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 her husband’s negligence; and that there was no evidence of any personal negligence.
Statutes
Water Traffic Regulations (NSW) made under the Maritime Services Act 1935

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

ORDERS

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.

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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
JUDGMENT

1    HANDLEY JA: I agree with Rolfe AJA.
2    GILES JA: I agree with Rolfe AJA.
3    ROLFE AJA:

The Appeal Point

The first defendant/appellant, Mrs Carolyn Warner, for whom Mr S.J. Motbey of Counsel appeared, appeals against the findings of Garling DCJ that she was liable for the negligent acts of her husband, Mr Dennis Warner, who was the second defendant, and that she was negligent as a result of her own acts or omissions. His Honour’s conclusion that Mr Warner was negligent has not been challenged. The negligence found was that on 8 January 1990 Mr Warner, who had the de facto control of a 36 foot motor launch, “N’Gluka”, allowed her to be grossly and dangerously overloaded with forty nine adults and children on board. It was found that in consequence of this a tragic accident occurred on that day when the vessel sank in Port Stephens as a result of which five children, who were on board, were drowned, and some passengers were injured.

4    The proceedings concerned claims by the three plaintiffs/respondents, who were also on board and for whom Mr J. Young of Counsel appeared, for damages for nervous shock. Having found that Mr and Mrs Warner were negligent, his Honour awarded damages against each of them in the sums of $69,412, $28,820 and $55,264. There has been no appeal against his Honour’s assessment of damages and, we were informed without objection from the Bar Table, the judgments have not been satisfied by Mr Warner.

5    The only points argued on the appeal were whether his Honour was correct in finding that Mrs Warner was responsible for the conceded negligence of Mr Warner, or personally liable in negligence. A determination of these issues makes it unnecessary to consider many aspects of this dreadful accident. However, in dealing with the limited facts, which it is necessary to consider for the purpose of deciding the matters raised by the parties on appeal, I am not to be taken as in any way trivialising the horrendous nature or consequences of the accident, or the awful effects it must have had on those, including Mr and Mrs Warner, who were involved in it, and who were related to or otherwise knew the deceased children and injured passengers.

The Circumstances Giving Rise To The Accident

(a) The Position Of Mr and Mrs Warner

6    In the first instance, it is appropriate to put in context the position of Mr and Mrs Warner. Whilst there was some dispute as to the ownership of the vessel, relevantly for present purposes, at the trial, on appeal Mr Young expressly did not contend that she was owned by Mrs Warner. In answer to a specific question as to whether he was doing so, he said, Transcript on appeal p.32:-

“YOUNG: No, I don’t contend that, no your Honour, but if I can make that qualification that in my submission, there was no finding of who was the owner, nor was it necessary to make that finding because in relation to the fixing of vicarious liability, in the circumstances of this case the finding of Mrs Warner being the registered controller was sufficient.”

Mr Young stated that his concession that Mrs Warner was not the owner was unqualified.

7    Mr Young made clear, Transcript on appeal pp.32-33, that his contention was that Mrs Warner was the “registered controller” of the vessel; that she understood that she held that position; “and that she was a person who that meant something to”. However, his case was not that she was controlling the vessel on the day of the accident, but that she authorised Mr Warner to navigate the vessel and to do all the things and to make the decisions relating to her on the day, or that she consented to his doing so.

8    It should be stated at the outset that, putting aside any consequences in law from Mrs Warner being “registered controller”, there was no evidence of any such authorisation or consent. Rather, the evidence was that from the time of her acquisition, Mr Warner had exercised de facto control over all aspects of the vessel’s management and navigation, and that Mrs Warner had exercised no such control.

