This article was first published in the February 2024 Legal Updates.
Snapshot
- A recent Court of Appeal decision provides a useful reminder of
the strict principles that apply when determining whether a
defendant’s conduct was negligent and caused an injury. - When considering the precautions that a reasonable person is
expected to take in response to a risk of harm, a factor to be
taken into account is whether a qualified expert recommended
certain precautions. - An important consideration in determining whether a risk
warning ought to have been provided is whether the injured person
would have heeded the warning.
In Farriss v Axford [2023] NSWCA 255
(‘Farriss 2023‘), the appellants
unsuccessfully appealed the Supreme Court’s decision to reject
a claim for compensation for an injury Mr Farriss sustained while
operating a boat owned by the respondents. When examining the
reasonable precautions against a risk of harm, it is necessary to
identify and analyse the risk in accordance with the relevant
provisions of the Civil Liability Act 2002 (NSW).
Background
On 24 January 2015, Timothy Farriss (founding member and lead
guitarist of the band INXS) was injured in a boating accident when
his left hand was caught in an electric anchoring system used to
raise and lower the boat’s anchor.
Mr Farriss’ left ring finger was severed and he suffered
injuries to his left index and middle fingers. He suffers ongoing
disabilities of his left ring finger (Farriss v Axford (No
3) [2022] NSWSC 20 (‘Farriss (No
3)‘) at [248]).
On 23 January 2015, Mr Farriss chartered a boat called
‘Omega’ for a weekend away with his wife to celebrate their
anniversary.
Mr Farriss and Montana Productions Pty Ltd
(‘Montana‘) (of which Mr Farriss and his
wife are directors) sued the owners of Omega, John and
Jill Axford and their agent Church Point Charters and Shipping Pty
Ltd (‘Shipping‘), for damages. Mr Niels
Storaker, the director of Church Point Charters and Shipping,
handed the boat over to Mr Farriss on 23 January 2015. Before
taking the boat out, Mr Farriss was given an induction about
certain features of the boat by Mr Storaker.
At first instance, Mr Farriss and Montana claimed about $1.2
million in compensation for damages and loss suffered as a result
of the injury. Among other things, Mr Farriss alleged the injury
caused him to lose his ability to play the guitar and to write
songs. He also alleged his primary injuries led to depression. In
addition, he alleged he could no longer work on his farm in
Kangaroo Valley and was reportedly forced to sell the property.
Mr Farriss and Montana were unsuccessful before Justice Cavanagh
in the Supreme Court and they subsequently appealed to the Court of
Appeal.
At first instance, Justice Cavanagh found that if Mr Farriss and
Montana had succeeded in their claim, they would have been entitled
to $622,000 (Mr Farriss) and $40,000 (Montana) in compensation.
Both amounts are significantly less than the claimed amount of over
$1 million. This compensation would have encompassed Mr
Farriss’ non-economic loss/pain and suffering, past economic
loss, future economic loss, past and future treatment, and care and
assistance expenses. The amount awarded to Montana would have
represented lost royalties earned through touring.
How did the injury happen?
Mr Farriss was found to have reported inconsistent versions of
events.
The injury happened when Mr Farriss attempted to anchor the boat
in Akuna Bay in northern Sydney. This proved to be a difficult
exercise as the chain kinked/jammed, causing the motor to stop. Mr
Farriss called Mr Storaker to ask for assistance and he was advised
to reset the circuit breaker. Unfortunately, Mr Farriss continued
to experience difficulties. He alleged the anchoring system
malfunctioned and that the malfunction activated the power, causing
his injury (at [16]).
At first instance, Justice Cavanagh found the power activated
because Mr Farriss stepped back onto a switch. When the power was
activated, Mr Farriss was still holding the chain with his left
hand. His hand was pulled into the gypsy (the component responsible
for controlling the chain) and his left ring finger was
severed.
The Court of Appeal accepted the version that the power
activated when Mr Farriss stepped on the switch, and Mr Farriss did
not challenge this version. While the parties relied on expert
evidence, the evidence was ultimately of minimal value due to the
accepted version of events.
Reasonable precautions
It was accepted that the respondents owed Mr Farriss a duty of
care.
In order to determine whether the respondents failed to take
reasonable precautions against a risk of harm, it was first
necessary to identify the risk of harm and to analyse the risk of
harm in accordance with the legislation (sections 5B and 5C of the Civil Liability Act 2002
(NSW); see Roads and Traffic Authority of New South Wales v
Dederer [2007] HCA 42; Uniting Church in Australia
Property Trust (NSW) v Miller; Miller v Lithgow City Council
[2015] NSWCA 320; Tapp v Australian Bushmen’s Campdraft
& Rodeo Association Limited [2022] HCA 11; Menz v
Wagga Wagga Show Society Inc [2020] NSWCA 65; Blue Op
Partner Pty Ltd v De Roma [2023] NSWCA 161 cited in
Farriss 2023 at [19]). The risk of harm must be specific
to the circumstances of the injury but not so narrow that it does
not encompass the full extent of the risk and the mechanisms by
which a person could be injured in the circumstances (Farriss
(No 3) cited in Farriss 2023 at [23]). Here, the risk
of harm was identified as ‘… that a person, such as [Mr
Farriss], might trap their hand in the unguarded windlass while
attempting to free the rusted anchor chain that had kinked, jammed
or bunched’ (at [20]).
