District Court New South Wales Medium Neutral Citation: Blackney v Clark [2013] NSWDC 144 Hearing dates: 24, 27, 28 & 29 May 2013 Decision date: 29 May 2013 Before: Neilson DCJ Decision: Verdict and judgment for the plaintiff Catchwords: PERSONAL INJURY - Torts - Negligence - Rescue - Defendant's vessel being sucked into breakers off Chinaman's beach - Defendant called skipper of 'The Julie' on which plaintiff was present and asked for assistance - Defendant attempted to cross waves to reach The Julie - Defendant's vessel overturned by a wave and capsized - Plaintiff entered sea to help defendant - Plaintiff thrown a tow line by skipper - Plaintiff connected tow line to defendant's vessel but knot gave way - Plaintiff lost contact with Defendant and washed up on the beach - Whether defendant was negligent in allowing his vessel to be washed in to shore by force of the breakers - Whether defendant negligent in attempting to return to sea in the way he did resulting in capsize Cases Cited: Dwyer v Southern [1962] NSWR 124 Haynes v Harwood [1935] 1 KB 146 Insurance Commissioner v Joyce (1948) 77 CLR 39 Malcolm v Dickson [1951] SC 542 Wagner v International Railway Co. (1921) 232 NY 176 Ward v T E Hopkins & Son Limited [1959] 3 All ER 225 White v The Chief Constable of South Yorkshire Police [1999] 2 AC 455 Category: Principal judgment Parties: David Robert Blackney (Plaintiff) Wilfred Edward Clark (Defendant) Representation: Mr G Radburn (Plaintiff) Mr N Polin (Defendant) Somerville Laundry Lomax (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2012/100741 Publication restriction: Pars [51] to [113] Judgment 1The plaintiff, Mr David Robert Blackney of Goonellabah, brings an action for damages for personal injury which he says he sustained as a result of his coming to the rescue of the defendant, Wilfred Clark of Coraki, and/or the rescue of his vessel. The plaintiff's action is in the tort of negligence. The first five paragraphs of the statement of claim are these: "(1) On or about 13 January 2010 at approximately 4.45am the defendant was occupying a vessel on the ocean near Chinaman's Beach, south of Evans Head when he allowed his vessel to be situated in the vicinity of breaking waves. (2) Around that time the defendant requested the assistance of a nearby vessel known as the 'Julie' that was owned and skippered by Mr Michael Endres. Particulars The defendant made a number of calls for assistance by way of radio to the Julie. (3) The plaintiff was a passenger on board the Julie at the time. (4) Upon receiving this request, Mr Endres drove his vessel to Chinaman's Beach. Shortly after arriving at Chinaman's Beach, the defendant's vessel was struck by several waves causing it to capsize. The defendant then clung to the bow of his vessel whilst it was being struck by waves. (5) The plaintiff entered the water holding a rope and swam towards the defendant and his vessel for the purpose of rescuing the defendant and his vessel. The plaintiff attempted to tie the rope on to the bow of the defendant's vessel with one end attached to the Julie but was unable to do so by force of the waves constantly pushing him away from the said vessel resulting in the plaintiff [sic] being washed onto the beach in an unconscious state and thereby suffering injuries". 2The defendant has formally admitted the allegations contained in par 1 but did not admit that the vessel's location in proximity to the breaking waves was a voluntary "situation" on his part. The defendant did not admit that the plaintiff was washed onto the beach in an unconscious state as alleged in par 5 or that the unconscious state led to the plaintiff suffering injuries. There is no traverse or non-admission of the matters pleaded in pars 2, 3 and 4, or of the parts of pars 1 and 5 that what were not specifically not admitted. However, the defendant denies any negligence. 3Three persons gave evidence on the question of liability. They were the plaintiff, Mr Michael John Endres, the skipper of the Julie, and Mr Craig Anthony Long, the employed deckhand of Mr Endres. The plaintiff was on the vessel as a deckhand but his position on the vessel was purely voluntary. The plaintiff had an interest in fishing. Mr Endres described the Julie as a handline and crab boat. He told me that his vessel was seven metres long. It was powered by an outboard motor. In his opening, Mr Radburn, for the plaintiff, told me that the Julie was a half cabin vessel and there appears not to be any dispute about that fact. 4In the early hours of Wednesday 13 January 2010, Mr Endres, with the plaintiff and Mr Long on board, left the Evans Head Marina into the Evans River and then went to sea. They crossed the bar at Evans Head at approximately 2am. Mr Endres motored southeast to a fishing ground which he called the "Tracks", which was a half a nautical mile seaward of Chaos Reef, which would appear to be southeast of Chinaman's Beach. Chinaman's Beach is in fact a beach southeast of Evans Head township. Mr Endres let out his anchor and the three men on his vessel commenced to fish with handlines. They were fishing off the bottom, seeking to catch trag and jewfish. 