Legal Research
Cases
Smith v Perese

Smith v Perese

Case [2006] NSWSC 288 21 April 2006

Limitation of Liability

No judgment structure available for this case.

Type to search within this case.

CITATION: Smith v Perese & Ors [2006] NSWSC 288

HEARING DATE(S): 14-18 November 2005, 23-27 January, 16-17 February 2006

JUDGMENT DATE :
21 April 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) Verdict and judgment for the plaintiff against the first and the third defendants in a sum to be determined. (2) Determination that the liability of the first and the third defendants is limited under the Limitation Act and the Convention. (3) Verdict and judgment for the second defendant on the plaintiff's claim against him. (4) Verdict and judgment for the cross defendant on the first defendant's cross claim. (5) Costs are reserved. (6) The matter is to be relisted by arrangement with my associate for the purpose of determining the damages to be awarded pursuant to the Limitation Act and the Convention, and also for the purposes of receiving submissions as to costs.

LEGISLATION CITED: Admiralty Act 1988 (Cth)
Civil Liability Act 2002
Civil Liability Amendment (Personal Responsibility) Act 2002
Fisheries Management Act 1994
Fisheries Management (Abalone Share Management Plan) Regulation
Convention on Limitation of Liability for Maritime Claims 1976
International Convention Relating to the Arrest of Sea Going Ships 1952
Jurisdiction of Courts (Maritime Conventions) Act 1989 (Ire)
Law Reform (Miscellaneous Provisions) Act 1946
Limitation of Liability for Maritime Claims Act 1989
Navigation Act (NSW) 1901
Navigation Act (Cth) 1912
Navigation (Collisions) Regulations 1983
Partnership Act 1892
Shipping Registration Act 1987 (Cth)
United Nations Convention on the Law of the Sea 1982

CASES CITED: Booke v Bool (1928) 2 KB 578
J.A. & B.M. Bowden & Sons Pty Limited v Chief Commissioner of State Revenue [2001] NSWCA 125
Boylan Nominees Pty Limited v Sweeney [2005] NSWCA 8
Colonial Mutual Life Assurance Society Limited v Producers and Citizens Cooperative Assurance Co. of Australia Limited (1931) 46 CLR 41
Cribb v Korn (1911) 12 CLR 205
Dederer v Roads & Traffic Authority & Anor [2005] NSWSC 185
Hollis v Vabu Pty Limited (2001) 207 CLR 21
Lindley & Banks on Partnership, 17th ed.
Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254
Noferi & Ors v Smithers [2002] NSWSC 508
Polpen Shipping Co. Limited v Commercial Union Assurance Co. Ltd (1943) KB 161
Salt Union Limited v Wood (1893) QB 370
Scott v Davis (2000) 204 CLR 333
Steedman v Scofield & Anor (1992) 2 Lloyds Law Reports 163
Stevens v Brodribb Sawmilling Company Pty Limited (1986) 160 CLR 16
Sutherland Shire Council v Heyman (1984-85) 157 CLR 424
The Union Steamship Co. of New Zealand Limited v The Commonwealth (1925) 36 CLR 130
The "Von Rocks" case (1998) 2 Lloyds Reports 198

PARTIES: James Alexander Smith (Plaintiff)
Benjamin Richard Perese (1st Defendant)
Richard Perese (2nd Defendant)
Perese Abalone Diving Pty Limited, as Trustee of the Perese Family Trust (3rd Defendant)
Denis Guy Renton (Cross Defendant)

FILE NUMBER(S): SC 20403/04

COUNSEL: D.T. Kennedy SC/S.M. Hill (Plaintiff)
A.J. Black (1st, 3rd Defendants)
I.D. Roberts SC (2nd Defendant)
M.J. Perry (Cross Defendant)

SOLICITORS: Hansons (Plaintiff)
Fitzpatrick Teale…

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 Smith v Perese

Details

AGLC: Smith v Perese [2006] NSWSC 288
Case: [2006] NSWSC 288
Decision Date: 21 April 2006

CaseChat Overview and Summary

In the case of Smith v Perese, the plaintiff, James Alexander Smith, sought damages for injuries sustained while spearfishing off Brush Island, an island near Kioloa on the south coast of New South Wales. The plaintiff was seriously injured when he was struck by a vessel driven by the first defendant, Benjamin Richard Perese, while he was in the water. The first defendant was accompanied by a deckhand, Timothy Leather. The first defendant was employed by the third defendant, Perese Abalone Diving Pty Limited, as Trustee of the Perese Family Trust. The plaintiff's claim against the first and third defendants was heard together with the first defendant's cross claim against the cross defendant, Denis Guy Renton, who had provided the boat used by the plaintiff and the cross defendant to enter the water for spearfishing.

The primary issues in the case were whether the first defendant was negligent in causing the collision and, if so, whether the plaintiff was contributory negligent. Additionally, the court had to determine the liability of the second defendant, Richard Perese, as the father of the first defendant, and the cross defendant's liability for any negligence in relation to the boat used by the plaintiff and the cross defendant.

The court found that the first defendant was negligent in failing to keep a proper lookout, which resulted in the collision with the plaintiff. The court rejected the first defendant's claim that visibility conditions, including glare and chop, prevented him from seeing the plaintiff in time to avoid the collision. The court also found that the plaintiff was not contributory negligent in failing to display a dive flag on his float or on the boat, as there was no legal requirement to do so and the plaintiff's belief that such a flag was only necessary for scuba diving operations was reasonable.

The court determined that the second defendant was not liable for the first defendant's negligence as he was not his employer, partner, or principal. The first defendant was an independent contractor who was employed by the third defendant, Perese Abalone Diving Pty Limited, as Trustee of the Perese Family Trust.

The court further found that the cross defendant was not liable for any negligence in relation to the boat used by the plaintiff and the cross defendant, as the plaintiff and the cross defendant had agreed to send the boat away from the area where they were spearfishing, and the plaintiff was party to this decision.

Finally, the court found that the first and third defendants' liability was limited under the Limitation of Liability for Maritime Claims Act 1989 and the Convention on Limitation of Liability for Maritime Claims 1976. The court also ordered that the matter be relisted to determine the damages to be awarded pursuant to the Limitation Act and the Convention and to receive submissions as to costs.

Orders