Mr Farriss and Montana claimed the respondents ought to have
taken ‘no fewer than 22 precautions’ against the above risk
of harm (at [24]).
Justice Cavanagh, with whom the Court of Appeal agreed, found
that only two of the 22 precautions were ‘causally
relevant’ to Mr Farriss’ injuries (Cavanagh J in
Farriss (No 3) at [232] cited in Farriss 2023 at
[24]). Those precautions were that the respondents ought to have
installed (at [17]):
- A chain stripper (degreaser and primer).
- An extension of the spurling pipe (through which the anchor
chain passes) to guide the chain over the gypsy and into the
spurling pipe.
Mr Farriss and Montana failed to prove the respondents ought to
have taken these precautions because:
- the probability that the risk of harm would eventuate was low,
even though the risk of harm was foreseeable and not
insignificant; - there were no previous complaints about the electric anchoring
system; - the boat had been subject to the required regular inspections,
checks, maintenance and servicing; - the chain stripper and extension of the spurling pipe were not
recommended by any expert who inspected the boat; - the electric anchoring system had been operating on the boat
for over 20 years; - The boat contained a safety manual which explicitly warned
operators not to hold the chain when the electric system is in
operation; and - Mr Farriss was capable of complying with the safety manual and
it was reasonable for him to do so (at [27]-[36]).
The Court of Appeal found the respondents took the precautions
that a reasonable person ought to have taken. The respondents
provided safety caps on the deck switches, and warned operators to
keep their hands clear of the chain and winch when operating the
anchor system. The Court concluded these were the only precautions
a reasonable person was required to take in the circumstances.
Risk warnings
The anchor chain
It was accepted that the anchor chain tended to kink or jam. Mr
Farriss alleged the respondents were negligent in failing to warn
him about this tendency.
Induction and safety manual
Mr Farriss had the benefit of an induction with Mr Storaker
before the boat was handed over. While there were inconsistencies
in the accounts of both men as to what was covered during the
induction, it was found that the kinking/jamming chain issue was
not covered (Farriss (No 3) at [169] cited in Farriss
2023 at [39]).
The Court of Appeal agreed with Justice Cavanagh that the
failure to mention and instruct on the kinking/jamming chain during
the induction did not cause Mr Farriss’ injuries (at [40]).
Mr Farriss was injured because of his failure to comply with the
safety manual which warned operators to stay clear of the chain and
winch while it was in operation. Mr Farriss stepped on the switch,
which turned the electric system on, and caused his finger to be
severed while he was holding the chain. A warning during the
induction would not have prevented his injuries.
Response to warning
Mr Farriss argued that he would not have proceeded with the
charter had he been warned about the kinking/jamming anchor
chain.
This argument failed. The Court found there was no evidence that
Mr Farriss would have cancelled the charter had he been warned
about the kinking/jamming chain. In coming to this conclusion, the
Court considered the following factors:
- While there was inconsistent evidence as to Mr Farriss’
experience with boats, his own account was that he had extensive
experience and had previously owned boats. A person with such
experience would have considered the problem with the chain as
minor and this problem was unlikely to have caused him to cancel
the charter (at [45]). - The weekend away was booked for a special occasion. The
evidence pointed to this being a factor leading Mr Farriss to
proceed with the charter rather than cancel it due to a warning
about a minor problem with the anchor mechanism (at [47]). - Even though it was a long weekend and it was highly likely Mr
Farriss would need to anchor rather than moor due to a high volume
of vessels in the waterways, this was unlikely to cause him to
cancel for the reasons mentioned above (at [50]).
Australian Consumer Law
Mr Farriss and Montana alleged the respondents breached the
Australian Consumer Law – Consumer Guarantees as the boat was
not reasonably fit for purpose, in accordance with section 61 of the Australian Consumer Law.
This argument was abandoned at first instance as it was conceded
that this did not result in any greater benefit than that derived
from allegations in negligence.
The Court of Appeal found that in order to prove the boat was
not fit for purpose, Mr Farriss would need to prove he was an
inexperienced boat operator and the kinking/jamming problem
resulted in the boat being unfit for the purpose of allowing an
inexperienced boat operator to enjoy a relaxing leisure cruise.
Key takeaways
- Each case turns on its facts. It is imperative to form a clear
understanding of precisely how the accident happened and to base
the claim on these facts. Where an injured person provides
inconsistent accounts, this will most likely work against them and
expert evidence may be of limited value. - When drafting the Statement of Claim, care must be taken to
identify and clearly set out the precautions that are ‘causally
relevant’ to the injuries. - Proving that an injured person would have heeded a risk warning
is a difficult exercise and one cannot rely on hindsight bias. The
injured person’s circumstances at the time of the accident are
key. The purpose and background of the activity, the injured
person’s experience level as well as common sense can be
decisive factors. - Reliance on the Australian Consumer Law – Consumer
Guarantees does not necessarily result in any additional benefit to
the injured person without clearly identifying how the Australian
Consumer Law applies, as distinct from allegations in
negligence.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
#Negligence #precautions #risk #harm #Personal #Injury
