Balnaves v Smith & Anor; Malone v Smith & Ors [2010] QSC 39
The Queensland Supreme Court has held the ancient maritime rule apportioning liability 50/50 regardless of respective fault, when two ships collide, no longer prevails. Instead, liability is apportioned according to each helmsman's respective fault.
Background
A Bayliner vessel and a Haines Hunter speedboat collided on the Coomera River in Queensland. The helmsman of the Bayliner was Mr Balnaves. His passenger was Mr Malone. The helmsman of the Haines Hunter was Mr Smith. All suffered serious personal injuries.
Two separate proceedings were commenced. In the first, Mr Balnaves sued Mr Smith and his employer ('Balnaves claim').
In the second, Mr Malone sued Mr Smith, Mr Smith's employer and also Mr Balnaves ('Malone claim').
Negligence was alleged against the various defendants, and contributory negligence was alleged against Mr Balnaves in his claim.
Applegarth J found that the immediate cause of the collision was the vessels were travelling in opposite directions on the same path, and the helmsman on each ship expected the other to move to his starboard, which did not happen.
His Honour found Mr Smith negligent because he failed to proceed at a safe speed, failed to take timely corrective action to avoid the collision, and failed immediately to turn hard starboard when this was necessary. Thus, Mr Smith and his employer were found liable in both the Balnaves and the Malone claims.
However, Applegarth J also found Mr Balnaves negligent, for similar reasons. Thus, Mr Balnaves was found to have contributed to his own injuries for the purposes of the Balnaves claim, and also found to have materially contributed to the collision for the purposes of the Malone claim.
The issue was whether liability could be apportioned according to each helmsman's respective fault.
Considerations for apportionment
Section 259 of the Navigation Act 1912 (Cth) states that, subject to a number of conditions, liability shall be decided in proportion to the degree to which each ship is at fault. However, this section is only concerned with damage to ships, cargo or to property on board.
The Law Reform Act 1995 (QLD) – which is a re-enactment of the 1952 Law Reform Act – states two important points in respect of contributory negligence. First, a claim is not defeated because of the claimant's contributory negligence; secondly, damages are reduced having regard to the claimant's share in the responsibility for the damage.
The court had to consider whether the Law Reform Act had the effect of repealing s247 of the Supreme Court Act 1995 (QLD), which was originally enacted as part of the Judicature Act 1876 (QLD) and was moved to the Supreme Court Act in 1995. It states that:
In other words, the question was whether the ancient maritime law rules, including the 50/50 apportionment rule, still prevailed over the Law Reform Act.
Reasons regarding apportionment
It was submitted that s247 of the Supreme Court Act was only concerned with the variance between the rules of common law and those in admiralty. In the past, the common law rules had precluded recovery by reason of contributory negligence, whereas the rules in admiralty permitted it. It was only this variance that was the concern of s247. What follows, it was argued, is that s247 of the Supreme Court Act does not preclude application of the relevant provisions of the Law Reform Act.
Applegarth J accepted that the only effect of s247 of the Supreme Court Act was that it removes the defence of contributory negligence as an absolute defence. His Honour observed that, by the enactment of the Law Reform Act in its form in 1952, Parliament permitted determination of contributory negligence and apportionment when the Navigation Act does not apply. It would therefore be unlikely that, in 1995, Parliament would have intended to limit the beneficial effect of the Law Reform Act by enacting s247 in the Supreme Court Act.
Applegarth J noted the authors Davies and Dickie in Shipping Law 3rd ed. at pages 427 to 429 do not contend the position is clear whether the 50/50 rule still governs shipping collisions.
Applegarth J, after assessing the extent of the negligence of each of Mr Balnaves and Mr Smith, apportioned liability 65 percent against Mr Balnaves and 35 percent against Mr Smith.
Comment
This judgment establishes that the ordinary principles of contribution apply in maritime cases involving collisions between ships, where both are at fault. In practical terms, there is no inconsistency between the principles of contribution, regardless of whether it is assessed pursuant to the Navigation Act or the Law Reform Act.
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.