5When he was fishing at the Tracks Mr Endres received a telephone call from his friend, the defendant, who was known by the nickname of 'Wolf' or 'Wolfie'. The evidence suggests that Mr Endres and Mr Clark had been friends for a number of years. Mr Clark was also a fisherman. Whether he was a professional fisherman, as Mr Endres was, I do not know. The evidence does not tell me. Apparently, arrangements had earlier been made between Mr Endres and Mr Clark for Mr Clark to come out in his vessel to go fishing perhaps in the vicinity of Mr Endres' vessel. When the defendant phoned Mr Endres the defendant asked about the bar at Evans Head, whether it was safe to traverse, and Mr Endres told him that it was safe to traverse and where in fact to cross the bar. 6The vessel of Mr Clark, the defendant, has been described as a "tinny". I do not know its size but it would appear from what I have been told that it is smaller than the Julie. I assume it is some form of aluminium runabout. I assume also that it was powered by an outboard motor. Such is the common expectation of any Australian when a vessel is described to him or her as a "tinny". 7Later Mr Endres received a call on the radio from the defendant. The defendant told Mr Endres that he could hear surf breaking and that he was unsure as to where he was. Mr Endres told me that the defendant admitted that he was disoriented. However, whatever was said led Mr Endres to believe that the defendant was somewhere in the vicinity of Chinaman's Beach. This call was received by Mr Endres sometime between 4.35am and 4.45am. Mr Endres described the weather conditions as "black night", but there was no fog. He told me later that there was little moonlight. Mr Endres told the defendant that he would come to his assistance. He told the two other men on the Julie to pull up their lines and he weighed anchor to set off to where he thought he might find the defendant, somewhere off Chinaman's Beach. After Mr Endres had set off to find the defendant he received another call from the defendant, who said that he was being "sucked into the breakers". Mr Endres told the defendant that he would be with him or "there" as soon as he could. 8As he approached the area of Chinaman's Beach, Mr Endres said he was looking for the defendant's navigation lights. He saw the defendant's vessel in waist-deep water with its bow pointing out into the breakers. The defendant was standing beside his boat. Mr Endres positioned his vessel behind the first line of breakers, that is, the line of breakers furthermost from the shore, with his stern to the beach and used a floodlight or floodlights on the back of his vessel to illuminate Mr Clark's vessel. The defendant then boarded his vessel and got underway. According to Mr Endres, the defendant got over three waves "perfectly". However, the fourth wave that he encountered was approximately two metres high. In cross-examination, Mr Endres admitted that this was a "rogue wave", that it came up unexpectedly. The wave was too high for the defendant to motor over. It caused the defendant's vessel to flip over and therefore capsize. 9Mr Endres expressed the view that someone had to give the defendant "a hand". The plaintiff volunteered. The plaintiff went to the back of the boat in order to enter the sea. However, before he went over the stern of the vessel Mr Endres retrieved from the bow of his vessel a commercial life jacket which he and Mr Long fitted onto the plaintiff. The plaintiff's evidence is that he jumped into the sea without any life jacket and one was thrown to him from the Julie and that it was very difficult for him to don it and to adjust it to his body. However, I cannot accept the plaintiff in that regard. I wholly accept the sworn evidence of Mr Endres and Mr Long that the plaintiff was fitted with the commercial life jacket before he entered the sea. 10Before turning to what then occurred, it is important to bear in mind some other facts. According to Mr Endres, there were about sixty metres between the first line of breakers and the shore at Chinaman's Beach. Mr Endres positioned the Julie about one and a half metres seaward of the first line of breakers. In his opinion the defendant's vessel, after it had capsized, was some eighteen to twenty metres from the back of his vessel. He estimated that the defendant's vessel was still some forty metres from the shore. 11When the plaintiff entered the sea he was not carrying a towline. One was being made up by Mr Long from the anchor line of the Julie. He obviously had to detach the anchor from the anchor line and he was attaching to it a buoy. It was later thrown towards the plaintiff when the plaintiff was, on my note of the evidence, about five metres away either from the Julie or from the defendant's vessel. 