In brief - Defendant acted negligently by placing himself in
The District Court of NSW recently affirmed that individuals who
voluntarily place themselves in a position of peril owe a duty of
care to their rescuers; and if they act negligently, they are
liable for any loss or damage suffered as a result.
Rescuer injured while assisting seafarer and capsized boat
In the matter of Blackney v Clark  NSWDC 144, the plaintiff
brought a claim for damages against the defendant for injuries
sustained whilst successfully coming to the rescue of the defendant
and his vessel.
On 13 January 2010, the defendant's dinghy came into trouble
off Chinaman's Beach, south of Evans Head in NSW. The defendant
had allowed his vessel to get so close to the breakers that the
vessel was dragged into shore, causing his vessel to capsize and
leaving him clinging to the bow.
In an attempt to rescue the defendant, the plaintiff left his
nearby vessel and swam towards the defendant. The plaintiff hoped
to tie a rope to the bow of the defendant's vessel.
Unfortunately, he was unable to do so and was washed onto the beach
in an unconscious state, suffering injury.
The plaintiff claimed that the defendant was negligent in
placing himself in a position of peril and failing to take proper
precautions for his safety or the safety of any potential
Rescue reasonably foreseeable for any mariner in danger
In reliance on well established precedents, Neilson DCJ
considered that a mariner or seafarer owes a duty to other users of
the sea to navigate in such a fashion as to minimize the risk of
harm to others. He identified a relevant risk of harm as amongst
other things, becoming involved in a shipwreck.
He noted that any shipwreck invites rescue and that the
defendant, in permitting his vessel to be overturned and then
seeking assistance from the plaintiff's vessel, elicited
rescue. Neilson DCJ stated that rescue is reasonably forseeable by
any mariner who puts themself in a position of danger. The
defendant chose not to give evidence, so did not advance a case
that his navigation was blameless.
Was the rescuer guilty of contributory negligence through
The defendant submitted that the procedure undertaken by the
plaintiff to recover the vessel was foolhardy. In considering the
defendant's argument, Neilson DCJ adopted the analysis of
Willmer LJ in the matter of Ward v T E Hopkins & Son Limited
 3 All ER 225, who stated at  that in order for a
defendant to succeed in an argument that the rescuer's actions
were foolhardy, it must show that the conduct amounted to a wholly
unreasonable disregard for his own safety.
Neilson DCJ held that there was nothing to suggest that the
plaintiff's actions were "misguided or foolhardy" or
that the plaintiff acted "unreasonably".
Neilson DCJ determined that the plaintiff had not been guilty of
any contributory negligence and was therefore entitled to recover
damages in full from the defendant.
Seafarers who act negligently may be liable for any harm
sustained by their rescuers
This decision affirms the long standing common law position that
individuals who voluntarily place themselves in a position of peril
owe a duty of care to their rescuers; and if they act negligently,
are liable for loss or damage so suffered.
Mariners and seafarers must appreciate that:
if they act negligently they may be liable for any injuries
sustained by their rescuers
in rescue situations it will be very difficult to rely on a
defence of voluntary assumption of risk or contributory negligence,
regardless of how the rescue attempt is effected
they need liability insurance coverage to meet potential
liabilities that they could incur to rescuers
Advocate's immunity remains part of the Australian common law— but in a narrower way than may have previously appeared.
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