Frost v Warner [2002] HCA 1

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, GUMMOW, KIRBY AND CALLINAN JJ

SUSAN MARY FROST & ORS APPELLANTS

AND

CAROLYN WARNER RESPONDENT

Frost v Warner

[2002] HCA 1

7 February 2002

S195/2000

ORDER

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales

Representation:

D F Jackson QC with G R Kennett for the appellants (instructed by McDonald Johnson)

G K Downes QC with S J Motbey for the respondent (instructed by Selby Anderson)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Frost v Warner

Negligence – Duty of care – Vicarious and direct liability – Motor vessel accident caused by vessel being grossly overloaded – Whether respondent's status as holder of certificate of registration for vessel under Water Traffic Regulations (NSW) conferred requisite degree of control to found direct or vicarious liability – Whether holder of certificate of registration responsible for negligence of person in charge of vessel – Whether status as holder of certificate of registration gave rise to duty of care to prevent vessel sailing while grossly overloaded.

Maritime Services Act 1935 (NSW).

Water Traffic Regulations (NSW), reg 11.

1. GLEESON CJ, GUMMOW AND CALLINAN JJ. This is an appeal from the Court of Appeal of the Supreme Court of New South Wales. The Court of Appeal (Handley and Giles JJA, Rolfe AJA) allowed an appeal from the District Court (Garling DCJ), set aside that part of the judgment awarding damages to the appellants against the respondent, and substituted orders dismissing their actions against the respondent. In this Court the appellants seek orders which would restore their success against the respondent at the trial. 2. The circumstances giving rise to these proceedings may be shortly stated. On 8 January 1990 the motor vessel N'Gluka sank in Port Stephens resulting in the death of five children trapped in the front cabin. The appellants were on board the N'Gluka at the time of the accident and are the immediate family of Amanda Frost, one of the children who died in the accident. 3. The appellants commenced proceedings in the District Court claiming damages for nervous shock and other psychological trauma suffered as a result of the accident and the death of Amanda Frost. The defendants in that action were Mrs Warner and her husband. Mrs Warner is the sole respondent in this Court. The appellants alleged that Mr Warner was the "navigator and person in charge of the vessel" at all material times. They further alleged that the accident occurred because the vessel was overloaded and that Mr Warner had been negligent in allowing "far too many people to travel on this vessel"[1]. 4. The appellants also sought to recover against Mrs Warner on two grounds. They submitted that Mr Warner was at all times acting as her agent and that therefore she was vicariously liable for his negligence. They further submitted that Mrs Warner was directly liable in negligence on the basis that she had "invited people on to 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". Both these submissions were premised upon Mrs Warner possessing a sufficient degree of "control" over the vessel. This "control" was said to arise by virtue of her "status as registered controller" of the vessel under the Water Traffic Regulations (NSW) ("the Regulations"). The Regulations were made under power conferred by s 38 of the Maritime Services Act 1935 (NSW) ("the Act").