Warner v Frost - [1999] NSWCA 429

CITATION: Warner v Frost [1999] NSWCA 429

FILE NUMBER(S): CA 40079/99

HEARING DATE(S): 04/11/99

JUDGMENT DATE:
24 November 1999

PARTIES :

Carolyn Warner - Appellant
Susan Mary Frost, Melissa Frost, Donald Martin - Respondents

JUDGMENT OF: Handley JA at 1; Giles JA at 2; Rolfe J at 3

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 1143/98; 1144/98; 1145/98

LOWER COURT JUDICIAL OFFICER: Garling DCJ

COUNSEL: S.J. Motbey - Appellant
J.H. Young - Respondents

SOLICITORS: J. Pappas - Appellant
McDonald Johnson - Respondents

CATCHWORDS: District Court Appeal; Appeal against a finding that the holder of a certificate of registration issued under the Water Traffic Regulations (NSW) in respect of a motor vessel, which sank in consequence of the negligence of her husband, was vicariously liable for the negligence of her husband solely by virtue of the position she held enabling her to hold that certificate; and that she was liable for personal negligence.; The appellant was not claimed to be the owner of the vessel or to have exercised any de facto control over her or him on the day she sank or at any other time, such control being exercised by her husband.; Negligence; Held that the fact that the appellant was the holder of the certificate did not, in the absence of any other circumstances such as ownership or control, make the appellant vicariously liable for her husband's negligence; and that there was no evidence of any personal negligence.

CASES CITED:
Soblusky v Egan (1959) 103 CLR 215
Sweeney v Phillips (1992) 16 MVR 238
Jennings v Hannon (No 2) (1969) 71 SR (NSW) 226

DECISION: 1. Appeal allowed with costs; 2. Judgments for plaintiffs against Mrs Warner set aside; 3. In lieu thereof order that there be judgment in the actions for Mrs Warner with costs; 4. Respondents to have a certificate under the Suitors Fund Act if otherwise entitled.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40079 of 1999

DC 1143 of 1998
DC 1144 of 1998

DC 1145 of 1998

HANDLEY JA
GILES JA
ROLFE AJA

WEDNESDAY, 24 NOVEMBER 1999

WARNER v FROST & ORS

District Court Appeal
Appeal against a finding that the holder of a certificate of registration issued under the Water Traffic Regulations (NSW) in respect of a motor vessel, which sank in consequence of the negligence of her husband, was vicariously liable for the negligence of her husband solely by virtue of the position she held entitling her to hold that certificate; and that she was liable for personal negligence.
The appellant was not claimed to be the owner of the vessel or to have exercised any de facto control over her or him on the day she sank or at any other time, such control being exercised by her husband.
Negligence
Held that the fact that the appellant was the holder of the certificate did not, in the absence of any other circumstance such as ownership or control, make the appellant vicariously liable for…

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 Warner v Frost

Details

AGLC: Warner v Frost [1999] NSWCA 429
Case: [1999] NSWCA 429
Decision Date: 24 November 1999

CaseChat Overview and Summary

This appeal concerned the liability of Mrs Warner, the holder of a certificate of registration for a motor vessel, for its sinking due to the negligence of her husband. The plaintiffs sought to hold Mrs Warner vicariously liable for her husband's negligence and also liable for her own personal negligence. The vessel was not owned by Mrs Warner, nor did she exercise any de facto control over it or her husband's actions on the day of the incident; such control was exercised solely by her husband.

The District Court was required to determine whether Mrs Warner was vicariously liable for her husband's negligence solely by virtue of holding the certificate of registration, and whether she was personally negligent in relation to the sinking of the vessel.

The Court of Appeal held that the mere fact of holding a certificate of registration under the Water Traffic Regulations (NSW) did not, in the absence of any other factors such as ownership or control of the vessel, render the certificate holder vicariously liable for the negligence of another person operating the vessel. Furthermore, the Court found that there was no evidence presented to establish any personal negligence on the part of Mrs Warner.

Consequently, the appeal was allowed with costs. The judgments previously entered against Mrs Warner were set aside, and in their place, judgments were entered for Mrs Warner with costs. The respondents were to be entitled to a certificate under the Suitors Fund Act if they otherwise met the criteria.

Orders

Orders of the court

1. Appeal allowed with costs; 2. Judgments for plaintiffs against Mrs Warner set aside; 3. In lieu thereof order that there be judgment in the actions for Mrs Warner with costs; 4. Respondents to have a certificate under the Suitors Fund Act if otherwise entitled.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Warner v Frost [1999] NSWCA 429
FILE NUMBER(S):	CA 40079/99
HEARING DATE(S):	04/11/99
JUDGMENT DATE:	24 November 1999
PARTIES :	Carolyn Warner - Appellant Susan Mary Frost, Melissa Frost, Donald Martin - Respondents
JUDGMENT OF:	Handley JA at 1; Giles JA at 2; Rolfe J at 3

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	1143/98; 1144/98; 1145/98
LOWER COURT JUDICIAL OFFICER:	Garling DCJ

COUNSEL:	S.J. Motbey - Appellant J.H. Young - Respondents
SOLICITORS:	J. Pappas - Appellant McDonald Johnson - Respondents
CATCHWORDS:	District Court Appeal; Appeal against a finding that the holder of a certificate of registration issued under the Water Traffic Regulations (NSW) in respect of a motor vessel, which sank in consequence of the negligence of her husband, was vicariously liable for the negligence of her husband solely by virtue of the position she held enabling her to hold that certificate; and that she was liable for personal negligence.; The appellant was not claimed to be the owner of the vessel or to have exercised any de facto control over her or him on the day she sank or at any other time, such control being exercised by her husband.; Negligence; Held that the fact that the appellant was the holder of the certificate did not, in the absence of any other circumstances such as ownership or control, make the appellant vicariously liable for her husband's negligence; and that there was no evidence of any personal negligence.
CASES CITED:	Soblusky v Egan (1959) 103 CLR 215 Sweeney v Phillips (1992) 16 MVR 238 Jennings v Hannon (No 2) (1969) 71 SR (NSW) 226
DECISION:	1. Appeal allowed with costs; 2. Judgments for plaintiffs against Mrs Warner set aside; 3. In lieu thereof order that there be judgment in the actions for Mrs Warner with costs; 4. Respondents to have a certificate under the Suitors Fund Act if otherwise entitled.