BISHOP v BALTIC SHIPPING CO
[1994] NSWCA 26
At a glance
Source factsCourt
Court of Appeal (NSW)
Decision date
1993-09-28
Before
Carruthers J, Handley JA, Mahoney JA, Kirby P
Source
Original judgment source is linked above.
Judgment (73 paragraphs)
KIRBY P, MAHONEY and HANDLEY JJA 16-17 and 28 September 1993, 15 July 1994
DAMAGES - personal injury - stress and shock- ship sinks mid-cruise - whether release excludes claim - whether contract of release "unjust". CONTRACT - unjust contracts - invalid pensioner signs - no frank psychiatric injury proved.
DAMAGES - personal injuries - passenger on cruise when ship sinks - passenger male aged 50 retired because of anxiety condition and in receipt of invalid pension - claim for personal distress and disappointment - no evidence of frank psychiatric disturbance - passenger demonstrates fortitude and denies injury - trial judge (Carruthers J) enters judgment in favour of carrier - holds that release executed by passenger in favour of carrier was "unfair" but not "unjust" - declines to set release aside under Contracts Review Act 1980 - on appeal to the Court of Appeal - held: (Handley JA, Mahoney JA concurring; Kirby P dissenting): (1) The trial judge had advantages in determining the impact of the shock of the sinking of the ship on the passenger; (2) It was open to the judge to find that the execution of the release was not unjust in the circumstances; (3) The inclusion in the release of the subrogated claim for the benefit of the passenger's insurer was not binding on the insurer and so the appeal must to that extent be allowed; (4) Appeal otherwise dismissed. CONTRACT - unjust contracts - unjust in circumstances relating to execution - shipping cruise - ship sinks mid-cruise - release in settlement of claims - release form signed by passenger - passenger contends he had no choice - whether release unjust in circumstances - whether release wholly void or void to the extent of disproportional exclusion of claim by passenger for personal injuries and disappointment damages - held: (Handley JA, Mahoney JA concurring; Kirby P dissenting): (1) The release was not, in the case of the passenger, unjust in respect of his release of his claim for personal injuries and disappointment; (2) The release was void to the extent that it purported to release The passenger's insurer's claim to subrogation in respect of loss of goods and must be deleted from the release and the appeal allowed for that purpose; (3) Appeal otherwise dismissed.