Frost v Warner

Case [2002] HCA 1

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, GUMMOW, KIRBY AND CALLINAN JJ

SUSAN MARY FROST & ORS   APPELLANTS

AND

CAROLYN WARNER  RESPONDENT

Frost v Warner
[2002] HCA 1
7 February 2002
S195/2000

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

D F Jackson QC with G R Kennett for the appellants (instructed by McDonald Johnson)

G K Downes QC with S J Motbey for the respondent (instructed by Selby Anderson)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Frost v Warner

Negligence – Duty of care – Vicarious and direct liability – Motor vessel accident caused by vessel being grossly overloaded – Whether respondent's status as holder of certificate of registration for vessel under Water Traffic Regulations (NSW) conferred requisite degree of control to found direct or vicarious liability – Whether holder of certificate of registration responsible for negligence of person in charge of vessel – Whether status as holder of certificate of registration gave rise to duty of care to prevent vessel sailing while grossly overloaded.

Maritime Services Act 1935 (NSW).
Water Traffic Regulations (NSW), reg 11.

  1. GLEESON CJ, GUMMOW AND CALLINAN JJ.   This is an appeal from the Court of Appeal of the Supreme Court of New South Wales.  The Court of Appeal (Handley and Giles JJA, Rolfe AJA) allowed an appeal from the District Court (Garling DCJ), set aside that part of the judgment awarding damages to the appellants against the respondent, and substituted orders dismissing their actions against the respondent.  In this Court the appellants seek orders which would restore their success against the respondent at the trial.

  2. The circumstances giving rise to these proceedings may be shortly stated.  On 8 January 1990 the motor vessel N'Gluka sank in Port Stephens resulting in the death of five children trapped in the front cabin.  The appellants were on board the N'Gluka at the time of the accident and are the immediate family of Amanda Frost, one of the children who died in the accident.

  3. The appellants commenced proceedings in the District Court claiming damages for nervous shock and other psychological trauma suffered as a result of the accident and the death of Amanda Frost.  The defendants in that action were Mrs Warner and her husband.  Mrs Warner is the sole respondent in this Court.  The appellants alleged that Mr Warner was the "navigator and person in charge of the vessel" at all material times.  They further alleged that the accident occurred because the vessel was overloaded and that Mr Warner had been negligent in allowing "far too many people to travel on this vessel"[1].

    [1]The appellants also alleged negligence in a number of other respects, including the navigation of the vessel and failure to release the interior lock of the escape hatches in the front cabin before allowing the vessel to leave port.  The trial judge rejected all of these grounds.  The trial judge…

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Details
AGLC
Frost v Warner [2002] HCA 1
Case
[2002] HCA 1
Decision Date

CaseChat Overview and Summary

The appeal in *Frost v Warner* concerned a motor vessel accident caused by the vessel being grossly overloaded. The appellants sought to establish that the respondent, Mrs Warner, owed them a duty of care, either directly or vicariously, for the negligence of her husband, Mr Warner, who was in charge of the vessel. The primary judge in the District Court of New South Wales found in favour of the appellants, but this decision was overturned by the Court of Appeal of New South Wales. The High Court of Australia was required to determine whether Mrs Warner, as the holder of the certificate of registration for the vessel, owed a duty of care to the appellants.

The central legal issue before the High Court was whether Mrs Warner's status as the holder of the certificate of registration for the vessel conferred upon her the requisite degree of control to found direct or vicarious liability for the negligence of the person in charge of the vessel. Specifically, the court considered whether the holder of a certificate of registration was responsible for the negligence of the person navigating the vessel, and whether this status gave rise to a duty of care to prevent the vessel from sailing while grossly overloaded. The court also considered whether Mrs Warner had personally been negligent.

