigator' and was the licensee of a jetty on Brisbane Water near Point Frederick; 2. Mr Grinter was also owner of a marine vessel named 'Siesta' and was the licensee of a swing mooring apparatus attached to a registered mooring on Brisbane Water; 3. On 6 March 2019, Mr Levenspiel's vessel and Mr Grinter's vessel were moored on Brisbane Water near Point Frederick; 4. On 6 March 2019 or 7 March 2019, Mr Grinter's vessel came free of its mooring, in that it suffered a major failure of the swivel, caused by the separation of its two halves by the unscrewing of its connecting link; 5. On or around 1am on 7 March 2019, the unmanned vessel owed by Mr Grinter collided with the unmanned vessel owned by Mr Levenspiel; 6. The collision was caused by Mr Grinter's negligence; 7. As a consequence of that negligent conduct, Mr Levenspiel has suffered damage. 1. The substance of the defence case is that, although conceding that on or about 6 or 7 March 2019 Mr Grinter's vessel collided with Mr Levenspiel's vessel, he denies there was any major failure of Mr Grinter's mooring and says that: 1. His vessel was properly, safely and securely moored; 2. He took all reasonable steps and care to ensure his vessel was safely and securely moored; 3. His mooring had been inspected, maintained and serviced on 8 March 2018, less than 12 months prior to the incident by Brisbane Water Moorings; 4. He took all reasonable steps to ensure the mooring was in good order; 5. The mooring was in as new condition at the time of the incident having been serviced less than 12 months prior to the incident; 6. He was not negligent or in any way responsible for any damage to the plaintiff's vessel and/or jetty; 7. He did not owe Mr Levenspiel a duty of care and was not in breach of any duty of care. 1. Mr Grinter further says that the alleged damage to Mr Levenspiel's vessel and licensed jetty was due to an unexpected latent defect in the material of the swivel joint found to have failed on the mooring which was unforeseeable as it could not be discovered by inspection or customary testing methods. That is, the circumstances of the incident were such that Mr Grinter could not exercise any control over the latent defect. 2. A pleaded defence that the cause of the failure of Mr Grinter's mooring was due to exceptional and gale force wind and weather conditions over which he had no control was abandoned at the hearing. 3. As I have described below, the parties, in their written and oral submissions to the Court, further explained the basis on which Mr Levenspiel alleged that Mr Grinter was liable in negligence. C. SUMMARY OF THE EVIDENCE 1. The evidence in this case comprised a number of statements and expert reports, as well as oral evidence from the authors of those statements and reports. 2. In light of the way I have determined the central issue in these proceedings as explained later, I have only summarised the evidence in a general way. It has not been necessary to engage in any detailed examination of the evidence, or to resolve many of the conflicts in that evidence. 3. Mr Levenspiel's evidence comprised: 1. Exhibit 1: the subject swivel; 2. Exhibit 2: expert report of Dan Ward dated 20 May 2020; and 3. Exhibit 3: expert report of Matthew Willett dated 11 April 2021. 1. Mr Ward and Mr Willett were both expert marine surveyors. 2. Mr Ward gave evidence about the required frequency for inspecting swivel moorings, the circumstances in relation to the inspection and servicing of the subject swivel and the cause of the weld failure and its foreseeability. 3. Mr Willett gave evidence about Mr Levenspiel's vessel, and its general condition before and after the collision. 4. Affidavits of Mr Levenspiel affirmed on 20 March 2020, 16 June 2020 and 9 April 2021 were also read in the proceedings. Mr Levenspiel gave evidence about his ownership of Investigator and its ongoing maintenance, the licencing of his jetty and its ongoing maintenance, the incident involving the collision of the 2 marine vessels and the damage caused to his vessel and jetty. 5. For completeness, I note I dismissed an application by Mr Levenspiel to rely on further evidence from Mr Kent Shepphard at the hearing, on the basis that a statement from this individual had not been filed and served in advance of the hearing. It was my view that to permit viva voce evidence from Mr Shepphard, in circumstances where no disclosure of the likely content of his evidence had been disclosed to Mr Grinter, would be unfair. 6. Mr Grinter's evidence comprised: 1. Exhibit A: statement of Geoffrey Grinter dated February 2020; 2. Exhibit B: Brisbane Water Mooring tax invoice dated 28 April 2015; 3. Exhibit C: expert report of Simon Cox dated 27 October 2020; 4. Exhibit D: expert report of David Holmes dated 8 January 2020; 5. Exhibit E: expert report of David Holmes dated 15 July 2020; 6. Exhibit F: expert report of David Holmes dated 24 May 2021. 