Smith v Perese & Ors [2006] NSWSC 288

Smith v Perese & Ors [2006] NSWSC 288

The first defendant was negligent in failing to keep a proper lookout and in proceeding at an excessive speed given the conditions and knowledge of likely presence of divers, resulting in injury to the plaintiff. The third defendant was vicariously liable as employer. No contributory negligence was established against the plaintiff, as the absence of a dive flag on his float or vessel was not required by regulation or standard practice at the time. Defences under the Civil Liability Act were not made out. The second defendant bore no vicarious, partnership, or agency liability. Liability of the first and third defendants is subject to limitation under the Limitation of Liability for...

Parties
Plaintiff: James Alexander Smith; First Defendant: Benjamin Richard Perese; Second Defendant: Richard Perese; Third Defendant: Perese Abalone Diving Pty Limited, as Trustee of the Perese Family Trust; Cross Defendant: Denis Guy Renton
Jurisdiction
Australia
Judgment Date
21 April 2006
Procedural Posture
Civil Liability—personal Injury / Judgment After Trial; Quantum of Damages to Be Determined at Relisting
Outcome
Judgment for the plaintiff against the first and third defendants; judgment for the second defendant and for the cross defendant; liability of first and third defendants limited; damages not yet finally assessed; costs reserved.
Legal Topics
Negligence, Contributory Negligence, Vicarious Liability, Limitation of Liability for Maritime Claims, Civil Liability Act—dangerous Recreational Activities, Duties of Care on Waterways
Tort Law Maritime Law Negligence Contributory Negligence Vicarious Liability Limitation of Liability for Maritime Claims Civil Liability Act—dangerous Recreational Activities Duties of Care on Waterways

Case Brief

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Parties

James Alexander Smith

Plaintiff

Benjamin Richard Perese

First Defendant

Richard Perese

Second Defendant

Perese Abalone Diving Pty Limited, as Trustee of the Perese Family Trust

Third Defendant

Denis Guy Renton

Cross Defendant

Procedural Posture

Civil Liability—personal Injury / Judgment After Trial; Quantum of Damages to Be Determined at Relisting

Legal Issues

  1. 1 Whether the first defendant was negligent in operating the vessel that struck the plaintiff
  2. 2 Whether the plaintiff was contributorily negligent
  3. 3 Whether defences under the Civil Liability Act 2002 apply

Ratio Decidendi

The first defendant was negligent in failing to keep a proper lookout and in proceeding at an excessive speed given the conditions and knowledge of likely presence of divers, resulting in injury to the plaintiff. The third defendant was vicariously liable as employer. No contributory negligence was established against the plaintiff, as the absence of a dive flag on his float or vessel was not required by regulation or standard practice at the time. Defences under the Civil Liability Act were not made out. The second defendant bore no vicarious, partnership, or agency liability. Liability of the first and third defendants is subject to limitation under the Limitation of Liability for...

Court Disposition

Judgment for the plaintiff against the first and third defendants; judgment for the second defendant and for the cross defendant; liability of first and third defendants limited; damages not yet finally assessed; costs reserved.

Orders

  • Verdict and judgment for the plaintiff against the first and the third defendants in a sum to be determined.
  • Determination that the liability of the first and the third defendants is limited under the Limitation Act and the Convention.