The High Court, by majority, dismissed the appeal. The majority reasoned that the *Water Traffic Regulations (NSW)* did not, of themselves, create civil liability for the holder of a certificate of registration. They found no evidence that Mrs Warner had authorised her husband to navigate the vessel on the day of the sinking, nor that he was acting as her servant or agent. Consequently, there was no basis for vicarious liability. Regarding direct liability, the majority held that the appellants had failed to prove that Mrs Warner knew, or ought to have known, that the vessel was overloaded and that she could have prevented it from sailing. Her status as registered controller did not, in the absence of such knowledge and ability to act, give rise to a personal duty of care.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

This appeal concerns the duty of care owed to others for which the tort of negligence affords redress where a breach is proved that causes loss and damage. The facts, issues and applicable legislation The facts are stated in the reasons of Gleeson CJ, Gummow and Callinan JJ ("the joint reasons") and of Gaudron J. So are the reasons for the respective decisions of the primary judge in the District Court of New South Wales (Garling DCJ), who found in favour of the appellants, and of the Court of Appeal of New South Wales, which found against them. In the Court of Appeal, the quantification of damages was not contested. As well, although the grounds of appeal on the issue of liability were broadly stated, the eventual contest was confined to whether the respondent, Mrs Warner, owed the appellants a duty of care. The issue of breach of duty, like damages, was not canvassed. Although, in this Court, by a notice of contention, the respondent sought to re-awaken from its slumber the issue of breach of duty, in my view, she should not be permitted to do so. I will, therefore, confine these reasons to the single issue: did the respondent owe the appellants a duty of care that sounded in damages for the breach? Because the facts, issues, arguments and applicable provisions of the Water Traffic Regulations (NSW) ("the Regulations")[18] are all set out elsewhere[19], I am relieved of the obligation to repeat them. I have come to a conclusion different from the majority. I would restore the judgment of the primary judge. I will shortly say why. [18]Made pursuant to the Maritime Services Act 1935 (NSW), s 38.[19]Joint reasons at [19]-[31]; reasons of Gaudron J at [49]-[52]. The primary judge found that the cause of the accident that resulted in the sinking of the vessel N'Gluka, occasioning the loss and damage to the appellants, was the gross overloading of that vessel and, therefore, by inference, the commencement and continuance of its voyage in such a state. This finding was not challenged in the Court of Appeal. On the face of things those who, in law, are responsible for allowing a vessel to put to sea in a condition of gross overloading are liable to those who suffer any damage and loss as a consequence. The status of "registered controller" under the Regulations It may be accepted that the Regulations have nothing, as such, to say about the question of the title to the vessel. But title (in the sense of ownership) and possession, represent only two bases for affixing legal responsibility to a person for a civil wrong done to another. The issue presented by the duty of care question is not the ownership or possession of the vessel, as such. It is the issue of power and responsibility. Did the respondent have the power and responsibility in the circumstances to prevent the damage and loss that occurred? Ownership and possession (or control of a vessel by its master) can answer such a question in the affirmative. But so, in a particular case, may other legal relationships – such as that here established by the Regulations.

