Blackney v Clark [2013] NSWDC 144

Blackney v Clark [2013] NSWDC 144

The defendant negligently allowed his vessel to get so close to the breakers that it was dragged in to shore, a situation which bespeaks negligence and which the defendant did not explain by giving evidence. His conduct created a foreseeable occasion for rescue. The plaintiff entered the water perceiving, with support from the evidence of Mr Endres, that the defendant was personally in danger, and then acted under the rescue plan proposed by an experienced mariner. The plaintiff's actions were not wanton, foolhardy or unreasonable, and the defendant failed to establish contributory negligence. The plaintiff was therefore entitled to judgment and to recover damages established from the...

Jurisdiction
Australia
Judgment Date
29 May 2013
Procedural Posture
Personal Injury Negligence Claim / Principal Judgment After Hearing
Outcome
Verdict and judgment for the plaintiff.
Legal Topics
['rescue' 'duty of Care to Rescuer' 'breach of Duty by Vessel Operator' 'foreseeability of Rescue' 'contributory Negligence' 'res Ipsa Loquitur']
['personal Injury' 'torts' 'negligence'] ['rescue' 'duty of Care to Rescuer' 'breach of Duty by Vessel Operator' 'foreseeability of Rescue' 'contributory Negligence' 'res Ipsa Loquitur']

Case Brief

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Procedural Posture

Personal Injury Negligence Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendant was negligent in allowing his vessel to be washed in to shore by the force of the breakers.' 'Whether the defendant was negligent in attempting to return to sea in a way that resulted in the capsize of his vessel.' "Whether the plaintiff's attempted rescue was a foreseeable consequence of the defendant's negligence." 'Whether the plaintiff was guilty of contributory negligence.']

Ratio Decidendi

The defendant negligently allowed his vessel to get so close to the breakers that it was dragged in to shore, a situation which bespeaks negligence and which the defendant did not explain by giving evidence. His conduct created a foreseeable occasion for rescue. The plaintiff entered the water perceiving, with support from the evidence of Mr Endres, that the defendant was personally in danger, and then acted under the rescue plan proposed by an experienced mariner. The plaintiff's actions were not wanton, foolhardy or unreasonable, and the defendant failed to establish contributory negligence. The plaintiff was therefore entitled to judgment and to recover damages established from the...

Court Disposition

Verdict and judgment for the plaintiff.

Orders

  • ["The plaintiff is entitled to recover such damages as he has established as a result of his exertions at Chinaman's Beach on 13 January 2010."]