Farriss v Axford - [2023] NSWCA 255

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Farriss v Axford [2023] NSWCA 255
Hearing dates: 3 November 2022
Date of orders: 26 October 2023
Decision date: 26 October 2023
Before: Meagher JA; Mitchelmore JA; Simpson AJA
Decision:
(1) Appeal dismissed.
(2) Cross-appeal dismissed.
(3) The appellants are to pay the respondents’ costs.

Catchwords:
NEGLIGENCE — Breach — Where first appellant injured hand in electric anchoring mechanism of boat — Whether owners of boat failed to take reasonable precautions such as installation of chain stripper and extension of spurling pipe — Whether warning needed to be given about use of anchor mechanism
NEGLIGENCE — Causation — Failure to warn — Whether first appellant would have chartered boat if warning had been given
APPEALS — Where claim abandoned by counsel at conclusion of trial — Whether claim can be reagitated on appeal
CONSUMER LAW — Consumer guarantees — Where first appellant’s purpose in chartering boat was to partake in leisure cruise — Whether services reasonably fit for purpose

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5C, 5M
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 61, 267(4)
Supreme Court Act 1970 (NSW), ss 75A, 101(1)(a)

Cases Cited:
Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150
Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42
Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited (2022) 273 CLR 454; [2022] HCA 11
Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481

Texts Cited:
Nil

Category: Principal judgment
Parties: Timothy William Farriss (First appellant)
Montana Productions Pty Ltd (Second appellant)
John William Axford (First respondent)
Jill Mary Axford (Second respondent)
Church Point Charters and Shipping Pty Ltd (Third respondent)
Representation:
Counsel:
D A Lloyd SC and S Blackman (Appellants)
J Turnbull SC and J Sleight (Respondents)
Solicitors:
L G Parker & Co (Appellants)
McInnes Wilson Lawyers (Respondents)

File Number(s): 2022/35553
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2022] NSWSC 20

Date of Decision:

28 January 2022

Before:

Cavanagh J

File Number(s):

2018/23640

HEADNOTE

[This headnote is not to be read as part of the judgment]

The first appellant, Timothy Farriss, seriously injured his left hand when it became caught in the electric anchoring mechanism of a boat. He had chartered the boat through the third respondent company for the purpose of cruising around Pittwater over the Australia Day long weekend. The first and second respondents were the owners…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCA 255
Decision Date: 26 October 2023

CaseChat Overview and Summary

The appellants, Mr and Mrs Farriss, appealed a decision of the District Court of New South Wales concerning injuries sustained by Mr Farriss while using an electric anchoring mechanism on a boat chartered from the respondents, Mr and Mrs Axford. Mr Farriss suffered a hand injury when it became caught in the anchoring mechanism. The appellants alleged negligence and breaches of consumer guarantees under the Australian Consumer Law.

The primary legal issues before the Court of Appeal were whether the respondents had breached their duty of care to Mr Farriss by failing to install a chain stripper or extend the spurling pipe, and whether they had failed to provide an adequate warning regarding the use of the anchoring mechanism. Additionally, the court considered whether Mr Farriss would have chartered the boat had a warning been given, and whether the services provided by the respondents were reasonably fit for the purpose of a leisure cruise, as required by consumer guarantees. The court also had to determine if the appellants could properly raise issues on appeal that had been abandoned by their counsel at the conclusion of the trial.

The Court of Appeal found that the trial judge had correctly concluded that the respondents had not breached their duty of care. The court reasoned that the existing safety features of the anchoring mechanism were adequate for its intended use, and that the absence of a chain stripper or an extended spurling pipe did not render the boat unsafe. Furthermore, the court held that no warning was necessary as the operation of the anchoring mechanism was not inherently dangerous and was within the contemplation of a reasonable charterer. The court also determined that the appellants were precluded from raising the abandoned issues on appeal. Regarding the consumer guarantees, the court found that the services were reasonably fit for the purpose of a leisure cruise.

Consequently, the appeal and cross-appeal were dismissed, and the appellants were ordered to pay the respondents' costs.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Cross-appeal dismissed.

(3) The appellants are to pay the respondents’ costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Farriss v Axford [2023] NSWCA 255
Hearing dates:	3 November 2022
Date of orders:	26 October 2023
Decision date:	26 October 2023
Before:	Meagher JA; Mitchelmore JA; Simpson AJA
Decision:	(1) Appeal dismissed. (2) Cross-appeal dismissed. (3) The appellants are to pay the respondents’ costs.
Catchwords:	NEGLIGENCE — Breach — Where first appellant injured hand in electric anchoring mechanism of boat — Whether owners of boat failed to take reasonable precautions such as installation of chain stripper and extension of spurling pipe — Whether warning needed to be given about use of anchor mechanism NEGLIGENCE — Causation — Failure to warn — Whether first appellant would have chartered boat if warning had been given APPEALS — Where claim abandoned by counsel at conclusion of trial — Whether claim can be reagitated on appeal CONSUMER LAW — Consumer guarantees — Where first appellant’s purpose in chartering boat was to partake in leisure cruise — Whether services reasonably fit for purpose
Legislation Cited:	Civil Liability Act 2002 (NSW), ss 5B, 5C, 5M Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 61, 267(4) Supreme Court Act 1970 (NSW), ss 75A, 101(1)(a)
Cases Cited:	Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd (2022) 109 NSWLR 468; [2022] NSWCA 150 Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Limited (2022) 273 CLR 454; [2022] HCA 11 Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320 University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Timothy William Farriss (First appellant) Montana Productions Pty Ltd (Second appellant) John William Axford (First respondent) Jill Mary Axford (Second respondent) Church Point Charters and Shipping Pty Ltd (Third respondent)
Representation:	Counsel: D A Lloyd SC and S Blackman (Appellants) J Turnbull SC and J Sleight (Respondents) Solicitors: L G Parker & Co (Appellants) McInnes Wilson Lawyers (Respondents)
File Number(s):	2022/35553
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2022] NSWSC 20 Date of Decision: 28 January 2022 Before: Cavanagh J File Number(s): 2018/23640