Balnaves v Smith & Anor; Malone v Smith &
Ors  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.
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
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
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 any cause or proceeding
for damages arising out of a collision between two ships if both
ships shall be found to have been in fault the rules hitherto in
force in the High Court of Admiralty so far as they have been at
variance with the rules in force in the courts of common law shall
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
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.
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.
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