12A critical piece of evidence, in my view, is the fact that Mr Endres perceived that the defendant might personally have been in difficulty after his boat was overturned by the rogue wave. He considered that the defendant might have been hit by his vessel, in particular that he may have been hit on the head by his vessel and at one stage he disappeared from Mr Endres' view. The plaintiff also told me that he perceived, when he was still on the Julie, that the defendant was in personal difficulty. When the plaintiff entered the sea he perceived that he was there to rescue the defendant in case he was in personal difficulty. I accept the plaintiff's evidence in that regard because he is adequately corroborated by Mr Endres. 13Of the three men who gave evidence on the question of liability, I prefer the evidence of Mr Endres because he appeared to me to be an experienced seaman, an experienced professional fisherman. He was articulate and he was careful in his evidence. I also have some reservations about the reliability of the plaintiff's evidence, of which I shall have more to say on the question of damages, which must be addressed even if there be a verdict for the defendant. 14Mr Endres conceded that the commercial life jacket which the plaintiff donned made it very hard for the wearer of the life jacket to put his head under water. However, the plaintiff is a heavily built man and I can accept that he may have gone under water when he jumped off the stern of the Julie. However, it is clear from the plaintiff's evidence that once he was in the water he perceived that the defendant was no longer in personal difficulty. The evidence suggests that Mr Clark had climbed on to the overturned hull of his tinny. 15The line that was being made up by Mr Long was then thrown to the plaintiff. He went to affix the line to the bow of the defendant's vessel, the idea adopted by Mr Endres being to tow the defendant's tinny seaward of the breakers. The plaintiff swam to the defendant's vessel. He connected the line to the vessel, but when Mr Endres attempted to tow the defendant's vessel, the knot tied by the plaintiff gave way. That procedure was tried "a couple of times" but by that stage, according to Mr Endres, the defendant's vessel was "getting too far in". In cross-examination, Mr Endres said that, at one stage, there was only the one line of breakers or waves between the Julie and the defendant's tinny, and he could easily have towed it out from that place, but when the tinny got beyond the second line of breakers it was no longer viable to tow the defendant's capsized vessel. 16Mr Endres then yelled out to the plaintiff and the defendant to go to the beach, that is, to swim to shore and to let the boat wash in. Mr Endres then sought to raise the mayday. He tried calling the local Coast Guard on both radio and telephone but was unsuccessful in getting their attention. 17Mr Endres told me that he saw the defendant pulling the plaintiff "out of the water". I am not sure, from how I made notes at the time, whether that was his last sight when he left Chinaman's Beach or it was his first sight when he next returned to Chinaman's Beach. However, it appears to be that he at least saw the plaintiff and the defendant heading shorewards when he was seeking to raise the alarm. 18Being unsuccessful in calling the coastguard, Mr Endres motored his vessel back to the Evans Head Marina then got in his motorcar and drove to Chinaman's Beach. By that stage, clearly, emergency services had been contacted. 19Mr Endres told me that when he got back to Chinaman's Beach via the land route, an ambulance had already attended and the Coast Guard then attended and that there were a "lot of sightseers". A rescue helicopter attended at Chinaman's Beach and airlifted the plaintiff to the Lismore Base Hospital. 20In cross-examination, Mr Endres admitted that when he first saw the defendant, the defendant was in no danger. The danger in which the defendant ultimately found himself was because he sought to head back to sea through the breaking waves at Chinaman's Beach. He could not negotiate the final breaker, which caused his tinny to capsize. 21In cross-examination, perhaps to make the finding clearer, Mr Endres said that he saw the plaintiff and the defendant being washed back to shore prior to leaving Chinaman's Beach. So, my note that he saw the defendant pulling the plaintiff out of the water was a note as to what he first saw when he returned to the Chinaman's Beach via the land route. 22The particulars of negligence contained in the statement of claim are these: "(a) Placed himself in a position of peril by being at sea whilst alone and at night; (b) Allowed his vessel to be situated in the vicinity of breaking waves; (c) Failed to keep an appropriate watch; (d) Allowed his vessel to be in a position where it overturned, causing himself to be in a position of peril; (e) Failed to take any adequate or proper precautions for his safety or the safety of any potential rescuer/s; (f) Exposed himself and any potential rescuer/s to a risk of injury which could have been avoided by reasonable care on his part." The particulars numbered (e) and (f) to me say no more than repeating the averment that the defendant was negligent. The question is, was the defendant negligent? 