Nixon v Lines - [2017] VSC 723

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MILDURA

COMMON LAW DIVISION

S CI 2015 06093

ANTON NIXON	Plaintiff
v
ROBERT LINES	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Mildura
DATE OF HEARING:	17, 18, 19 & 20 July 2017
DATE OF JUDGMENT:	29 November 2017
CASE MAY BE CITED AS:	Nixon v Lines
MEDIUM NEUTRAL CITATION:	[2017] VSC 723

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NEGLIGENCE – Personal injury – Plaintiff injured when struck by propellers of houseboat outboard motors – Defendant reversed houseboat when Plaintiff was behind it – Breach – Identification of risk of harm – Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; Erickson v Bagley [2015] VSCA 220 (25 August 2015) applied – Causation – Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 (9 April 2015) distinguished – Contributory negligence – Civil Liability Act 2002 (NSW) sections 5B, 5D, 5F, 5G, 5H and 5R.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D Clements QC with Mr M J Hooper	Maurice Blackburn
For the Defendant	Mr K P Rewell SC	McInnes Wilson Lawyers NSW

HIS HONOUR:

In October 2014 a group of friends, which included Mr Nixon and Mr Lines, arranged to spend a weekend holidaying together cruising on the Murray River near Mildura on the houseboat Absolute Indulgence, which they hired for that purpose. Another of the group, Mr Wilson, brought a ski boat and a jet ski for the weekend. Mr Nixon, Mr Lines, Mr Wilson and others joined the houseboat in Mildura early on the Friday afternoon. The remainder of the group, who had work commitments that afternoon, were to join the houseboat in the evening at Gol Gol, a small township located on the Murray River some kilometres upstream of Mildura. After receiving some instruction from an employee of the houseboat hire company, Mr Lines drove the Absolute Indulgence into the middle of the Murray River, where the jet ski and ski boat were tied to the rear of the houseboat. Mr Lines then proceeded to drive the houseboat upstream towards Gol Gol, initially using lower deck controls, but after a short distance moving to operate the houseboat from controls located on the upper deck.

In the next hour or so the ski boat came loose twice from the houseboat. On the first occasion Mr Wilson and another guest rode the jet ski to retrieve the ski boat. On the second occasion, Mr Wilson accompanied by Mr Nixon, intended to again use the jet ski to retrieve the ski boat. Mr Lines decided on this occasion to reverse the houseboat closer to the ski boat. In circumstances which are controversial, both Mr Wilson and Mr Nixon came to be in the water directly behind the houseboat. Mr Lines admitted that while Mr Nixon was in the water, the outboard motors of the houseboat were in reverse gear, which resulted in Mr Nixon’s body being drawn towards the propellers of the motors. Mr Nixon’s legs were…

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.

Continue reading Nixon v Lines

Details

AGLC: Nixon v Lines [2017] VSC 723
Case: [2017] VSC 723
Decision Date: 29 November 2017

CaseChat Overview and Summary

Anton Nixon brought a claim against Robert Lines for damages for personal injury suffered as a result of negligence. The incident occurred on 24 October 2014 when Mr Nixon was holidaying with friends on a houseboat on the Murray River near Mildura. Mr Nixon was injured when his legs were struck by the propellers of the outboard motors of the houseboat Absolute Indulgence while he was seated on a jet ski behind the houseboat. Mr Nixon sued Mr Lines, who was the driver of the houseboat, for damages for injuries resulting in above-knee amputation of his left leg and below-knee amputation of his right leg. The primary issues were whether Mr Lines was negligent and whether his negligence was a cause of the accident and Mr Nixon’s injuries. A further issue was whether Mr Nixon was contributorily negligent. The court found that Mr Lines was negligent in reversing the houseboat without warning Mr Nixon that he was going to do so, and without first ensuring there was no one at the rear of the houseboat. Mr Lines’ negligence was a cause of the accident and Mr Nixon’s injuries. Mr Nixon was not contributorily negligent. Judgment was entered for Mr Nixon in the amount of $4 million, inclusive of interest.

Orders