9    There was no evidence that Mr Warner had ever sought Mrs Warner’s authority or consent to navigate the vessel, or from which the inference could be drawn that Mrs Warner had ever impliedly given any such authority or consent. It is not claimed that she had a proprietary right in or title to the vessel, which would enable her to give any such authority or consent. Furthermore, Mr Young conceded that on the day in question “there was certainly no evidence of any conversations where Mrs Warner said to Mr Warner that, ‘I would like you to take charge to-day’, or anything of that kind”: (Transcript on appeal p.34). Mr Young did not refer to any evidence and I have been unable to find any, which, contrary to the concession I have just recorded, showed that Mrs Warner had ever authorised or consented to Mr Warner’s navigating the vessel. Her evidence at AB77 that Mr Warner was not her agent; that she had no power of which she was aware or right to dictate or control him as to how he should conduct the vessel on that or any other day; and that he was the only “boss of the vessel”; was not contradicted. In all these circumstances there was no evidence to support his Honour’s finding, if his Honour meant to make a finding of fact as distinct from stating a consequence in law of Mrs Warner being “registered controller”, at AB46:-

“She also authorised her husband to navigate the vessel and to do all things and to make all decisions relating to the vessel on this day …”

10 The concept of Mrs Warner being the “registered controller” came from the provisions of the Water Traffic Regulations (NSW) made under the Maritime Services Act 1935.

11    I shall return to deal with the question of ownership, so far as that remains relevant in the light of Mr Young’s concession, and the issue of Mrs Warner’s being the “controller” or “registered controller” by virtue of the provisions of the Regulations.

12    His Honour made several clear findings that Mr Warner was the person in charge of the vessel, i.e. de facto in charge, on the day of the accident. In the third paragraph of his judgment, AB29, he said:-

“The person who was in control of the vessel was Dennis Warner.”

At AB44 his Honour said:-

“Mr Warner was the skipper of this vessel. He had the responsibility, or at least a large amount of responsibility for ensuring the safety of all on board. He has a duty to ensure the vessel is not overloaded.
He allowed 49 people on board a 36 foot boat. He knew, or should have known, that that number of persons on board would cause the vessel to be grossly overloaded and it was in fact dangerously overloaded and as a result the vessel foundered, lives were lost and injuries suffered.”

13    He referred to Mrs Warner’s being the registered controller of the vessel and submissions flowing from that position pursuant to the Regulations and, at AB45-46, he stated his opinion that having nominated herself and allowed herself to be the registered controller of the vessel, she had a responsibility. It was in that context that he continued:-

“I am satisfied that she had a degree of control. She also authorised her husband to navigate the vessel and to do all things and to make all decisions relating to the vessel on this day , however, I believe that she still has responsibility.
She is responsible for the acts of her husband and the negligent acts of her husband, as agent.” (My emphasis.)

I have noted that there was no evidence to support a finding of fact in the words I have emphasised.
Subsequently, he said:-

“In my view Mr Warner was negligent and Mrs Warner was responsible. I am further of the opinion that as registered controller in the circumstances of this accident she was, herself, negligent. I am satisfied as registered controller she owed a duty of care to the passengers on this vessel, on this day.
He knew about boats. She had experience, over a number of years. They invited a number of people on board, not by any means all the people. She knew, or should have known how many people were on board. She should have known that the vessel was grossly and dangerously overloaded. She should have taken steps as registered controller to ensure that the vessel did not leave the dock with that number of persons on board.” (My emphasis.)

(b) The Sinking

14    On 8 January 1990, forty nine people boarded the vessel at the Soldiers Point Marina. The weather was fine, the sea was calm and no problems were observed so far as the vessel was concerned either before or after the passengers boarded, until the accident some time later. She cruised on Port Stephens to a restaurant. The persons on board disembarked, had lunch and re-boarded to return to the marina. It was on that journey that she lost stability and sank after certain movements, to which his Honour referred in detail, but which, for present purposes, it is not necessary to record, because he found that they were not such, in themselves, to cause the sinking. He found that the vessel would have righted herself, but for the fact that she was grossly and dangerously overloaded, with the result that she had a very poor reserve of stability. There is no challenge to his Honour’s finding that the overloading constituted negligence, the question being whether it was negligence for which Mrs Warner is vicariously or directly responsible.

The Case Made Against Mrs Warner

15    On the first day of the hearing an application was made to file a Second Amended Ordinary Statement of Claim. Mr Motbey opposed this initially, although he withdrew his opposition, in circumstances to which I shall refer, and his Honour granted leave to amend. The case ultimately pleaded against the first and second defendants, in so far as it is presently relevant, was:-

“2. At all material times, the First Defendant was the registered controller of the motor vessel ‘N’gluka’.