1. Mr Grinter gave evidence about his ownership of 'Siesta' and the use of his mooring. He also gave evidence about his engagement of Brisbane Water Moorings and Mr Clements to inspect and service his mooring, as well as his knowledge of the incident involving the collision of the 2 marine vessels and its aftermath. 2. Mr Cox is an expert metallurgist. He gave evidence about the material composition of the swivel, its adequacy for a mooring apparatus, the required frequency for servicing the swivel and its replacement, the cause of the weld failure in the swivel, and whether that failure was a latent defect, and its likely condition at the time of the collision. 3. Mr Holmes is an expert marine surveyor. He gave evidence about Mr Levenspiel's vessel, and its general condition before and after the collision. He also gave evidence about matters going to the quantification of Mr Levenspiel's claim including the likely reasonableness of the claimed damages in relation to the replacement Furler drum system. 4. Each of the lay witnesses and experts called by the parties were also cross examined. 5. I now turn to my findings, and in doing so, will outline the legal principles that are relevant to my determination. 6. I have had regard to Mr Levenspiel's written submissions dated 4 November 2021, 7 November 2021 and 21 November 2021. I have also had regard to Mr Grinter's written submissions dated 5 November 2021, 7 November 2021 and 15 November 2021. D. LEGAL PRINCIPLES AND FINDINGS 1. In summary, Mr Levenspiel submitted that Mr Grinter did not take all reasonable steps to prevent the failure of the swivel, as he was responsible for the conduct of his mooring contractor, Brisbane Water Moorings, which failed to detect the deteriorated condition of the swivel when it inspected the swivel. 2. Mr Levenspiel further submitted that the swivel's failure was avoidable because the deteriorated condition of the swivel was obvious on inspection by any competent mooring contractor such as Mr Grinter's contractor, Brisbane Water Moorings. Mr Levenspiel argued that Brisbane Water Moorings had inspected the mooring on 8 March 2018 (12 months prior to the incident) and that its deteriorated condition must have been obvious, but no action was taken, and that the swivel was not in 'as new condition at the time of incident' even though it had been inspected 12 months prior to the collision. 3. By this description, Mr Levenspiel argued Mr Grinter owed him a non-delegable duty of care to ensure his mooring was serviced with reasonable care and skill. 4. In his closing submissions, consistent his opening submissions, Mr Levenspiel argued that his loss and damage occurred on the sea, and that the sea is a notoriously dangerous place. He argued that Mr Grinter had a duty of care to not allow Siesta to come free from its mooring. He delegated or entrusted Mr Clements and Brisbane Water Moorings to do the necessary work of maintaining and servicing the Siesta mooring to make sure that Siesta would not come free from its mooring and collide with Investigator and the jetty. Mr Levenspiel submitted that the facts show that Mr Clements and Brisbane Water Moorings failed to carry out that work so as to prevent the failure of the swivel and the resulting collision, and that Mr Grinter's liability is the vicarious liability for the negligence of Mr Clements and Brisbane Water Moorings to whom Mr Grinter delegated or entrusted the mooring maintenance and servicing work. 5. Mr Levenspiel argued that Mr Grinter's liability arises in special circumstances involving the safety of vessels on the sea. He further argued that Mr Grinter was responsible for the care and safety of other vessels and jetties and in this case was liable for the loss and damage Siesta caused to Mr Levenspiel's property as a consequence of Siesta breaking loose from its mooring. 6. Mr Levenspiel contended that it does not matter whether or not Mr Clements and Brisbane Water Moorings is an independent contractor to Mr Grinter, because the facts show that Mr Grinter delegated or entrusted the mooring work to Mr Clements and Brisbane Water Moorings and there was prima facie evidence of negligence by Mr Clements and Brisbane Water Moorings. 