Warner v Frost [1999] NSWCA 429

New South Wales Court of Appeal 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. Soblusky v Egan (1959) 103 CLR 215 CASES CITED: 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.