HEADNOTE
[This headnote is not to be read as part of the judgment]
The first appellant, Timothy Farriss, seriously injured his left hand when it became caught in the electric anchoring mechanism of a boat. He had chartered the boat through the third respondent company for the purpose of cruising around Pittwater over the Australia Day long weekend. The first and second respondents were the owners of that boat.
Mr Farriss alleged that the respondents were negligent by failing to take reasonable precautions, including the installation of a chain stripper and extension of the spurling pipe, and by failing to warn him of the risks associated with use of the anchor. He further alleged that the respondents had failed to comply with statutory guarantees owed under ss 60 and 61 of the Australian Consumer Law (ACL). The second appellant, Montana Productions Pty Ltd, claimed damages for loss of income consequent upon Mr Farriss' injury.
Each of the appellants' claims was rejected. The primary judge found that the respondents were not required to take any further precautions in circumstances where the anchor had previously been used without incident and where there was no recommendation made by repairers or maintenance persons that such precautions be taken. It was relevant that, contrary to Mr Farriss' evidence, the primary judge held that his hand had been pulled into the anchor after accidentally standing on the deck-mounted "up" switch. In relation to the failure to warn case, Mr Farriss had been aware of the risks associated with use of the anchor prior to the accident occurring. The primary judge did not substantively consider the claims under the ACL because of concessions made by counsel in closing oral submissions.
The principal issues in the appeal are:
(i) whether the respondents breached their duty by failing to take reasonable precautions, namely, the installation of a chain stripper and extension of the spurling pipe;
(ii) whether the respondents breached their duty by failing to warn Mr Farriss of risks associated with use of the anchor prior to his departing on the boat; and
(iii) whether the appellants should be permitted to revive an abandoned claim that the respondents breached the statutory guarantee owed to Mr Farriss under s 61(1) of the ACL.
The Court (Meagher JA, Mitchelmore JA and Simpson AJA) dismissed the appeal, holding:
As to issue (i)
(1) The precautions that a reasonable person would have taken in response to the relevant risk of harm, being the risk that a person might trap their hand whilst attempting to unjam the anchor chain, did not extend to the installation of a chain stripper or extended spurling pipe. The respondents were entitled to rely on the absence over time of any prior incident, the absence of any recommendations by repairers who had inspected the vessel, and the precautions they had already taken in forming a view that further safeguards were not required: [17]-[37].
Roads and Traffic Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; [2007] HCA 42; Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320; Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited (2022) 273 CLR 454; [2022] HCA 11; Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65; Blue Op Partner Pty Ltd v De Roma [2023] NSWCA 161, referred to.
As to issue (ii)
(2) The appellants failed to establish why the duty to warn Mr Farriss of the propensity of the anchor chain to kink arose prior to the charter as opposed to prior to the time of the incident. Even accepting the premise of that submission, the evidence did not support a conclusion that Mr Farriss would not have chartered the boat had he known about any such propensity of the anchor chain: [38]-[52].
As to issue (iii)
(3) The appellants accepted that the primary judge correctly understood the claim under s 61 of the ACL to have been abandoned. In circumstances where counsel made a strategic decision at trial to abandon that claim, and noting the importance accorded to the finality of litigation, the appellants should not be permitted to reagitate that claim under the ACL on appeal: [55]-[58].
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481; Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33, referred to.
(4) Even if the appellants were permitted to reagitate their claim under the ACL on appeal, that claim would fail. The fact that the anchor did not work precisely as intended did not mean that the boat was not reasonably fit for Mr Farriss' purpose in chartering it. Contrary to the appellants' submission, the primary judge made no finding that Mr Farriss presented to the respondents as somebody who was inexperienced in boating, nor did the evidence support that contention: [53]-[54], [59]-[63].