23The plaintiff puts his case in two ways. The first way is that the defendant was negligent in allowing his vessel to be washed in to shore by the force of the breakers. That is, the defendant should not have permitted his vessel to get so close to the breakers that it was sucked in to the shore by the force of the breakers. The second position adopted by the plaintiff is that the defendant was negligent in attempting to return to sea in the way that he did attempt to return to sea, which resulted in the capsize of his vessel. It is of significance that the defendant gave no evidence, nor was his absence from the witness box explained. 24The defendant went to sea alone. What happened to him and his vessel is peculiarly within his knowledge. One can speculate as to why the defendant permitted his vessel, if permitted he did, to be drawn into the breakers and washed on to Chinaman's Beach. Mr Polin, for the defendant, submitted that the only rational inference to be drawn is that his engine must have failed so that he could not extricate himself from being dragged in to the shore by the waves at Chinaman's Beach. However, that is not the only rational inference to be drawn. Furthermore, subsequent conduct is inconsistent with the proposition that the defendant's engine had failed. That subsequent conduct is, of course, the defendant's heading back out to sea, presumably under power. There is no suggestion that the defendant was rowing his tinny out through the breakers. The only inference to be drawn is that he was motoring under the power of his outboard motor. Furthermore, if there had been an unexpected failure of the engine of the defendant's vessel, one would think that that is something that ought to have been specifically pleaded. However, it is not. 25All I know is that the defendant had become disoriented. He did not know where he was on the ocean. He turned to Mr Endres for assistance. Mr Endres was going to his assistance. If the defendant could hear the sound of breakers, he should have headed away from them. However, he might not know in which direction the breakers were. He may have got close to shore in order to pick up a landmark, to tell him where he was. He may have been fishing and the current or the force of the tide took him towards the shore and he did not have sufficient time in which to restart his engine and motor away from the area of Chinaman's Beach or whatever was the source of the waves. As I said, there are a number of possible explanations for why the defendant ended up on Chinaman's Beach. 26In Insurance Commissioner v Joyce (1948) 77 CLR 39, the plaintiff, Joyce, claimed damages from the defendant, Kettle, for injuries caused by the negligent driving of a motorcar by Kettle. The Insurance Commissioner of the State of Queensland exercised a statutory right to be joined as a defendant in the action. The case for Joyce was that while he was being driven in Kettle's car as a gratuitous passenger, Kettle drove so negligently that the car first ran into a stationary truck and then into a fence and Joyce was seriously injured. The plaintiff alleged that the driver, Kettle, was drunk. However, the plaintiff himself gave no evidence. The trial judge held on the evidence that the plaintiff knew of the danger arising from Kettle's drunken condition and voluntarily accepted the risk attendant upon it. He accordingly found for the defendant, not on the ground of contributory negligence, but for lack of proof of breach of duty owed by Kettle to him. An appeal to the full bench of the Supreme Court of Queensland was successful and they fixed the plaintiff's damages at seven hundred pounds. The Insurance Commissioner then appealed to the High Court. The High Court allowed the appeal and restored the judgment of the trial judge. At 49 Rich J said: "He [the trial judge] therefore found that a prima-facie case of negligence had been made out. The question remained whether a plea of volenti non fit injuria had also been made out. Obviously the question was one to be decided on circumstances. But when circumstances are proved indicating a conclusion and the only party who could give direct evidence of the matter preferred the well of the court to the witness box a court was entitled to be bold." 27Here, the defendant has preferred either the well of the Court or his cottage at Coraki than the witness box to explain what happened on his vessel. A mariner or seafarer, whether he sails in a tinny or an ocean liner, owes a duty to other users of the sea to navigate in such a fashion as to minimise the risk of harm to others. In particular, a seafarer ought to navigate his vessel in such a fashion that it does not run aground, strike a reef or become involved in what could be termed a shipwreck. Not only is a shipwreck a danger to the mariner himself, but to any passenger or crewman on his vessel, but also is a danger to valuable property, namely the vessel itself. Furthermore, any shipwreck invites rescue. A mariner therefore ought so navigate his vessel or use his vessel that it is not exposed to dangers which can be averted. 