3. At all material times, the Second Defendant was the navigator and person in charge of the said motor vessel.

4. At all material times the Second Defendant was the controller and navigator of the said motor vessel as the agent of the First Defendant.”

This made it clear that the foundation of the case against Mrs Warner was that she was “the registered controller”, and that Mr Warner was the navigator, person in charge and controller. The allegation was that he held these positions “as the agent of” Mrs Warner. In paragraph 9, it was pleaded that the vessel’s sinking was due to the negligence of Mr and Mrs Warner, the relevant particulars of negligence against Mrs Warner being:-


“(a) Inviting and allowing to be present on the boat during the relevant trip an excessive amount of people thereby resulting in the boat being dangerously overloaded.

(b) Failing to make any or any adequate enquiries from the second defendant or otherwise as to the safe amount of persons that could be invited and transported.”

16    I should add, for the sake of both completeness and fairness, that the particulars of negligence also included allegations, which I paraphrase to some extent, that Mrs Warner placed the deceased children in a position of danger, and allowed her husband to navigate the vessel when he was adversely affected by alcohol. Garling DCJ found that these allegations were not established.

17    One effect of the amendment was to withdraw the allegation that Mrs Warner was the owner of the vessel and to substitute the allegation that she was her “registered controller”. As I have said, Mr Motbey initially objected to the amendment and, according to the transcript, Mr Young stated that the Act used the words “registered controller” and “that there was no difference between the terms”. It does not appear that the Regulations, to which Mr Young was obviously referring, use the words “registered controller”, although they do provide for registration of a vessel on the application of a person who controls her. The transcript at trial continued:-

“Mr Motbey stated he understood there is not going to be any suggestion made, because the legislation uses the word controller, that greater responsibility falls upon Mrs Warner, and on that basis withdrew his objection.”

The transcript does not disclose, nor was any submission made to this effect, that Mr Young disputed Mr Motbey’s understanding and, in fact, Mr Young’s submissions as to the basis on which it was sought to make Mrs Warner liable are consistent with Mr Motbey’s stated understanding, viz that no greater responsibility fell on Mrs Warner as the “registered controller”, than would have fallen on her as the owner. Mr Young conducted the case in that way both at first instance and on appeal, as the passages I have quoted make clear, and his Honour decided it on that basis, as his reasons demonstrate.

18    By their original Defence Mr and Mrs Warner asserted that Mr Warner was the sole owner of the vessel, and admitted that at all material times he was the controller and navigator of her, but denied that he was the agent of Mrs Warner.

19    An Amended Defence was filed, which put in issue that Mrs Warner was the owner or controller of the vessel or that any agency, contractual or otherwise, existed between her and Mr Warner on 8 January 1990 in relation to his control of the vessel.

20    Written outlines of submissions were furnished to his Honour and, in relation to Mrs Warner, the plaintiffs’ submissions were that she was the registered controller of the vessel; that she invited certain people, including the plaintiffs, onto her; that she took a major part in inviting guests; and that at the time of the accident she was licensed to navigate vessels at speed and had been so licensed for some time. The relevance of this last submission to the negligence found is not apparent. The written submissions continued that by force of Regulation 11, Mrs Warner was a person who controlled the vessel and that no person could navigate the vessel without her consent or authority. The submission in that bald form was not correct. A person, who navigated the vessel without her consent or authority, exposed himself or herself to a criminal penalty. Regulation 11 imposes no sanction on a person in the position of Mrs Warner. It was submitted that she considered the previous maximum number of passengers to have been twenty or less; that she thought forty three were on board that day; and that she was the person who had held herself out as the controller of the vessel and able to make decisions in respect of her, including as to safety. This last mentioned allegation was in relation to her making an application for a certificate of registration. There was no suggestion that she held herself out to the plaintiffs or any other passengers on 8 January 1990, or, indeed, to anyone else at all in the manner for which the submission contended. Paragraph 14 stated:-

“Mrs Warner was negligent in that as registered controller intricately involved in the invitation process, she invited or allowed to be invited too many people. When almost 50 people were to be carried (over 2 1/2 times the number previously carried) she took no steps to ensure safety.” (My emphasis.)

