Noferi v Smithers; Lokys v Smithers; Smithers v Lokys & Anor [2002] NSWSC 508

New South Wales Supreme Court

CITATION : Noferi v Smithers; Lokys v Smithers; Smithers v Lokys & Anor [2002] NSWSC 508 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20620/00; 20672/00; 20380/01 HEARING DATE(S) : 20-24, 27 May 2002 JUDGMENT DATE : 7 June 2002

David James Noferi PARTIES : John Sigitas Lokys Simon Russell Smithers JUDGMENT OF : Newman AJ at 1

Noferi: M. Slattery QC / R. Pepper COUNSEL : Lokys: M. Williams Smithers: G. Nell Noferi: M. Russoniello SOLICITORS : Lokys: Russell McLelland Brown Smithers: Norton White CATCHWORDS : Negligence - marine accident- Limitation of liability - Assessment of damages LEGISLATION CITED : Limitation of Liability for Maritime Claims Act 1989 (Cth) Convention on Limitation of Liability for Maritime Claims, 1976 DECISION : para 48

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NEWMAN AJ

Friday, 7 June 2002

20620/00 NOFERI v SMITHERS 20672/00 LOKYS v SMITHERS 20830/01 SMITHERS v LOKYS & ANOR

JUDGMENT 1 NEWMAN AJ: These are claims for personal injuries arising out of an accident involving a motor boat which occurred on 12 July 1997. Both the plaintiffs were swimming between two islands which constitute part of a group of islands known as the five islands which stand close to the New South Wales coast off Port Kembla. 2 At the time of the accident the two plaintiffs were swimming between two islands known as Rocky and Big Islands respectively. They were struck by a motor boat driven by the defendant and both plaintiffs suffered severe injuries. 3 The defendant had instituted a limitation suit (which was transferred from the Federal Court to this court) claiming that his liability for damages arising from the subject accident were to be limited pursuant to the Limitation of Liability for Maritime Claims Act 1989 (Cth). That Act enables the Convention on Limitation of Liability for Maritime Claims, 1976 to become part of the law of Australia including New South Wales. Pursuant to Article 2 of the Convention claims in respect of personal injury occurring in direct connection of the operation of a ship and the consequential loss resulting therefrom are subject to a limitation of liability. Article 6 of the Convention limits the liability in respect of claims for personal injury to what are called units of account being 333,000 of those units for a ship the size of the defendant's motor boat. 4 In the event, after five days hearing, the question of liability and the amount of money constituting a fund set up under Article 11 of the relevant convention were agreed by the parties. Effectively, the defendant admitted liability for negligence and the plaintiffs agreed that the sum of $975,000 was the amount constituting the fund under Article 11. This means that the remaining task of the court is to assess the damages which should be awarded to the two plaintiffs and having done so then make an apportionment pro rata so that the plaintiffs will receive an award limited by the gross amount of the fund but bearing a direct relationship to the proportion between the two assessments of damage. 5 The upshot of this procedure is that both plaintiffs, in terms of damages awarded according to law by this court, will be substantially under-compensated for the serious injuries which they both suffered. This fact will be made starkly evident by a comparison between the assessment of damage which I have arrived at and the amounts which both plaintiffs will receive having regard to the amount of the available fund. I shall deal with the assessment of damages separately.