7. Mr Levenspiel also argued that Mr Grinter had obligations under cl 67ZA of the Ports and Maritime Administration Regulation 2012, which were in mandatory terms, requiring him to ensure that the swivel (as part of the mooring equipment) used to secure his vessel to the mooring was suitable. Clause 67ZA was in the following terms at the time of the collision: 67ZA Licence conditions (1) A mooring licence may be granted subject to such conditions as may be specified in the licence. (2) In addition to the conditions specified in a licence, a licence is subject to the following conditions— (a) the equipment used to secure a vessel to the mooring must be suitable to secure the vessel occupying the mooring in that location and meet the standards set by Transport for NSW, (b) a vessel occupying a mooring must be registered under the Marine Safety Act 1998 or have a certificate of operation or identification number issued under the National law, (c) the mooring licence number must be displayed on the buoy attached to the mooring in characters not less than 50mm high and must not be obscured, (d) the licensee is to ensure that any vessel secured to the mooring is appropriate to the type of mooring concerned. (3) A licensee must comply with any conditions to which the licence is subject. Maximum penalty (subsection (3)): 50 penalty units. 1. The Ports and Maritime Administration Regulation 2012 was repealed on 1 September 2021 by s 10(2) of the Subordinate Legislation Act 1989. 2. Mr Levenspiel emphasised the 'strict liability and non-delegable nature' of the obligation under cl 67ZA, being an obligation out of which Mr Grinter could not be excused. 3. As I said earlier, Mr Levenspiel's claim is based on a cause of action in negligence. The elements of this cause of action are well known, and were set out, for example, in Reed v Warburton [2011] NSWCA 98 as follows: 1. The defendant owes a duty of care to the plaintiff; 2. The defendant breaches that duty; and 3. The defendant's breach of duty is the cause of the damage suffered by the plaintiff (being damage which is not too remote). 1. Claims in negligence are also governed by the provisions of the Civil Liability Act 2002, but neither party pleaded any particular reliance on, or made submissions in reliance on, any of those provisions in the context of the current proceedings. 2. Given the way Mr Levenspiel cast his case, it is necessary to observe that a 'non delegable duty of care' arises where there is a special relationship between the plaintiff and the defendant where the defendant is in a special position with respect to the plaintiff: see for example Ellis v Wallsend District Hospital (1989) 17 NSWLR 553. The easiest way to explain the relationship is with examples arising out of everyday life. The law provides, for example, that the relationship of employer to employee, hospital to patient and school to student are relationships which give rise to a non-delegable duty of care: see for example the discussions in Kondis v State Transport Authority (1984) 154 CLR 672 and Commonwealth v Introvigne (1982) 150 CLR 258. 3. Relevantly, a non-delegable duty of care may arise where the party that owes the duty is so placed in relation to another person or their property that they assume a particular responsibility for his or its safety, or where the party owing the duty has undertaken the care, supervision or control of the person or property: see Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. This creates a relationship of proximity which is marked by special dependence or vulnerability on the part of the person to whom the duty is owed: see Woodhouse v Fitzgerald and McCoy (No. 2) [2020] NSWSC 450 at [226]. 4. The hallmark of the relationship is usually the introduction, by the party owing a duty, of an inherently dangerous substance or activity: see NMFM Property Pty Ltd v Citibank Ltd (No. 10) [2000] FCA 1558 at [822] – [833]. There are a number of existing categories of relationship which are recognised as imposing a non-delegable duty of care. This duty should not be extended beyond the limited number of existing categories without a 'sound doctrinal basis' and there is no pressing practical reason for doing so: see Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at [156]. 5. Outside of the limited circumstances in which a non-delegable duty is found to arise, the 'general rule' is that a defendant is not vicariously responsible for the negligence of an independent contractor: see Leichhardt at [23]. 6. In Bettergrow Pty Ltd v NSW Electricity Networks Operations Pty Ltd as trustee for NSW Electricity Networks operations Trust t/as TransGrid (No. 2) [2018] NSWSC 514 at [69], the Court said: In general, courts have held that a person does not owe a non-delegable duty of care to ensure that reasonable care is taken by an independent contractor, even where the contractor undertakes ultra-hazardous activities: see Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 29-30 per Mason J; [1986] HCA 1; Transfield Services (Australia) Pty Ltd v Hall (2008) 75 NSWLR 12; [2008] NSWCA 294 at [90] per Campbell JA. As Gleeson CJ pointed out in Leichhardt Municipal Council at [23], to impose on a person a duty to prevent each specific act of negligence by a contractor would be to impose an impossible burden on that person. And to do so where the contractor is likely to have specialised skills to undertake the relevant tasks that the person engaging the contractor does not have would be unreasonable. 