28Here, I know that the defendant allowed his vessel to get so close to the breakers that his vessel was dragged into shore by the breakers. Without more, that bespeaks negligence. It is a position where the principle of res ipsa loquitur applies. The defendant, if his navigation was blameless, could have entered the witness box and told me so. He did not. This is not a case of reversing the onus of proof, but relying on such proof as the plaintiff can adduce to determine whether there is evidence to suggest negligence on the part of the defendant and then throwing the evidentiary onus back to the defendant where the defendant is the only person who can elucidate the position. 29It may well be that in his disorientation, the plaintiff was looking for some landmark or in his disorientation did not know in which direction the breakers were, thus permitting his vessel to be dragged on to Chinaman's Beach. In permitting himself to do that and in seeking assistance from Mr Endres, the defendant elicited rescue. 30Rescue is reasonably foreseeable. I shall refer soon to relevant authorities, but it is clear that any mariner who puts himself in a position of danger elicits, implicitly, rescue, and in this case explicitly asked for assistance or rescue. 31I am therefore persuaded, on the balance of probabilities, that the plaintiff has made out his case based on the first proposition that the defendant was negligent in allowing himself to be washed onto Chinaman's Beach in the first place. In essence that is covered by particulars (a), (b) and (c). 32The defendant had been washed on to Chinaman's Beach. At the time that Mr Endres and his vessel arrived, the defendant had turned the bow of his vessel to sea and was standing in waist-deep water. He was able to get back into his tinny, start the engine and proceed to try to get back to sea. It was in the process of doing that that his vessel overturned and sparked the intervention of the plaintiff. This essentially is the matter that is alleged in (d) of the particulars of negligence. 33Unfortunately, the evidence is silent on many relevant considerations. I do not know the direction of the wind, if any. I do not know what the tide was, whether it was a flood tide or an ebb tide, whether it was halfway through a cycle or, for example, at low tide itself. I do not know whether waves smaller than two metres can be encountered at Chinaman's Beach or not. However, many beaches in eastern Australia can have no surf at all, depending upon climactic conditions, including tide and wind. 34The defendant elected to try to get back to sea at night or perhaps at first light. The evidence is somewhat unsatisfactory in that regard, but it appears that there was some light beginning to show, albeit that the defendant's vessel was in the floodlights of the Julie. He elected, when there could be waves as high as two metres, to go back to sea without offloading any gear or cargo from the tinny, which may have made it lighter and therefore more able to get to sea. He elected to stay in his vessel and motor it when, perhaps, he could have unloaded the vessel, placing his goods and, in particular, for example, the outboard motor, high up on the beach above high water mark to preserve those goods. He could have elected to have his person towed by line back to the Julie and the tinny could then be towed out to sea when it was not carrying any weight and when the towing of the tinny offered no danger to the defendant himself. 35The defendant could have waited for better light. He could have waited, perhaps, for calmer seas. He could perhaps have waited for a better tide. He could, perhaps, have waited for a more favourable wind. He could have lightened the vessel by offloading its gear and fittings. He could have separated his rescue from the rescue of his vessel. However, none of those things occurred. 36Common sense to me indicates that the defendant should at least have waited until dawn, when there was light, and could have waited for further assistance. But, in doing what he did, the plaintiff put himself in the position of peril, a peril which actually turned into the capsize of his vessel and invited the plaintiff to attempt the rescue. 37A seminal case on the question of rescue was the decision of Cardozo J in Wagner v International Railway Co. (1921) 232 NY 176. His Honour said this: "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises then as normal. It places their effects within the range of natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid ... The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path ... The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had..." His Honour then went on to point out that the defendant in those proceedings alleged that there must be a point at which the chain of causation was broken. His Honour went on to say this: "...in short, that there must be unbroken continuity between the commission of the wrong and the effort to avert its consequences. If all this be assumed, the defendant is not aided. Continuity in such circumstances is not broken by the exercise of volition ... So sweeping an exception, if recognised, would leave little of the rule. 