Boating collision – liability, contributory negligence, apportionment & limitation period

Balnaves v Smith & Anor; Malone v Smith & Ors [2010] QSC 39

A boating collision occurred on the Coomera River on 23 February 2002, at 2:40pm on a bend of the river. Three people were badly injured, including Mr Smith an employee of Coomera House Boats Pty Ltd and the Mr Balnaves and Mr Malone of the other vessel.

Mr Balnaves and Mr Malone commenced separate actions against Mr Smith and his employer. The actions were heard together. The trial was limited to liability only. There was significant dispute as to which vessel was on the correct side of the river, speed and distances. Ultimately, his Honour Applegarth preferred the evidence of Mr Collins an independent witness and to a lesser degree Mr Smith and found against Mr Balnaves on this issue.

Whilst his Honour found that the vessel the plaintiffs were in was on the wrong side of the river and Mr Smith was on the right side, his Honour formed the view that Mr Smith was contributory negligent.

Contributory negligence

[108] It was not reasonable to simply expect the Bayliner to take corrective action. It was negligent of Mr Smith to not slow in the circumstances. It was submitted that he was entitled to assume that the driver of the oncoming vessel knew the rules, and would comply with them, and therefore he did not need to slow.146 Mr Street SC advanced the analogy of driving down a country lane and seeing another car coming in the opposite direction. In that situation drivers assume that both are going to comply with the rules of the road and allow each other to pass on the correct side. It was submitted to be the same on the sea.147 However, the analogy does not apply because Mr Smith was not entitled to assume that the oncoming Bayliner was going to comply with the rules. It was on the wrong side of the channel. There was a need for great caution.

[109] I find that Mr Smith was negligent in failing to proceed at a safe speed so that he could take proper and effective action to avoid a collision. This involved a breach of Rule 6 of the “Collision Regulations”.148 I find that he failed to take timely action to avoid the collision by slowing as soon as he saw the Bayliner on the wrong side of the channel. This involved a breach of Rule 8 of the Collision Regulations. He did not immediately turn hard to starboard upon seeing the Bayliner. This action was required in the extraordinary circumstances in which he found himself in order to avoid a collision and to ensure that the vessels passed port to port. His failure to do so breached Rule 14 of the Collision Regulations. It was negligent.

[110] Mr Smith’s negligent conduct in proceeding at a speed that was excessive in the circumstances and in not taking more timely action to alter course materially contributed to the collision. The unchallenged evidence of Mr Hipkins, based on his experience of designing and operating vessels like the Haines Hunter, is that such craft will come to a stop very quickly when engine power is cut.149

[111] If Mr Smith had promptly slowed the Haines Hunter and taken earlier action in turning it hard to starboard so as to avoid a collision then the Haines Hunter and the Bayliner probably would have passed port to port, and the collision would have been avoided.

[112] I conclude in Mr Balnaves’ proceeding that he has established liability against Mr Smith and that Mr Smith’s employer, the second defendant, is vicariously liable for Mr Smith’s negligence.

[113] I conclude in Mr Malone’s proceeding that he has established liability against Mr Smith and that Mr Smith’s employer, the second defendant, is vicariously liable for Mr Smith’s negligence.

146 See oral submissions T 5-18 to 5-19.

147 T 5-19 l 32.

148 Convention on the International Regulations for Preventing Collisions at Sea 1972. The Collision Regulations appear in Schedule 3 of the Navigation Act 1912 (Cth), and also are incorporated in State legislation.

A difficult and somewhat unusual consideration was whether liability to apportioned the under section 259 of the Navigation Act 1912 (Cth) or the Law Reform Act 1995 (Qld), which in turn required consideration of section 5(9) of the Judicature Act 1876 (Qld) and section 247 of the Supreme Court Act 1995 (Qld).

