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10 April 2024

Negligence, precautions and risk of harm

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Carroll & O'Dea

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Discusses recent personal injury case & highilights the strict principles that apply in such cases.
Australia Litigation, Mediation & Arbitration
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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]):

  1. A chain stripper (degreaser and primer).
  2. 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.

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