1. Neither party identified any previous case in which a non-delegable duty of care was found to exist in circumstances relevantly similar or analogous to those the subject of the present litigation. 2. With these principles in mind, I now apply them to the facts in this case. 3. I find that Mr Grinter did not owe Mr Levenspiel a non-delegable duty of care to ensure that his mooring was serviced with due care and skill. 4. In this respect, I find that the relationship between the parties does not fall within one of the existing relationships where a non-delegable duty is accepted to exist. When I have regard to the case authorities to which I have referred, and noting that neither party identified a factually analogous case to the relationship between Mr Levenspiel and Mr Grinter, I cannot find that the relationship is within one of those existing relationships. 5. I also find there is no sound doctrinal basis for concluding that any duty owed by Mr Grinter should be non-delegable. There was nothing inherently dangerous or hazardous about the act of servicing the mooring, or indeed connecting the vessel to the mooring, and accordingly Mr Levenspiel's circumstances did not place him in a position of 'special vulnerability'. I therefore see no basis for expanding the existing categories of relationships to include the type of relationship between Mr Levenspiel and Mr Grinter. 6. I accept that in some circumstances, mooring a marine vessel can pose a particular hazard. But the question is not whether mooring a marine vessel in the manner the subject of this case is, in certain circumstances, hazardous. The question in this case, as Bettergrow makes clear at [66], is whether the activities that were actually carried out were hazardous to Mr Levenspiel. No part of the evidence adduced in this case demonstrated that any of the activities carried out by Mr Grinter were, in the relevant sense, hazardous to Mr Levenspiel. Further, even Mr Ward, the expert marine surveyor called to give evidence in Mr Levenspiel's case, acknowledged that the timing of Mr Grinter's engagement of Brisbane Water Moorings and Mr Clements to inspect and service the swivel, both historically (being approximately every 12 months) and insofar as concerned the more recent service on 8 March 2018, was acceptable. 7. Insofar as concerns Mr Levenspiel's reliance on the Ports and Maritime Administration Regulation 2012, cl 67ZA imposed a statutory regime in relation to the issue of mooring licences, and the conditions to which mooring licences may be subject. Subclause (3) required licensees to comply with mooring licence conditions. Contravention was sanctioned by criminal penalty. 8. Whether the contravention of a statutory provision is actionable at the suit of a person injured is a question of statutory interpretation. As a general proposition, a private law cause of action may arise where it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and the legislature intended to confer on members of that class a private right of action for breach of duty: see Field v Dettman [2013] NSWCA 147 at [36]. The private law right is more likely to arise where the purpose of the statute is to protect others from personal injury: see Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405, applied in Dettman at [39], [44] – [45]. 9. The Ports and Maritime Administration Regulation 2012 did not provide Mr Levenspiel with a private cause of action against Mr Grinter because it cannot reasonably be said that the duty imposed by the regulation was designed to protect a limited class of the public. Nor can it be said that the purpose of the duty was to protect others from personal injury. The duty imposed by the regulation was simply to comply with whatever conditions a licence was subject to. The conditions themselves are not set out in the regulation; these are determined by the relevant government authority at the time of issue of the licence (see cl 67Y), and presumably were specific to the mooring and depend on a range of factors, including the type of mooring, the type of vessel to be attached to the mooring, the local surrounds and any relevant environmental considerations. That being so, a breach of licence conditions could conceivably affect a broad range of persons and interests and would not be limited to personal injury. 10. In any event, even if the regulation did give Mr Levenspiel a private right of action against Mr Grinter, it would still fall to Mr Levenspiel to prove that cause of action (i.e. that Mr Grinter had failed to comply with the conditions of his mooring licence). Mr Levenspiel did not seek to put the licence conditions into evidence, and therefore he is not able to discharge his evidentiary burden in this respect. At the hearing, I made an observation about the absence of the mooring conditions and no satisfactory explanation was provided about why they were not adduced into evidence. 