This paragraph reinforces the basis on which the plaintiffs’ case against Mrs Warner, at least so far as her status was concerned, was put.

21    In paragraph 16 it was stated:-

“As registered controller and because of her relationship to Mr Warner and her knowledge of his boating experience and licence, Mrs Warner authorised her husband to navigate the vessel on an occasion where she had taken a prime role in inviting guests on board. Apart from her own negligence, she is liable for the negligent acts of her husband as agent.”

Reference was made to the decisions in Soblusky v Egan (1959) 103 CLR 215, Sweeney v Phillips (1992) 16 MVR 238, and Jennings v Hannon (No 2) (1969) 71 SR (NSW) 226.

22    In his written submissions to his Honour, Mr Motbey said that the critical element in all the claims was the assertion that Mrs Warner, as registered controller of the vessel, “(a legal relationship to the vessel said to be equivalent to or the same as legal ownership or title) (Trans p.1) stood in a principal and agent relationship with Mr Warner the navigator and person in charge at the time of the disaster”.

23    Mr Motbey also noted that it was submitted against Mrs Warner that “as registered controller/owner she committed certain particularised acts of personal negligence and, so it would appear, should be held vicariously liable for the personal acts of negligence of her agent Mr Warner”. His written submissions continued:-

“No case has ever been suggested that Mrs Warner may be liable to the plaintiffs … otherwise than as registered controller/owner of the vessel.”
The Trial Judge’s Approach

24    As I have noted his Honour held that Mr Warner was the person in charge of the vessel on 8 January 1990. I have referred to passages in which he described Mr Warner’s position and the responsibility he had undertaken. In relation to Mrs Warner he said, AB44-45:-

“It is alleged on behalf of the plaintiff that Mrs Warner was also negligent. It is alleged that Mrs Warner was the registered controller of the vessel and that on this day Mr Warner was the controller, and/or navigator of the vessel as agent of Mrs Warner.
It is alleged that she invited people onto the boat and she allowed the boat or vessel to become dangerously overloaded and she knew, or should have known that it was dangerously overloaded and that she should have taken steps to ensure the vessel was safe for the purpose it was being used, and she owed a duty of care to those on board the vessel.”

25    These were indeed the allegations made and, having recorded them, his Honour continued:-

“There is no dispute that Mrs Warner was the registered controller of the vessel N’Gluka. It is argued on her behalf that being registered under the Water Traffic Regulations, as the controller of the vehicle (sic) does not of itself give rise to any civil liability, does not give any deemed agency or deemed vicarious liability to the controller, and does not mean that she was in any way in control of the vessel.
The mere fact that she has been registered as legal controller, it does not give her legal power, or legal control over the vessel such as would permit her to dictate how it should be used, or not used, as the true legal owner.
The evidence of ownership comes from the Warners. I believe it establishes that Mr Warner purchased this vessel, he looked after the vessel, was basically in control of making all the relevant decisions.
However, the fact remains that Mrs Warner was the registered controller. One has to ask why a person is registered under the Water Traffic Regulations to be registered controllers if they have no responsibility in the control and/or operation of the vessel.
I am of the opinion that having nominated herself and allowed herself to be the registered controller of the vessel, she has a responsibility.”

There followed the passages I have quoted in paragraph 11, and a reference to the three authorities.

26    It is completely clear that his Honour’s findings against Mrs Warner were based upon her being “registered as legal controller” or the “registered controller” of the vessel. Indeed, having regard to the way in which the case was pleaded and argued against her, they had to be. Quite apart from that, his Honour found that Mr Warner was in de facto control of the vessel on 8 January 1990. He made no finding that Mrs Warner exercised any such control. As I have indicated, there was no evidence to support a finding of fact that Mrs Warner “authorised her husband to navigate the vessel and to do all things and to make all decisions relating to the vessel on this day”, and his Honour’s statement to that effect must have been intended as consequential on her being “registered controller”.

