Sartor v Bitton

District Court

New South Wales

Medium Neutral Citation:

Sartor v Bitton [2019] NSWDC 723

Hearing dates:

17, 18, 19 July, 13 August, 11 October 2019

Date of orders:

04 December 2019

Decision date:

04 December 2019

Jurisdiction:

Civil

Before:

Russell SC DCJ

Decision:

(1)   Judgment for the second plaintiff against the defendants for $269,058.51.
(2)   Order the defendants to pay the second plaintiff’s costs as agreed or assessed.
(3)   Grant leave to approach my Associate if either party wishes to list the matter again before me to seek a different costs order.

Catchwords:

NEGLIGENCE – fishing charter vessel travelling through river bar – risk of suffering injury if large waves were encountered and passenger was not keeping a firm hold – risk unknown to an inexperienced person - passenger thrown to deck suffering injuries – need to provide a safety induction and to warn passengers of the dangers of the river bar – need to warn passengers to hold on to rails

 

NEGLIGENCE – Civil Liability Act 2002 (NSW) – ss 5B, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5L, 5M

DAMAGES – non-economic loss - past economic loss – future loss of earning capacity - Civil Liability Act 2002 (NSW) ss 13, 16

Legislation Cited:

Civil Liability Act 2002 (NSW)
Competition and Consumer Act 2010 (Cth)
Motor Accidents Compensation Act 1999
Partnership Act 1892 (NSW)

Cases Cited:

Lormine Pty Ltd & Anor v Xuereb [2006] NSWCA 200
Motorcyling Events Australia Group Pty Ltd v Kelly [2013] NSWCA 361
Williams v Twynam Agricultural Group Pty Ltd & Anor [2011] NSWSC 1098

Texts Cited:

Roads and Maritime Services Coastal Bar Safety Guide

Category:

Principal judgment

Parties:

Robert Sartor (First Plaintiff)
Megan Short (Second Plaintiff)
Glynn James Bitton (First Defendant)
Julie Bitton (Second Defendant)

Representation:

Counsel:
R Royle (Plaintiffs)
G Smith (Defendants)

  Solicitors:
Shine Lawyers (Plaintiffs)
McInnes Wilson Lawyers (NSW) (Defendants)

File Number(s):

2018/191244

Judgment

Introduction

1. Shortly after 6.00am on 17 April 2017 the second plaintiff Ms Megan Short, and her partner Mr Robert Sartor, boarded the “Nautikat”, a catamaran which was operated by the defendants Mr Glynn and Mrs Julie Bitton and skippered by the first defendant Mr Bitton. The plaintiffs had engaged the defendants to conduct an offshore fishing charter leaving from Yamba in northern New South Wales.

2. The Nautikat proceeded along the Clarence River and commenced its crossing of the Yamba Bar. The vessel encountered three large waves. As the vessel met and crossed the third wave, Ms Short was thrown from her feet onto the deck of the vessel. She suffered injuries.

3. This incident occurred about 16 minutes into the voyage. The hearing in relation to that relatively simple event generated 298 pages of transcript, 68 pages of written submissions, 1993 pages of documentary exhibits and 9 hours of video footage.

4. The proceedings originally involved Mr Sartor as the first plaintiff and Ms Short as second plaintiff. However Mr Sartor’s action was settled and the hearing involved only the claim by Ms Short. Her claim was pleaded in…