11. It follows that I do not find that special circumstances, or a special vulnerability, exists on the basis that the situation involved the safety of vessels on the sea, being a notoriously dangerous place, as Mr Levenspiel submitted. 12. Further, I find there is no pressing practical reason for expanding the categories of relationships in which a non-delegable duty of care has been found to exist to include the type of relationship shared between Mr Levenspiel and Mr Grinter. That relationship can be characterised, in broad terms, as private individual boat owners with nearby moorings. Mr Grinter did not have the requisite skills to undertake the inspection and servicing of the mooring apparatus, including the swivel, as he makes plain in his statement tendered as Exhibit A (see in particular at par [23]). He engaged Brisbane Water Moorings and Mr Clements to undertake this work, and he relied on their knowledge and skill in the execution of their work. Mr Grinter was cross examined and his evidence that he relied on Brisbane Water Moorings and Mr Clements in this way was not undermined. 13. It is clear that Mr Grinter engaged Brisbane Water Moorings and Mr Clements as independent contractors. The company laid the mooring in 1979 and have continued to service the mooring since that time (see Mr Grinter's statement, Exhibit A, par [14]). Mr Grinter gives instructions to the company to service the mooring over the telephone (see at par [19]). Mr Grinter is not usually present when the mooring is serviced, which is carried out using a barge, with a crane fixed to the barge (see at par [20]). Mr Grinter was not present when the mooring was serviced on 8 March 2018 (see at par [21]). None of this evidence was undermined in cross examination of Mr Grinter. 14. After the mooring was serviced, Mr Clements, on behalf of the company, issued a tax invoice and, in respect of the work (including the inspection and servicing of the swivel), wrote on the invoice "ALL GOOD" (see Annexure 'C' to Mr Grinter's statement). I am not left with any doubt that the evidence therefore reveals that Mr Grinter engaged Brisbane Water Moorings and Mr Clements as independent contractors, upon whom he relied to inspect and service the mooring, including the swivel. 15. There is, therefore, also no practical reason for imposing a non-delegable duty of care on Mr Grinter in those circumstances. As Gleeson CJ pointed out in Leichhardt Municipal Council at [23], to impose on a person a duty to prevent each specific act of negligence by a contractor would be to impose an impossible burden on that person. To do so where the contractor is likely to have specialised skills to undertake the relevant tasks that the person engaging the contractor does not have would be unreasonable. 16. Accordingly, I find that a key ingredient in the cause of action for negligence is absent in this case, namely, that Mr Grinter owed Mr Levenspiel a duty of care in the manner alleged, that is, a non-delegable duty of care. Mr Levenspiel did not argue that an ordinary duty of care was owed by Mr Grinter. Therefore the claim fails. 17. Given this finding, it is unnecessary to determine any of the remaining questions, including whether, if I were wrong in my conclusion that Mr Grinter did not owe Mr Levenspiel a non-delegable duty of care, there was a breach of duty of care (as well as whether certain items of the claim should be allowed). 18. As each witness was called to give evidence, and was cross examined, and because the parties made some submissions about the remaining questions, I would have preferred to set out my findings in relation to these matters. However, the course of the litigation was such that it is not appropriate that I express any view about the remaining questions. 19. In this respect, at the conclusion of the hearing on 8 November 2021, Mr Levenspiel provided extensive closing written submissions, including detailed submissions addressing a number of points about which Mr Grinter wished to be heard, including issues concerning the principles in Jones v Dunkel (1959) 101 CLR 298. 20. Accordingly, at the end of the hearing on 8 November 2021, at Mr Grinter's request, I made directions providing for the filing and service of any further closing written submissions. Both parties provided further submissions. Those submissions addressed, in some detail, various matters which give rise to a number of questions. The answers to those questions would have informed my consideration of the remaining issues in these proceedings, including whether any breach of duty of care could be proved, and the reasonableness of certain specific items the subject of Mr Levenspiel's damages claim. 21. As matters presently stand, it would not be possible for me to make a final decision about these matters. Accordingly, in light of my finding that Mr Grinter did not owe Mr Levenspiel a non-delegable duty of care, and given that finding is fatal to his claim, I consider it inexpedient to address the remaining questions, because to do so would require the parties to be recalled to address the Court. 