27    His Honour’s references to Mrs Warner having a duty of care were predicated on the basis that she was the “registered controller”. That included the requirement that she should have taken steps to ensure that the vessel did not leave the dock with so many people on board.

The Water Traffic Regulations

28    It was common ground that Mrs Warner was the “registered controller” of the vessel. Those words are not defined in the Regulations, but it is clear that they were intended as a reference to her being the “holder of the certificate of registration for a vessel”, which words are defined as:-

“A person to whom a certificate signifying that a vessel is a registered vessel has been issued by the Board.”

Mrs Warner was the holder of such a certificate at all material times.

29    Regulation 2(3) provides that in the Regulations:-

“ … a reference … to a person who has the control of a vessel is a reference to a person who has the right to decide the possession, disposition and use of the vessel.”

30    Regulation 11 provides for the registration of vessels, sub-regulation (2) stating that a person, who controls a registrable vessel, may apply to the Board for registration of her. Although it was not in evidence, there must have been an application by, or at least in the name of, Mrs Warner, and the application for the certificate of registration meant that she held herself out to the Board as a person who had the right to decide the possession, disposition and use of the vessel: Regulation 2(3). Sub-regulation (4) provides that upon registration, a certificate of such registration and a relevant identification plate is issued to the applicant, and that the holder of a certificate of registration shall take the various steps set forth in sub-regulation (6) in relation to the identification of the vessel and the maintaining of the certificate of registration.

31    Regulation 3(1) provides:-

“A person shall not navigate a vessel on any enclosed water recklessly or negligently, or at such a speed, or otherwise in any way that is dangerous to or likely to cause injury or damage to the person or property of, or annoyance or nuisance to, any member of the public.”

32 The word “navigate” is not defined by the Maritime Services Act or the Regulations, although, prima facie, it would seem to mean the way in which a person plots the course of or manoeuvres and controls the vessel as she follows that course having regard to the circumstances and the conditions encountered. The word does not conjure up in one’s mind the number of people allowed on board or the making of the vessel seaworthy or fit for the voyage. However, even if the word is held to encompass the number of people allowed on board, that would not affect the conclusion to which I have come.

33    Regulation 11(11) provides:-

“Any person who navigates a registered vessel, or who, having custody of the same, permits or suffers such vessel to be navigated, without the authority or consent of the holder of the certificate of registration for the vessel shall be guilty of an offence against this regulation.”

That sub-regulation means that a person, in the position of Mr Warner, would be guilty of an offence against the Regulation if he navigated the vessel without the authority or consent of Mrs Warner.

34    However that may be, the critical questions are whether sub-regulation (11) imposed upon Mrs Warner any liability as “registered controller” for the negligent acts of the person, who navigated the vessel (it was not submitted that any other regulation operated on the situation), and whether as “registered controller” Mrs Warner otherwise incurred personal liability for those negligent acts. In this case the questions must be considered in the context of the absence of any evidence that Mr Warner was navigating the vessel with her express or implied authority or consent and in the light of the evidence that he exercised control over all aspects of its management and navigation and she exercised no such control. A positive answer to the first question would demand that she was vicariously liable whether she was on the vessel or not, or whether, being on the vessel, she had nothing to do with the way in which she was navigated, as was the case on this day.

Vicarious Liability

35    It was not claimed that Mrs Warner was the owner of the vessel. It was not suggested that she had any other proprietary right or title to it. Accordingly, she could not be liable as agent or otherwise vicariously by virtue of any such right, title or interest. Thus cases such as Soblusky v Egan & Anor at p.231 and Jennings v Hannan & Anor (No 2) at pp.229 and 233, which are founded on the rights flowing from ownership, and thus the control resulting from ownership, have no application to the present case.

36    Mr Warner had the de facto control of all matters relevant to the operation of the vessel on this day. Mrs Warner had no such control and did not purport to exercise any. At most Mrs Warner, as the holder of the certificate of registration, could have authorised or consented to Mr Warner’s navigating the vessel, which would have been a defence to a criminal prosecution pursuant to sub-regulation (11). As I have said, there was no evidence of express or implied authority or consent - Mr Warner simply exercised control, and no thought or attention was given on the day to Mrs Warner’s status as the holder of the certificate of registration, or to any power to consent or withhold consent that this may have conferred, and it was not established that she was even aware of sub-regulation (11).