His Honour concluded:

 The arguments advanced by Mr Street SC and Mr Harding have considerable force. In addition, they submit that the provisions of ss 6 and 10 of the Law Reform Act are of a remedial kind and should be given effect to, and that “the work done by s 247 is of the narrowest scope and is confined to removal of the defence of contributory negligence as an absolute defence and does not manifest an intention to proscribe the work done by ss 6 and 10”. This argument is joined in by counsel for Mr Balnaves. I accept it. The remedial provisions of ss 6 and 10 of the Law Reform Act were first enacted in Queensland in 1952.152 They permit determinations of contributory negligence and apportionment between defendants in cases to which the provisions of the Navigation Act do not apply. I am reluctant to infer that the intent of the Queensland Parliament in 1995, when it relocated a large number of provisions into the Supreme Court Act 1995, was to limit the availability of the beneficial legislation that had been passed in 1952. I note that the learned authors Davies and Dickie do not contend that the position is clear153 and they correctly observe that it would be rather surprising that the general maritime law 50/50 apportionment rule still governs, no matter what the respective degrees of fault in a case to which the Navigation Act does not apply.154

[123] Accordingly, I accept the parties’ submissions that I should proceed to assess Mr Balnaves’ contributory negligence by considering the respective fault of Mr Balnaves and Mr Smith. In accordance with well-established principles, I have regard to the degree of departure from the standard of care of the reasonable person155 and also compare the relative importance of the acts of the parties in causing the damage.156 It is the whole conduct of each negligent party in relation to the circumstances of the collision which must be subject to comparative examination.157

152 Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act 1952.

153 Davies and Dickie Shipping Law 3rd ed Thomson Law Book Company at 427.

154 Ibid at p 429.

155 Pennington v Norris (1956) 96 CLR 10 at 16.

156 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532-3; Wynbergen v Hoyts

Corporation Pty Ltd (1997) 149 ALR 25.

157 Liverpool City Council v Millett (2004) 43 MVR 193 at 223 [144].

Limitation argument

It was argued because the Navigation Act 1912 (Cth) applied and proceedings had not been commenced within the 2 year limitation period, they were barred. His Honour found that it did not apply, but in the event it did, he would extend the period because:

[136] If I had concluded that the two year limitation period applied164 then it would have been necessary to consider the exercise of the power in s 396(3) to extend time. For completeness, I shall address that issue.

[137] That provision confers a broad discretion to extend time. Limitation periods are enacted for sound reasons of public policy.165 One therefore starts with the position that the applicant for an extension of time must show good reason in the interests of justice why the policy of the Act should be displaced.166 The extension provision in s 396(3) is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. Its purpose is to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action is to be commenced.167 Relevant considerations include the degree of blameworthiness on the part of the applicant, the circumstances which caused the delay and whether they were beyond the control of that party, the length of the delay and whether, if the application were granted, justice would be done between the parties.168 The absence of specific prejudice may not be sufficient justification to grant an extension.

[138] In this case there was no sworn explanation for the delay, including whether proceedings were not commenced within the two year period based on a belief that the limitation period in s 396(1) did not apply or due to ignorance of that limitation period. However, each plaintiff had to comply with the pre-action requirements of the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA”). On 6 January 2004 Mr Balnaves’ solicitors sent PIPA notices and various reports to Mr Smith and to his employer.169 After further correspondence the respondents’ solicitors acknowledged that the PIPA claims were valid and noted that the circumstances giving rise to the claims were the subject of other claims and proceedings. The respondents’ solicitors anticipated receiving instructions to prepare expert evidence concerning the circumstances of the incident. In late 2004 there was discussion concerning mediation and the holding of a compulsory conference. By letter dated 14 December 2004 the respondents’ solicitors indicated a preparedness to dispense with the requirement of a compulsory conference and advised “This will give you more time within which to issue court proceedings”.170 Mr Balnaves’ solicitors indicated an intent to issue proceedings prior to 23 February 2005 and on 20 January 2005 the respondents’ solicitors agreed to dispense with the compulsory conference. The correspondence is consistent with both sides proceeding on the basis that a three year limitation period applied. If proceedings had been commenced earlier and prior to compliance with the requirements of PIPA then they would have been stayed. There  s no suggestion that there has been any specific prejudice to Mr Smith and his employer by the delay in commencing proceedings until the requirements of PIPA were complied with. Mr Smith and his employer  were on notice of the intent to commence proceedings and there is no suggestion that the delay in commencing those proceedings until 22 February 2005 was of such a length that recollections deteriorated and that it was not possible for the parties to have a fair trial.

