Australia: Negligence under NSW Civil Liability Act: Damages awarded in Murray River Houseboat case

Last Updated: 13 February 2018
Article by Timothy Coghlan

IN BRIEF - HOUSEBOAT DRIVER FOUND NEGLIGENT UNDER NSW CIVIL LIABILITY ACT

The Victorian Supreme Court has recently awarded a plaintiff $4 million in damages against the driver of a houseboat who negligently reversed the houseboat over the plaintiff, causing his legs to be struck by the boat's propellers and consequently suffering catastrophic injuries.

Anton Nixon v Robert Lines [2017] VSC 723 is interesting for practitioners and insurers as a decision of a Victorian Court on the application of the Civil Liability Act 2002 (NSW).

APPLICATION OF NEW SOUTH WALES LAW IN VICTORIAN COURT

On 24 October 2014, a group of friends arranged to spend a weekend on the Murray River, on a hired houseboat. They set off from the Mildura Marina, which is located in Victoria, just inside the Victorian/NSW border.

The relevant incident, the subject of these proceedings, took place on the Murray River approximately one kilometre upstream from the Gol Gol Hotel in NSW, the waters of the Murray River being in that state. As such, while proceedings were issued by the plaintiff in the Supreme Court of Victoria at Mildura, NSW law was correctly applied.

DRIVER NEGLIGENT IN FAILING TO WARN HOUSEBOAT WOULD BE REVERSED

The Court found the driver of a houseboat was negligent in failing to warn the plaintiff that he was going to reverse the houseboat and failing to ensure there was no person behind the houseboat when it was reversed.

The factual circumstances were controversial and required His Honour Justice Keogh to make a number of factual findings, which included:

  • A ski boat, which was attached to the rear of the houseboat came loose, and the plaintiff and Mr Wilson (another member on the houseboat) proceeded to the lower deck of the houseboat with the intention of getting onto a jet ski (also attached to the rear of the houseboat) to ride to the ski boat to retrieve it.
  • The defendant knew the plaintiff and Mr Wilson would adopt this method of retrieval as they had retrieved the ski boat once prior in this fashion.
  • While the plaintiff and Mr Wilson went to the lower deck, one or more persons said words to the effect "reverse it up".
  • When they reached the lower deck, the plaintiff observed that the houseboat was stopped or only moving slowly and the engines were idling. Mr Wilson stepped out onto the jet ski which was still attached to the rear of the houseboat and sat down. He was closely followed by the plaintiff who sat down behind him. There was little if any movement of the jet ski.
  • It is likely that in hearing the words "reverse it up" the defendant reversed the houseboat with the result that it caused the jet ski to "roll and move in such a manner" that both the plaintiff and Mr Wilson were dislodged, and were drawn under the houseboat.

PRECAUTIONS DEFENDANT COULD HAVE TAKEN AGAINST RISK OF HARM CONSIDERED BY COURT

The plaintiff's claim was determined in accordance with the Civil Liability Act 2002 (NSW). The Court found the risk of harm pursuant to section 5B was that if the houseboat was reversed while the plaintiff and Mr Wilson were attempting to retrieve the ski boat, they might be behind the houseboat and consequently be struck and injured.

From the defendant's position on the upper deck, he could not see the rear lower deck or the jet ski. He was informed by an employee of the houseboat hire company prior to driving that he should take care when reversing the houseboat and that it was preferable to use the lower deck controls when doing so as to enable some view of the swim deck at the rear of the houseboat.

The Court found the defendant could have:

  1. taken steps to ensure no one was behind the houseboat before it was reversed, or
  2. moved to the lower deck controls, or
  3. taken the precaution of not reversing the houseboat while there remained the possibility someone was behind it, or
  4. warned the plaintiff of his intention to reverse the houseboat prior to doing so

His Honour held the burden of any or all such precautions was "hardly onerous" and taking such precautions is likely to have avoided the risk of harm.

OBVIOUS RISK ARGUMENT SET FORWARD BY DEFENDANT FAILS

The defendant argued that there was a risk for the plaintiff to enter the lower deck and step from this deck onto the jet ski when the motors of the houseboat were on. As such, the defendant contended he was not under a duty to warn the plaintiff.

However, this argument failed and the Court held the risk that the defendant would put the houseboat in reverse would not have been obvious to a person in the plaintiff's position, particularly given this is not what had occurred the first time he had retrieved the ski boat.

CONTRIBUTORY NEGLIGENCE DETERMINED BY COURT

The defendant also argued the plaintiff contributed to his accident by entering the swim deck when there was a sign on the gate to the entry of this deck which stated "no access to swim deck while motor is operating". There was no evidence the plaintiff saw this sign or was aware of it prior to the accident and the plaintiff was not negligent in stepping out onto the swim deck when he did.

His Honour went on to state (at [82]) "assuming, contrary to my earlier conclusions, stepping onto the swim deck was negligent and was a cause of the accident, then responsibility for the accident... should be apportioned 95 per cent to Mr Lines and 5 per cent to Mr Nixon."

Timothy Coghlan
Insurance and reinsurance
Colin Biggers & Paisley

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