Frost v Warner

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.