Evidence

Evidence Before The Court

Regulation 11(11), which is central to these proceedings, provided:"Any person who navigates a registered vessel, or who, having custody of the same, permits or suffers such vessel to be navigated, without the authority or consent of the holder of the certificate of registration for the vessel shall be guilty of an offence against this regulation."The evidence The evidence was that Mr Warner paid for the N'Gluka and that it was never intended that Mrs Warner should have any beneficial interest in it. Moreover, Mr Warner exercised actual control over the vessel and its navigation at all times following its purchase in October 1988. It seems that Mr Warner filled in the form for the N'Gluka's registration under the Regulations and that the form was thereafter signed by Mrs Warner. On two subsequent occasions, Mrs Warner signed the relevant forms for renewal of the registration. So far as concerns Mrs Warner's signing of the application for the N'Gluka's registration and the forms for its renewal, she claimed that she was simply complying with her husband's request, as she had regularly done in relation to various companies with which her husband was associated, without concerning herself as to what was involved. More precisely, Mrs Warner denied that she knew that registration gave her any rights or responsibilities with respect to the N'Gluka. She accepted that she "never bothered to find out". In her evidence, Mrs Warner denied any knowledge as to the precise number of people on the N'Gluka on the day in question. However, she was on board when, earlier in the day, the vessel had departed from Soldiers Point with various guests who were going to a restaurant, the Oyster Barn, for lunch. On the journey to the restaurant, Mrs Warner moved through the vessel serving savouries to the guests. She joined the other guests for lunch at the Oyster Barn and returned to the boat for its return, with the various guests, to Soldiers Point. There was evidence that, as at January 1990, Mrs Warner had held a boating licence for nearly five years. She was familiar with the N'Gluka, having been on it on several occasions. She knew that there was seating for nine persons on the fly bridge and for another nine in the kitchen area and that it had six berths. She agreed in her evidence that she knew that there was "not anything like 20 life jackets on board". She also accepted that she knew it was dangerous for a boat to be overloaded.Vicarious liability Notwithstanding the evidence, it is properly to be inferred from the fact that the N'Gluka was and remained registered in Mrs Warner's name, that Mr Warner had conceded to her the right, in terms used in reg 2(3), "to decide the possession, disposition and use of the vessel". It is also properly to be inferred from the fact that at all times Mr Warner exercised actual control over the N'Gluka, that Mrs Warner had conferred on him a general right to use the vessel as he saw fit. The evidence that Mr Warner was the owner and always exercised actual control over the vessel serves a further purpose. That evidence makes it impossible to infer that Mrs Warner specifically authorised use of the N'Gluka on the day of its sinking or that Mr Warner was on that day navigating the boat on her behalf, whether as her servant, agent or in any other capacity. That being so, there is no basis on which Mrs Warner could be held vicariously liable for her husband's negligence.Actual negligence

Decision

Reasons for decision

GLEESON CJ, GUMMOW AND CALLINAN JJ GAUDRON J KIRBY J (dissent)
So far as concerns Mrs Warner, Garling DCJ held that, having allowed herself to be registered controller under the Regulations and having authorised her husband to navigate the vessel, she was vicariously liable for his negligence. Additionally, his Honour held that she was personally negligent in that she "should have taken steps as registered controller to ensure that the vessel did not leave the dock with that number of persons on board". In this last regard, his Honour found that Mrs Warner had had experience with boats over a number of years, knew or should have known how many people were on board and, also, should have known that the vessel was grossly and dangerously overloaded.Decision of the Court of Appeal It was held in the Court of Appeal that there was no evidence that Mrs Warner had authorised her husband, the owner of the N'Gluka, to navigate the vessel on the day of its sinking and that the Regulations imposed no liability on her, as registered controller, for his negligence. Accordingly, in the view of the Court of Appeal, she could not be held vicariously liable for her husband's negligence. So far as concerns the finding of Garling DCJ that Mrs Warner was personally negligent, the Court of Appeal held there was no evidence that Mrs Warner knew or should have known that the vessel was grossly and dangerously overloaded. The appeal was allowed and the actions against her dismissed on the basis that:"the regime of which holding a certificate of registration is part does not create civil liability, and Mrs Warner's being the holder of the certificate of registration did not give rise to a personal duty of care any more than it made her liable for the negligence of Mr Warner. To make good the finding that she should not have allowed the vessel to sail with the number of people on board, the [appellants] would have had to prove at the least that she knew, or ought to have known, that the vessel was overloaded, and that in that knowledge she could have done something to prevent the vessel from sailing. This they failed to do."The Regulations Part II of the Regulations, as they stood in January 1990, was directed to ensuring that vessels in enclosed waters would not be used in a way that would constitute a danger or annoyance to members of the public. Thus, for example, reg 3(1) provided:"A person shall not navigate a vessel on any enclosed water recklessly or negligently, or at such a speed, or otherwise in any way that is dangerous to or likely to cause injury ... to ... any member of the public."Part II was not concerned solely with the obligations of the person who was navigating or was in physical control of a vessel in enclosed waters. Thus reg 5 provided:"A person whilst using a vessel for any purpose on any enclosed water, whether as the master, or a member of the crew, or as a passenger, or as an aquaplaner or a water skier towed by any means by such vessel, or otherwise, shall not (by his use of such vessel or otherwise) cause any annoyance, nuisance or danger to any person or danger to any property."

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW AND CALLINAN JJ, GAUDRON J,

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