37    Even if Mrs Warner had given her authority or consent, in the circumstances of this case, sub-regulation (11) does not, as a matter of construction, make her by virtue of so doing liable for negligent navigation either on the basis that the person to whom she gave the authority or consent was her agent or she was otherwise vicariously liable. The sub-regulation does not address that point. It is concerned with a different matter, as its words make clear. There may be cases where, independently of the sub-regulation, the relationship of principal and agent or employer and employee may be created, such as to give rise to such liability, but those relationships are not created by the sub-regulation. The statutory regime of registration and authority or consent erected by the Regulations is not for the purpose of creating civil liability and does not do so.

38    Thus Mrs Warner’s being the holder of the certificate of registration - in the phrase used in this case, the “registered controller” - did not, as such or in the circumstances of this case, make her liable for the negligence of Mr Warner. In these circumstances I do not consider that his Honour’s finding that Mrs Warner was liable for the negligence of Mr Warner can be sustained.

Personal Negligence

39    It was particularised that Mrs Warner invited and allowed to be present on the vessel during the relevant trip an excessive “amount” of people, thereby resulting in the vessel being dangerously overloaded; and that she failed to make any or any adequate enquiries from Mr Warner “or otherwise” as to the safe “amount” of people that could be invited and transported. These particulars must be considered on the basis, as earlier described, that the case against Mrs Warner was grounded on her being the “registered controller” of the vessel.

40    Apart from the formulation of Mrs Warner being the “registered controller”, there are a number of difficulties with liability in accordance with the particulars.

41    His Honour’s express findings were that Mr Warner had control of the vessel on this day. He was in charge. The presence of too many people on board was solely his responsibility, because he was in charge and, although Mrs Warner had some involvement in inviting people on board the vessel, she did not take any part in regulating the number of people on board.

42    In the light of Mr Warner’s de facto control, the fact that Mrs Warner may have invited some people, “not by any means all”, becomes irrelevant. The duty to decide how many people should be on board was Mr Warner’s and, there was no evidence that Mrs Warner knew or ought to have known that the vessel was “grossly and dangerously overloaded”. The fact that it was found that the vessel was so loaded does not prove that Mrs Warner either knew or ought to have known this was the situation.

43    It may be added that there was no evidence that the vessel behaved in any inappropriate way before leaving the marina, on the voyage to the restaurant or on the return journey, until several minutes before the sinking. Thus, not only was Mrs Warner not exercising de facto control of the vessel, but there was no evidence that she had the knowledge or ought to have had the knowledge his Honour attributed to her in the passage set out in para 11 of these reasons. The vessel having been loaded, nothing untoward happened until several minutes before the sinking such as to put her on notice of any problem.

44    The case as, however, pleaded and argued against Mrs Warner was founded on her being the “registered controller” of the vessel. His Honour found that “as registered controller” Mrs Warner should have taken steps to ensure that the vessel did not leave with so many people on board. The duty of care came from her being the “registered controller”, and where his Honour said that he was satisfied that she “had a degree of control” he must have meant control by virtue of being “registered controller”.

45    This, with respect, is where his Honour’s finding of personal liability was flawed. For reasons given in relation to vicarious liability, the regime of which holding a certificate of registration is part does not create civil liability, and Mrs Warner’s being the holder of the certificate of registration did not give rise to a personal duty of care any more than it made her liable for the negligence of Mr Warner. To make good the finding that she should not have allowed the vessel to sail with the number of people on board, the plaintiffs would have had to prove at the least that she knew, or ought to have known, that the vessel was overloaded, and that in that knowledge she could have done something to prevent the vessel from sailing. This they failed to do.

46    In the result I consider that the respondents have failed to show that Mrs Warner owed them any duty of care.

Proposed Orders

47    The orders I propose are:-

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.
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