'The human mind ... acts with celerity which it is sometimes impossible to measure'. The law does not discriminate between the rescuer oblivious of peril and he one who counts the cost. It is enough that the act, whether impulsive or deliberate, is the child of the occasion." His Honour's judgment was the subject of concurrence from Hiscock CJ and Hogan, Pound, McLoughlin, Crane and Andrews JJ. That case was specifically approved in this State in Dwyer v Southern [1962] NSWR 124, a decision of the full Court comprising Evatt CJ and Herron and Collins JJ. 38In Haynes v Harwood [1935] 1 KB 146, a defence of volenti non fit injuria was raised. Greer LJ, with whom Maugham and Roche LJJ agreed, said this at 156: "The third ground was that the principle of volenti non fit injuria applied. On this there is very little actual authority in this country and no actual decision of the Court of Appeal, but there is a very helpful decision of Swift J in Brandon v Osborne Garrett & Co. There is, however, a wealth of authority in the United States, and one of the cases, which is quite sufficient to show what the American law is, has been cited to us - namely, Eckert v Long Island Railway Co. The effect of the American cases is, I think, accurately stated in Professor Goodhart's article to which we have been referred on 'Rescue and Voluntary Assumption of Risk' in Cambridge Law Journal, vol. v, p 192. In accurately summing up the American Authorities and stating the result of Eckert's case the learned author says this (page 196): 'The American rule is the doctrine of the assumption of risk does not apply where the plaintiff has, under an exigency caused by the defendant's wrongful conduct, consciously and deliberately faced a risk, even of death, to rescue another from imminent danger of personal injury or death, whether the person endangered is one to whom he owes a duty of protection, as a member of his family or is a mere stranger to whom he owes no such special duty.' In my judgment that passage not only represents the law of the United States, but I think it also accurately represents the law of this country." When his Honour says that it represents the law of England and Wales, his Honour is stating that it represents the common law. 39Ward v T E Hopkins & Son Limited [1959] 3 All ER 225 was another rescue case in which a medical practitioner, who went to the assistance of two workmen who went down a well and succumbed to fumes, had himself succumbed to the fumes and died. At 244, Willmer LJ said this: "I pass, therefore, to the fourth and last question, which is raised by the defendant company's plea that the death of Dr Baker was caused or contributed to by his own negligence. The burden of proof with regard to this allegation is on the defendant company, and in order to succeed I think they would have to show that the conduct of Dr Baker was so foolhardy as to amount to a wholly unreasonable disregard for his own safety. Bearing in mind that danger invites rescue, the court should not be astute to accept criticism of the rescuer's conduct from the wrongdoer who created the danger. Moreover, I think it should be remembered that it is fatally easy to be wise after the event. It is not enough that, when all the evidence has been sifted and all the facts ascertained in the calm and deliberate atmosphere of a court of law, that the rescuer's conduct can be shown ex post facto to have been misguided or foolhardy." 40In Dwyer v Southern itself, the Full Bench ordered a new trial of issues joined between the defendant and third parties. As a result of the negligent driving by one of those third parties, a car owned by the other third party was involved in a collision on the highway with a semi trailer driven by a fourth party. The plaintiff, who was a passenger in a vehicle which had been travelling on the highway, stopped to render assistance to the persons in one third party's car and whilst so engaged was injured when a lorry driven by the defendant ran into that third party's car, causing it to strike the plaintiff. The defendant obviously sought contribution from the parties who were involved in the initial collision, which caused the plaintiff to come to the rescue of motorists or passengers in one of the third parties vehicles. At 128, Herron J, after quoting from Cardozo J, went on to say this: "That judgment, I venture to suggest, received the approval of Lord Wright in Bourhill v Young [1942] 2 All ER 396; [1943] AC 562, and in discussing the same broad application of the principles his Lordship said: 'This again shows how