22. I will make one further and final remark. In these proceedings, Mr Levenspiel adduced evidence from expert marine surveyors. Mr Grinter, likewise, adduced evidence from expert marine surveyors, in addition to expert metallurgical evidence. If the course of the proceedings had run such that the Court was required to resolve the conflicts in the evidence of the experts, this would have been an unnecessarily difficult task because no directions had been made for the joint conferencing of experts, or the preparation of any joint reports of the experts. 23. This is matter where I consider the parties ought to have sought directions for this to occur. As that did not happen, each expert was called individually to give evidence, and was cross examined in the same way. This is far from desirable, because where expert evidence is to be given in court, this should generally be done concurrently. To facilitate this, parties should be aware of Part 32 of Local Court Practice Note Civil 1, and Part 31.26 of the Uniform Civil Procedure Rules 2005. 24. Most importantly, the joint report prepared as a result of the joint conferencing of the experts will reveal any matters about which the experts disagree, and their reasons for any disagreement. This information allows the parties, and the Court, to readily understand the real issues in the proceedings, and the questions that have to be answered. It will also aid in the efficient use of Court time, as the experts will give their evidence concurrently rather than individually. E. CONCLUSION AND ORDERS 1. I am not satisfied on the proper application of the relevant legal principles to the facts in this case, that Mr Grinter owed Mr Levenspiel a non-delegable duty of care in respect of the negligent acts and omissions of either Mr Clements or Brisbane Water Moorings. This is fatal to Mr Levenspiel's claim. 2. Accordingly, the Court makes the following orders: 1. Judgment and verdict for the Defendant; 2. Plaintiff's Statement of Claim filed 8 November 2019 is dismissed; and 3. Plaintiff to pay the Defendant's costs of the proceedings, unless either party notifies the Court within 14 days that he seeks a different costs order. F. EPILOGUE: COSTS AND FINAL ORDERS 1. After delivering my judgment on 6 December 2021, in which I made the orders set out in par [73] above, Mr Grinter sought an order that Mr Levenspiel pay his costs of the proceedings on the ordinary basis until 12 May 2020, and thereafter on an indemnity basis. This application was brought in reliance on what I said at par [73(3)]. In support of that application, he relied on an affidavit sworn by Michael Valdes on 13 December 2021. Written submissions dated 13 December 2021 were also received. 2. Mr Levenspiel opposed such an order, and argued there should be no order as to costs in the proceedings: see par [1] of his written submissions on costs dated 20 December 2021. Alternatively, he argued that he should pay Mr Grinter's costs on the ordinary basis (except for the legal costs associated with the evidence of the 'weather expert' and the 'metallurgist expert'): see par [2] of his written submissions on costs dated 20 December 2021. In the further alternative, he says that he should pay Mr Grinter's legal costs on the ordinary basis up to and including 11 October 2021, and thereafter on an indemnity basis, except he should not be liable to pay the legal costs associated with the evidence of the 'weather expert' and the 'metallurgist expert: see par [3] of his written submissions on costs dated 20 December 2021. He relied on an affidavit of Troy Martin affirmed on 20 December 2021 in support of his position. 3. Both parties agreed on 6 December 2021 for the Court to determine the remaining question of costs 'on the papers' without the need for a further hearing. Accordingly, I have had regard to the evidence and written submissions of the parties as outlined above. 4. In support of his position resisting Mr Grinter's application for costs, including his claim for indemnity costs, Mr Levenspiel argued the following matters: 1. Mr Grinter's affidavit filed in support of his costs application was an exercise in extravagance thus incurring unnecessary legal costs; 2. There are likely to be legal costs claimed by Mr Grinter which have been unreasonably incurred, are an extravagance and out of all proportion to the issue in dispute, the amount in dispute and the hearing time, relying on Part 42.5 of the Uniform Civil Procedure Rules 2005; 3. Mr Grinter's obligation was to clearly and expressly plead that it was relying on the independent contractor defence, but he did not do so. The amended defence was an exercise in obscuration, and appears to abandon the independent