[139] The fact that Mr Balnaves admitted an offence is not a good reason to refuse an extension of time.171

[140] If the two year limitation period under s 396(1) applied, then I would have exercised the discretion under s 396(3) in favour of Mr Balnaves.

[141] I turn to consider the exercise of the discretion to extend time in Mr Malone’s action against Mr Smith and his employer. Similar issues arise in this context. The notice of claim pursuant to the provisions of PIPA was sent on 17 October 2003.172 On 15 January 2004 the respondents’ solicitors advised that the notice was deemed compliant. The same discretionary considerations arise in this context as arise in relation to the extension of time in relation to Mr Balnaves. Notice of the claim was given within the two year period. Compliance with PIPA was necessary. If the proceedings had been instituted by Mr Malone prior to compliance with those provisions, his action would have been stayed. Alternatively, he would have been granted an extension of time within which to commence proceedings. No prejudice to the first and second defendants is alleged. The delay in commencing proceedings did not give rise to an injustice or an inability to conduct a fair trial.

[142] Mr Malone’s action against Mr Balnaves is not subject to the limitation provisions in s 396(1), which relevantly applies to claims against a ship or its owner for damages for personal injuries suffered by a person on board another ship. However, the fact that his claim against Mr Balnaves is not caught by s 396 is not a sufficient reason to refuse an extension of time under s 396(3) in relation to his action against Mr Smith and Mr Smith’s employer. In circumstances in which the claimants were required to comply with the pre-action requirements of PIPA and in which the legal representatives for Mr Smith and his employer wished to continue their investigations into the circumstances of the accident, it was reasonable for Mr Malone to delay commencing proceedings until 10 August 2005. The fact that he has a good claim against Mr Balnaves does not mean that it is in the interests of justice to refuse to grant an extension of time to bring an action against Mr Smith and Mr Smith’s employer, against whom he also has a good claim, being a claim about which they were placed on notice within the limitation period.

[143] Had s 396(1) applied to Mr Malone’s claim against Mr Smith and his employer, I would have granted an extension of time in the exercise of the discretionary power conferred in s 396(3).

Liability & apportionment:

His Honour apportioned liability at 65% against Mr Balnaves and 35% against Mr Smith and his employer.

Plea of guilty

Mr Balnaves previously pleaded guilty to a charge pursuant to section 43(3) of the Transport Operations (Marine Safety) Act 1994 (Qld) on a different factual basis to that determined by his Honour:

[117] Mr Balnaves’ plea of guilty was based upon a version of events that I have not accepted. His conduct was more culpable than the version of events that formed the basis of his guilty plea, or the conduct which he admitted under cross-examination amounted to contributory negligence.

[118] This is not a case in which a plaintiff, having complied with the rules and being on the correct side of the channel, found himself on the “horns of a dilemma”, and was required to take desperate action to avoid an inevitable accident by moving onto the incorrect side of the channel.150 Mr Balnaves was not on the correct side of the channel to start with. If he had been close to the northern bank, and travelling at the slow speed that his evidence suggested and that reasonable care necessitated, a collision could have been avoided. However he was not travelling at a slow speed on the correct side of the channel and close to the bank. He was travelling at a high speed in the middle of the river. When he realised too late that he was on a collision course he took evasive action which failed to avoid the collision.

[119] In Mr Balnaves’ action, I find that the collision and the injuries that he sustained in consequence of it were caused or contributed to by his own negligence.

[120] In Mr Malone’s action, I find that Mr Balnaves’ negligence materially contributed to the collision. I conclude that Mr Malone has established liability against Mr Balnaves.

150 Cf Mr Balnaves’ submissions para 5.1 and 5.2, citing Manning v McPhillip [1995] 22 MVR 423 and The Bywell Castle (1879) 4 PD 219.

Brisbane Barrister – David Cormack

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