the ambit of persons affected by negligence or misconduct may extend beyond persons who are actually subject to physical impact. There may indeed be no one injured in a particular case by actual impact, but still a wrong may be committed to anyone who suffers nervous shock or is injured in an act of rescue.' Also in The Oropesa; Lord v Pacific Steam Navigation Co Ltd [1943] P. 32; [1943] 1 All ER 211; Lord Wright referred to the statement of Lindley LJ in The City of Lincoln (1889) 15 PD 15, that 'reasonable human conduct is part of the ordinary course of things'. Assuming in this case that the plaintiff, Mrs Dwyer, did not act unreasonably, it seems to me that she stands within the principles which I have just stated, and that her right to sue the third party, which is the test under the subsection which I have read, was a matter for the jury to determine and, with great respect, not for his Honour [Brereton J]." 41A more recent exposition of principle is contained in the decision of the House of Lords in White v The Chief Constable of South Yorkshire Police [1999] 2 AC 455. At 498F, Lord Steyn said: "The law has long recognised the moral imperative of encouraging citizens to rescue persons in peril. Those who altruistically expose themselves to danger in an emergency to save others are favoured by the law. A rescue attempt to save someone from danger will be regarded as foreseeable. A duty of care to a rescuer may arise even if the defendant owed no duty to the primary victim, for example, because the latter was a trespasser. If a rescuer is injured in a rescue attempt, a plea of volenti non fit injuria will not avail a wrongdoer. A plea of contributory negligence will usually receive short shrift. A rescuer's act in endangering himself will not be treated as a novus actus interveniens. The meaning given to the concept of a rescuer in these situations is of no assistance in solving the concrete case before the House. Here the question is: who may recover in respect of pure psychiatric harm sustained as a rescuer?" 42It is important in the current matter to bear in mind that when the plaintiff entered the water, he perceived, and is corroborated in this regard by Mr Endres, that the defendant himself was personally in danger. He entered the water with the intention of rescuing the defendant himself. He was quickly disabused of the fact that the defendant was in personal danger, but the defendant's property was still in danger. He needed to swim some eighteen to twenty metres to the defendant's vessel and fix a line to it. The defendant's vessel could then be towed by the Julie through the last line of breakers. 43In so far as the defendant was riding on the upturned hull of his tinny or hanging on to it, the capsized vessel amounted essentially to the traditional round lifesaver ring or a life raft which could be towed out to sea, beyond the breakers, to make it easier for the defendant himself to be rescued. 44The submissions put to me on behalf of the defendant are essentially that there was no danger to the defendant himself and that the procedure engaged in to recover the vessel was foolhardy. However, this all arose in a matter of moments. There is nothing, in my view, to suggest that the action of the plaintiff, to use the terminology of Cardozo J, was "wanton". There was nothing, to use the language of Willmer LJ, to suggest that the plaintiff's actions were "misguided or foolhardy". There is nothing, to use the language of Herron J, to suggest that the plaintiff acted "unreasonably". 45The idea of the rescue, the methodology adopted, was that proposed by Mr Endres, an experienced and professional mariner who was putting his own vessel at risk in carrying out the rescue of the defendant and his vessel. In my view, the distinction drawn by the defendant is not supportable. 46The defendant relies upon the decision of the Second Division of the Court of Session in Malcolm v Dickson [1951] SC 542. In that case, the claimant, or pursuer as she is known in Scots law, claimed damages arising from the death of her late husband on behalf of herself and her daughter. The claimant and her husband and daughter were temporarily residing in a dwelling house where there was a painter working, using a blowlamp. That painter using the blowlamp set the house on fire. The deceased went to an upper room in the house to save certain valuable papers and personal belongings, which he threw from a window out of the house. He then went downstairs and started removing furniture from the lower level of the house, but in the process of that over-taxed himself and died of a stroke. The claimant's original claim was dismissed by Lord Birnam under the Scots equivalent of the ancient common law demurrer. The claimant then appealed to the Second Division of the Court of Session. Her appeal was dismissed unanimously. Essentially, their Lordships found that the cause of action alleged was too remote and therefore that no duty of care was owed. After reciting the law, my fellow