contractor defence by withdrawing the allegation of proportionate liability. It was not until the start of the hearing that Mr Grinter made clear he was relying on the independent contractor defence; 4. Mr Grinter did not serve his undated statement (made in February 2020) until 11 October 2021 which was well after the date ordered by the Court for service of its evidence. This is disentitling conduct; 5. It was not unreasonable for Mr Levenspiel to reject an offer made by Mr Grinter, because at the time of all of the offers (including the 12 May 2020 offer), Mr Levenspiel: 1. Did not have the benefit of any lay evidence from Mr Grinter and was entitled to assume there was none forthcoming given the non-compliance with the Court's directions for service of evidence; 2. Did not have the benefit of the defence accurately pleading the ultimate defence relied upon; 1. It was unnecessary for Mr Grinter to plead the additional defences of 'exceptional and gale force wind and weather conditions' and 'unexpected latent defects'. These defences were an unnecessary extravagance and Mr Levenspiel expects these costs to be in the vicinity of up to $20,000 to $30,000. Further: 1. The legal costs for the 'weather defence' and the 'swivel defect defence' are not proportionate to the importance and complexity of the subject matter in dispute which was for a claim of $38,000 and heard over the course of half a day. This refers to Mr Grinter's pleaded defence, which was abandoned at the hearing, that the cause of the collision was due to adverse weather conditions; 2. Lay evidence could have been given about the weather issues instead of an expert; and 3. Mr Levenspiel, at his cost, provided Mr Grinter with Bureau of Meterorology historical data for wind speed for the time and location of the incident showing that there was no 'extreme weather event', as alleged by Mr Grinter. 1. My findings on the issue of costs are as follows. 2. Costs are in the discretion of the Court: see s 98 of the Civil Procedure Act 2005. Part 42.1 of the Uniform Civil Procedure Rules 2005 provides that the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs. Accordingly, the starting point is that Mr Levenspiel should be ordered to pay Mr Grinter's costs of the proceedings. 3. I find that there is no reason to depart from the usual costs order in these proceedings, and further that Mr Levenspiel should pay Mr Grinter's costs on an indemnity basis from 13 May 2020. I do not accept the arguments which Mr Levenspiel advanced in resisting a costs order, or an order for indemnity costs, for the following reasons: 1. The affidavit filed in support of Mr Grinter's costs application was not an exercise in extravagance thus incurring unnecessary legal costs. The affidavit was a relatively modest 4 page document which annexed relevant correspondence and attachments, including the offers of compromise on which Mr Grinter relied in support of his position on the question of costs, which I have considered below. Accordingly, there was no disentitling conduct justifying a departure from the usual order that the unsuccessful party is to pay the successful party's costs; 2. Whether there are 'likely' to be legal costs claimed by Mr Grinter which have been unreasonably incurred, are an extravagance or out of all proportion to the issue in dispute, the amount in dispute and the hearing time, will be a question for a costs assessor, in the event the parties are not able to agree on the quantum of costs to be awarded to Mr Grinter. Further, as explained below, there was no conduct on Mr Grinter's part justifying any 'carve out' of the costs order; 3. The 'independent contractor defence' on which the proceedings have been determined was pleaded in Mr Grinter's defence. Mr Grinter pleaded he did not owe a duty of care to Mr Levenspiel. I accept the full basis for this position was articulated in Mr Grinter's submissions rather than in his pleading, but it was not a defence that could have taken Mr Levenspiel by surprise. In fact it was Mr Levenspiel who argued at the hearing that Mr Grinter owed him a non-delegable duty of care. The Court has found that no such duty was owed, and this has been fatal to Mr Levenspiel's claim; 4. Mr Levenspiel cannot, in the circumstances, reasonably complain about the late service of Mr Grinter's statement. No objection was taken at the hearing to its tender into evidence, and Mr Grinter was cross examined on the content of his statement. Mr Levenspiel is bound by the forensic decisions taken at the hearing, and throughout the course of the proceedings. There is therefore no evidence of any unfairness arising from the late service of his statement; 5. It was not reasonable for Mr Levenspiel to reject the offers of compromise which Mr Grinter had made. On 12 May 2020, Mr Grinter served Mr Levenspiel with an offer of compromise that offered to settle the proceedings