Farriss v Axford [2023] NSWCA 255

Farriss v Axford [2023] NSWCA 255

The appeal failed because, assessed prospectively, the reasonable precautions required against the risk that a person might be injured while attempting to free a kinked anchor chain did not extend to installing a chain stripper or extended spurling pipe, given the low probability of harm if the power was off, the absence of prior incidents or complaints, inspections and servicing without recommendations for modification, and existing precautions including safety caps and warnings. The failure-to-warn case failed because the appellants did not establish that any warning had to be given before the charter rather than before the incident, and the evidence did not show that Mr Farriss would...

Jurisdiction
Australia
Judgment Date
26 October 2023
Procedural Posture
Appeal and Cross Appeal in Negligence and Australian Consumer Law Proceedings Arising From Injury on a Chartered Boat / Appeal From Supreme Court of New South Wales, Common Law Division, Decision of Cavanagh J; Appeal and Cross Appeal Dismissed
Outcome
Appeal dismissed; cross-appeal dismissed; appellants ordered to pay the respondents' costs.
Legal Topics
['breach of Duty of Care' 'reasonable Precautions Against Risk of Harm' 'causation' 'failure to Warn' 'consumer Guarantees as to Fitness for Purpose' 'abandoned Claim Raised on Appeal' 'contingent Assessment of Damages']
['negligence' 'consumer Law' 'civil Procedure' 'appeals'] ['breach of Duty of Care' 'reasonable Precautions Against Risk of Harm' 'causation' 'failure to Warn' 'consumer Guarantees as to Fitness for Purpose' 'abandoned Claim Raised on Appeal' 'contingent Assessment of Damages']

Case Brief

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Procedural Posture

Appeal and Cross Appeal in Negligence and Australian Consumer Law Proceedings Arising From Injury on a Chartered Boat / Appeal From Supreme Court of New South Wales, Common Law Division, Decision of Cavanagh J; Appeal and Cross Appeal Dismissed

Legal Issues

  1. 1 ['Whether the respondents breached their duty of care by failing to install a chain stripper and extension of the spurling pipe to prevent the anchor chain from kinking or jamming.' "Whether any failure to take those precautions caused Mr Farriss' injuries." 'Whether the respondents breached their duty by failing to warn Mr Farriss before the charter about risks associated with use of the electric anchoring system and the propensity of the anchor chain to kink.' 'Whether any failure to warn caused the injuries on the basis that Mr Farriss would not have chartered the boat if warned.' 'Whether the appellants should be permitted on appeal to revive an abandoned claim under s 61(1) of the Australian Consumer Law.' 'Whether the charter services were reasonably fit for the purpose of a leisure cruise under s 61(1) of the Australian Consumer Law.']

Ratio Decidendi

The appeal failed because, assessed prospectively, the reasonable precautions required against the risk that a person might be injured while attempting to free a kinked anchor chain did not extend to installing a chain stripper or extended spurling pipe, given the low probability of harm if the power was off, the absence of prior incidents or complaints, inspections and servicing without recommendations for modification, and existing precautions including safety caps and warnings. The failure-to-warn case failed because the appellants did not establish that any warning had to be given before the charter rather than before the incident, and the evidence did not show that Mr Farriss would...

Court Disposition

Appeal dismissed; cross-appeal dismissed; appellants ordered to pay the respondents' costs.

Orders

  • ['Appeal dismissed.' 'Cross-appeal dismissed.' "The appellants are to pay the respondents' costs."]