clansman, Lord Mackay, went on to say this: "I think the following remarks on the pleadings and the facts, as best the family know them, may afford the solution. (1) The fire started slowly from the sash at an upper window, and went upwards. There is no averment that the first and upper room in which the deceased busied himself, and from which he threw many unspecified objects through the window, was actually enveloped in flames when he did so. Yet, had he in one continuous effort overtaxed himself there, and had forthwith, without more, lost his life, the matter would be possibly within the marginal line. But (2) he finishes or deserts that first job and betakes himself to the ground floor, where he now proceeds (alone) to move out articles of furniture belonging to the owner of the house. He apparently solicited no help thereat. Now the fire by full admission had not descended to this floor, nor does the pursuer even say it was imminently approaching. (3) Though actually a resident in the house, he and his wife were merely temporary guests there, and I cannot hold that it is 'reasonable and probable' to anticipate that a temporary guest or guests, without express invitation or mandate, would jump into such a risk. In other words, the distinction taken by Lord Wright in the Muir case [Muir v The Glasgow Corporation [1943] SC 3] applies, and the very nexus itself of a duty towards such persons may disappear entirely; that is to say, it is not merely that the train of consequences fails within a responsibility once established. (4) No request or mandate from the owner of the imperilled goods is spoken of at any time. (5) The deceased was not, by allegation, affected by the heat of flames, or led into any unreasonable action or exertion by the obstacle of smoke. (6) On the very statements themselves, he subjected himself, with no compelling necessity, to severe continuous exertion, upstairs and down, which caused 'exhaustion'. (7) The pursuer's senior counsel expressly admitted that even in the absence of express allegation on the point, it may, and indeed must, be inferred that his constitution contained some inherent weakness (heart disease?) without which the exhaustion might not have issued in death." 47This case, which is the one relied upon by the defendant, is very different to the current case. Here, when the defendant entered the water off Chinaman's Beach he perceived, validly, that there was danger to the defendant himself. Having committed himself to the water, he then pursued the plan conceived of by the master mariner at the scene, Mr Engres. The time was short, the situation is very different to that in Malcolm v Dickson. Furthermore, I have some difficulty in reconciling what their Lordships said in the Court of Session to what has been said in the United States, in England and in this country. 48The plaintiff is, in my view, entitled to judgment in his favour. The defendant has pleaded contributory negligence, goaded on by what fell from Lord Steyn in White v The Chief Constable of South Yorkshire. I ought give that allegation "short shrift". The defendant says that the plaintiff was negligent in attempting to swim through breaking waves in conditions of darkness while carrying a lengthy rope. He was not carrying a lengthy rope, a towrope was thrown to him, which he would have dragged through the water for some distance, no more than fifteen metres. Lifesavers can, using a belt and reel, tow a line hundreds of metres off shore, swimming against the waves and the tide. I cannot find any substance in that allegation. 49The second allegation of contributory negligence is the plaintiff's failing to have regard to his own swimming capabilities. About that he was not challenged. For all I know the plaintiff is an expert swimmer who could hold his head up in any swimming pool or in any surf race. Furthermore, it is clear the plaintiff's difficulties arose not because he was a poor swimmer but because he became entangled in the anchor rope of the defendant's vessel. I will have more to say about that on the question of damages. 50The final allegation is merely a restatement of the allegation of negligence in that it is an allegation that the plaintiff attended a rescue which was foolhardy in the circumstances. As I have pointed out, what happened here can hardly be described as foolhardy. The plaintiff has not, in my view, been guilty of any contributory negligence and the defendant has failed to make out any contributory negligence on the plaintiff's part. 51The plaintiff is accordingly entitled to recover such damages as he has established as a result of his exertions at Chinaman's Beach on 13 January 2010. * Balance of his Honour's judgement (on damages - pars [51] to [113]) is subject to a suppression order. ********** Amendments 18 September 2013 - Reformatting what is part of quote Amended paragraphs: 40 18 September 2013 - Reformatted what is part of quote Amended paragraphs: 40 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 August 2013