on the basis that Mr Grinter pay Mr Levenspiel $10,000 plus Mr Levenspiel's costs as agreed or assessed. The offer was open for acceptance by Mr Levenspiel for 28 days, until 9 June 2020. The offer was made in accordance with Part 20.26 of the Uniform Civil Procedure Rules 2005. Mr Levenspiel did not accept the offer. Mr Levenspiel did not receive a judgment more favourable that Mr Grinter's offer. On the contrary, the outcome was substantially less favourable; 6. Part 42.15A of the Uniform Civil Procedure Rules 2005 sets out the circumstances in which a defendant may be entitled to indemnity costs if they make an offer of compromise which is reject by the plaintiff, and the defendant obtains a judgment 'no less favourable' than the terms of the offer. If the circumstances outlined in Part 42.15A(1) are established, the defendant is entitled to indemnity costs form the date after the offer was made 'unless the court orders otherwise'. I am satisfied that Mr Grinter's offer was a genuine compromise. At the time the offer was made, Mr Grinter had made it known that he denied liability, yet offered to pay Mr Levenspiel approximately one-third the value of his claim, plus his legal costs, in order to achieve a negotiated settlement. Further, having regard to Part 20.26(5)(a) of the Uniform Civil Procedure Rules 2005, the 28 day period during which the offer was open for acceptance was a reasonable one; 7. Mr Grinter made further offers of compromise on 7 July 2020 and 8 March 2021, which were ultimately not accepted by Mr Levenspiel, however the determination of the indemnity costs claim in this matter turns on the first offer of compromise made on 12 May 2020. The fact that Mr Grinter's lay evidence had not been served at the time the offer was made is not relevant. Mr Levenspiel was required, upon receipt of the offer, to make his own assessment of his prospects. It was his claim, and he bore the onus of proof at all times to prove each element of his claim, including on the issue of duty of care. Further, for the reasons I have already outlined, I do not consider that the content of Mr Grinter's defence, as it existed at the time the offer of compromise was made on 12 May 2020, in any way causes me to conclude that it was not unreasonable for Mr Levenspiel to reject the offer; 8. The costs order should not exclude the costs associated with the pleaded defences concerning adverse weather conditions and unexpected latent defects in the swivel. Costs should only be apportioned in the most exceptional of circumstances and litigants should not be discouraged from canvassing all material issues for fear of an adverse costs order: see McLaughlin v Dungowan Manly Pty Ltd [2010] NSWSC 306 at [20] – [25]. Mr Grinter obtained and served a written report from an expert meteorologist (which Mr Levenspiel labelled as the 'weather expert' as referred to above). Mr Levenspiel did not prepare evidence in response. At the final hearing, Mr Grinter elected not to rely on the meteorologist's report. In these proceedings, the Court found that Mr Levenspiel failed to prove his case and no adverse consequence should flow from the fact that Mr Grinter explored, but ultimately did not press, a particular defence that had been raised. Further, the case was ultimately determined on the single issue of whether Mr Grinter owed Mr Levenspiel a non-delegable duty of care, and it was unnecessary for the Court to make findings on the various issues thrown up by the expert evidence, including the expert marine surveying evidence and the expert metallurgical evidence. Accordingly, this case cannot be characterised as an 'exceptional' one in which costs should be apportioned. 1. For this combination of reasons, Mr Levenspiel should be ordered to pay Mr Grinter's costs of the proceedings on the ordinary basis up to 12 May 2020 and on an indemnity basis from 13 May 2020. 2. Mr Grinter has also been successful in his costs application. Mr Levenspiel contested the proposed costs order, and the both parties have been put to the expense of addressing this issue. Further, I repeat my findings above at par [80(1)], namely, that the affidavit filed in support of Mr Grinter's costs application was not an 'exercise in extravagance'. Accordingly, costs should follow the event in relation to the determination of the costs application. 3. Accordingly, the final orders of the Court are as follows: 1. Judgment and verdict for the Defendant; 2. Plaintiff's Statement of Claim filed 8 November 2019 is dismissed; 3. The Plaintiff is to pay the Defendant's costs of the proceedings on the ordinary basis up to 12 May 2020; and 4. The Plaintiff is to pay the Defendant's costs of the proceedings on an indemnity basis from 13 May 2020 (including the costs of the costs application). Magistrate Scott Nash Gosford Local Court 22 December 2021 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2022